Ch. Rep. 62; 12 Modern Rep. *349; 3 Freeman on Executions (3d Ed.) §§ 367, 368, 369.

There does not appear to have been any right of jury trial in this summary proceeding by attachment. Our statute (section 1250) is but a modification of this commonlaw method of enforcing a return, and for punishing the negligence of a sheriff in executing writs. We do not think it infringes any common-law right of jury trial as set forth in Wiggins v. Williams, 36 Fla. 637, 18 South. 859, 30 L. R. A. 754, nor is it a substitute for the remedy by action at law for damages. Wells v. Caldwell, 1 A. K. Marsh. (Ky.) 441; Lewis v. Garrett's Adm'r, 5 How. (Miss.) 434. We have no doubt that in an action on the case for damages against the sheriff by an execution creditor for failure to make a return or for false return, or for giving undue preference to a junior execution, the defendant, as well as the plaintiff, will be entitled to a jury to try questions of fact, as was held in Love v. Williams, 4 Fla. 126, and McLeod v. Ward, supra; but we do not regard this statutory proceeding as a substitute for an action upon the case, but merely as a statutory regulation of the common-law jurisdiction of the courts to enforce the execution and return of writs, and to punish the negligence and misconduct of sheriffs in respect thereto, which power rested with the courts without the aid of a jury, and therefore the statute does not infringe that provision of the Constitution securing the right of trial by jury. Nor do we think that the return of the sheriff shows reasonable diligence in executing the writ, or any other adequate defense. The fact that the plaintiff in execution had suffered no material damage is no defense. 3 Freeman, supra, § 368. The execution was placed in his hands on the 3d of October, 1903, and had not been executed when this proceeding was begun, on March 2, 1904-about five months. It appears that he had no difficulty in collecting the money after this proceeding was commenced. He was several times urged by the plaintiff to levy the writ upon property which was subject to it. He did nothing. The fact that several courts were in session during that time is no defense. He should have had a sufficient force of deputies to aid him in his duties. 25 Amer. & Eng. Ency. of Law (2d Ed.) 689, 690. A sheriff is required to use at least reasonable diligence in executing writs. Murfree on Sheriffs (2d Ed.) § 108, bottom page 56; Id. §§ 107a, 108a, bottom page 670, §§ 543, 565.

This court, though vested with appellate jurisdiction only (except in certain specified cases), has jurisdiction to entertain proceedings under the statute with respect to its now lawful process and writs. Mitcheson's Adm'r v. Foster, 3 Metc. (Ky.) 324; Bank of Tennessee v. Cannon, 2 Heisk. (Tenn.) 428.

It is therefore hereby considered, ordered,

1. Under Code 1892, § 1426, providing that, on an indictment for any offense, the jury may find defendant guilty of the offense, or of the attempt to commit it, it is proper to refuse to charge that defendant, on trial for rape, cannot be convicted of an attempt to rape, though the indictment does not contain a count charging such an attempt.

2. On a trial for rape, the refusal to admit evdence on behalf of defendant of his general reputation for peace or violence is prejudicial er

ror.

Appeal from Circuit Court, Lauderdale County; G. Q. Hall, Judge.

Weaver Horton was convicted of rape, and he appeals. Reversed.

The second instruction refused for defendant is as follows: "The court charges the jury, for the defendant, that they cannot find the defendant guilty of an attempt to commit rape, under this indictment; there being no second count charging such offense."

F. V. Brahan, for appellant. Wm. Williams, Atty. Gen., for the State.

TRULY, J. The refusal of the second instruction asked by the defendant was not error. Section 1426, Code 1892, provides that "on an indictment for any offense the jury may find the defendant guilty of the offense as charged or of any attempt to commit the same offense." It is not necessary, nor would it be proper, to join in the indictment a second count charging an attempt to commit the crime charged.

