P. Z. Jones, of Brookhaven, for appellant. Magee, Gibson & Magee, of Monticello, for appellee.

evidence." Without the filling in of this rendered, plaintiff appeals. Reversed in part blank, in a suit based upon this contract, the and affirmed in part. appellant would have been called upon to prove the correctness of the account owing at the time of the execution of the contract. But with this amount inserted this rule of evidence is changed, and this amount is agreed to as being correct in the contract.

This court has committed itself to the rule that an alteration which enlarges the scope of an instrument as a means of evidence is material. Bank of Lauderdale v. Cole, 111 Miss. 39, 71 South 260. The authorities

cited in the opinion in the Cole Case have been carefully examined by us, and they sus

tain this doctrine.

Since this agreement or contract was materially altered, and the liability of these sureties is to be measured by this contract, it follows that the material alteration of it vitiates it, and the sureties are not liable thereon.

The judgment of the lower court is af

firmed.

Affirmed.

LOUIS COHN & BROS. v. LOVELL
BER CO. (No. 23881.)

ETHRIDGE, J. The appellants sued the appellee in trespass in two counts: One for the statutory penalty for the cutting of 45 pine trees and 5 oak trees from the lands of the appellants; and the second count for the actual value of the timber cut, alleging the pleaded the general issue upon each count. value to be $900. The defendant appellee There was no pleading of tender and amends, but at the beginning of the trial before the jury the defendant's counsel made the following statement:

"We want to tender $24.50 to the plaintiff to cover 12,250 feet of timber, the amount claimed by the defendant to have been cut by him, and plaintiff declines to accept the tender."

[1] All of the evidence before the jury is not contained in the record. The stenographer certifying that a certain portion thereof had been lost by reason of his losing his notes of the evidence, one of his note LUM-books used for taking the evidence being lost, and there is no effort or bill of excep

(Supreme Court of Mississippi, Division B. tions taken to show what the missing evi

May 26, 1924.)

(Syllabus by the Court.)

1. Appeal and error 1039 (9)-Wrongfully requiring election by plaintiff between two counts not disturbed in absence of showing enabling determination whether error harm ful.

Where a plaintiff brought a suit for trespass in two counts for cutting timber growing on his land, one for the statutory penalty and the other for actual value, and the court wrongfully required him to elect between the counts, this court cannot, unless the evidence is pre

served in the record, or a bill of exceptions taken, or an agreement of facts made, determine whether such action of the court was prejudicial or not, and cannot reverse unless it appears that the error was harmful.

2. Costs 42(1)—Requisites of tender to authorize taxation of cost against plaintiff on recovery of judgment, stated.

dence is. At the close of the evidence the
defendant moved the court to require the
plaintiffs to elect upon which count they
would proceed, which motion the court sus-
tained, and the plaintiffs elected to stand
The ap
upon the count for actual value.
pellants assign this requirement for election
to be error, and also assign for error that
the court taxed the plaintiffs with half of
the costs.

[2] In Batson-McGehee Co. v. Smith, 98 South. 534, we held that the plaintiff was not required to elect between the two counts, but was entitled to go to the jury and have the jury determine from their finding of the evidence upon which count the plaintiff was entitled to recover, pointing out that questions in these cases frequently turn on the determining of the jury of the facts as to whether the trespass was willful or not. The plaintiff cannot recover both, but is entitled to go to the jury and have the jury determine whether the trespass was willful or not under proper instructions of the court. The appellee says that the appellants are not prejudiced by this ruling because the evi

In a suit for trespass for cutting timber on the land of plaintiff, where defendant after suit brought tenders or offers to pay a named amount as damages, the tender must include cost to date of tender to authorize the court to tax plaintiff with the cost or a part of it where he recovers a judgment, even though the judgment is not for more than the amount ten-dence in no event warranted the jury in finddered. Collier v. White, 67 Miss. 133, 6 South. ing a willful trespass. The record not hav618, cited. ing all of the evidence, we are unable to see whether the facts warranted the court in

Appeal from Circuit Court, Lawrence submitting to the jury the law in regard to County; J. V. Langston, Judge. the statutory penalty, and we must presume Suit by Louis Cohn & Bros. against the where the evidence is not in the record that Lovell Lumber Company. From judgment it supports the verdict, and cannot reverse

(100 So.)

for this error, because it is not apparent that it was harmful to the appellants. We do not think, however, the court below was warranted in taxing the appellants with half the costs. The plaintiff is generally entitled

to full costs where he is successful, and the tender, if it may be called such, was insufficient to preclude appellants' rights because the costs were not tendered. Collier v. White, 67 Miss. 133, 6 South. 618.

and the judgment reversed as to one and affirmed as to another, the principal in the bond as to whom the case is reversed is not liable on the bond, but the sureties are liable where a supersedeas effected by the appeal bond under Code of 1906, § 58 (Hemingway's Code, § 34).

