tradicted by the messenger, who is the only other person who, in the nature of things, could know what authority was given. If, therefore, the messenger made an unconditional deposit, he did so without authority. Moreover, we do not think that the deposit, even if made unconditionally, would have been an acknowledgment of the correctness of the decision of the committee, or anything more than a proper precaution to take under the circumstances.

On the merits, the questions are precisely the same that were considered by this court in the case of Anthony Madere v. Thomas B. Sellers (No. 17,000, recently decided) 45 South. 735; and we see no reason for adding anything to what was there said, except that the learned counsel for defendant seems to consider that the act of plaintiff in taking to his house and keeping for several months the permanent registration roll under the grandfather clause of the Constitution should preclude him from prosecuting this suit. But why so, when it is not shown that the said act was prompted by any wrong motive, or exercised any influence whatever upon the election, since the original of the said permanent roll was at the courthouse and accessible all the time for making out the poli books, and it is not pretended that the poll books were made out differently from what they would have been if said permanent roll had not been at plaintiff's house?

We approve entirely the action of the learned judge a quo in requiring the chairman of the committee to show cause instanter. The proceedings were required to be of the most summary character. The suit had to be filed within 24 hours, tried and decided by the trial court within 3 days after filing, and decided on appeal within 5 days after decision in lower court. The chairman of the committee had no personal interest in the matter, and the state had no interest in the matter beyond such as could be safely left to the decision of the court upon a plain statement made by the chairman of the grounds upon which he and his committee had acted. The chairman knew then and there as well as he would ever know the grounds upon which he and his committee had acted in ordering a new election, and all he had to do was to state those grounds to the court. He had no need of counsel. But, if he had such need, he had already had the full benefit of it, since the counsel employed by him was the same who, as counsel for the other defendant in this suit, as well as in the Madere suit, had been defending the action of the committee. The chairman of the committee was the father of Thomas B. Sellers, the contestee in the Madere suit, and had been present in court throughout the trial of that case, as well as of the present case, while the whole matter of the action of the committee was being thoroughly threshed out, and presumably had acquired all pos

sible additional information attainable in regard to the reasons which had induced him and his fellow members of the committee to set aside the election and order a new election. From the standpoint of the chairman of the committee there was, we repeat, no need of doing more than making a fair statement of the matter to a fair judge. The state and the Democratic Party had no right to expect of him any more than this in the fullest performance of his duty. But, even if he had felt called upon, not simply to litigate the matter in a spirit of fairness, holding the scales even between the candidates, but in a spirit of contentiousness, still there was no need for further time, because the candidates interested in the matter-his son and the defendant in the present case and in the Vial Case-had already, with the assistance of able, zealous, indefatigable, and fearless counsel, made a thorough and exhaustive canvass and presentation of the matter, and he could in all safety content himself with simply adopting and indorsing what had thus been done. In fact, the judge a quo was satisfied, and this court is satisfied, that the granting of delay would not have contributed in the slightest degree towards the discovery of any further defense to be made in the present suit. So far as procuring further evidence was concerned, the judge was willing to grant for that purpose all the time the law would allow him to grant.

Judgment having been rendered by default against the committee, represented by its chairman, no defense of its action is before the court for examination, except in so far as it is contended that the lower court was, and this court is, without jurisdiction to pronounce any judgment in the matter. It is said that the only authority or jurisdiction the courts have in the premises is that conferred by Act No. 49, p. 66, of 1906; that without the said act the court would be without jurisdiction to interfere in the matter of an election within the ranks of a political party; and it is added that the said act confers no authority upon the courts to interfere, except when the committee has declared some candidate to be the nominee, and that in this case the committee has not taken such action.

That interpretation of Act No. 49 does not impress us. True, the statute apparently contemplates action by the courts only in case there is a nominee, since it declares that the court, when asked to review the action of the committee, shall issue a rule requir ing the nominee to show cause; but it would not do, in our opinion, to put upon the statute an interpretation by which a person clearly nominated-one, even, whose election was conceded by his opponents-would be remediless against any arbitrary action of the committee, so long as no one was declared to be the nominee. The provision for a rule upon the nominee has application, in our opinion,

only when there is a nominee. When there is no nominee, and yet ground of complaint, the committee itself must stand in judgment through its chairman.

