Sword and shield. (Clinton, Miss.) 1885-1888, 1888-01-28

officially rendered on the bond of the
Penitentiary lessees:
THE STATE OF MISSISSIPPI,
VS..
]. s. HAMILTON, ct al.
The fifth plea presents good de-
fence to the action. 1t AYERS that a
transfer was made by Hamilton, AL
len and Co, to the Gulf and Ship
Island Railroad Company, and accep-
ted by it, and copy of the transfer
filed in the Office of the secretary of
State as provided by "An act to fa-
cilitate the construction of the Gulf
and Ship Island Railroad and for 9th
er purposes" approved March 18th.
1884, and found in act-:Of 1884, chap,
971.
The express declaration of that act
is that "upon the execution of such
transfer and assignment in writing,
and a copy thereof filed etc.-the said
Hamilton, Allen and Company lessee s,
or their assigns shall be released from
all liabilities thereafter to the State of
Mississippi" The act requires said
company to execute bond, but does
not make the giving of such bond a
condition Of the validity of the trans
fer authorized. The giving bond was
a matter between the State and the
railroad company with which Hamil-
ton, Allen & Co had nothing to- do.
aud the transfer by them, aud its le-
gal effects were not by the act made
dependent on the giving the bond re-
quired, which was to succeed the trans
fer. 1t is plain from the act that the
purpose was to get transfer of the
lease from Hamilton, Allen & Co., to
the G. & S. I. r. r. Co. and this was
first authorized. Negotiation between
these parties as to terms and Trans
/ fer from one to the other as q complete
act, evidence of which, was to be
filed in: the office of Secretary of
State, were provided for, TO precede,
Therefore to be independent of the
rt requirement. that the railroad cOmpa-
ny should give the bond. What was
tile condition on which the railroad
company was to continue in the en-.
ioymen5 Of the lease which it was
empowered TO obtain by assignment.
The natural order contemplated was
the transfer in writing. executed, and
then giving bond, the necessity for which
could not arise until the completion
of the transfer. 1t was the transfer
executed, and copy filed which was
TO release Hamilton, Allen & Co. The
validity of such transfer did not de-
pend on what might subsequently
occur as to the bond.
They were to be released by their
own act, and not by what might OF
might not be done by the railroad
company, which had first to deal with
them and then with the State as to
the bond.
The rules of law applicable to the
contracts of individuals must apply
here. The settled doctrine is that
whether or not condition exists ol
whether it is precedent or subsequent
or whether there is dependence or in.
dependence of stipulations or require
ments, is to be collected from the evil
dent sense and meaning of the parties
as they have expressed themselves
The question of precedency depend;
"on the order of time in which the
intent of the transaction requires theil
performance. If matter is to occur
before another matter, or may 81
occur, it cannot be said to depend Oh
the other. 1t must be Independent il
the nature Of things, and so the law il
declared by all the authorities
It will not do to say that the require
ment of bond must be held condi
tion of the validity of the transfer t
the railroad company as means o.
protection to the State. If the Stat
was injured or liable to injury for wan
OF such a condition it was its owl
doing, and it cannot complain.
The truth is the Legislature as
sumed that bond would be given b,
the railroad company, and withou
stipuIating that it should be given a
a condition of the transfer, authorize,
the transfer to be made, and as it va
made, it must be held to have had tn
effect declared by the act. The trans
fer in compliance with the law diveste'
Hamilton, Allen g. Co. of all right t
the lease and the givinga bond as re
ouired of the railroad company wa
: the condition on which it WIS to hol'
Q what was transferred Failure to Civ
8 the bond gave the State the right I
{ assume control of the peritentiary
That was a sufficient protect m to tn
State, but whether it was or not, 1T
all the Legislature provided.
: We concur in holding the fifth pie
s good and for the reasons above giveI
J. A. P. CAMPBELL. !.
TIM E. COOPER,
] JAMES M. ARNOLD.