than $300 in an account and past-due note against the life tenant, has not bought in good faith, and paid the price, within the protection of the one-year statute (Code 1871, § 2173) against the remainder-men.

2. One who, being dissatisfied with the title offered by the vendor, has an attorney examine it, to find out certainly what it is, is not a bona fide purchaser.

3. When a life tenant has assumed to sell the remainder, the possession of the purchaser with notice is not adverse to the remainder till the life tenant's decease.

4. The tenant of a life estate, who has made permanent and valuable improvements, has no claim for reimbursement on the remainder-men.

Appeal from chancery court, Carroll county; T. B. Graham, Chancellor.

In chancery. Bill by E. V. Parker and others against R. C. Wilson to quiet title to land. Decree for complainants. Defendant appeals. Affirmed.

Sweatman, Trotter & Knox, for appellant. Somerville & McClurg, for appellees.

WOODS, J. There are three assignments of error presented: (1) The court below erred in sustaining exceptions to defendant's answer; (2) the court below erred in sustaining the demurrer to defendant's cross bill; and (3) the court erred in rendering the final decree. The general examination of the grounds underlying the third assignment will render supererogatory any particular and specific consideration of the first and second assignments of error. The bill and the answer show that L. W. Herring had no contract of sale with C. T. Foster. Whether a deed of conveyance was executed by Herring to Cyril Foster, as the bill alleges, or a bond for title only was made between the parties, as charged in the answer, the legal result is the same. Cyril Foster was the holder of the legal or the equitable title to the premises, in litigation now, and C. T. Foster had no sort of claim prior to the conveyance to him by Cyril Foster of a life estate, with an estate in remainder in the appellees, the children of C. T. Foster. This conveyance he accepted, and under it entered upon possession of the premises. Subsequently, this life tenant accepted a conveyance from C. M. Vaiden, executor of Herring, then deceased, reciting the sale from Herring to Cyril Foster, in their lifetime; and in this second conveyance, accepted and put to record by the said C. T. Foster, a life estate is conveyed to him, with remainder to his children. These two conveyances clearly disclose the character of C. T. Foster's title; nor did he, in any way, ever assert any claim adverse to the remaindermen. The counsel for appellant is therefore in error in supposing that the fee to the lots was ever in C. T. Foster.

It is vain to discuss the power of the chancery court of Yalobusha county to make the decree of November 12, 1873, for the sale of the lots. There is a total want of any evidence of any sale authorized by the decree,

and there is abundant record proof that no sale under said decree was ever reported t or confirmed by that court. To waste words in the discussion of the character of such a judicial sale as this pretended one is shown to have been is idle. The sale was void, and the purchaser thereof acquired no title. But was the purchase money of $533 for the premises paid, and was the sale made in good faith, whereby the appellant is entitled to invoke the protection of the short statute of limitations of one year, provided in section 2173, Code 1871? The undisputed evidence shows that about $98 of the purchase price was not paid in money at all, but was accounted for by a debt of that amount due from C. T. Foster to Rogan, the purchaser, by open account. The strong probability, from all the evidence, is that to this open account was added a past-due promissory note of C. T. Foster, in favor of Rogan, for more than $200, whereby it is made reasonably certain that about $300 of the purchase price was not paid in money at all. We agree with the able and learned chancellor who heard and determined this cause in holding that the sale was not made in good faith. The entire record marks the whole transaction, from first to last, with bad faith. It was plainly a fraudulent scheme to destroy the estate in remainder of the appellees by the life tenant and his creditor,- a scheme which involved the appropriation of the remainder to the payment of the debts of the life tenant. The appellant has only such title as the fraudulent purchaser from the life tenant acquired, and the character of this title he must be held to have known; for he shows by his own deposition that, dissatisfied, as well he might have been, by the statement of Rogan as to the condition of the title to the property which Rogan desired to sell to him, and with the showing which Rogan made before him of documentary evidence, he had an attorney make an examination, in order to ascertain certainly what title Rogan had, and its force and value. The effort to vindicate the sale by attempting to show the value of the estate of the life tenant, the expectancy of life being shown by mortuary tables, and the rental value of the property estimated during the period of his life expectancy, and hence that C. T. Foster received in his own paper, in the sale to Rogan, less than the present cash value of his life estate, is utterly unmaintainable. C. T. Foster was entitled, not to an estate to be literally cut out of the property, and to be dissipated and lost, but to the use and enjoyment of the entire property during the period of his natural life; and, upon his death, the remainder-men were entitled to the whole estate in fee, without dissipation or dismemberment. The appellees are not barred by the statute of limitations of one year, contained in section 2173, Code 1871.

