should not be directed in an action to recover on a certificate. Appeal from circuit court, Noxubee county; G. B. Huddleston, Judge. Action by John L. Grace against the Woodmen of the World. From a judgment for plaintiff on a directed verdict, defendant appeals. Reversed. Rives & Brooks, for appellant. A. C. Bogle, for appellee. TERRAL, J. John L. Grace brought this suit to recover of the Woodmen of the World, a benevolent association, $2,100, the contents of a certificate of membership in said order issued to William G. Grace, and payable to plaintiff as beneficiary thereof. The defendant below pleaded the general issue, and under it gave notice that it would prove upon the trial that William G. Grace at the time of taking said certificate of membership was addicted to the use of intoxicating liquors, and that after its issuance he became so far intemperate as to impair his health, in breach of his warranties contained in his application for membership. To the plea of general issue, replication was made, and counter notice was given that William G. Grace was not addicted to the use of intoxicating liquors when said certificate was issued to him, and that he did not afterwards become so far intemperate as to impair his health. Upon these issues the case was given to the jury. Counsel for appellant contend that the declaration does not allege that proof was made of the death of William G. Grace and given to the association before suit brought, and they insist that a peremptory instruction to find for the defendant, asked for by them, should have been given, because of the want of such allegation and proof. But the plain answer to this contention is that the issues in the case were made by the pleadings, and no such issue was made. Upon the trial of the case the defendant below offered and introduced before the jury evidence tending to show that William G. Grace had violated the warranties contained in his application for membership in the Woodmen of the World, as specified in the defense set up in its notice under the general issue,-evidence sufficent, in our opinion, to uphold a verdict for it if one should have been found by the jury; and yet the court, by a peremptory instruction, directed the jury to find for the plaintiff. This was error. The case should have been submitted to the jury. Reversed and remanded. COOK et al. v. STATE. (Supreme Court of Mississippi. Nov. 12, 1900.) CRIMINAL LAW-BURGLARY-SUFFICIENCY OF EVIDENCE-CIRCUMSTANTIAL EVIDENCE-INSTRUCTIONS-POSSESSION OF STOLEN PROP ERTY. 1. A barn was found broken open, and certain meal and chops missing therefrom. Tracks of men, horses, and a wagon were found near 28 So.-53 the barn, which, by means of a wabbling wagon wheel and a broken place in the hoof of one of the horses, were tracked to defendants' house, where some meal and chops were found, and also a drawing knife belonging to the owner of the barn. One of the defendants had a wagon with a wheel that wabbled, and one owned a horse with a broken hoof. Held sufficient to sustain a conviction of defendants for burglary and larceny from such barn. 2. It is not error in a criminal case to refuse to instruct that circumstantial evidence is inferior to direct and positive evidence. 3. An instruction for the state in a criminal case, which is defective in not requiring the jury to find certain facts beyond reasonable doubt in order to convict, is cured by instructions given for the defendant requiring such a degree of proof. 4. An instruction in a prosecution for burglary and larceny, which states that if the jury find beyond reasonable doubt that a certain barn was burglarized, and property taken therefrom, which was soon afterwards found in the possession of defendants, it will warrant a conviction unless the evidence shows a reasonable explanation of how the defendants came in possession thereof, is not erroneous. Appeal from circuit court, Pike county; Jeff Truly, Judge. Robert Cook and another were jointly convicted of burglary, and they appeal. Affirmed. Appellants, Robert Cook and Will Dykes, were jointly indicted at the April, 1900, special term of the circuit court of Pike county on a charge of burglary and larceny for the breaking open a barn belonging to the Fornwood Lumber Company, and taking therefrom some chops and cotton-seed meal, on the night of April 5, 1900. At the trial several witnesses for the state testified that on the morning of the 6th of April they went to the barn of the Fernwood Lumber Company, and found that it had been broken open, and found that some chops and meal had been taken. Tracks of men were seen around the barn. Wagon tracks and tracks of horses were also seen, and some mer' had been spilled on the ground. By reason of a wabbling wagon wheel and a broken place in the hoof of one of the horses' feet they were tracked some six or seven miles to houses of defendants, and some meal and chops were found in the possession of defendants. A drawing knife belonging to the Fernwood Lumber Company was found in the possession of one of the defendants. The evidence shows that one of the defendants owned a light wagon with one wheel that wabbled, and one of them owned a horse with a broken place in one of its feet. The second instruction given for the state is as follows: "The court