Judgment affirmed.

(121 La.)

No. 17,005.

VIAL v. ELFER et al.

(Supreme Court of Louisiana.

Feb. 19, 1908.) Appeal from Twenty-Eighth Judicial District Court, Parish of St. Charles; Prentice Ellis Edrington, Judge.

Action by Leon C. Vial against Charles Elfer and others. Judgment for plaintiff, and defendants appeal. Affirmed.

John Curd Wickliffe, for appellants. Robert James Perkins and James Wilkinson, for appellee.

PROVOSTY, J. This case was consolidated for trial with that of J. C. Triche v. Labiche (No. 17,004, this day decided) 46 South. 130. It involves precisely the same issues and facts, except that the office in contest is that of assessor, whereas in the Labiche Case the office in contest was that of clerk of court, and that the majority in this case was much greater than in the other.

For the reasons assigned in the Labiche Case, the judgment appealed from is affirmed, with costs.

(121 La.) No. 16,641.

ALLGEYER et al. v. BOARD OF ASSESS-
ORS et al.
(Supreme Court of Louisiana. March 16, 1908.
Rehearing Denied April 13, 1908.)

PROPERTY SUBJECT

SHARES OF

TAXATION CORPORATION. Under the present revenue laws of this state shares of all corporations, except those engaged in banking, are excluded from assessment and taxation. Chassaniol v. Board of Assessors, The 121 La., 45 South. 604, reaffirmed. Constitution of this state does not require the taxation of both the property and shares of corporations.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 221.]

(Syllabus by the Court.)

Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.

Action by C. E. Allgeyer and others against the board of assessors and others. Judgment for defendants, and plaintiff's appeal. Reversed.

Hall & Monroe, for appellants. George Hitchings Terriberry, for appellee board of assessors. Francis Charles Zacharie (Harry Prentiss Sneed, of counsel), for appellee state tax collector. Henry Garland Duprée, Asst. City Atty., for appellee city of New Orleans.

LAND, J. Plaintiffs sued to annul and cancel the assessments of their respective

shares of the capital stock of the New Orleans Cotton Exchange, on the ground that the revenue laws of the state do not require or authorize the assessment of said shares to There their owners, and for other reasons. was judgment in favor of the defendants, and plaintiffs have appealed.

This case cannot be distinguished in principle from that of Chassaniol v. Board of Assessors (recently decided by this court) 121 La. 45 South. 605, in which we held that shares of stock of the New Orleans Stock Exchange are not taxable under the present revenue laws of this state.

The Legislature of Louisiana has uniformly construed the Constitutions of 1879 and 1898 as not requiring the taxation of both the assets and shares of corporations. Under the provisions of Act No. 77, p. 88, of 1880, requiring the assessment of both the shares and taxable property of all corporations, the direct property taxes were deducted from the taxes assessed to the shares.

Under the provisions of Act No. 106, p. 121, of 1890, only the shares of incorporated banks were taxable, and the corporation was assessed only on its real estate, and the tax thereon was deducted from the taxes assessed to the shares. The same act further provided that all other corporations should be assessed directly upon all property owned by them in the same manner as natural persons. The same provisions were incorporated in Act No. 170, p. 346, of 1898, the present Act No. 66, p. revenue law of this state. 103, of 1906, amending and re-enacting section 28 of said act of 1898, provides for the direct taxation of all corporations, except banks and local life insurance companies, upon all their property not exempt from taxation, and provides for the taxation of such insurance companies on their net admitted assets above liabilities, direct property taxes to be deducted. The result is that the provision of the Constitutions of 1879 and 1898 that "all property shall be taxed in proportion to its value," has been uniformly construed by the Legislature as not requiring the taxation of both the assets and shares of corporations.

The revenue acts of 1880 and of subsequent years, while in express terms levying taxes on all property not especially exempted by the Constitution, have treated shares of stock as representing all the property of the corporation, and vice versa. This construction was also followed by the assessors throughout the state until the year 1966, when the shares of stock of the New Orleans Stock Exchange and of the New Orleans Cotton Exchange were assessed, for the purpose of making a test case.

