Tishomingo Saving Institution v. Allen

76 Miss. 114 | Miss. | 1898

Whitfield, J.,

delivered the opinion of the court.

Under the very peculiar circumstances of this case, we think the amendment was properly allowed. The assignment is a general assignment, more clearly so, if possible, than the one in Montgomery v. Goodbar, 69 Miss., 333, and under the terms of this assignment, in the light of that decision, it must be held that the money was embraced.

The action of the chancellor in holding Col. Inge entitled to some reasonable compensation, was correct. The amount is still to be ascertained, and will be limited to the services rendered by him in questioning the jurisdiction of the federal court by the demurrer. That service was rendered in bringing the funds back within the jurisdiction of the only tribunal competent to legally deal with them and dispose of them for the benefit of the parties entitled. Such services contributed to the legal preservation of the funds, and a reasonable compensation for them is a proper charge on the funds. The facts furnish a novel application of the rule, but one within the principle of the rule. He is to be allowed nothing now for any other services, nor ever, unless the assignment be sustained; nothing for any services rendered in attempting to defeat the attaching creditors, and nothing for services in the United States supreme court, if it shall.turn out, as alleged, that he took no part in those services, and if any sums have been paid him by the preferred creditors, or the assignors, whom he also represented, for questioning the jurisdiction of the federal court by the demurrer, such sums must be credited on' what may be found to be reasonably due for such last services. Shoe Co. v. Sykes, 72 Miss., 392.

The decree is affirmed on the appeal and the cross appeal.

B. II. Bristow, for appellants, after the rendition of the foregoing opinion, filed an elaborate suggestion of error, to which the court made the following response, denying the same:

Whiteifld, J., delivered the response to the suggestion of error.

The assignment opens with ‘ ‘ Granting, etc., after reserving to themselves, and each of them respectively, the property, real and personal, which by law they are entitled to as exempt, all and singular the lands, tenements, and hereditaments of the said parties of the first part, wherever situated, and especially that situated, lying, and being in the counties of Alcorn and Lee and State of Mississippi, and all the goods, chattels, wares, merchandise, bills, bonds, notes, book accounts, 'claims, demands, judgments, choses in action, evidences of debts, and all property of every description and nature, of the said first parties, whether as co-partners or as individuals, saving and reserving only as aforesaid,” etc. And then, after setting out the various provisions of the assignment, the grantors, by way of final summary, say: “It being the purpose and intention of the said first parties, both as partners and as individuals, to devote, in the way, manner, and mode aforesaid, outside of their legal exemptions, as hereinbefore provided, to the payment, etc., their entire partnership and individual property of every kind or description as aforesaid, saving,” etc. Could the intent to assign all property of every kind—money and everything else— be manifested in language plainer, clearer, more unmistakable?

We said nothing as to the doctrine of ejusdem generis in our opinion, because we thought the intent too plainly manifest to leave room for any discussion of that doctrine. So great, however, is our regard for the eminent counsel representing appellant that we have re-examined the subject, with the result of greatly strengthening our confidence in the correctness of the conclusion first arrived at. Take the comprehensive description first above cited in granting part of the assignment, and in the summary, and how applicable are these words from the United States supreme court, in Alabama v. Montague, 117 U. S., 609, 610: “It is not to be denied that, in a writing descriptive of property to be transferred or assigned, the more general words, which include all that is intended to be conveyed, .are not to be frittered away by an attempt at a description of ■each particular thing fairly included in the more general language. ” And the court say that wherever the more general words are found “at the end, as a summary of what had preceded them,” they control. It was perfectly plain in Alabama v. Montague, supra, that the doctrine of ejusdem generis had appropriate play, ‘ ‘ all other property. ’ ’ meaning, of course, from the whole scope of the instrument and the collocation of these words, property belonging to the £ £ line of said road. ’ ’ And it is just as clear in Spindle v. Shivers, 111 U. S., 542, 544, and Wilson v. Boyce, 92 U. S., 320, 325 (which see specially), that there was, as here, no room for the play of the doctrine.

Suggestion overruled.