Is the suit of appellees barred by the

general statute of limitations of 10 years? It is admitted with perfect frankness by counsel for appellant that generally the statute of limitations begins to run against remainder-men only upon the termination of the life estate. The effort of counsel is, however, to show that the case at bar, in its facts, falls within one of the exceptions to the general rule. There can be no presumption of acquiescence by the remainder-men in this case in any assertion, real or supposed, of title to the estate in remainder by the life tenant, or his vendee. All the facts and inferences from the facts negative any such presumption of acquiescence on the part of the appellees.

It is contended, though, that in the case in hand this very title sold, and now claimed by the appellant, was the remainder, and that his possession and title were adverse to the remainder-men, and, therefore, that the 10-years statute of limitations imparts security to appellees' title. This contention overlooks the taint of fraud which vitiated the sale to Rogan, and rendered void the title he acquired to anything except the life estate of his vendor. The remainder-men, with full and correct understanding of their rights, regarded Rogan and his vendee, the appellant, as merely tenants of the life estate of C. T. Foster, and not as those asserting title to the estate in remainder adversely to them. The life estate of appellant terminated by the death of C. T. Foster, in the year 1891, and the statute of limitations of 10 years then first began to run. The vice of the contention is in omitting all -consideration of the fact that the pretended judicial sale was void, and that no title passed to any estate other than that of the life tenant. The tenant of a life estate, making permanent and valuable improvements, can have no claim upon the remainder-men for reimbursement. The improvements were made upon his own estate, for its better enjoyment by him, and presumably with full knowledge of the right in the remaindermen to the entire estate, with all its improvements, upon the termination of the life estate. The life tenant, in making improvements, does not expend his money for another's use and advantage, but for his own. It would be as plausible to insist upon the payment of rents by the life tenant when he demands the value of the improve ments he has made upon the property. Affirmed.

cused's admissions that he had slapped her around, and whipped her with a board, and of some small bruises on her person.

Appeal from circuit court, La Fayette county; Eugene Johnson, Judge.

Milus Harr, convicted of assault with intent to kill, appeals. Reversed.

M. A. Montgomery, for appellant. Frank Johnston, Atty. Gen., for the State.

WOODS, J. We are reluctant to disturb a verdict upon the sole ground of the insufficiency of the evidence to support it; but, when there is a palpable failure of proof to warrant the particular verdict rendered, duty requires us to interpose, and reverse the judgment founded upon it. The evidence in this case is either wholly circumstantial, or it is in the nature of a confession. There is no direct testimony to any single blow, by stick or other instrument, inflicted by the accused upon his wife, as charged in the indictment. There is evidence of outcries by the wife, and of an exclamation indicating that she was enduring violence at the hands of some one, and an incriminating reply to this exclamation by that one. There was evidence that the accused had stated that he had slapped his wife around, as testified by one witness, and that he had whipped her with a board, as testified by another witness; and there was evidence of a small bruise on the right temple, and others, of like description, on the arm, the shoulder, and the knees of the wife. Giving these pieces of evidence all the weight which they seem to be fairly entitled to, there is yet wanting adequate proof of any intention to take life. There is abundant evidence in the testimony adduced for the prosecution to justify a verdict for an assault and battery, and an assault and battery so aggravated as to demand the imposition of severe punishment. The suggestion in the evidence of a belief among the humbler class of our colored population of a fancied right in the husband to chastise the wife in moderation makes it proper for us to say that this brutality found in the ancient common law, though strangely recognized in Bradley v. State, Walk. (Miss.) 156, has never since received countenance; and it is superfluous to now say that the blind adherence shown in that case to revolting precedent has long been utterly repudiated, in the administration of criminal

law in our courts. Reversed and remanded.

HARRIS v. STATE.

(Supreme Court of Mississippi. Jan. 1, 1894.) ASSAULT WITH INTENT TO KILL-EVIDence.

A husband cannot be convicted of assault with intent to kill his wife on mere evidence of her outcries and exclamations, indicating that some one was assaulting her, and of an incriminating answer by that one, and of ac

LADD v. ALCORN. (Supreme Court of Mississippi. Dec. 18, 1893.) CHATTEL MORTGAGES-RECORDING-REMOVAL OF CHATTELS.