instructs the jury for the state that in a trial for burglary and larceny possession of property shown to have been recently stolen from the burglarized house is a circumstance from which the jury may infer the guilt of the person or persons found in possession of such recently stolen property; and if, in this case, the jury believe from all the evidence and circumstances in evidence that the barn house of the Fernwood Lumber Co. was broken into, and prop erty of the Fernwood Lumber Co., of any value whatever, stolen therefrom, and that recently thereafter the defendants were then in possession of said stolen property, then the jury are authorized to convict these defendants, and should do so, unless the defendants have given in the evidence shown a reasonable account or explanation of how they came in possession of the same." The fifth instruction asked for defendants and refused is as follows: "The court instructs the jury for the defendants that as a matter of law circumstantial evidence is inferior to cases direct or positive testimony; and while they may, and perhaps should, convict in proper on circumstantial evidence, still it should be weighed with caution, and scrutinized closely, and must, as a whole, be so cogent and conclusive as to satisfy the jury to a moral certainty of the guilt of defendants, before they can lawfully convict in this case." It was insisted by counsel for appellants that the corpus delicti must be proven before testimony of the criminal agency is admissible. Defendants were convicted, and sentenced to Imprisonment for five years, in the court below, and this appeal is prosecuted. E. J. Simmons, for appellants. McClurg, Atty. Gen., for the State. Monroe CALHOON, J. The evidence warranted conviction. Neither the state nor the defendant is restricted to any particular order in the introduction of testimony. The fifth instruction asked for the defendants was properly refused. It is not the law that circumstantial evidence is inferior to direct and positive. It is of equal dignity, and in weight and probative force may, and should in many instances, surpass the other in effect upon the jury. The only restriction attached to it is that it should be received with care and caution. It is not possible that the giving of this charge, even if it ought to and should have been given, could have changed the result. The second instruction for the state was defective in omitting the words "beyond reasonable doubt," but this is cured by all four of the instructions given for the defendant. The other parts of this instruction are warranted, as applied to the evidence in this case, by Harris v. State, 61 Miss. 304. Defendants were ably defended, and properly convicted. Affirmed. (78 Miss. 201) MILLER v. BOARD OF LEVEE COM'RS.1 (Supreme Court of Mississippi. Nov. 12, 1900.) LEVEES DAMAGES PERSONS ENTITLED TO M. owned land subject to a mortgage, and a part of it was condemned in 1894 by the board of levee commissioners for levee purposes, and damages paid to M., and no effort was made by the mortgagee to recover such damages from the board. In 1895 the mortgage was foreclosed, and in January, 1900, the foreclosure title passed by mesne conveyances to plaintiff. Held, that plaintiff could not maintain an action to assess damages occasioned by For opinion on suggestion of error, see 28 South. 877. using the land for levee purposes, since he bought it in its damaged condition, and the right to sue for the damages previously sustained did not pass with the conveyance. Appeal from circuit court, Bolivar county; F. A. Montgomery, Judge. "To be officially reported." Action by F. S. Miller against the board of levee commissioners to assess damages for the use of land for levee purposes. From a judgment in favor of defendant, plaintiff appeals. Affirmed. Fontaine Jones, for appellant. Walter Sillers, for appellee. CALHOON, J. In 1894 Mrs. Josephine Mason was the owner in possession of a tract of land including about 13 acres, which 13 acres are the cause of this controversy. But she so owned and held the whole subject to a mortgage given to secure the Equitable Mortgage Company a loan of $20,000. In this condition of things the board of levee commissioners wanted the 13 acres for levee purposes, and such proceedings were had that the damages were ascertained to be $535, which sum was paid to Mrs. Mason, and she executed a conveyance of the 13 acres to the board. It followed, of course, that the mortgage company, under Board v. Wiborn, 74 Miss. 396, 20 South. 