charitable organization that, when you once own property free of matured claims for taxes on the part of the state, such property shall not be subject to further tax, but before you shall have this grace extended to you all existing tax liens of the state must be paid. But it is not to be supposed that the state ever intended to tax the property of a governmental agent of its own. In Cooley on Taxation (3d Ed.) p. 263, the author says: "Before noticing the exemptions expressly made by law, it will be convenient to speak of some which rest upon implication. Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the Legislature in adopting them. Such is the case with property belonging to the state and its municipalities, and which is held by them for governmental purposes. All such property is taxable, if the state shall see fit to tax it; but to levy a tax upon it would render necessary new taxes to meet the demand of this tax, and thus the public would be taxing itself in order to raise money to pay over to itself, and no one would be benefited but the officers employed, whose compensation would go to increase the useless levy. It cannot be supposed that the Legislature would ever purposely lay such a burden upon public property, and it is therefore a reasonable conclusion that, however general may be the enumeration of property for taxation, the property held by the state and by all its municipalities for governmental purposes was intended to be excluded, and the law will be administered as excluding it in fact." chaser at the sale got no title, because it was beyond the power of the officers to sell. In the case of Territory v. Perrin, 9 Ariz. 316, 83 Pac. 361, the Arizona court held that: "Lands acquired for public purposes during the period between the first and final steps of taxation are exempt from taxes levied during the year in which they are acquired. Bannon v. Burnes (C. C.) 39 Fed. 892; Gachet v. City of New Orleans, 52 La. Ann. 813, 27 South. 348; Buckhout v. City of New York, 176 N. Y. 363, 68 N. E. 659. And this is true even where, as in this territory, the Legislature has declared that a lien for taxes shall attach at a date prior to the time when the first steps are taken to subject the real estate to taxation." In the case of City of Denver v. Bonesteel, 28 Colo. 483, 65 Pac. 628, the court held that: "The purpose of a municipal corporation is to permit the inhabitants of a particular district, in their corporate capacity as such, to exercise subordinate specified powers of legislation with respect to their local and internal concerns. Such a like a county; but it exercises the powers of municipality is not an agency of the state, of the sovereign state. the government by virtue of the authority local administration of law in the territory Its legislation and embraced within its jurisdiction are legislation and administration of governmental affairs within that limit. Stermer v. Board, 5 Colo. App. 379, 38 Pac. 839; 1 Dill. Mun. Corp. (4th Ed.) § 20; City of Louisville v. Com., 1 Duv. [Ky.] 295, 85 Am. Dec. 624. It is by virtue of political subdivisions such as counties, and municipalities like cities, that the laws are executed and the welfare of the people subserved. Taxes are charges In the McHenry Case, supra, the court levied by the sovereign state upon the perheld that the exemption reached forward, sons of its subjects or citizens, and not and only exempted the property of the re- charges upon itself. Revenue is the object ligious society from future taxes, leaving it of taxation, and none would result from to discharge all previously attached liens levying a tax upon the agencies of the state, for taxes. In the case of a municipality, a through which it exercises the functions of governmental agency of the state, and itself government, or by virtue of which it promaintained by taxation, and presumed by tects and enforces its rights or those of its law to be exempt from taxation, it cannot citizens. Taxation of these functions and be supposed that the Legislature intended agencies would, in effect, be merely taking that any further steps should be taken look-out of one pocket and putting it into aning to the enforcement of the state's lien other. In the end, no net revenue would be for taxes against property acquired by one derived. People v. Doe G., 36 Cal. 220; Inof its own governmental agents, after the property is purchased by such agent. Such proceedings would not aid the effectuation of any governmental purpose, but would impair it. After the municipality purchased this lot, the taxing officers could not take any further steps looking to the collection of the tax, and the subsequent sale of the land for the taxes was a nullity. The pur habitants of Worcester Co. v. Mayor, etc., of City of Worcester, 116 Mass. 193, 17 Am. Rep. 159; Fagan v. City of Chicago, 84 Ill. 227; Gachet v. City of New Orleans [52 La. Ann. 813] 27 South. 