Code 1880, § 1210, avoiding, as to bona fide purchasers for value, deeds of trust on chattels moved out of the county of record with the beneficiary's consent, unless the deeds be re-recorded in the county whither the chattels are re

moved, does not apply where the purchaser's title accrued in the county of record, though the chattel was delivered to him in another, and kept by him in a third.

Appeal from circuit court, Coahoma county; R. W. Williamson, Judge.

"To be officially reported."

Action by H. T. Ladd, trustee, against W. A. Alcorn, Sr., for recovery of a horse. Judgment for defendant. Plaintiff appeals. Re

versed.

D. A. Scott, for appellant. Cook & Anderson, for appellee.

CAMPBELL, C. J. That Alcorn was a purchaser in good faith of the horse cannot exert any influence on the case, nor does the fact that he got him as the result of a raffle. Alcorn's title was acquired in Yalobusha county, where the deed of trust was recorded, and, if it was constructive notice by reason of its filing in that county, he was bound by that notice. The circumstances that he actually received the horse in Tallabatchie county, and held him in Coahoma county for years, do not affect the real questions in the case, which are: "Was the deed so acknowledged and certified as to be entitled to be recorded?" and, "Was Sayle authorized by the beneficiaries in the deed of trust to dispose of the horse?" The certificate of acknowledgment was sufficient to entitle the deed of trust to be recorded. Russ v. Wingate, 30 Miss. 440. Whether Sayle was authorized to dispose of the horse was a controverted question of fact, which should have been left to the jury. Section 1210 of the Code of 1880, which, we suppose, led to the confusion about purchasing for a valuable consideration without notice, has no sort of application to a title accrued in the county in which the writing is recorded. Reversed, and remanded for a new trial.

LOUISVILLE, N. O. & T. RY. CO. v. VAN EATON.

(Supreme Court of Mississippi. Dec. 18, 1893.) TRIAL-CONDUCT-READING AFFIDAVIT FOR CON

TINUANCE.

It was error to permit counsel to read to the jury and comment on the adverse counsel's affidavit for continuance at a former term, and the prejudice was aggravated by the court's answer to objection that the affidavit might be used, since it was part of the record.

Appeal from circuit court, Tunica county; R. W. Williamson, Judge.

Action by T. H. Van Eaton against the Louisville, New Orleans & Texas Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Mayer & Harris, for appellant. J. W. & W. D. Cutrer, for appellee.

COOPER, J. The affidavit made by counsel for appellant at a previous term of the court on an application for a continuance

was not competent evidence of any fact involved in the issue between the parties, nor was it introduced as evidence. Counsel for appellee had, therefore, no right to read it to the jury, nor to comment upon the facts therein set forth as evidence. The injury to the defendant by so doing was aggravated by the statement of the presiding judge, when, in reply to the objection of the defendant's counsel to the course being pursued by counsel for plaintiff, he said that the affidavit was a part of the record, and, as such, permitted counsel for plaintiff to use it. Judgment reversed.

LOW v. COLEMAN.

(Supreme Court of Mississippi. Dec. 18, 1893.) CHATTEL MORTGAGES-PAYMENT.

A debt secured by a deed of trust is not satisfied by the creditor's breach of his agreement with the debtor to take certain notes in satisfaction thereof.

Appeal from circuit court, Carroll county; C. H. Campbell, Judge.

From a judgment for S. R. Coleman, D. R. Low appeals. Affirmed.

Somerville & McClurg, for appellant. S. R. Coleman, in pro. per.

CAMPBELL, C. J. The alleged violation by Coleman of his agreement with Carr to accept certain notes in settlement of Carr's indebtedness was not a satisfaction of the debt, and, if all that Carr claims as to that is true, the deed of trust was not in any manner affected by it, and remained in full force. The only other question is whether any person authorized to give such consent consented that Carr might sell the jack as he did, and the evidence is clear that he did not have any such authority, and that is all there is in the case. Everything else that was put into it was irrelevant and immaterial, and the judgment must be affirmed, as no other result is admissible on the undisputed facts. Affirmed.

1. Const. § 244, provides that every elector shall be able to read the constitution. Section 264 provides that a juror must be a qualified elector, and able to read and write. Held, that a juror who cannot read and write is disqualified, though a registered elector.