861, if necessary to its security, might have sued for and recovered this sum of money from the board, notwithstanding the previous payment to Mrs. Mason. All the proceedings and payment and the conveyance were in 1894. Afterwards, in February, 1895, conveyance was made, under foreclosure of the mortgage, to the Equitable Sureties Company, which may be conceded to be, or not to be, the same thing with the Equitable Mortgage Company, so far as this case is concerned, for a recited consideration of $10,000, being but one-half of the amount of the mortgage debt. In January, 1896, the Equitable Sureties Company conveyed the whole tract to R. M. Harding for $20,000. Afterwards, in the same year (1896), R. M. Harding conveyed the tract to F. S. Miller and C. B. Miller for $25,000, and after that C. B. Miller conveyed his interest to appellant, F. S. Miller, who on January 8, 1900, filed his petition for damages to the circuit clerk, under the act for such cases, and had commissioners appointed, who assessed the 13 acres used for levees at the value of $535; and the board of levee commissioners appealed to the circuit court, which gave judgment for the board, and F. S. Miller appeals. The court below was manifestly right. When the damage was done, Mr. Miller had no sort of connection with the land, as either owner or mortgagee. No one was damaged except Mrs. Mason or her mortgagee. She was paid, and her mortgagee never made complaint, and Mr. Miller bought the land in its then damaged condition. A right to sue for damages previously sustained does not go with the transfer of the land, by mere conveyance of the land. Affirmed. Where the prayer of a petition for a mechanic's lien contains the only allegation that such lien is superior to appellant's vendor's lien, a judgment for the petitioner by default will not be sustained on appeal, since such judgment must be confined to establishing facts alleged in the body of the petition, not its prayer. Appeal from circuit court, Warren county; W. K. McLaurin, Judge. "To be officially reported." Action by T. S. Gregory against John B. Reid and others. From a judgment in favor of the plaintiff, defendant Reid appeals. Reversed. Appellee, T. S. Gregory, filed his petition in the circuit court of Warren county against Hattie Gray and Simpson Gray to enforce a mechanic's lien on a certain lot or parcel of land described in the petition, and belonging to said defendants. The land in controversy was bought by Hattie and Simpson Gray from appellant, Reid, who retained a vendor's lien on same. The petitioner in his petition alleges that he was a professional contractor, and was employed by defendants, in the summer of 1897, to furnish the material and do the work in erecting on the land in controversy a two-story brick house, which he did as agreed upon, completing the same on August 1, 1897; that defendants owe a balance of $237.60; wherefore he claims a mechanic's lien on said premises for said sum. The petition further alleges that the said lot is the same that was conveyed to Hattie and Simpson Gray by John B. Reid on June 21, 1897; "that petitioner knows of no other persons having an interest in this controversy, except the said John B. Reid, who, he is informed, claims a lien on said premises." The prayer of the bill is as follows: "The premises considered, he prays that said defendants and the said John B. Reid be summoned to defend this suit, and that on final hearing he may be declared to have a mechanic's lien on said premises for the payment of said debt prior to all other liens thereon, which he asks may be enforced by judgment of this court; and he prays for general relief." Defendants and Reid did appear at the trial of the cause in the court below, and judgment by default was had against them in accordance with the prayer of the petition, and from this judgment Reid appeals. Voller & Mounger and Dabney & McCabe, for appellant. George Anderson, for appellee. WHITFIELD, C. J. There is no allegation in the petition that the lien of appellee was superior to the lien of appellant. The prayer cannot be looked to, to sustain a judgment by default, on the allegations of the petition. Such petition, not its prayer, is the basis of the claim, and a judgment by de fault must be confined to establishing the facts alleged in the petition. The judgment by default here is not within any issue made by the pleadings, and is erroneous for that reason. Green v. Chandler, 54 Cal. 626, and Keller v. Association, 71 Mo. App. 465, cited by counsel for appellant, directly sustain this proposition, as do also Delahay v. Goldie, 17 Kan. 264, Short v. Nooner, 16 Kan. 227, and Dano v. Railroad Co., 27 Ark. 569. Reversed and remanded. STATE v. VANDENBURG. (Supreme Court of Mississippi. Nov. 12, 1900.) INTOXICATING LIQUORS-INDICTMENT-SUFFICIENCY-LOCAL OPTION. Where an indictment for selling liquor without a license was drawn under the general law in a county which had adopted the local option law at an election therefor, such indictment was bad on demurrer; the local option law having superseded the general law in that county. Appeal from circuit court, Panola county; Z. M. Stephens, Judge. F. P. Vandenburg was indicted for selling intoxicating liquors without a license, and from an order sustaining his demurrer to the indictment the state appeals. Affirmed. Appellee was indicted at the March term, 1897, of the circuit court of Panola county. The indictment charged that the appellee on March 22, 1897, "did sell vinous, spirituous, and intoxicating liquors in less quantities than one gallon, without first having obtained license so to do as required by law." To this indictment the defendant demurred, setting up among other grounds the following: "The said indictment attempts to charge the defendant with the sale of liquors in said county and district without first having obtained license so to do, under the general law or statute providing for the granting of license, etc., which general law or statute was at the time of the alleged sale, and still is, superseded and displaced by the local option law in full force and operation in said county by virtue of an election held on the day of under the act of 1886." The demurrer was sustained by the court below, and the cause dismissed, and the state appeals. Monroe McClurg, Atty. Gen., for the State. W. D. Miller, for appellee. WHITFIELD, C. J. The action of the court below was correct. Bertrand's Case, 72 Miss. 516, 17 South. 