party has a right to produce before the jury the same evidence which was submitted to the court when it was called upon to decide the question of competency, and all other facts and circumstances relevant to the confession, or affecting its weight or credit as evidence; and if it should be made to appear at this point, or any other during the progress of the trial, that the confession was made under such circumstances as to render it incompetent as evidence, it should be excluded by the

court.

The jury cannot reject or disregard a confession which has been admitted by the court merely because they may deem it incompetent, for the competency or incompetency of evidence is a legal question not within their province; but on the other hand, they are not bound to believe or attach any weight or credit to a confession on the ground alone that the court has decided that it was admissible, and might be heard by them. The jury has the same freedom of action in reference to confessions which they have in regard to other testimony: Brister v. State, 26 Ala. 107; Commonwealth v. Knapp, 10 Pick. 477; 20 Am. Dec. 534.

The declaration made in Garrard v. State, 50 Miss. 147, to the effect that whenever there is a conflict of testimony as to whether a confession was voluntary or not, it then becomes a question of fact to be determined by the jury, and the court is thereby relieved of the duty and responsibility of deciding as a preliminary matter whether it was voluntary or not, is erroneous, and the decision on that point is disapproved and overruled: 1 Greenl. Ev., sec. 219; Wharton's Crim. Ev., sec. 689; Simmons v. State, 61 Miss. 243; 1 Phillips on Evidence, 3–7, and 543.

The second instruction asked by appellant, and refused, should have been given. It is true that it suggests in one part that the jury should disregard the confession if they believed it incompetent or "brought about by fear"; but this was coupled with the declaration that it was not to be so treated unless they also believed that it was untrue. Of course, if the confession was believed by the jury to be untrue, no matter from what cause, it should have been disregarded as evidence. The instruction would have been more accurate if it had simply informed the jury that if they believed from the evidence that the confession was untrue they should disregard it, or if they believed from the evidence that it was made under the influence of hope or fear, they should take this into ac

count in determining what weight or credit, if any, they would attach to it as evidence.

Reversed and remanded.

CONFESSIONS AS EVIDENCE, AND WHEN ADMISSIBLE AS VOLUNTARY: Carr v. State, 24 Tex. App. 562; 5 Am. St. Rep. 90)5, and note 908; Tillery v. State, 24 Tex. App. 251; 5 Am. St. Rep. 882, and cases collected in note 887; Biscoe v. State, 67 Md. 6; Ross v. State, 67 Id. 286; People v. Yeaton, 75 Cal 415; State v. Ellis, 97 N. C. 447.

CONFESSIONS. THE COURT ALONE SHOULD ASCERTAIN THEIR COMPETENCY, and it is the duty of the court, before allowing witnesses to testify in regard to the confessions of a prisoner, to determine their admissibility by prelimi nary questions outside the hearing of the jury: Biscoe v. State, 67 Md. 6; Pascal v. State, 77 Ga. 596.

BOARD OF SUPERVISORS OF Lauderdale COUNTY V. ALFORD.

[65 MISSISSIPPI, 63.]

LNTERPLEADER WILL NOT BE COMPELLED, WHERE THE DOUBT AS TO WHICH or Two PERSONS IS LIABLE DOES NOT ARISE FROM UNCERTAIN OR UNKNOWN FACTS, and the only question is, what is the law applicable to conceded facts.

SURETIES ON THE BOND OF THE SAME OFFICIAL FOR DIFFERENT TERMS. If moneys are misappropriated by the agent of a county treasurer, and he conceals this fact, and procures moneys and exhibits them to the county officials during his term of office, and also during one or more settlements after entering on the discharge of his duties for a second term, and then proclaims the misappropriation, and refuses to make it good, his default must be regarded as having been made in the second term, and his sureties for that term are the ones who are answerable. SUBROGATION. -If a county treasurer, whose agent or deputy has misappropriated the public funds, takes a note from such agent for the sum misappropriated, with a third person as surety on the note, the county is entitled to be subrogated to the treasurer, and to enforce the note against the maker and his surety.

CONSIDERATION OF NOTE IS NOT ILLEGAL when it is given by an agent of a

county treasurer, whom the latter had, without authority of law, appointed to conduct the office, to secure the repayment of moneys previously misappropriated by such agent.

BILL against Alford, formerly county treasurer for two terms, and against his sureties for both terms, and against Latham and Ragsdale, who had executed a note under circumstances hereinafter set forth. During Alford's first term, he employed L. K. Latham as his agent to dischare the duties of his office. Latham misappropriated $6,441.97, and executed to Alford his note for that amount, with Ragsdale as

surety. The default of Latham was concealed. When Alford entered upon the discharge of his duties for the second term, he accounted with the supervisors for the full amount which he would have had on hand had the misappropriation not occurred, and exhibited to them all the moneys which the books showed ought to be on hand. At the meeting of the board held three months later, he announced the defalcation of his agent, which had occurred in the previous term, and acknowledged that he had been able to exhibit the proper amount of moneys at the prior meetings by the aid of a temporary loan. The bill prayed that inasmuch as there were grave doubts which set of sureties were liable, that both sets be required to appear and interplead, and that the liability might be fixed where it belonged. Also that the county be Bubrogated to the rights of Alford on the note executed in his favor by Latham and Ragsdale. To the bill, three demurrers were interposed. The demurrer of the sureties on the first bond suggested that there was an adequate remedy at law; that the defalcation did not occur during the term for which they were sureties, and that Alford had no authority to appoint Latham agent. The demurrer of the sureties on the second bond was on substantially the same grounds. Latham and Ragsdale having died, their representatives demurred, challenging the right of the county to subrogation, and insisting that the note was void and without consideration. All the demurrers were sustained.