There is nothing in the language of the Constitution which requires double taxation on the same values. The theory of the defendants' case inevitably leads to the conclusion that all the provisions of our revenue laws since 1879 relative to the taxation of

corporations are unconstitutional, and that both the assets and shares of all corporations, without distinction, should be assessed at their cash value.

The result of such theory would lead to a doubling up of taxation on every corporation in the state, from the bank and railroad to the ordinary business company. We are of the opinion that neither the framers of our Constitution nor the makers of our revenue laws ever contemplated dual taxation of this kind. We see no good reason to change our views as expressed in the Chassaniol Case, supra.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that there be judgment in favor of the plaintiffs, decreeing the assessments of their shares of stock in the New Orleans Cotton Exchange to be null and void, and ordering that the said assessments be canceled from the rolls for the city of New Orleans and parish of Orleans for the year 1906; and it is further ordered that the defendants pay costs in both courts.

MONROE, J., recused.

JACKSON ELECTRIC RY., LIGHT & POW-
ER CO. v. WAYCASTER. (No. 13,222.)
(Supreme Court of Mississippi. April 13, 1908.)
STREET RAILROADS - OPERATION - COLLISION
WITH ANIMALS.

In an action against a street railway company for damages for killing a dog, evidence considered, and held to sustain a judgment for plaintiff.

Appeal from Circuit Court, Hinds County; W. H. Potter, Judge.

Action by A. N. Waycaster against the Jackson Electric Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The facts show that the dog was seen by the motorman trotting down the track about 75 yards ahead of the car; that the motorman sounded his gong, but that the dog paid no attention to it, but continued down the track in front of the car a distance of at least 150 yards. The car was going downgrade on a damp morning, when the track was wet, and when within about half a car length of the dog the motorman attempted to stop the car to prevent running over the dog, but was unable to stop it in time to prevent the accident. The evidence shows that a motorman can stop a car in a car length and a half or two car lengths under ordinary conditions. The court rendered a judgment for $125, and the defendant appeals.

Williamson, Wells & Peyton, for appellant, cite M. & O. R. R. Co. v. Holliday, 79 Miss. 294, 30 South. 820; Railway Co. v. Hawkins, 82 Miss. 209, 34 South. 323; Jones v. Railway Co., 75 Miss. 970, 23 South. 358.

Watkins & Watkins, for appellee, cite St. Louis, etc., R. Co. v. Hauks, 78 Tex. 300, 14 S. W. 691, 11 L. R. A. 383; Marshall v. Dallas Electric R. Co. (Tex. Civ. App.) 73 S. W. 63; Citizens' Rapid Transit Co. v. Dew, 100 Tenn. 317, 45 S. W. 790, 40 L. R. A. 518, 66 Am. St. Rep. 754; Meisch v. Rochester Electric R. Co., 72 Hun (N. Y.) 604, 25 N. Y. Supp. 244; West Chicago Street R. Co. v. Klecka, 94 Ill. App. 346.

CALHOON, J. This record presents a recovery of damages against the appellant, operating a trolley car line, for killing a dog, and it comes here from the finding of the circuit judge, who sat by agreement, the jury being waived, to try the facts as well as the law. The judge gave judgment for the plaintiff, and we do not think his conclusion should be disturbed as to the value of the animal. It was manifestly a very valuable dog, with a high reputation as a hunter.

Under the authorities we think the judge was also right on the law of the case as applied to the facts. This is a widely different case from that of M. & O. R. R. Co. v. Holliday, 79 Miss. 294, 30 South. 820. There the killing was done by a locomotive pulling a heavy freight train in an open prairie threefourths of a mile from a station and where the animal was not seen by the engineer or fireman; they both being engaged in necessary matters about their engine. It is expressly there stated that the observations of that opinion do not apply where a dog was purposely run down, or where the killing was the result of gross negligence. K. C., M. & B. R. R. Co. v. Hawkins, 82 Miss. 209, 34 South. 323, while it refers to the movements of steam railroad trains, is more similar to the case at bar; but even it is not so strong as the one before us. Here the killing was done under circumstances, as the court below believed, showing that, on a public street in the suburbs of the city of Jackson, going downhill on a wet day, the trolley car was following this dog in the center of the track for 150 yards. It is true the bell was ringing all the time; but it is also true that there was no action taken to get the car well in hand, so as to permit of promptly stopping it, until it was nearly on the dog, when there was a vigorous effort to stop, but which came too late.