The language attributed to the district attorney is not made known to us in the manner prescribed by law. This assignment of error, therefore, is not considered. Powers v. State (Miss.) 36 South. 6.

It was fatal error to refuse to admit the testimony offered on behalf of defendant of his general reputation for peace or violence. This was the particular trait involved in the prosecution against the defendant, and testimony showing an established reputation for peace and quiet is especially appropriate in

2. See Criminal Law, vol. 14, Cent. Dig. § 841; Rape, vol. 42, Cent. Dig. § 61.

DUTY OF ASSIGNEE-DOUBLE TAXATION. 1. The notes and solvent credits of an insolvent state bank passing to an assignee by a general assignment before February 1st in any year are taxable in the hands of the assignee, under Code 1892, § 3755, providing that each person, when required, shall make out and deliver to the assessor a true list of his taxable personal property, held in his own right or as trustee or otherwise, on February 1st preceding.

2. The fact that creditors of an insolvent state bank, whose notes and solvent credits are taxed in the hands of an assignee, reside without the taxing district of the assignee, and have their proportion in the assets of the bank assessed to them on their individual assessment as "indebtedness probably collectible," would not constitute double taxation, rendering the assessment of the property to the assignee invalid.

Appeal from Chancery Court, Grenada County; J. C. Wilson, Chancellor.

"To be officially reported."

Bill by B. C. Duncan, assignee of the Merchants' Bank of Grenada, against A. Gerard, assessor and tax collector. From a decree for complainant, defendant appeals. Reversed.

S. A. Morrisson, for appellant. W. C. McLean, for appellee.

TRULY, J. The bill of complaint herein was filed by B. C. Duncan, assignee of the Merchants' Bank of Grenada, Miss. The bill discloses the following state of facts: On the 26th day of January, 1903, the Merchants' Bank of Grenada, Miss., a corporation of this state, executed, through its proper officers, a general assignment, in which the following provision occurs: "The said party of the first part hereby conveys warrants, sells, transfers, assigns and sets over unto said party of the second part all of its property of every kind and character, real estate, all monies, notes, accounts, choses in action, bills receivable and any and all other property of every kind and character and wherever situated that belongs to said party of the first part." On the same day the said B. C. Duncan, assignee, as required by law, filed a petition to the chancery court setting up the general assignment executed by the bank; stating that it was valid and legal and executed in good faith, and that the estimated value of the property assigned was the sum of $125,000. With said petition the said assignee filed a bond, as receiver, for the sum and conditioned according to law, and in full compliance with chapter 8,

Code 1892. The bill further recites that the assets of the bank so conveyed were insufficient to pay in full its creditors, and that the total amount of the indebtedness of the bank was the sum of $99,227.39; the assets being much less than this amount. Further, that A. Gerard, marshal, as assessor and tax collector of the city of Grenada, had on a day subsequent to February 1, 1903, assessed the said Merchants' Bank (B. C. Duncan, assignee), with the sum of $36,000 for money and solvent credits; that the shares of stock of said bank were of no value whatever, and that neither the bank hor the holders of the shares of its capital stock were liable for taxes for the year 1903; that the solvent credits and notes which were in the possession of the assignee were in fact the property of various parties, many of whom lived outside of the city of Grenada, and therefore were not liable to be assessed for municipal taxes by the said city; that the said tax collector claimed that there was due to the city the sum of $504, municipal taxes levied upon the said sum of $36,000 for the year 1903, and unless restrained by the court would proceed to enforce the collection of said sum, wherefore an injunction was prayed for and granted by the court. The bill of complaint was sworn to and filed on the 3d January, 1904, by B. C. Duncan, assignee and receiver, and process and injunction were issued as therein prayed. To this bill a demurrer was filed upon the ground that there was no equity on the face of the bill, and that it presented no cause of action against the defendant. Upon the presentation of the demurrer, in addition to the facts stated in the bill of complaint, it was agreed that the personal assessment roll of the city of Grenada showed the following assessment: "Merchants' Bank, B. C. Duncan, Assignee"; that the city was authorized to levy and collect taxes on every description of property whatsoever, and that the marshal was clothed with the same power and authority in reference to the assessment and collection of taxes as were conferred by the law upon the assessors and tax collectors of state and county taxes. The demurrer to the bill was overruled, and from that interlocutory decree an appeal was granted the tax collector.

