The demurrer was properly overruled, and the decree is affirmed.

RESCISSION OF CONTRACT. OFFER TO RETURN BENEFITS RECEIVED: Bryant v. Isburgh, 13 Gray, 607; 74 Am. Dec. 657-662, note; Downer v. Smith, 32 Vt. 1; 76 Am. Dec. 148; Ware v. Houghton, 41 Miss. 370; 93 Am. Dec. 258; Woodbury v. Woodbury, 47 N. H. 11; 90 Am. Dec. 555; Francis v. New York etc. R. R. Co., 108 N. Y. 93; State ex rel. Lewis v. Williams, 39 Kan. 517; Bell v. Keepens, 39 Id. 105.

EFFECT OF DELAY IN SEEKING RESCISSION OF CONTRACT: Wilbur v. Flood, 16 Mich. 40; 93 Am. Dec. 203; Goshen Township v. Shoemaker, 12 Ohio St. 624; 80 Am. Dec. 386. Where plaintiff purchased furniture of defendant, and leased a boarding-house of him for five years, being induced to make the purchase and take the lease through false and fraudulent representations of defendant, and he offered in six months to rescind contract, having discovered the falsity of the representations, it was held that his offer to rescind was made within a reasonable time: Hart v. Kimball, 72 Cal. 283.

MILLS v. NEW ORLEANS SEED COMPANY.

[C5 MISSISSIPPI, 891.]

INJUNCTION WILL ISSU To Prevent VeXATIOUS LITIGATION AND A MULTIPLICITY OF SUITS, or to restrain a trespass continuous in its nature, as where repeated acts of trespass are done or threatened, although each of such acts, taken by itself, may not be destructive or inflict irreparable injury. Hence, where a company engaged in the business of buying and crushing cotton-seed was in the habit of sending out sacks to farmers to be filled and reshipped to it, and another company engaged in the same line of business willfully and persistently procured the sacks so distributed, and used them for their purposes, and, though repeated actions of replevin had been prosecuted against them, persisted in their purpose, it was adjudged that an injunction ought to issue to prevent a further repetition of these wrongs.

BILL for an injunction. The bill averred that the complainant was in the business of buying, collecting, and crushing cotton-seed, and was the owner of several hundred thousand sacks, all of which were legibly branded, and were necessary to be used in his business; that the course of business was to distribute these sacks along the railroads and public landings, where producers, finding them, would fill them and ship them to complainant; that the defendants. were engaged in the same business, and were in the habit of taking complainant's sacks, and using them in their business, and for their purposes, and sometimes concealed the use of complainant's sacks by covering them by some of their own sacks; that complainant had brought numerous actions of

replevin to recover possession of his sacks, in which actions the defendants had given bonds; that the defendants persisted in their course, and during the preceding year had used many thousands of complainant's sacks, many of which had thereby been lost, damaged, or destroyed; and that the remedies available to complainant at law were entirely inadequate, etc. The prayer of the bill was for an accounting, for the delivery to complainant of all sacks of his in the possession or use of defendants, and for an injunction against any further use of such sacks by the defendants. Demurrer interposed by the defendants was overruled, and they appealed.

Lee and McKee, for the appellants.

Miller, Smith, and Hirsh, for the appellee.

ARNOLD, J. The demurrer was properly overruled. The allegations in the bill of repeated, willful, and continuous wrongs committed and threatened by appellants warranted the issuance of the injunction. The jurisdiction of equity in such case cannot be doubted.

It is said that the prevention of vexatious litigation and of a multiplicity of suits constitutes a favorite ground for the exercise of the jurisdiction of equity; and it may be laid down as general rule that wherever the rights of a party aggrieved cannot be protected or enforced in the ordinary course of proceedings at law except by numerous and expensive suits, equity may properly interpose and afford relief by injunc tion: 1 High on Injunctions, sec. 12; 1 Pomeroy's Eq. Jur., sec. 245.

Where trespass to property is a single act, and is temporary in its nature and effects, so that the legal remedy of an action at law for damages is adequate, equity will not interfere. But if the trespass is continuous in its nature, and repeated acts of trespass are done or threatened, although each of such acts, taken by itself, may not be destructive or inflict irreparable injury, and the legal remedy may therefore be adequate for cach single act if it stood alone, the entire wrong may be prevented or stopped by injunction: 1 Pomeroy's Eq. Jur., sec. 245; 3 Id., sec. 1357.

The separate remedy at law for each of such trespasses would not be adequate to relieve the injured party from the expense, vexation, and oppression of numerous suits against the same wrong-doer in regard to the same subject-matter.

The ends of justice require, in such case, that the whole wrong shall be arrested and concluded by a single proceeding. And such relief equity affords, and thereby fulfills its appropriate mission of supplying the deficiencies of legal remedies. Affirmed and remanded, with leave to appellants to answer within thirty days after the mandate of this court herein is åled in the court below.

WHEN INJUNCTION WILL LIE TO ENJOIN REPEATED ACTS OF TRESPASS: See Port of Mobile v. Railroad Co., 84 Ala. 115; 5 Am. St. Rep. 342, and note 352; Smith v. Gardner, 12 Or. 221; 53 Am. Rep. 342, and extended note 346355. To prevent a multiplictiy of actions at law, courts of equity will issue injunction where the trespass is a continuing one: Wheelock v. Noonan, 108 N. Y. 179; Ellis v. Wren, 83 Ky. 254.