348." It follows from the above that, since the bill wholly fails to state a cause of action, the judgment of the court below is reversed, and bill dismissed. (100 Miss. 342) CARTER ▼. STATE (No. 15,166.) (Supreme Court of Mississippi. Nov. 6, 1911.) CRIMINAL LAW (§ 649*)-CONTINUANCE-ABSENT WITNESS-ADJOURNMENT TO HOUSE OF WITNESS. Refusal of continuance for absence of a witness, sick at his home in the same town, is not excused by the court adjourning to such home, and there tendering the witness to defendant, over his objection, on which he declined to examine, that the courthouse was the proper place for trial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1513; Dec. Dig. § 649.*] Appeal from Circuit Court, Lincoln County; D. M. Miller, Judge. "To be officially reported." Katie Carter appeals from a conviction for unlawful sale of intoxicating liquors. Reversed and remanded. Clem V. Ratcliff, for appellant. Jas. R. McDowell, Asst. Atty. Gen., for the State. WHITFIELD, C. Appellant made application for a continuance in due form of law on account of the absence of Jim Strickland, a material witness, who was very ill at his home in the town where the court was held. The court overruled the application, and then, over the earnest protest of the defendant, adjourned the whole court, parties, sheriff, clerk, district attorney, etc., to the home of the witness Jim Strickland, and there tendered the witness to counsel for appellant for examination. To all this the counsel for appellant earnestly objected, and declined to examine the witness, stating that the courthouse was the place provided by law for the trial of cases. Bishop, in his New Criminal Procedure (volume 1, § 1195) announces that this cannot be done, citing Adams v. State, 19 Tex. App. 1. That case we have carefully examined. It is identical in its facts with the case at bar, and on the point involved the court said: "We know of no authority which would compel the defendant to go with the court and jury from the courthouse to where the absent witness was at the time, that her testimony might be taken. Under the law the trial must be had at the courthouse at the county site of the county. It was there, and there only, that the case must be heard and determined. If the defendant could be required to go one-half a mile with the court and jury in order to have the benefit of the testimony of an absent witness, he could be required to go one, two, or five miles. . We cannot sanction such a practice. All the proceedings in the trial should be conducted at the courthouse, the place designated by law for the trial of causes. If the defendant had consented to the proposition to go with the court and jury to the place where the witness was, and there take her testimony, and if her testimony had in this manner been taken, we do not think the defendant could have objected to the irregularity. But that is not the question before us. In this case the defendant's application for a continuance was refused; one of the grounds of the refusal being that he declined to accept the proposition of the court to go with the jury to the place where the witness was confined by sickness, and there take her testimony. Such a proposition was, we think, no answer to his application for a continuance, and should not be considered in determining his right to a continuance." PER CURIAM. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is reversed, and the cause remanded. 1. RAPE (§ 40*)-FEMALE UNDER AGE OF CONSENT-PREVIOUS UNCHASTE CHARACTER. In a prosecution for rape on a female under 12 years of age, evidence of previous unchaste character is ordinarily immaterial. [Ed. Note. For other cases, see Rape, Cent. Dig. §§ 55-59, 64; Dec. Dig. § 40.*] 2. RAPE (§ 43*)-EVIDENCE-PHYSICAL CONDITION OF FEMALE. Where, in a prosecution for rape on a fe male under 12, there was practically no corrob oration, except the fact that her hymen had been ruptured, evidence of a physician, who examined her on the day of alleged crime, that her vaginal orifice was abnormally large, the hymen obliterated, that there was no indication of any intercourse with her on that day, that she was not bruised, and that it would have been impossible for a man with a normal sized sexual organ to have had intercourse with her without bruising her, was admissible to rebut the corroboratory fact. [Ed. Note.-For other cases, see Rape, Dec. Dig. § 43.