2. A juror was not "impartial," who had heard parts of a former trial of the case, declared that he had a "fixed and definite opinion," and would not say positively that he could try the case as though he had no opinion.

3. An instruction for the state in a crim

inal trial is objectionable which tells the jury that the reported evidence of deceased witnesses is entitled to the same consideration as if they had testified before the jury.

4. Where the trial court has given the first six, eight, or ten instructions asked by a party, and refused any more, the supreme court will not consider errors assigned as to the refused instructions, unless it appears that the jury were not furnished a sufficient guide for their proper determination of the case.

Appeal from circuit court, Holmes county; C. H. Campbell, Judge.

Bedford Mabry was convicted of murder, and appeals. Reversed.

Hooker & Wilson, for appellant. Frank Johnston, Atty. Gen., for the State.

CAMPBELL, C. J. The juror Shoemaker did not come up to the constitutional requirement. He was not a qualified elector, for he could not write, and read any section of the constitution. He was a registered voter, it is true, but that does not satisfy the com stitution, which declares that "no person shall be a grand or petit juror, unless a qualified elector, and able to read and write." Section 264. And by section 244 it provides that every elector shall "be able to read any section of the constitution of this state," thereby prescribing the standard of capacity to read, so that it is not left uncertain what is meant by "able to read," as used in section 264. Section 2354, Code 1892, in prescribing who are competent jurors, makes a "duly-registered" voter the equivalent of a qualified elector, and is, in this, unconstitutional, as we have shown in several decisions during this term, since one may be duly registered, and not a qualified elector. It is unnecessary now to decide the effect of the offer of the district attorney to the counsel of the defendant to excuse Shoemaker after he had been seated in the jury box, If any doubt arose as to the competency of the juror, the court should have set him aside, as it had full power to do, without error, at any time before evidence was submitted.

The juror Hyman, who had heard parts of the former trial of the case, and declared he had a "fixed and definite opinion," and would not say positively that he could try the case as though he had no opinion, did not meet the requirement of an impartial juror. No doubt the judge found difficulty in securing jurors, in view of the habit of men to come near to perjury, and sometimes, perhaps, commit it, to escape the horrid service as jurors in capital cases, and concluded, as this man did not know whether he had conscientious scruples as to capital punishment or not, that his "fixed and definite opinion" did not stand in the way of his being impartial; but it is the safer course always to reject one who swears he has such an opinion.

The eighth instruction for the state is objectionable as telling the jury that the reported evidence of the deceased witnesses was entitled to the same consideration as if they had testified before the jury.

The first 32 instructions asked by the accused were given, and the next 7 were refused. We draw the line far this side of 32 instructions on one side. Life is too short, and time too precious, to be expended in dealing with 53 instructions, or any such number, in one case; and, as all terrestrial things have limits, we have determined to announce that where the court, in any case, has given the first 6, 8, or 10 instructions asked by a party, and refused any more, we will not consider errors assigned as to such refused instructions, unless it shall appear that the jury was not furnished a sufficient guide for their proper determination of the case. The courts have just as much right to limit instructions to a proper number as they have to limit argument within proper limits, and it should be done with proper caution to avoid injustice; and they will be sustained in this course by this court, by its refusal to consider errors predicated of the refusal of the trial courts to grant an unnecessary and unreasonable number of instructions, whereby jurors are confused often, and judges entrapped into error, after being worried with attention to the many instructions preceding, and much valuable time is wasted by counsel and judges in disposing of the case.

All the testimony of what Rials said or did as to the selling or disposing of his gun was incompetent. The testimony of the woman Seitzler, about the night occurrence at White's, ought not to have been admitted as evidence; but the record does not show any objection to it when offered and given, and it was too late to raise an objection by motion to exclude, after having experimented with it in the way shown. The supposed infidelity of the wife of Rials, and his quarrels with her, and what he said to her, or did to her, in Arkansas or Mississippi, had no proper place in the case. The accused was on trial for murder, and all the miserable "stuff" about the wife and her husband's treatment of her should have been excluded, as much of it was. The only error was in not excluding all of it. What Rials said to Mabry, and what they each said and did to each other, and any declarations evincive of the purpose of one towards the other, within the well-known legal rules, were admissible; but it was not proper to try Rials' wife or Mabry for illicit intercourse, for that was not the issue joined. Reversed, and remanded for a new trial.