Johnson, whose duty it was, by direction of the company, through its superintendent, to get on all trains at certain points, and observe, and cause to be arrested and tried, all persons jumping on or off a moving train. His instructions made no exception in favor of passengers. The next morning after Mr. Kuhn had stepped from the train, Mr. Johnson made an affidavit before a justice of the peace, charging him with willfully jumping from a moving train. This affidavit was void, and charged no offense, in that it did not charge that Mr. Kuhn was not a passenger or employé. Nevertheless, on it the justice issued his warrant of arrest, and his special constable arrested Mr. Kuhn and marched him to the office of the justice of the peace, where he was tried under the prosecution of appellant, through its employé, Johnson, convicted by the justice, and sentenced to pay a fine, and, in default of its payment, that he be sent to jail; and he found it difficult to obtain time to make an appeal bond. But for the intervention of a bystander, it seems, he would have been incontinently bunIdled off to jail. He was restrained of his liberty about one hour and a half. On his appeal the case against him was, of course, kicked out of court. Pending his appeal he saw Mr. Ford, the superintendent, who laughed at him, and said the arrest was under his general instructions to the employé, Johnson, and that the railroad had a law of its own,-to arrest all persons jumping from moving trains. The fact of the arrest was published in the newspapers. One of the expressions of the superintendent when he laughed at Mr. Kuhn was, "That is the way we do people who jump off trains." The record of the justice of the peace shows a plea of guilty. If there had been, it would have been a plea of guilty to a charge setting out no offense. But in fact, uncontradicted, there was no such plea. On the contrary, there was a trial, witnesses produced on both sides and examined, and Mr. Kuhn had the train conductor to testify that he was a passenger who had paid his fare; and the statute was read to, and ignored by, the justice. Mr. Kuhn brought his action for false imprisonment, and the court charged the jury to find for him, and assess the damages sustained because of his wrongful arrest; and the verdict gave him $500 damages. The arrest was reckless and wanton, and, under the facts disclosed by this record, it is idle to discuss questions of probable cause or express malice. The damages awarded were extremely reasonable, even as compensation. If a railroad company may with impunity arrest its own passenger, whom it is its business to protect, in the teeth of the express saving clause of the very statute under which it professes to proceed, and subject him to the indignity of public seizure of his person, and being marched along the public streets by a constable for trial under its prosecution, and subjecting him to the mortification

of publication in the newspapers, as the usual result of such proceedings, then the protection of personal liberty is slight indeed. The action of the court below and the action of the jury are in all respects approved, and the case is affirmed.

EQUITABLE ASSUR. SOC. v. CLARK. (Supreme Court of Mississippi. May 14, 1900.) APPEAL - INTERLOCUTORY ORDER ORDER FOR THE EXAMINATION OF BOOKS

APPEAL THEREFROM.

Code 1892, § 34, allowing an appeal from interlocutory orders which settle the principles of a case, does not authorize an appeal from an order granted under section 927, permitting a party to examine the books of his adversary. Appeal from chancery court, Coahoma county; A. McC. Kimbrough, Chancellor. "To be officially reported."

Action by E. J. Clark against the Equitable Assurance Society. From an order granting complainant the right to examine the books of defendant, the latter appeals. Appeal dismissed.

Since the opinion was rendered in this case (76 Miss. 22, 23 South. 453), the case proceeded in the lower court to final hear ing, and a decree was rendered maintaining the right of complainant to the relief sought, and directing the stating of an account by a commissioner of the amount due complainant on account of the insurance contract. Complainant moved the court for an order upon the defendant directing it to grant complainant permission to examine and take such copies as she desired of any and all books, papers, documents, and records in the possession of or under the control of defendant containing evidence of the facts relative to the merits of the case. This motion was sustained, and a decree was granted directing defendant to allow examination of its books, papers, etc. From that decree this appeal was taken by defendant. Mayes & Harris, for appellant. J. W. Cutrer, for appellee.

ALEXANDER, Special Judge. This case was before us at the March term, 1898. See 76 Miss. 22, 23 South. 453. The present appeal is from an order directing defendant to grant complainant leave to inspect and to take copies of its books of account containing evidence relating to the merits of the suit, and the appeal was granted solely "to settle the principles of the case." We feel constrained upon our own motion to dismiss the appeal. An order for inspection of books of account under section 927, Code 1892, is not within the meaning of section 34 of the Code, allowing appeals from interlocutory orders to settle the principles of the case. We fail to see how such an order which looks alone to the procurement of evidence, can in itself settle any principles of the case. Appeal dismissed.

(78 Miss. 134)

STATE v. SEYMOUR. (Supreme Court of Mississippi. Oct. 29, 1900.) MILITARY RESERVATION-JURISDICTION OF STATE COURTS-CRIMES.

