"The court instructs the jury for plaintiffs in this case that, if they believe from the evidence that the conduct of the defendants in this case was marked by oppression or willful wrong, then they are not confined to the award of actual damages, but may also award punitive damages in such sum not exceeding five thousand dollars as they may think warranted by the proven facts and circumstances."

There was a verdict for the plaintiffs for twenty-six dollars actual damages, and for one thousand dollars punitive damages.

There are numerous assignments of error, but we deem it necessary to discuss only one, and that is whether or not the circuit court of Jefferson county had jurisdiction of the suit. The evidence shows that the defendants lived in Jefferson county, and, for the purpose of this decision, we assume the trespass was shown to have been made upon that part of the land situated in Franklin county lying between the county line and the little creek known as Hays creek, though the evidence would probably warrant the jury in finding that the defendants also entered the land in Jefferson county.

Section 707, Code of 1906, section 486, Hemingway's Code, governs the question of jurisdiction and reads as follows:

"Civil action of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant, or any of them, may be found, except where otherwise provided, and except actions of ejectment and actions of trespass on land, and actions for the statutory penalty of cutting and boxing trees and firing woods, and actions for the actual value of trees cut, which shall be brought in the county where the land, or some part thereof, is situated; but if the land be in two or more counties, and the defendant resides in either of them, the action shall be brought in the county of his residence, and in such cases process

122 Miss.-33.

may be issued against the defendant to any other county. If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, the venue shall be changed on his application, to the county of his household and residence."

It will be seen from a reading of this section that suits for trespass on lands shall be brought in the county where the land, or some part of it, is situated; but if the land be in two or more counties, and the defendant resided in either of them, the action shall be brought in the county of his residence.

It will be noted that the venue depends upon the location of the land, and that if the land is partly situated in two counties, and the defendant resides in one of the counties, that the suit must be brought in that county where the defendant resides. The statute does not say that suit shall be brought in the county where the trespass occurred. It contemplates that the action is for the entry of a tract of land, or for trespass upon a tract of land, and we do not think that the plaintiff must track the trespasser and have a survey made to determine on what land the tracks or injury may be situated. The action at common law was for the entry of a close, or for a trespass upon a close, which is another way of saying upon a tract of land. In the present case the tract of land described in the plaintiffs' declaration lies in two counties but constitutes one field or close.

We think the suit was properly brought and that where a plaintiff has a close or farm situated in two counties, and a defendant trespasses thereon, and the defendant lives in one of the counties, the suit must be brought where the defendant lives, even though the trespass actually committed may have been upon that part of the land situated in the other county.

We think the evidence warrants a verdict, and that there was no error committed in the trial sufficient to reverse the cause. The judgment is accordingly affirmed.

Affirmed.

122 Miss.]

Syllabus.

WILKINSON COUNTY V. TILLERY.

[84 South. 465. In Banc. No. 21126.]

1. COUNTIES. Practice on appeal from decision of supervisors stated. Section 80, Code of 1906 (section 60, Hemingway's Code), gives a right of appeal to any person aggrieved by a judgment or decision of a board of supervisors and requires that the bill of exceptions embodying the facts as duly presented shall be signed by the person acting as president of the board.

2. APPEAL AND ERROR. Petitioner for wrrit of certirari to bring up reccord has burden to duly perfect proceedings.

Where petition for writ of certiorari to require the sending up of an unsigned alleged bill of exceptions from an order of the board of supervisors is contested by answer, which denies its correctness and alleges that it was not signed nor agreed to as being correct, the burden of proof is upon the petitioner to show its approval by the person acting as president of the board, and in the absence of such proof the petition should be denied.

APPEAL from Circuit Court of Wilkinson County.
HON. R. E. JACKSON, Judge.

B. Tillery presented a claim to the board of supervisors of Wilkinson county and after its disallowance, filed with the clerk of the board a petition for an appeal from the order, whereupon the clerk sent to the circuit court a record showing the claim and the order rejecting it, and thereafter claimant petitioned for a writ of certiorari to the clerk of the board of supervisors, requiring him to send up an alleged unsigned bill of exceptions as part of the record. The county's motion to quash the unsigned bill of exceptions when sent up was overruled, and there was a verdict and judgment for claimant, and the county appeals. Reversed, and cause dismissed.

Brief for Appellant.

David C. Bramlett, Jr., for appellant.

[122 Miss.

Writ of certiorari barred by law. This claim was disallowed by the board of supervisors in June, 1918. The petition for a writ of certiorari was not filed until March 10, 1919, nor was the petition sworn to by appellee until said date, and neither was the bond filed until March 10, 1919.

Section 72, Hemingway's Code, provides: "All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may within six months thereafter, on good cause shown by petition, supported by affidavit, be removed to the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party in all cases, giving bond."

Section 73, Hemingway's Code, provides: "Like proceedings as provided in the last section may be had to review the judgments of all tribunals inferior to the circuit court, whether an appeal be provided by law from the judgment sought to be revived or not."

The writ of certiorari is clearly barred and the court below erred in issuing or ordering the same, and also erred in not sustaining appellant's motion to quash same after issuance.

We respectfully submit that on this ground this case must be reversed and dismissed.

Ackland H. Jones, for appellee.

The cow of the appellee having been killed in the process of dipping, claim was filed for the same before the board of supervisors of Wilkinson county. The claim coming on for hearing, appellee produced his witnesses before the board, and their testimony was there given. There was no other testimony. The board of supervisors, by vote of three to two, rejected the claim and thereupon the appellee presented his bill of exceptions for signature

by the president. On this presentation, the board by a vote again of three to two, withdrew their rejection, declined to enter any order on the minutes, and continued the case.

At June Term, 1918, following the board of supervisors, without any further testimony, again rejected the claim and the appellee again tendered his bill of exceptions for signature, but the president of the board refused to sign.

Appeal was had to the circuit court. When the case was reached in the circuit court appellee filed a suggestion of diminution of record, and prayed for a writ of certiorari in order to make the record complete.

This was opposed by appellant, but on the hearing, the motion was sustained, and the writ ordered to issue, the clerk of the board of supervisors being directed to send up the bill of exceptions filed with him, and being the one taken by the appellee to the action of the board in rejecting his claim.

That this was correct is clearly shown by the case of Polk v. City of Hattiesburg, 109 Miss. 872, and Polk v. City of Hattiesburg, 110 Miss. 80. In this case, the answer of the appellant to suggestion of appellee for the writ of certiorari denied the facts set up in that suggestion; the suggestion, however, was sworn to, and the answer was not, but the court heard the matter, considered the argument of counsel, and decided that the appellee here had done all that he could do in perfecting his appeal; had complied with the statute, and that the refusal of the president of the board of the supervisors to sign the bill of exceptions was unauthorized and illegal and so granted the writ, and required the clerk of the board of supervisors to send it up.

This bill of exceptions being returned to the circuit court, the record was then complete and the case was ready for trial, the court sitting as an appellate court. A motion to quash this was made, but this was by the court overruled.