Walker and Hall, for the appellant.

Whitaker, Dial, and Witherspoon, and Woods, McIntosh, and Willams, for the appellees.

CAMPBELL, J. Had the bill been so drawn as to show that the facts are unknown as to which set of sureties are liable, the jurisdiction of chancery would have been undoubted: Gay v. Edwards, 30 Miss. 218; Tate v. De Soto, 51 Id. 588.

But the criticism is a just one, that the only uncertainty alleged is as to the law upon the facts stated, and if this was a recognized ground for the interposition of a court of equity, there would scarcely be a need for courts of law.

On the facts stated, our present view is, that there is no liability on the first bond, not because Alford was represented by another in conducting the business of his office, but because he was not a defaulter during his first term. Grant that Latham,

who acted for him, misapplied the money, Alford made it all right with the county, and reported the sum due, and produced the money to be counted, as required by law, and this was during his second term of office, wherefore it seems that any default by him was after the second bond was given, and not while the first was a security for his official acts.

The demurrer of the sureties on the first bond was properly sustained, and then the bill was no more than an action on the second bond presenting no ground for proceeding in chancery against them, and for that reason the demurrer of the sureties on the second bond was properly sustained.

But as Alford is liable for all the money due the county, and as the note for $6,447.91 executed by Latham with Ragsdale as surety was made to represent and secure the payment of the debt, equity will lay hold of the security and place the burden at once where it should be borne, substituting the creditor to the rights of Alford, and enforcing the claim he could enforce for this debt: Sheldon on Subrogation, sec. 167.

The consideration of the note was not illegal, and the note is not void on such ground.

Newsom v. Thighen, 30 Miss. 414, is authority only for the proposition that the note in that case could not be recovered on by the successor in office of the payee. It was not valid as an obligation to the officer in his official capacity. The conclusion of the opinion intimates its validity as a personal contract with the payee. Any other view is clearly erroneous.

Mc Williams v. Phillips, 51 Miss. 196, was decided improperly, and we decline to follow it. In it there was a misapprehension and misapplication, not only of Newsom v. Thighen, supra, but of well-settled principles. But, besides this, here the note was given to evidence and secure an unquestionable liability of Latham to Alford after it had been incurred, and there is that difference between this case and those cited. There is no semblance of illegality in the consideration of the note. The demurrer of Alford and the representatives of Ragsdale and Latham was improperly sustained, and as to this the decree is reversed, that demurrer overruled, and answers required in thirty days after mandate filed.

WHEN BILL OF INTERPLEADER LIES: See Tyus v. Rust, 37 Ga. 574; 95 Am. Dec. 365, and cases collected in note 367; Bechtel v. Shaefer, 117 Pa. St.

655.

STATUTORY INTERPLEADER PRACTICE, PLEADING, eto.: Clark v. Mosher, 107 N. Y. 118; 1 Am. St. Rep. 798, and note 800-802.

LIABILITY OF SURETIES LIMITED TO OFFICIAL TERM OF PRINCIPAL: Wapello County v. Bigham, 10 Iowa, 39; 74 Am. Dec. 370, and note 374; Inhahitants etc. v. Shaver, 50 Me. 36; 79 Am. Dec. 592; Treasurer of Vermont v. Mann, 34 Vt. 371; 80 Am. Dec. 688. And where the same person is elected and acts as treasurer for three successive terms, and it afterwards develops that money deposited with him as treasurer had been misappropriated, it will be presumed, in the absence of evidence to the contrary, that the misappropriation took place at the end of his last term, and the sureties on his last official bond are liable therefor: Heppe v. Johnson, 73 Cal. 265.

SUBROGATION. WHEN THIRD PARTY IS ENTITLED TO BE SUBROGATED TO RIGHTS OF CREDITOR: Fears v. Albea, 69 Tex. 437; 5 Am. St. Rep. 78, and note 85.

EX PARTE O'LEARY.

[65 MISSISSIPPI, 180.]

NUISANCE, POWER OF MUNICIPAL CORPORATION TO DECLARE WHAT IS A. — A municipal corporation cannot make that a nuisance which is not such in fact; therefore an ordinance which declares that "all hog-pens, or lots now used as such, are hereby declared a nuisance, and shall be abated," is too broad and sweeping in its provisions, and is invalid. HABEAS CORPUS. - The detention of the prisoner was justified under an or dinance, for the violation of which she had been arrested. The substance of the ordinance is stated in the syllabus. The prisoner was remanded to the custody of the city marshal, and therefore appealed. E. E. Baldwin, for the appellant.

D. Shelton, for the city of Jackson.

CAMPBELL, J. The process by virtue of which the prisoner was held conforms to the ordinance of the city, and the single question for the decision on trial of the writ of habeas corpus was as to the validity of the ordinance. It is too broad and sweeping in its provisions, and is invalid. Hogs in the city of Jackson may or may not be a nuisance, and any ordinance on the subject should be framed accordingly: Wood on Nuisances, sec. 518.

Reversed and prisoner discharged.

MUNICIPAL CORPORATION MAY NOT DECLARE THAT TO BE a nuisance which in fact is not, though it is by law empowered to declare what shall be a nuisance: Village of Des Plaines v. Poyer, 123 Ill. 348; 5 Am. St. Rep. 524; Paver v. Albrecht, 72 Wis. 416.