235, is not in point. The indictment there was good under the local option law, and manifestly was not drawn under the general law. There was no general law in force in Panola county when this offense was committed. The local option law had displaced the general law. The indictment should have been drawn under the act of 1886,-the local option law. The words BREAUX, J. The purpose of relator's application for a writ of mandamus is to compel the respondent judge to grant an order of injunction on the petition of the attorney general, who appears for, and in behalf of, the state of Louisiana. The attorney general sets out that the Morgan's Louisiana Railroad & Steamship Company has been carrying on a large, extensive, and profitable warehouse business for some time, to the detriment of relators, and to the injury of the public warehousemen with whom this company, with its warehouse business, comes in competition. In substance, relator further charges that this railroad company is only the alter ego of the Southern Pacific Company, against which a judgment has been pronounced condemning it to close its warehouse business, as is fully stated in State v. Southern Pac. Co., 52 La. Ann. 1822, 28 South. 372. Relator further avers that the injunction, if issued, will fully enforce the final decree rendered in the cited case. The usual preliminary order was issued by this court, calling on respondent to show cause, in answer to said writ of mandamus, why the injunction should not issue as applied for by the attorney general. The respondent filed an answer in compliance with the said preliminary order, in which he states that an injunction should issue only in case it be found that relator is entitled to the writ after trial; that, without passing upon the Morgan Company's right under its char ter, it appears to him, as the papers read, that the company has the right to carry on a warehouse business apart from its railroad business. He also avers that the charge brought, of an agreement between the two companies under which the warehouse business is conducted by the Morgan Company for the Southern Pacific Company, is not sufficiently specific to authorize an injunction; and that, even if it were more specifically brought, relator, at most, would only be entitled to a modified injunction prohibiting the Morgan Company from carrying on the warehouse business for the account of the Southern Pacific Company, and that this is not the injunction for which the relator prays. Further answering, he avers that no demand was made to issue a rule nisi. We find no difficulty in arriving at the conclusion that an absolute injunction can be issued on the face of the papers to compel one who is bound by a final judgment to respect its terms. We are equally as well convinced that mandamus should go forth to the judge of the court to which an application for such a writ of injunction is presented, to compel him to issue it, in case of his refusal to grant the writ. But this, in our opinion, is not the case before us for decision. It did not manifestly appear to the district judge, on the face of the papers, that res judicata concluded all the defenses of the Morgan Company. In his return the respondent judge calls attention to the fact that the Morgan Company was not, eo nomine, a party to the original proceedings. The facts, among others, we find are that the Morgan Company leased its railroad in Louisiana to the Southern Pacific Company for the term of 99 years; that, after the petition of the state had been filed in the first suit, the Southern Pacific Company abandoned the possession of its warehouses, and surrendered that business to the Morgan Company; that this abandonment was made after the suit of State v. Southern Pac. Co., cited above, had been filed. The question is whether the Morgan Company is bound by the decision in question (in the cited case), and whether it has the right, under its charter, to carry on a warehouse business. The effect of the said abandonment, among other issues, will have to be considered. It may as well be stated here, as it has some bearing upon the issues, that relator sets out in his petition for an injunction two demands. The principal demand is, as before stated, that the Morgan Company is absolutely bound by the judgment to which we have before referred. The second demand is presented in the alternative, that the Morgan Company, in any event, is without authority to carry on the business of a publie warehouseman as an independent and substantive business. We deem it proper to state that the last or second demand is not to be taken up and decided unless it be first decided that the former demand is untena ble. It is manifest that the relator, as a careful and painstaking pleader, did not wish to let his case rest exclusively on the plea of res judicata. While the pleas remain distinct, and are to be