It is contended on the part of the appellee that, under our state laws devising a special scheme for the taxation of banks, only the value of the shares of the capital stock of each bank is assessed-these being assessed against the bank itself-and that the same rule governs the assessment of banks, whether the bank be a state or national institution. So it is said in the instant case, as the bill of complaint expressly avers the utter worthlessness of the shares of capital stock, and as this averment is by the demurrer admitted to be true, the shares of capital stockthe property which the law requires to be assessed-being confessedly worthless, there was nothing to assess, and no means where

by any estimate of valuation could be arrived at, and therefore the demurrer was properly overruled. The case of Rosenblatt v. Johnston, 104 U. S. 462, 26 L. Ed. 832, is relied on as authority for this position. We are unable to see that the rule announced in that case can in any wise control under the facts disclosed by this record. There is a difference in the method pursued in dealing with the assets of a national bank, which may or may not be insolvent, after being placed in the hands of a receiver, and the legal principles governing the collection and distribution of the assets lately belonging to an avowedly insolvent state bank. But it is

not necessary for us to enter upon any general discussion of this subject, or to consider anything but the one question of the liability to taxation of the assets or property of such institution while in the hands of a receiver, and before final distribution of the proceeds. All that appellee contends for in reference to the assessment of banks may be conceded. It may be granted, if the shares of the capital stock of a bank are worthless, or are worth less than par, that it is the intent of the law they should be assessed only at their real value. In the instant case no effort is made to assess the capital stock of the Merchants' Bank of Grenada, nor to assess solvent credits and notes as the property of that bank. Under the facts stated in the bill, and as they ap pear in the general assignment, the Merchants' Bank of Grenada was not at the date of the assignment the owner of any of the property which was assessed by the tax collector of the city of Grenada, and which forms the subject of this litigation. As shown by that assignment, the bank had voluntarily and absolutely divested itself of all claim to the control or ownership of any property, and the petition of the assignee shows that the estimated value of the property conveyed to him was $125,000. It will be noted that this transfer of property was made on the 26th January, 1903, before it was proper, under our fiscal scheme, to assess any property for taxation for that year, and when in fact no property was liable to taxation. Section 3748, Code 1892, provides that "all taxable property held by any person before the first day of February shall be assessed and taxes thereon paid for the current year." Property is assessed for purposes of taxation to the person legally holding the same on the 1st day of February annually. On this day of the year 1903 the bill of complaint affirmatively shows that the property in question was legally in the possession of B. C. Duncan, assignee of the Merchants' Bank of Grenada. Under such circumstances, it could not have been rightfully assessed to the bank for the current year, for the manifest reason that the bank had ceased to be the owner before the property became liable to assessment for that year. And this fact sharply accentuates

er.

one distinction as to the assessment and taxation of its assets between the legal status of an insolvent state bank after disposing of its assets by general assignment, and a national bank whose assets and affairs have been placed, by order of the Comptroller of the Treasury, under the control of a receivThe former has voluntarily divested itself of title. The latter remains a legal entity, retaining the legal rights to its assets, subject, however, to the control and management of another officer. The stock of the one is not assessed, because valueless, and because its property has passed into other hands. The stock of the other, "if the shares have any value," "are taxable in the hands of the holders or owners," because it still has possession of the property, and the basis upon which the value of the stock is calculated. Rosenblatt v. Johnston, supra; Bank of Bethel v. Pahquioque Bank, 14 Wall. 398, 20 L. Ed. 840.