Under Pamph. Acts (Called Sess.) pp. 49, 50, passed November 15, 1858, for the purpose of enabling the United States to construct fortifications. magazines, arsenals, etc., on Ship Island, which ceded to the United States jurisdiction over such island "to include all of such island above and within low-water mark, and over all the contiguous shores, flats, and waters within 1,760 yards from low-water mark," but retained jurisdiction for the purpose of executing therein all criminal process for crimes committed outside of such territory, the state courts have no jurisdiction of a crime committed within 1,760 yards of low-water mark of such island, since, in the absence of a showing to the contrary, the United States will be presumed to have accepted such cession, and to be using the island for the purposes for which the same was made. Appeal from circuit court, Harrison county; T. A. Wood, Judge.

Robert Seymour was charged with conspiracy. From an order directing an acquittal for want of jurisdiction, the state appeals. Affirmed.

W. A. White, Dist. Atty., and Monroe McClurg, Atty. Gen., for the State. Bullard & Bullard, for appellee.

CALHOON, J. Seymour was arraigned for trial in the circuit court of Harrison county on a charge of conspiracy to prevent one Ladnier from carrying on his lawful trade. He pleaded to the jurisdiction of the court, setting up that the alleged offense was committed within 1,760 yards of the low-water mark of Ship Island, and in territory in the exclusive jurisdiction of the courts of the United States. The court overruled the demurrer, and, on the trial on the plea of not guilty, it being admitted that the offense was committed as charged, but within the territorial limits mentioned in the special plea, the jury acquitted Seymour, by the peremptory instruction of the court, and the state appeals.

As stated by the attorney general, Ship Island was a part of Mississippi on her admittance into the Union, December 10, 1817; and by order of the president of the United States of date August 30, 1847, the entire island was reserved for military purposes, and on July 7, 1852, by his order, 50 acres at its western end was reserved for lighthouse purposes. Subsequently the congress of the United States, on March 3, 1857, passed an act providing for the fortification of the island, and the construction on it of magazines, arsenals, dock yards, etc. The legislature of Mississippi on November 15. 1858 (Pamph. Acts [Called Sess.] pp. 49, 50), passed an act entitled "An act to cede to the United States jurisdiction over a certain island in the Gulf of Mexico on the coast of Mississippi, known as Ship Island," stating on its face that it was "for the purpose of enabling the United States to carry

into effect" the above-mentioned act of congress. This act of 1858 proceeds, after stating that it was passed for the above purpose, as follows: "Jurisdiction is hereby ceded to the United States over the said Ship Island to include all of

said island above and within low-water mark, and over all the contiguous shores, flats and waters within 1,760 yards from low-water mark, and all right, title and claim which this state may have in or to the said Ship Island * are hereby granted to the United States: provided, that this state shall retain a concurrent jurisdiction with the United States in and over all the premises aforesaid, so that all civil process, and such criminal process as may issue under the authority of this state against any person or persons charged with crimes committed without the premises aforesaid, may be executed therein in the same way and manner as if jurisdiction had not been ceded as aforesaid." Section 2 of the act exonerates the premises from state taxation while they remain the property of the United States, and used for the purposes mentioned. There is no averment in the special plea that the cession by the state was ever accepted by the United States, or that any fortifications, etc., were ever constructed, or that the island is being used by the United States for the purposes mentioned in the act; and there is no replication setting up nonuser. The opinion of Justice Field, speaking for a unanimous court, in the case of Railroad Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. 995, 29 L. Ed. 264, settles the case at bar. This opinion and the cases it cites seem conclusive of this. The cession by the state of Kansas to the United States was in nearly the same language as the Mississippi act, with the same reservation of service of civil and criminal process. The court held that "the acceptance of the act [of cession] is to be presumed, in the absence of any dissent," and that it ended all state jurisdiction, except the reserved right to serve civil process, and also criminal process, so that the ceded territory should not become a refuge and sanctuary for criminals fleeing from the state jurisdiction. We concur in that opinion, and the action of the court below is affirmed.

(79 Miss. 175)

SHARPLEY et al. v. PLANT. (Supreme Court of Mississippi. May 28, 1900.) EXECUTORS AND ADMINISTRATORS-SALE BY EXECUTOR-VALIDITY-SETTING ASIDE SALE -LIMITATIONS-TRUSTS - SUBSTITUTIONARY APPOINTMENT-SUFFICIENCY.

1. A sale by an executor of his intestate's realty under agreement with the purchaser to allow him credit for an individual debt, which is not disclosed at the sale, nor to the court which confirms it, is void.