On the whole case, we see no reason to interfere with the result below. The authorities will be found in the briefs of counsel. Affirmed.

TAYLOR v. ORLANSKY. (No. 13,226.) (Supreme Court of Mississippi. April 27, 1908.) FORCIBLE ENTRY AND DETAINER-PRIOR POSSESSION OF PLAINTIFF.

One who has not had possession of premises himself, or through another under whom he claims, cannot maintain an action of forcible entry and detainer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 23, Forcible Entry and Detainer, §§ 35, 36.] Suggestion of er

On suggestion of error. ror overruled.

For former opinion, see 46 South. 50.

WHITFIELD, C. J. The trouble with the learned counsel filing the suggestion of error in this cause is that they carelessly read the opinion of the court and completely misconceived it. We said in that opinion that plaintiff could not maintain the action of unlawful detainer on the facts of the case, since he had never been deprived of the possession of the building, nor had any one under whom he claimed been in possession. This last clause of the opinion counsel seem entirely to have ignored in their suggestion of error, and yet it is the vital thing in the opinion.

The contention of counsel is simply that any one who has a right of possession by contract to a piece of land is entitled to bring this action of unlawful detainer under our statute. This is a manifest misconception. Counsel puts this illustration: "Suppose A., holding the legal title to a tract of land, makes a lease of the same to B. for 10 years; C. at the time being in actual adverse possession of the land. B., having the right of possession, brings his action of ejectment against C., and obtains possession of the property. Does this court hold that, at the expiration of the 10-year lease which A. executed to B., A. could not bring his action of unlawful detainer against B. and obtain possession of the land, for the reason that he (A.) had never been in occupation of the same?" Most manifestly not; nor was there a solitary syllable in the opinion of this court from which any such inference could have been drawn. In the case stated by counsel, B. would become the tenant of A., having actual possession under A. when he recovered in ejectment, and from that time on B.'s possession is A.'s possession, and, of course, if B., having been put into possession thus under A., after the expiration of his contract withheld possession, A. could bring unlawful detainer. In such a case A. had the possession through his tenant, B., from the time of recovery in ejectment. We did not say in the opinion-no such thing was dreamed of-that a plaintiff in unlawful detainer must himself once have had actual possession. We said that such plaintiff must himself once have had actual possession, or some person through whom he claims or some person holding for him must once have had actual possession. Surely counsel so eminent as the one filing this suggestion of error ought to

have seen and appreciated this simple statement of the law.

But counsel cite three cases in support of their contention: Spears v. McKay, Walk. 265, Cummings v. Kilpatrick, 23 Miss. 106, and Rabe v. Fyler, 10 Smedes & M. 441, 48 Am. Dec. 763. These authorities directly support the opinion of the court, and furnish not the slightest countenance to the contention of the appellee. In Spears v. McKay there was nothing involved or decided, as shown on page 266, top of the page, except that the court below had erred in excluding certain evidence offered by the plaintiff to show his right of possession. That is absolutely all decided by the court in the case. It might very well have been that this proffered evidence would have shown previous possession of the premises in the plaintiff, or in some one under whom he claimed, or in some one claiming for him. In Cummings v. Kilpatrick, the court expressly said, at page 119: "If it be conceded that the remedy provided is not limited to cases where the party in possession has originally entered under a title which gives only a temporary or defeasible estate, or where the relation between the plaintiff and defendant may be considered in law that of landlord and tenant, but that it was designed to apply to all cases where the plaintiff shall assert a right to the possession against the occupant of the premises, the remedy of unlawful detainer would be as broad and comprehensive as that by ejectment." And this rejected contention is precisely the contention of the counsel for appellee in this case. Again, the third paragraph of the syllabus in the case of Cummings v. Kilpatrick states the exact doctrine we set out in the opinion in this case. In Rabe v. Fyler, 10 Smedes & M. 441, 48 Am. Dec. 763, again it perfectly appears that the plaintiff had the right of possession through his grantor, who was the landlord of the tenant. The court, in Cummings v. Kilpatrick, 23 Miss. 121, put this case on its true ground. It is there said: "In Rabe v. Fyler, proof was introduced showing that Rabe had held possession of the premises in controversy as tenant of the Agricultural Bank. Fyler was the grantee of the bank by a deed of conveyance constituting him a trustee for certain purposes, and as such had succeeded to the rights, and had taken the place, of Rabe's landlord. Hence the introduction of the deed to Fyler, in connection with proof of Rabe's attornment to him, was perfectly proper, under the circumstances; not, however, for the purpose of proving title in Fyler, and thence deducing his right of possession, but to establish the fact that the relation of landlord and tenant existed between them." Of course, Fyler derived his right to maintain this action as an assignee of the bank, which had leased the premises to the tenant,' Rabe. All three of the cases cited by the counsel for appellee are conclusive against him.