It is the policy of our law, repeatedly expressed, that all property not specially exempted, shall bear its just proportion of taxation. Therefore the only further inquiry presented by this record is, to whom should the property have been assessed on the 1st day of February, 1903, or, if overlooked at that time, upon a subsequent day? The answer is furnished by section 3755, Code 1892, in the following words: "Each person shall, when required, make out and deliver to the assessor a true list of his taxable personal property, with the value of each article, specifying all such property of which he was possessed on the first day of February preceding, in his own right, or in the right of his wife, or as executor, administrator, guardian, trustee, or otherwise, rendering separate lists of the property of each." Therefore it was the duty of B. C. Duncan, when required by the proper assessor, to have filed a list of all property which he was possessed of on the 1st day of February preceding, as assignee of the Merchants' Bank of Grenada; and, failing to do this, it was the duty of the assessor of the city of Grenada to assess said property, as property having escaped taxation, at the fair value thereof.

We see no force in the argument of appellee that this property was not properly assessed to the assignee, because, as solvent credits, it belonged to numerous persons, many of whom resided without the corporate limits, and beyond the taxing control, of the city of Grenada. Assuming that it was the duty of all the creditors of the bank to assess their proportion in the assets of said bank upon their individual assessment as "indebtedness probably collectible," and this was in fact done, still it would not constitute double taxation, and would not render this assessment invalid. It is certainly settled in this state, beyond cavil or disputation, that the person being lawfully possessed of property must list the same for purposes of

taxation, and the mere fact that such property in some wise represents an indebtedness which is also due to or by another person does not relieve it from this burden. Besides, in the case at bar the creditors of the Merchants' Bank were not the owners of the notes and solvent credits assessed to the assignee. They were simply entitled to share ratably in the proceeds thereof under the terms of the assignment.

Without reference, therefore, and without deciding the true rule as to the assessment of shares of capital stock of banks, whether state or national, where the market value thereof is less than their face value, it is manifest to our minds that the assessment in the instant case was lawful and must be upheld. Wherefore the decree is reversed, the demurrer sustained, and the bill dismissed.

(84 Miss. 509)

FOWLKES v. LEA. (Supreme Court of Mississippi. May 23, 1904.)

DEEDS ACKNOWLEDGMENT OF RECEIPT OF CONSIDERATION-PAROL CONTRADICTION-STATEMENT OF CONSIDERATION AS WRITTEN CONTRACT.

1. An acknowledgment in a deed of the payment of the consideration is merely a receipt, subject to parol contradiction.

2. A deed reciting a consideration which it is shown by parol was not paid is a promise in writing on the part of the grantee to pay it, to which the statute of limitations relative to written promises is the only one applicable.

Truly, J., dissenting.

Appeal from Chancery Court, Monroe County; H. L. Muldrow, Chancellor.

Action by J. A. Fowlkes against F. E. Lea. From a judgment for defendant, plaintiff appeals. Reversed.

On the 12th day of December, 1896, appellant, J. A. Fowlkes, executed the following deed to his son Lee A. Fowlkes, conveying about 148 acres described in the deed, to wit: "This indenture made on the 12th day of December, 1896, by and between J. A. Fowlkes of Monroe county, state of Mississippi party of the first part and Lee A. Fowlkes of the county of Monroe, state of Mississippi, party of the second part: Witnesseth, that said party of the first part, in consideration of the sum of four hundred dollars to

paid by the said party of the second part, the receipt of which is hereby acknowledged does by these presents, grant, bargain and sell, and confirm unto the said party of the second part & his heirs and assigns, the following described lots, tracts or parcels of land being and situate in the county of Monroe and state of Mississippi. [Here describing the land.]" Lee A. Fowlkes married, and afterwards died, and his widow married appellee, F. E. Lea, and died, leaving him her sole heir. On November 1, 1901, appellant, J. A. Fowlkes, filed the bill in this