2. Code 1892, § 2760, providing that an action to recover property sold by a chancery court's order, where the sale is in good faith,

confirmed the sale of the 578 acres, and the executor's report, but held the land liable for the $925, the executor's private debt to Tatum, with interest thereon. From that decree complainants appealed, and defendant prosecuted a cross appeal.

Gilleylen & Leftwich and Alexander & Alexander, for plaintiffs. E. H. Bristow and Geo. C. Paine, for defendant.

CALHOON, J. In sales made by executors, administrators, and all other trustees, uberrima fides is the inflexible rule of law.

In making the sale the trustee "cannot bring others into his confidence, by reason whereof a private sale is made to them on the secret understanding that he is to take an interest or benefit." McGowan v. McGowan, 48 Miss. 553. This doctrine is apparently universal, and it is essential, in order to preserve integrity and good faith in the immense mass of business dealings among men, where confidence is reposed. In this view, there can be, and is, no difference or distinction drawn by the law between actual and constructive fraud. The law condemns the thing, regardless of the motive. There can be, in the nature of things, no condonation of it, no plausible explanation of it, no arguing out of it. The law is, as it ought to be, inflexible and unbending. The good intentions and honest purposes of the executor cannot vary the wholesome rule, which is bottomed on public policy. Certain it is that there was here a distinct, private agreement and understanding that $925 of the individual debt of the trustee to the purchaser should be counted as cash in the payment of the bid to be made. This agreement was not disclosed at the sale, nor to the chancery court which confirmed it, and it made the sale void. If honest purpose and good intentions may prevail, the field of actual fraud and perjury becomes boundless. The sale of the 578 acres was therefore void, for the reasons given. If at this sale the whole bid of $3,468 had been paid in cash, it seems from this record that it would have paid off the debts of the testator, and left the minors the 5962 acres remaining of the 1,1741⁄2 undisturbed. But it is of no concern whether this be true or not. The result would be the same.

The purchaser in this case cannot, nor can the appellee, his devisee, who was his agent at the purchase, and familiar with the agreement and private understanding, avail of the two-years statute of limitations, applicable where "the sale is made in good faith and the purchase money paid," as provided by Code 1892, § 2760, because here there was not "good faith," in the purview of the law and the purchase money was not paid, in the same purview. If $925 of the individual debt of the executor may be deducted from $3,468 cash bid, why may not $3,000 be so deducted? In matters of such general importance, the statute cannot be evaded. There must be first good faith, and then the purchase money 28 So.-51

must be paid,-every dollar of it, unless, perhaps, some trivial sum omitted by mistake or miscalculation.

The executor's sale of the 578 acres was also void because there was no bond for the faithful application of the proceeds of the sale of the land. Code 1880, § 2045; Code 1892, § 1905; and authorities cited in the footnotes of both. The omission to require such a bond is not authorized by the will. This conveys the lands to Sims, with specific directions to him to "hold and use them for the benefit of complainants, appropriate rentals to their maintenance and education, and

partition to each, as she arrived at twentyone years of age or married," the land, in kind, and divide any accumulated rentals. While the will does provide that no bond be required of Sims as executor or trustee, it is clear that the testator never had any idea that he should ever sell the lands. In fact, it shows that the fixed purpose of Mr. Sharpley was that he should never sell them, and the special bond was therefore an indispensable prerequisite to a valid sale. The decree below, as to this land sold by the executor, seems to vest the title in Mr. Plant, the devisee of the purchaser, if he will pay the $925 and 6 per cent. annual interest to the minors; otherwise, it orders a sale to realize this money as a lien on the land. This was error. The decree should have annulled the sale, and declared the legal title to be in the minors, but, inasmuch as those who come into a court of equity must do equity, this legal title should have been made subject to a lien for an amount to be ascertained by an accounting. This account should ascertain (1) the sum total of $2,543, the amount of the bid actually paid, with interest added at the rate of 6 per cent. per annum from the day of sale; (2) the rental value of the land annually from the day the purchaser took possession, with 6 per cent. per annum interest from the last of each year, to which should be added the value of any timber sold by Tatum or Plant, with 6 per cent. per annum from date of sale, the sum total of which, less taxes paid by Tatum or Plant, with like interest from their payment, should be credited on the total principal and interest of the $2,543, and, unless complainants paid any balance so found, the land should be decreed to be sold to pay it. Nothing should be allowed appellee for improvements.