HIGNITE V. HIGNITE.

[65 MISSISSIPPI, 447.]

CO-TENANCY - OUSTER. - EXCLUSIVE POSSESSION BY A TENANT IN COMMON WHO HAS TAKEN A CONVEYANCE, purporting to convey the property in severalty, does not constitute an ouster of his co-tenants, and therefore cannot bar their right to partition, although he claims to own the whole of the tract, unless knowledge of such claim is brought home to them.

BILL for partition. The land had been the property of John Hignite, and both before and after his death had been used as the family homestead. He left a widow and several children, but no will. Before her death, the widow, while in possession of the land, conveyed it to one of the children, the defendant in this suit, by a deed purporting to be in severalty, and which contained covenants of general warranty. Her only interest in the land at the time was her right of dower. Her grantee occupied the land for twelve years after the execution of this deed, and at one time offered to sell it, some two or three years after receiving the conveyance. One witness testified that the defendant always claimed the land as his own.

other heirs now sued for partition, and there was no evidence of any knowledge on their part of the defendant's adverse claim, unless such knowledge was to be imputed to them from his possession and cultivation of the land. The bill was dismissed. Complainants appealed.

Clifton and Eckford, for the appellants.

B. B. Boone and B. A. P. Selman, for the appellee.

AM. 8T. REP., VOL. VII.—43

COOPER, C. J. The complainants should have had a decree for partition. There is no sufficient evidence of an adverse holding by the co-tenant in possession to put in operation the statute of limitations as against the others. True it is that he bought the land, or took a deed therefor from the widow of the common ancestor, but there is no evidence that complainant had notice thereof or ever heard that he claimed to be the owner of the whole interest in the land. A tenant in common out of possession has a right to rely upon the possession of his co-tenant as one held according to the title and for the benefit of all interested until some action is taken by the other evidencing an intention to assert adverse and hostile claims. If one enters upon the land of a sole owner and without his consent, he must know that such possession exists, and within the time permitted by law take steps to vindicate his right. But the possession of a co-tenant is a lawful possession, and of and by itself is not evidence of an ouster.

The decree will be reversed and cause remanded.

POSSESSION OF One Co-tenant WHEN THE POSSESSION OF ALL: Page v. Branch, 97 N. C. 97; 2 Am. St. Rep. 281, and note 284; compare Annely v. De Saussure, 26 S. C. 497; 4 Am. St. Rep. 725, and cases collected in note 733.

LINDZEY V. State.

[65 MISSISSIPPI, 542]

EX POST FACTO LAW is one which in its operation makes that criminal or penal which was not so at the time the act was performed; or which increases the punishment; or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage. Ex POST FACTO LAW MAY MITIGATE THE PUNISHMENT of a crime after it is committed. This mitigation must consist of the remission of some separable part of the punishment before prescribed. If one penalty is substituted for another, the courts will not undertake to determine whether the latter is less severe than the former, but will refuse to apply any penalty whatever.

CHANGE IN A PENAL STATUTE HAVING BEEN MADE AFTER THE CONMISSION OF AN OFFENSE, and before a trial and conviction therefor, whereby the crime was so defined as to make criminal something which was before lawful, and a greater punishment prescribed, it was held that the offender could not be punished under either statute. INDICTMENT and conviction for carrying a concealed weapon. J. W. Downs and W. D. Brown, for appellant. T. M. Miller, attorney-general, for the state.

ARNOLD, C. J. In December, 1887, appellant was indicted for carrying a concealed weapon. At that time the punishment prescribed by section 2985 of the code for such offense was by fine not exceeding one hundred dollars, and in the event the fine and costs were not paid, by hard labor not exceeding two months; and at that time the statute did not prohibit one who had good and sufficient reason to apprehend an attack from carrying concealed weapons.

In May, 1888, appellant was tried on the indictment, convicted, and sentenced to pay a fine of thirty dollars; but prior to that date, the legislature, by the act approved March 9, 1888, amended section 2985 of the code by striking out the words "having good and sufficient reason to apprehend an attack," and providing, without any saving clause as to past offenses, that the punishment for carrying concealed weapons shall be by fine not exceeding one hundred dollars nor less. than twenty-five dollars, and in the event the fine and costs were not paid, by hard labor not exceeding two months nor less than one month. It is urged by appellant that he cannot. be punished under the old law, because it has been repealed, nor under the amended law, because as to him it is an ex post facto law, both under the state and federal constitutions.

The purpose and effect of the amendment to section 2985 of the code was to repeal so much of the section as fixed the punishment for carrying concealed weapons, and permitted having good and sufficient reason to apprehend an attack to be a defense to the charge, and to prescribe a new and severer punishment for the offense. The punishment prescribed by the amendment was substituted for and took the place of that provided by the section before it was amended. The section. as amended made it unlawful for one to carry concealed. weapons, though he might have good and sufficient reason to apprehend an attack, and it increased both the minimum of fine and imprisonment provided by the section before its amendment, and prescribed the only penalty for the offense.

In this state of the law, how can appellant be lawfully punished for the offense with which he is charged? It is better that any criminal shall go unpunished than that any provision of the constitution shall be disregarded, or that the foundations of the criminal law shall be unsettled.

After the amendment to section 2985 of the code was adopted, appellant could not be punished under the section as it existed before the amendment, because so much of it as