1. See Evidence, vol. 20, Cent. Dig. § 1915.

case in the chancery court of Monroe county to enforce a vendor's lien on the lands described in the deed to Lee A. Fowlkes, alleging that there was still due $400 and interest from the date the sale was made. The bill further alleged that "while said deed is ambiguous as to whether the said purchase money was paid, or not, in its recitals, complainant avers no part thereof has been, in fact, paid." The defendant, Lea, answered the bill, denying that the purchase money had not been paid, and stated that it had been paid in full. It set up the three-years statute of limitations in bar of the claim. On these pleadings considerable testimony was taken on the issue as to whether the purchase money had been paid. The court below, in its final decree, found that the land had been conveyed by appellant to Lee E. Fowlkes for $400, and that no part of the purchase money had been paid, but held that the vendor's lien was barred by the three-years statute of limitations, and dismissed the bill. From that decree complainant appeals.

Gilleylan & Leftwich, for appellant. Geo. C. Paine, for appellee.

WHITFIELD, C. J. It seems immaterial whether the word "be" or the word "him" be the proper word to be supplied in the blank space of this deed. The deed, at all events, contains an acknowledgment of the receipt of the $400; and, whether "be" or "him" be supplied, it would still contain such acknowledgment of payment. But this acknowledgment of payment is, in effect, merely a receipt, and may be contradicted by parol. It was contradicted by parol in this case. The chancellor found as a fact, and we concur in that finding, that nothing had been paid, and the deed may therefore be read as if the recital were as follows on this point: "Witnesseth, that the said party of the first part, in consideration of the sum of four hundred dollars, does by these presents, grant, bargain and sell, convey," etc., "unto the said party of the second part,” etc. Now, this recital plainly states that the land had been sold to the grantee for the consideration of $400. The question for solution in this case is, is this recital a sufficient statement of the terms of the grant to make applicable the statute of limitations relating to written promises? The grantee accepted this deed, went into possession under it, and enjoyed the fruits of the property under it. The general principle applicable to this kind of case is clearly stated in Locke v. Homer, 131 Mass. 102, 41 Am. Rep. 199, as follows: "The fact that the agreement of the defendant is contained, not in a bond, covenant, or indenture executed by himself, but in a deed poll made to and accepted by him, affects the mode of declaring, only, and not the extent of his liability. By the law of this commonwealth, affirmed by many decisions, the grantee, by the acceptance of

the deed, becomes liable to perform, according to its terms, any promise or undertaking therein expressed to be made in his behalf, although, not having himself signed the deed, he must, while the old forms of action were retained, have been sued in assumpsit, and not in covenant. Goodwin v. Gilbert, 9 Mass. 510; Fletcher v. McFarlane, 12 Mass. 43; Phelps v. Townsend, 8 Pick. 394; Guild v. Leonard, 18 Pick. 511; Newell v. Hill, 2 Metc. 180; Pike v. Brown, 7 Cush. 133; Braman v. Dowse, 12 Cush. 227; Jewett v. Draper, 6 Allen, 434; McCabe v. Swap, 14 Allen, 188, 192; Maine v. Cumston, 98 Mass. 317; Fenton v. Lord, 128 Mass. 466; Dickason v. Williams, 129 Mass. 182, 184 [37 Am. Rep. 316]; Coolidge v. Smith, 129 Mass. 554. See, also, Rogers v. Eagle Fire Co., 9 Wend. 611, 618; Rawson v. Copland, 2 Sandf. Ch. 251. Such a promise is not within the statute of frauds, because it is a promise implied by law from the acceptance of the deed, and because it is a promise to pay the promisee's own debt to another person. Goodwin v. Gilbert and Pike v. Brown, above cited; Alger v. Scoville, 1 Gray, 391; Hubon v. Park, 116 Mass. 541." To the same effect are Schmucker v. Sibert, 18 Kan. 111, 26 Am. Rep. 765; Fort v. Allen, 110 N. C. 191, 14 S. E. 685; Trotter v. Hughes, 12 N. Y. 75, 62 Am. Dec. 137; Atlantic Dock Co. v. Leavitt, 54 N. Y. 39, 13 Am. Rep. 556; Ames v. Robt. Moir & Co., 27 Ill. App. 88. And this is the doctrine of Washington v. Soria, 73 Miss. 665, 19 South. 485, 55 Am. St. Rep. 555. In Fort v. Allen, supra, the court says: "Now, it is true that it is not every recital that binds; but, without entering into a discussion of the doctrine of recitals, abounding, as it does, in many refinements and nice distinctions, it is sufficient to say, for our present purpose, that where it is the intent of the parties to place the existence of a fact beyond question, or to make it the basis of the contract, the recital will be effectual, and neither party will be permitted to deny it."