Appeal from Circuit Court, Coahoma County; W. A. Alcorn, Judge.

Suit by P. L. Cobb and another against R.

The judgment will be reversed as to costs M. Wise and W. B. Wise, as partners. Judgbut affirmed in other respects.

Reversed in part; affirmed in part.

WISE et al. v. COBB et al. (No. 23952.) (Supreme Court of Mississippi, Division B. May 26, 1924.)

(Syllabus by the Court.)

1. Partnership 216(1)—Defendant sued as partner by denial of existence of partnership under oath imposes necessity on plaintiff to prove partnership.

ment for plaintiffs, and defendants appeal. Affirmed in part and reversed in part.

Griffing, Griffing & Taylor, of Clarksdale, for appellants.

Maynard, FitzGerald & Venable, of Clarksdale, for appellees.

ETHRIDGE, J. The appellees, Cobb and Fitzgerald, sued R. M. Wise and W. B. Wise, as partners, alleging the assignment of certain accounts by the Wise brothers to the plaintiffs and the guaranty that said accounts were true and correct, and averring that certain items were untrue and incorrect. The instrument relied on as a guaranty reads as follows:

In a suit against two persons as partners, where one of the defendants denies the partnership under oath, the plaintiff must prove the existence of the partnership at the time of the transaction relied upon by him, and unless he so prove it the judgment should be for the de-sissippi, the above listed accounts showing the

fendant.

2. Partnership 285—Guaranty by one partner on selling, after dissolution, accounts of firm held not binding on another partner.

Where a person sells certain accounts formerly belonging to a partnership and signs a written guaranty in his own name guaranteeing the correctness of the accounts, it is the personal contract of such guarantor, and will not bind a former partner who is not a party to the contract.

3. Appeal and error 1173(1)-Partnership

165, 219 (3)—Obligations of partners joint and several; judgment may be rendered against one partner in suit against both; judgment against all partners when evidence authorizes judgment against only one reversed In part and affirmed in part.

"For value received, I hereby transfer and assign to Cobb and Fitzgerald, Jonestown, Mis

amounts due on this date opposite name of
debtor and I guarantee the said accounts, to be
true and correct. Clarksdale, Mississippi, June
29th, 1917.
"[Signed]

W. B. Wise."

There was a denial of the partnership under oath by R. M. Wise. There was also an affidavit denying the indebtedness to the plaintiffs and denying the correctness of the account sued upon; also a plea of the general issue and a plea of the statute of limitation, and a plea of the statute of frauds.

It appears that R. M. Wise and W. B. Wise were formerly partners, and were engaged in business as such at Jonestown, Miss., and that they first sold to Cobb and Fitzgerald their lands, stock of goods, and storehouse in the month of December, 1916. The obligations of partners arising from At the time of this purchase the plaintiffs, the partnership business is joint and sev- Cobb and Fitzgerald, would not buy the eral; and, where a suit is filed against two or book accounts and other partnership securimore persons as partners, and the proof esties. There was no proof that a partnership tablishes the obligation only against one of existed between R. M. Wise and W. B. Wise them, judgment may be rendered against that one; and in case a verdict is rendered against on June 29, 1917, at which date the above all members of a partnership, and a judgment assignment was executed by W. B. Wise. is rendered thereon, but the evidence only auThere is proof in the record by R. M. Wise thorizes the verdict and judgment against one, that the partnership was dissolved after the the Supreme Court will on appeal reverse as sale of the storehouse and goods to the to those who are not liable and affirm as to plaintiffs and that in January, 1917, for a those who are liable on the obligation. nominal consideration R. M. Wise sold to W. 4. Appeal and error 1232-Rule as to liabil- B. Wise his interest in said accounts. There ity on supersedeas bond on affirmance as to was other proof tending to show that W. B. one and reversal as to other principal stated. Wise conducted some kind of business and Where a judgment is rendered against two that goods were sold to him as an individuor more persons, from which an appeal is taken, al. There was some proof in the record that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(100 So.)

have dismissed as to R. M. Wise at any stage of the proceedings before verdict and proceeded against W. B. Wise upon his guaranty. Therefore W. B. Wise is liable, the jury having found that certain of the accounts guaranteed were not true and correct.

[4] It is insisted that the judgment must be affirmed at all events because the appellants executed a joint appeal supersedeas bond, and that both the appellants and the sureties were liable thereon for the amount of the judgment against W. B. Wise, and that it can make no difference whether R. M. Wise was liable or not originally because he is now liable if the judgment against W. B. Wise is valid under section 58, Code of 1906 (Hemingway's Code, § 34), which reads as follows:

"Appeal bonds shall be sufficient if signed by one or more of several appellants, with sureties as required by law, and, in case of the affirmance of the decree or judgment complained of, the judgment of affirmance shall be entered against all the appellants in the same manner as if all had signed such bond. But if the decree or judgment be affirmed as to some and

reversed as to others of said appellants, the

judgment of affirmance shall be entered only against those as to whom it is affirmed, and the sureties on the appeal bond."