At

We proceed now to inquire into the validity of the sale of the remainder of the 1,1742 acres of land made by Mr. Paine as substituted trustee appointed by Scruggs, who was the assignee of the Stern Bros. trust deed. that sale Mr. Scruggs, the owner of the note and trust deed, was the purchaser, at a bid of $622.50. This sale was made on January 27, 1894, and on December 26, 1894, Mr. Scruggs, the purchaser, conveyed it for $2,100 in cash to the appellee, Mr. Plant, by a quitclaim conveyance; and thus Mr. Plant became the apparent sole owner of the entire patrimony of the two infants. The other 578

acres had been sold by the executor, Sims, on December 24, 1890, to Daniel Tatum, Mr. Plant's devisor. The whole 1,1742 acres were conveyed to the trustee in the trust conveyance, together with all the crops and about all the personal property of the grantor, Mr. Sharpley. This trust conveyance specifically provided that, if foreclosed, the crops should be first sold, then the stock, then the McBeth land, then the McMillan land, "then the balance as may be necessary, in this order." "The balance" was the land here sued for. It further provides that if Weisel, the trustee, became unable or unwilling to act, Stern Bros. or their assignees might appoint. another trustee "under their hand and seal." The substitutionary appointment here was not under seal. Strictissimi is the rule in the execution of powers by a trustee under conveyance to him in trust. A grantor in such an instrument may clog its execution with any and all difficulties and prerequisites to sale which his imagination may conjure up, and they all become vitally essential to a valid sale. "There must be a strict adherence, not only to the substance of the power, but also to all the formalities required in its execution by the instrument. * If it is to be by deed, nothing but a deed will execute the power. So if the deed is to be sealed. • The general rule is rigidly adhered to, that powers can be executed only in the mode and at the time and upon the conditions prescribed in the instrument creating the power or trust." Perry, Trusts, 511b. In reference to the appointment of substituted trustees, Mr. Perry says: "Where it is necessary to act under the powers thus given in the instrument of trust, it is of the utmost consequence that there should be an exact compliance with the power and authority as given. If there is any irregularity as to the persons by whom the new appointment is made, or as to the manner in which it is made, the new trustee will be incapable of exercising any legal authority over the trust property, and will be a trustee only de son tort if he interfere, and any purchaser of the trust property may find his title utterly worthless." Perry, Trusts, § 288; Learned v. Matthews, 40 Miss. 220, 221; Brame & A. Dig. 820. "The conditions attached by the donor to the execution of a power must be complied with strictly, however unessential they may seem." Am. & Eng. Enc. Law, 837, and notes. The sale was clearly void for the want of a seal to the appointment of the substituted trustee. The case of McCarley v. Board, 58 Miss. 483, has no adverse relevancy to this. Here the complaint is that the parties did not comply with the solemn contract in making the appointment in the execution of the power. There cannot be, in the nature of things, any equitable estoppel of complainants in the case

18

at bar. Sharpley, the grantor in the trust instrument, would not himself have been estopped. McPherson v. Reese, 58 Miss. 750. Mr. Sharpley's answer to the suggestion of estoppel would be that: "The instrument between us was a contract. We contracted at arm's length, and I stipulated expressly for seal to any appointment, as I had a perfect right to do, and you accepted the security with that condition, and you now claim under the contract, with a violation of that condition." Suppose the contract had stipulated that the appointment should be made with the picture or drawing of a horse opposite the name; would any court hold that this might be dispensed with in a sale in pais? There is no restriction on the power to contract, where no public policy is violated. A grantor in a trust deed may hamper sales by any conditions he chooses, however technical or useless or eccentric they may seem, and may even have the purpose, in his requirements, to make resort to sale in pais so difficult and cumbersome as to make it probable that the beneficiary will proceed in chancery to foreclose. It is no answer to this to say that seals have been made unnecessary by law. "Consensus facit legem." The inquiry is idle as to what seal should be affixed, because by law now there is no form of seal. Any device designed to represent a seal would be sufficient. Whittington v. Clarke, 8 Smedes & M. 485; 21 Am. & Eng. Enc. Law, 884.

The sale being void for the reasons given, Mr. Plant has no title, and the title is in complainants. We are strongly inclined to think that, by the proper application of payments, the mortgage debt was fully paid before the sale, and so it was void for this. This should be ascertained exactly, by a commissioner appointed for that express purpose. The lands are not chargeable for debts contracted after Mr. Sharpley's death. The proceeds of the sale of the 578 acres released from the trust by Scruggs must be held to have been appropriated, as the decree of sale required, to the mortgage debt. Mr. Scruggs' dealings with the executor and the estate are such as to make it certain that he is entitled to no consideration on the score of ignorance of the illegal character of the business transactions of the executor with him. On the coming in of the itemized report, if there be anything due on the mortgage, it shall be, with 10 per cent. interest, a lien in favor of Mr. Plant on this 5962 acres, and the same proceedings had as in the case of the 578 acres. Whether or not any sum be due on the mortgage, Mr. Plant shall have a lien for taxes paid by him, with 6 per cent. interest per annum; and he shall be required to account for reasonable rents, as in the other case, against which he may offset improvements, but be allowed nothing for them in excess of rents. Reversed and remanded.