The principle with which we are concerned is this, sharply stated: Is the recital that the grantor conveyed the land to the grantee in consideration of $400 a sufficient statement of the terms of the contract to make the statute of limitations relating to written promises the only one applicable? On this precise proposition we quote the following authorities above referred to. In the case of Ames v. Moir & Co. there was an action of assumpsit for goods delivered on an instrument containing the following recital: "Contract. Chicago, June 9, 1870. I have this day bought of Robert Moir & Co., one hundred. (100) barrels highwines. 'iron bound,' at one dollar and seven cents ($1.07) per proof gallon. [Signed] Wilson Ames." After reviewing several cases the court says: "There may be a contract in writing, although it contains no express promise to pay the consideration. Strictly speaking, there is no such

As

express promise in Ames' contract. But when a state of facts is acknowledged in writing to exist, which imports an obligation to pay, the law implies the obligation, but the contract is not thereby reduced to parol. Ashley v. Vischer, 24 Cal. 322 [85 Am. Dec. 65]. Such a contract is found in the passbook of a depositor in a bank. The entries in the book are not express promises to pay, but the law implies such promises, and the liability thereunder has been held not to be barred in five years. Jassoy v. Horn, 64 Ill. 379." It is clear here that there was no express promise on Ames' part to pay, but a state of facts was acknowledged in writing to exist, which imported the obligation; but, although the law implied the obligation, the contract was held to be a contract in writing with respect to the statute of limitations applicable. This case covers our case perfectly. There is no express promise on the part of the grantee to pay $400, but there is a statement of facts, to wit, that the land was sold for the consideration of $400, which statement of facts is acknowledged in writing, and from which statement of facts the law imports the obligation to pay. In such case the contract terms being thus acknowledged in writing-the statute of limitations applicable to a written promise applies. stated by Cooper, C. J., in Washington v. Soria, supra: "In either event the promise of the defendant, whether it be express or implied, is to perform a contract, the terms of which are written, and not unwritten. The promise to pay is implied by law, but it is a promise to perform a written, and not an unwritten, contract." We do not see how words could more clearly express the principle on which we rest our views of this case. The terms of the contract which is to be performed are in writing, acknowledged by the grantee by his acceptance of the deed, and in going into possession thereunder. The promise to pay the $400 is implied by law, but it is the promise to perform the written contract, to wit, that he should pay $400 for the land conveyed. It is true that in the Washington v. Soria case, supra, the deed recited that the grantee was to pay in installments, but there is no difference, in effect, between the recitation in a deed poll that the grantee will pay a certain sum in installments, he making no written notes to pay, but entering into possession under the deed, and the recital that the grantor in a deed poll has sold and conveyed to the grantee a tract of land for $400. There is no written note in either case, but the terms of the contract in one, just as clearly as in the other, import an obligation to pay, and import it in writing. The recital in this deed that the grantor has sold and conveyed this tract of land to the grantee for $400 is, in substance and effect, the perfect equivalent of a recital that the grantor had sold and conveyed the grantee this tract of land, for which the grantee was to pay the