And under the case of Terry v. Curd, 66 Miss. 394, 6 South. 229, holding the sureties liable in case the judgment be affirmed as to other parties. This is true of the sureties upon the bond, but it is not true of the appellant R. M. Wise, who signed the bond as a principal, and not as a surety. Not having signed as surety, he is not liable as surety, and is entitled to have the judgment reversed as to him, with his cost.

The judgment will therefore be affirmed as to W. B. Wise and reversed and dismissed as to R. M. Wise under authority of Bank of Philadelphia v. Posey, 130 Miss. 530, 825, 92 South. 840; Id., 130 Miss. 825, 95 South. 134. Affirmed in part; reversed in part.

ADAMS v. BELT et al. (No. 23715.)
(Supreme Court of Mississippi, Division A.
Feb. 4, 1924. Suggestion of Error
Overruled June 2, 1924.)

recital to the contrary in the decree by clear and convincing evidence is on the party attacking the decree.

2. Equity 123-Order for publication of process for nonresident defendants not invalid because not in handwriting or signed by clerk.

An order for the publication of process for nonresident defendants to a suit in chancery made by the clerk of the court pursuant to articles 34, 36, c. 62, Code 1857, is not invalid because it is not in the handwriting nor signed by the clerk and not afterwards approved by

the court in term time.

3. Infants 11-When suit to annul decree
against minor defendants must be brought
stated.

fendants must be brought not later than two
A suit to annul a decree against minor de-
years after the minors have obtained their ma-
jority, unless they are without knowledge of the
rendition of the decree, or of such facts as
would reasonably put them on inquiry and lead
to a discovery thereof.
4. Infants

11-Principle of concealed fraud held not applicable to things openly done or which appear of record.

The principle of concealed fraud has no ap

plication to things that were openly done or which appear of record.

Appeal from Chancery Court, Tallahatchie County; G. E. Williams, Chancellor. Suit by C. I. Belt and others against Joseph C. Adams. From a judgment for plaintiffs, defendant appeals. Reversed and bill dismissed.

Julian C. Wilson, of Memphis, Tenn., and Wells, Stevens & Jones, of Jackson, for appellant.

Cutrer & Smith, of Clarksdale, Woods & Kuykendall, of Charleston, and Evans & Evans, of Sandersville, Ga., for appellees.

SMITH, C. J. The case made by the record is this: In February, 1916, L. Carlton Belt, a citizen and resident of Bullock county, Ga., died seized and possessed of certain land in Tallahatchie county, Miss., leaving as his heirs at law his widow, Elizabeth T. Belt, and three children, Willie B. Belt, Lloyd J. Belt, and Talbot C. Belt, minors. The land was purchased by Belt from W. A. Jenkins, and there remained a balance due by Belt to Jenkins for the purchase money thereof at Belt's death. In September, 1869, Jenkins being then dead, his administratrix, Margaret Jenkins, exhibited a bill in the court below to which the widow and chil430(3)-Burden on party attack-dren of Belt were made parties defendant, ing decree to show failure of service of notice setting forth the amount due by Belt on the by publication on nonresident defendants. purchase price of the land. Belt left a last In a suit to set aside a decree against non-will and testament in which his wife, Elizresident defendants reciting that the defendants had been cited to appear by publication made according to law, on the ground that no legal publication for the defendants had in fact been made, the burden of proving the falsity of the

1. Equity

(Syllabus by the Court.)

abeth T. Belt, is designated as executrix, but which had not been probated in Mississippi, and praying for a sale of the land for the payment of the balance due on the purchase

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"And it further appearing to the satisfaction of this court that D. M. White, former clerk of this court and the commissioner by whom said report of sale has heretofore been deposited in this court has been removed from the clerkship of this court, it is therefore orA demurrer interposed to this bill was susdered, adjudged and decreed that G. A. Nichol-tained but on appeal to this court the deetts, the clerk of this court be appointed the cree was reversed and the cause remanded, commissioner of this court to convey by deed said lands to said purchaser, Elizabeth T. Belt."

as will appear from 124 Miss. 194, 86 South. 584, and 125 Miss. 387, 87 South. 666, whereNicholetts executed a deed to Mrs. Belt in the allegations of the bill are set forth pursuant to this decree, and the land was more in detail than they have been herein. thereafter sold under a mortgage executed On the return of the case to the court beby Mrs. Belt to Eve and purchased by Eve. low Adams answered the bill, and the cause In 1901, 1903 and 1904 Joseph C. Adams, the was heard on bill, answer, and proof resultappellant in the case at bar, became the own- ing in a decree in accordance with the prayer of the land by direct and mesne convey-er of the bill, from which Adams has apances from Eve. He purchased the land after being advised by a competent and reputable attorney, who made an abstract of the title thereof for him, that the title thereto