We have said more than we intended to

(Supreme Court of Mississippi. April 27, 1908.) HOMICIDE-ASSAULT WITH INTENT TO KILLCONVICTION OF SIMPLE ASSAULT.

In a prosecution for assault and battery with intent to kill, where the state's evidence showed that accused shot his wife in the head with a pistol after she had gone to bed, and it was corroborated by the bullet wound in his wife's head and bullet hole in the wall, while accused and another witness, who was present at the time of the alleged shooting, denied that there was any shooting at all, it was error to convict of simple assault and battery, but there could only be a conviction of the crime charged, or an acquittal.

Appeal from Circuit Court, Calhoun County; J. T. Dunn, Judge.

Henry Bailey was prosecuted for assault and battery with intent to kill and murder, and from a conviction of simple assault and battery appeals. Reversed and remanded.

Appellant was indicted for assault and battery with intent to kill and murder, and convicted of simple assault and battery, and from that conviction prosecutes this appeal. The testimony for the state shows that the defendant shot his wife in the head with a pistol after she had gone to bed, and, this is corroborated by the bullet wound in his wife's head and bullet hole in the wall. Defendant and another witness, who was present at the time of the alleged shooting, deny that there was any shooting at all. The case went to a jury, and a verdict was returned of simple assault and battery. Creekmore & Stone, for appellant. Butler, Asst. Atty. Gen., for the State

Geo.

certain improvements on the land, and that they would guarantee performance, as to all of which the deeds were silent, cannot be maintained, since its effect would be to add to the written contract, as expressed by the deeds, such matters of oral agreement.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1719–1728.]

Appeal from Circuit Court, Lee County; E. O. Sykes, Judge.

Trespass on the case by B. F. Ballard against R. T. and W. T. Brown. Judgment Affor defendants, and plaintiff appeals. firmed.

Clayton & Clayton, for appellant. Guy Mitchell, for appellees.

CALHOON, J. Appellant and appellees exchanged pieces of real estate owned by them separately. The deeds of exchange were warranty deeds based on the exchange simply. While not material to the case before us, it may be proper to say that the appellant, Ballard, sold the piece he got by the exchange not very long afterwards at a profit of $450. Subsequently he brought this action of trespass on the case, in which he wants $500 damages, because he avers that "in order to induce him to make the trade the defendants falsely and fraudulently represented to him that they had a written contract with one J. T. O'Neal, by which O'Neal was to clear and put in cultivation 33 acres of land on the place during the year 1904, and cultivate it, and to inclose the entire 80 acres with a threestrand wire fence, and build a crib and stable, and sink a well, and that they would guarantee that O'Neal would comply with that contract and put these improvements on the land, and that they would mail to him a copy of that written contract with O'Neal, with their written guaranty that O'Neal would carry out the contract, and that the improvements would be made on the 80-acre tract," but that in fact the defendants never had any contract with O'Neal, and did not send in the copy of any contract guaranteed by them, and that the work was never done, and the land because of that was worth $500 less. The second count of the declaration is practically the same as the one just described, and in it it is averred that Ballard relied on these statements and believed them to be true, "and said statements materially added to the reason for said exchange of land," and the improvements would have increased the value of the land the $500 which is claimed in the action.

As we have said, both the deeds are silent as to improvements. It turns out in the proof and is admitted by Ballard that the house and crib were built and that the well was bored, so the claim for damages is practically reduced to the fact that the wire fence was not constructed around the 80 acres of land and the clearing and cultivation of some 12 or 13 acres had not been done. As we have said, the two warranty deeds are entirely