considered as before stated, none the less, taking the proceedings as a whole, this alternative demand renders it more difficult to hold that the Morgan Company is absolutely bound by the judgment before cited; that is, bound to such an extent as to justify the issuance of an absolute writ of injunction on an ex parte application. In so far as our learned brother of the district court refused to issue an absolute injunction without giving the Morgan Company opportunity of being heard, we do not think that he erred. To this extent we agree with him. At this point in the consideration of the case another issue arises. There are cases in which the rights of the state are concernIed which should be considered and disposed of within a reasonable delay, and which should not be postponed, should the forms of law justify a hearing. Courts have the authority to ascertain judicially, by the most direct mode, whether or not a final judgment is disregarded, and, if it is disregarded, to so decide. Relator, it is true, prayed for an absolute writ of injunction. But this prayer, as we take it, includes both the absolute writ and an application for the writ nisi. Having properly refused the absolute writ, it still remained proper for him (the district judge) to grant a rule nisi. We have noted: Our learned brother of the district court states in his return, in substance, that, if the Morgan Company is doing business for the account of the Southern Pacific Company, to that extent only it should be restrained and enjoined, but that he did not choose to enjoin it to that extent, for the reason that relator's petition was not directed to a partial violation of the supreme court's decree; that the general terms of the allegations for the injunction did not embrace, as one of the complaints, the specific violation just stated. We are unable to agree with this view. The greater includes the less, and the general violation charged may be so reduced, after examination of the issues, as to include only this asserted partial violation which justified, at least, a modified injunction as relates to this point, even though relator urged some relief in the demand that plaintiff (relator here) in the application is not entitled to. Weill v. Kent, 52 La. Ann. 2148, 28 South. 295. The extent, also, to which the charter forms a part of the issues may be considered on a trial of the rule; also the scope and effect of the decree in the case cited supra (State v. Southern Pac. Co.). True, the discretion of the court in granting or withholding injunctions should remain unimpaired; but it does not follow in this case that the grounds for its action in not having issued a rule nisi may not be inquired into, and if, in the view of the appellate tribunal, it be erroneous, re versed. The discretion of the lower court is no longer an issue when it does not issue a rule nisi because of some erroneous construction of a question of law or practice. In a case recently decided by this court, it was held that it was proper in some cases to issue a rule nisi on an application for an absolute injunction on an ex parte showing. Evidence was to be admitted on the trial of the rule to the extent necessary for the determination of the question involved. While this right was to be sparingly used, and the latitude restrained, yet it was decided that some evidence was to be admitted. State v. Judge of Civil District Court, 51 La. Ann. 1768, 26 South. 374. The same rule has application to the case in hand. For these reasons we do not grant the application of the relator for an ex parte absolute injunction on the face of the papers. We, none the less, remand the application for an injunction to the district court, and direct that court to recall its refusal of the writ, and direct it, further, to pass upon and decide the application for an injunction upon a rule nisi, which it shall cause to issue. (104 La. 106) STATE ex rel. LECHE, Judge, v. LEAKE, A district judge has the right to be heard and consulted in so far as relates to the fixing of the terms of the court of appeals in the parish or parishes in which he constitutes one of the judges of that court. (Syllabus by the Court.) Application by the state, on the relation of Paul Leche, judge, for a writ of mandamus and prohibition to W. W. Leake, Judge. Writ granted. Edward N. Pugh, for relator. Respondent Judge, pro se. BREAUX, J. The purpose of relator, made evident in his petition suing for a writ of mandamus, is to submit to the decision of this court a difference of opinion which has arisen between him and respondent, the Honorable W. W. Leake, regarding the fixing of the terms of the court of appeals to be held in the parishes of Pointe Coupee and West Baton Rouge. Relator, who is the judge of the Twenty-Seventh judicial district court, was on the 23d day of June, 1900, assigned by the supreme court to act as one of the judges of the court of appeals in the above-mentioned parishes, which assignment went into effect on the 1st of July following. The terms of the court of appeals in the Fourth circuit were fixed by Judges Leake and Thompson on the 6th day of July, 1898. The former was one of the holding-over circuit judges. He, the holding-over judge, in answer to the rule nisi issued by this court, and in support of the |