164
J'EDERAL REPORTER, vol. 44. EIFFERT (Circuit Court, D.
et al.
'I).
CRAPS
Carolina. November 7, 1890.)
DBPOSmON-BupPRESSION
.A commission to take testimony duly issued and executed under Eq. Rule 67 will not be suprressed because, when received by the clerk, the envelope containing the testimony was upen at one end, presenting the appearance of havmg been worn in the mail, the clerk haVing noted the facts on the package and filed it, since which t.ime it has remained undisturbed in his office.
At Law. Motion to suppress a commission. E. W. Hughe8, for the motion. B. A. Hagood, contra., SIMONTON, J. A commission wae duly issued in this case directed to certain persons in Wytheville, Va. 0.1 the 29th September last, a package was received by the clerk of this court through the mail, bearing the name of this cause, with the names of the commissioners and their seals across the flap of the envelope. Upon the package is the certificate of one of the commissioners that he deposited it in the mail at Wytheville, Va., on 27th September, 1890. It reached Charleston on 29th September, !890, and one end of the envelope was open, presenting the appearance of having been worn in the mail, the opposite corner of the envelope presenting the same appearance. On its receipt, the clerk indorsed on the package this fact, filed it, and it has been undisturbed in his office. This commission was issued under the authority of Eq. Rule 67, and is in accordance with the well-established rule of the court of chancery. The commissioners.did their duty in all respects as to the certification Md mailing of the package. There is no reason to suspect that the contents of the package were seen by anyone. I am satisfied that the abrasion of the envelope occurred in the transmission in mailbags. No spe<;ial provision is made respecting the transmission or custody of comIJ:1.issions in the equity rules except in rule 69, which provides for'the publication of all the testimony. Our own rule 65 says that, when a commission is returned, it may be opened by leave of the clerk, upon consent of parties, in writing, indorsed on the commission. The rule which applies to depositions requiring rigid observance of every formality does not apply to commissions. In the natural course of things, without fault of the party taking out the commission or of the commissioners, the abrasion has occurred. It would be going very far to deprive the plaintiff of his testimony for this abrasion. The motion is refused. The parties can, if they choose, open the commission, and publish the contents of it; or, if they do not desire it, the clerk will seal it in an unbroken package with his own seal.
LEWIS V. WITHERS.
165
(Circuit Court, S. D. Mississippi. November 25,1800.) 'l'AXA'l'ION-ABBESSMENT-ALTERATION OF RETURN.
The unauthorized alteration by assessor of tax-payer'B return for asse.sment, made according to original survey, to a description in new survey, wherebyacr&age of lots returned are decreased, and lots are added to cover balance, and assessed to unknown, without notice, and a payment on lots as returned, with oifer to pay all taxes due, invalidates sale of such added lots.
(SyUabu8 1YlI the Court.)
At Law. Bake:r « ReJMa'U, and Nugent&: Me Willie, {or plaintiff. Calhoun, Green « Carson, for defendant. HILL, J. This is an action of ejectment, brought by the plaintiff against the defendant in the circuit court of Wilkinson county, and removed into this court, to recover the land described in the declaration, to which the defeu9.ant interposed the general issue. By written stipulation, a jury trial is waived, and the questions of fact, as well as the questions of law, are submitted to the court. The 80 acres of land for which this action is brought have been owned by the deferJdant for many years, and are included in lots 3 and 4 of section 22, township 3, range 5 west, in Wilkinson county, as shown by the tract-book of original entries, and were so entered by defendant's grantor in 1833 and 1835. The whole section was subdivided into lots 1, 2, 3, and 4. Lot No.1 has never belonged to defendant, but lot No.2 is, and long has been, owned by him. Lots 2, 3, and 4 were estimated to contain 262 acres, and were usually assessed by that description, and as containing that number of acres, except that in 1883 the number of acres was estimated at 260, and were given in by the agent of the dej{mdant to the assessor for 1887 by the description of lot 2, 62 acres, lot 3, 80 acres, lot 4, 120 acres, making, together, 262 acres. There is marked in brackets on the line of lot No.3 the figures 40 and letter A, and on the line of lot No. 4 the figures 80, letter A, but by whom placed there, or when, does not appear. The proof is that it is not in the handwriting of defendant, or his agent, and must have been by the assessor's deputy, or some one else. Some time in 1848 or 1849, the surveyor general was directed to resection the lands in Wilkinson county, which was done, and a map thereof filed in the land-office in Jackson, and by which, lots 2, 3, and 4, above mentioned, were described as lots 2, 3, 4, 5, and 6, and by which the land in controversy was described as lots 5 and 6, each eontaining 40 acres, and being contained in lots 3 and 4, as described in the entry tract-book. In 1884, a copy of this map was procured, and placed in the office of the chancery clerk of said county, and, as the proof shows, has since been regarded as the official map of the county, for the guidance of the assessors, and others, but no order of the board of supervisors has ever been made adopting it, or requiling assessmenta