*] Appeal from Circuit Court, Yazoo County; W. A. Henry, Judge. Ed Richardson was convicted of rape, and he appeals. Reversed and remanded. Holmes & Holmes, for appellant. Jas. R. McDowell, Asst. Atty. Gen., for the State. SMITH, J. Appellant was indicted and convicted of the crime of rape, the female being under the age of 12 years. On the day of the alleged commission of the crime, and a short time thereafter, this girl was examined by a physician, who testified that she was not bruised in any way, and that he found no indications of any intercourse having been had with her on that day; that the vaginal orifice was abnormally large, and the hymen was obliterated; that this had not been done that day, but had been done some time prior thereto. This physician also testified, as did two other physicians, who aft erwards examined this girl, that it would | Dodge (this appellant), who was the father have been impossible for a man with a nor- of H. C. Dodge, was asserting a claim of mal sized sexual organ to have had intercourse with her without bruising her. In this state of the evidence, defendant offered to prove that this girl had had sexual intercourse with men prior to the date of the commission of the alleged crime, which evidence was by the court excluded. an indebtedness due him by H. C. & F. E. Dodge, and accordingly, contemporaneously with the execution and delivery of the deed from Mrs. F. E. Dodge to him, Cutrer executed the following instrument, to wit: "State of Mississippi, Coahoma County. As a part of the consideration of the conveyance which F. E. Dodge has this day executed to me of certain lands in Sunflower county, state of Mississippi, I agree to pay and hold the said F. E. Dodge harmless from the payment of any and all debts, including taxes on the above lands for the year 1905, for which H. C. Dodge and F. E. Dodge are jointly liable, or which were or are a part of the indebtedness contracted and owing by the firm of H. C. Dodge and F. E. Dodge, who lately conducted business [1, 2] Previous unchaste character in this class of cases is ordinarily wholly immaterial, and is not admissble in evidence; but here whether or not this girl had previously had intercourse with men was very material. Practically the only corroboration of her testimony that she had been raped was the fact that her hymen had been ruptured; and, had it been shown that this rupture occurred at some prior time, this corroborating testimony would have been eliminated. The exclusion of this testimony was, there- as partners on the above-mentioned lands fore, fatal error, and the judgment of the court below is reversed, and the cause remanded. (100 Miss. 647) DODGE v. CUTRER. (No. 14,596.) Where the purchaser of a partner's half interest in a plantation executed an agreement, reciting that as part of the consideration he agreed to pay and hold the seller harmless from payment of all debts owing by the partnership, a partnership creditor could maintain an action against the purchaser. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 495-499; Dec. Dig. § 239.*] Appeal from Circuit Court, Coahoma County; Sam C. Cook, Judge. Action by D. D. Dodge against J. W. Cutrer. From a judgment for defendant, plaintiff appeals. Reversed and remanded. in Sunflower county, state of Mississippi, under the firm name and style of H. C. & F. E. Dodge. Witness my signature at Clarksdale, Mississippi, this the 13th day of July, A. D. 1905. J. W. Cutrer." Thereafter D. D. Dodge demanded of Cutlong past due, executed jointly by H. C. rer the payment of two certain notes, then Dodge and F. E. Dodge in favor of D. D. Dodge, in 1898 and 1900, respectively, aggregating the sum of $925. Payment having been refused, suit was brought. At the close of the testimony the court instructed the jury to find for the defendant, and plaintiff appealed from the judgment thereon. D. A. Scott and Frank Johnston, for appellant. Geo. Winston and Charles Clark, for appellee. SMITH, J. The written agreement executed and delivered by appellee to F. E. Dodge as a part of the consideration for the deed to her undivided one-half interest in Mrs. Flora E. Dodge, and her husband, the plantation purchased from her is not H. C. Dodge, were the owners of a planta- simply a promise to indemnify and hold tion in Sunflower county, Miss., and were en- harmless Mrs. Dodge from the payment by gaged in the business of planting as a part- her of the debts due by herself and husnership, under the firm name and style of band, as contended by appellee, but it is H. C. & F. E. Dodge. Some marital troubles an express promise to pay these debts. Its having arisen between them, Mrs. Dodge, language is "I agree to pay," etc. This through her attorney, began negotiations being true, and as the notes sued on are the for the sale of her undivided half interest joint notes of H. C. Dodge and F. E. Dodge, in the property, which resulted in the sale executed by them to appellant for a valuof same on July 13, 1905, to J. W. Cutrer, able consideration, appellant has the right the appellee here. There were several liens to maintain this action in his own name, and incumbrances on said property, includ- and consequently the peremptory instrucing the taxes for 1904, which were men- tion granted the appellee in the court below tioned in the conveyance, and, except as to was error. Sweatman v. Parker, 49 Miss. those enumerated, the grantor warranted 30; 30 Cyc. 67-74, inclusive, and authorithe title to the property. In the course of ties there cited. the negotiations it appeared that D. D. Reversed and remanded. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes (100 Miss. 346) MOSES V. STATE. (No. 15,167.) (Supreme Court of Mississippi. Nov. 20, 1911.) INTOXICATING LIQUORS (§ 230*)-UNLAWFUL SALE-EVIDENCE-ADMISSIBILITY. Under Code 1906, § 1762, providing that, in a prosecution for unlawfully selling liquors, the state may show any sale within two years before the day laid in the indictment or affidavit, it is error to admit proof of sales after that day, though before the indictment was returned. [Ed. Note. For other cases, see Intoxicating Liquors, Dec. Dig. § 230.*] Appeal from Circuit Court, Lincoln County; D. M. Miller, Judge. "To be officially reported." Florence Moses was convicted of unlawfully selling liquor, and she appeals. Reversed. Naul & Lanier, for appellant. Jas. R. McDowell, Asst. Atty. Gen., for the State. MCLAIN, C. Appellant was convicted in the circuit court of Lincoln county for unlawful sale of liquor, and was sentenced to pay a fine of $500 and to imprisonment for 90 days. From this judgment and sentence, she appeals to this court. The indictment in this case was returned into the court and marked filed "January 16, 1911." In the body of the indictment the crime is alleged to have been committed on January 7, 1911. Felix Coleman and Bill Smith both testified that they bought whisky from appellant on January 12, 1911. Birt Coon testified that he bought whisky from appellant in March, 1910. On behalf of the state, the court instructed the jury that, if they believe from the evidence that Florence Moses sold the liquors to Coleman and Smith, then she is guilty as charged. The sale to Coleman and Smith occurred on January 12, 1911, four days prior to the finding of the indictment, and five days after the date of sale laid in the indictment. Section 1762, Code of 1906, provides that "on the trial of all prosecutions for the violation of law by the sale or giving away of liquors, bitters, or drinks, the state shall not be confined to the proof of a single violation, but may give evidence in any one or more offenses of the same character committed anterior to the day laid in the indict ment or in the affidavit, and not barred by the statute of limitations; but in such case, after conviction or acquittal on the merits, the accused shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment or in the affidavit." It is true, if the indictment leaves the date blank, as in the case of Wadley v. State, 96 Miss. 77, 50 South. 494, the prosecution Would be permitted to make proof of sales within two years prior to the date of the finding of the indictment. The proof in this case was sufficient to convict appellant, independent of the testimony of Felix Coleman and Bill Smith; but the court, by instruction, charged the jury that, if they believe from the evidence that appellant sold liquors to Coleman and Bill Smith, then she is guilty. We think this instruction was error. The sales to Coleman and Smith were made five days after the date laid in the indictment. For this error, we think the case should be reversed. PER CURIAM. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is reversed, and the cause remanded. (100 Miss. 517) MCINTYRE v. E. E. FORBES PIANO CO. (No. 15,254.) (Supreme Court of Mississippi. Nov. 20, 1911.) 1. INJUNCTION (§ 26*)-RIGHT TO RELIEF. Equity can restrain prosecution of suit to replevy a piano bought by plaintiff on the inlien sought to be enforced by defendant. stallment plan, and decree redemption from the [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 24-49; Dec. Dig. § 26.*] 2. SET-OFF AND COUNTERCLAIM (§ 8*)-EQUITABLE SET-OFF-CLAIM SUBJECT TO. Equitable set-off against a nonresident er institution of the suit, though plaintiff does plaintiff may be based on a claim acquired aftbusiness in the state and carries a stock of pianos, etc., therein. [Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 9-11; Dec. Dig. § 8.*] 3. SET-OFF AND COUNTERCLAIM (§ 40*)-SUBJECTS OF SET-OFF-CLAIMS ARISING AFTER SUIT. A set-off cannot be asserted in replevin on a claim acquired after institution of the suit. Counterclaim, Cent. Dig. §§ 73-75; Dec. Dig. § [Ed. Note.-For other cases, see Set-Off and 40.*] Appeal from Chancery Court, Hinds County; G. G. Lyell, Chancellor. "To be officially reported." Bill by J. N. McIntyre against the E. E. Forbes Piano Company. Decree for defendant, and plaintiff appeals. Reversed and remanded. The appellant, McIntyre, a resident of the city of Jackson, county of Hinds, state of This statute permits evidence of any sale Mississippi, filed suit in the chancery court within two years "anterior to the day laid of said county against the defendant (appelin the indictment or affidavit." When under lee here), a nonresident corporation, praythis statute, proof of more than one sale is ing an injunction restraining the prosecution admitted, proof of sales after the day laid by defendant of a replevin suit brought in in the indictment should not be permitted. the circuit court for the possession of a |