Volume 101 — Mississippi Reports

Hon. I. T. Blount, Chancellor. Suit by Cumberland Telephone & Telegraph Co., against J. F. Williams et al. -From a decree dismissing the bill complainants appeal. The facts are fully stated in the opinion of the court.

Hon. I. T. Blount, Chancellor. Suit by Eliza Duberry against A. Seymour, administrator with will annexed of the estate of John W. Du-berry and Alice Hawkins. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. In the light of the above facts fully proved and uncontradicted we are at a loss to know on what theory the chancellor disregarded the plain and unequivocal provisions of the instrument executed by John Duberry.

Hon. J. Q. Bobbins, Chancellor. - Suit by Boscoe Broaderick against John Eaton et al. for the construction of the will of J. M. Eaton, deceased. Prom a decree for complainant, defendants appeal.

Appear from the chancery court of Hinds county. Hon. Gr. Gr. Lyerr, Chancellor. Suit by Ascher & Baxter against Edward Moyse & Co. et al. From a decree dismissing the bill complainants appeal. ' .... The appellants filed a bill in chancery on January 15, 1910, against the appellees Edward Moyse & Co., cotton brokers in New York City, the State Bank & Trust Company, a banking institution domiciled at Jackson, Miss., and M. A. Lewis, an alleged debtor of said Moyse.

Hon. D. M. Miller, Judge. Sam Byrd was convicted of unlawful retailing and appeals.

Hon. D. M. Milleb, Judge. Lee Willoughby was convicted of perjury and appeals. The facts are fully stated in the opinion of the court. The verdict of the jury was unsupported by the evidence. The defendant was indicted for swearing falsely, corruptly, knowingly and feloniously, that he did not purchase beer from Carrie Powell on the 15th day of April, 1910.

• Appeal from the circuit court of Tunica county. IIon. Sam C. Cook, Judge. The Helena Glendale Ferry Company was convicted of operating a ferry without paying the privilege tax required by statute and appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Henry, Judge. Will Thomas was convicted of the unlawful sale of ■liquor in the town of Clinton and appeals. The facts are fully stated in the opinion of the court. The question to he determined is, was the defendant being prosecuted for a violation of the ordinance of the town of Clinton or for an offense against the state of Mississippi?

Hon. G-. A. McLean, Judge. Suit by W. J. Tabor, agent for J. A. Hearon, against H. C. Johnson. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. W. H. Hughes, Judge. Berk Burks was convicted of murder and appeals. The facts are fully stated in the opinion of the court. The substance of the rejected testimony so far as this assignment of error is applicable, is that on the morning of the day of the killing, the deceased had drawn a double-barrel shotgun on appellant, and had taken a dime from appellant; and later, in the evening, threatened to kill appellant if he found him.

Hon. C. L. Dobbs, Judge. Suit by Mrs. E. E. Mills et al. ag’ainst W. B. Hooks. From a judgment for plaintiff, defendant appeals. This is an appeal from a judgment for appellees, who were plaintiffs in the court below, for five thousand dollars for the death of E. E. Mills; the suit being predicated upon the alleged negligence of the appellant, due to the unsafe condition of a dummy line owned by him and used for bringing logs to his mill.

Hon. Paul B. Johnson, Judge. Ollie Winston was convicted of assault and battery with intent and appeals. The facts are fully stated in the opinion of the court. * We submit that the demurrer charging the indictment failed to show in what district the offense was committed, ought to have been sustained, nor do we think even before trial the indictment was amendable.

LIon. Gr. A. McLean, Judge. Mahaley Dismukes was convicted of selling intoxicating liquors in violation of an ordinance of the town of Louisville and appeals. The facts are fully stated in the opinion of the court. The appellant was indicted in the mayor’s court of the town of Louisville, Mississippi, for selling whiskey in less quantity than one gallon and convicted. She appealed to the circuit court and was there convicted.

Hon. H. C. Mounger, Judge. Rosa Minor was convicted of manslaughter and appeals. The facts are sufficiently stated in the opinion of the court. In the closing argument, the district attorney used the following language: “If you bring a verdict of manslaughter, the court does not have to sentence her to the penitentiary, but can fine her or send her to the county farm.” A special bill of exceptions was taken- to this language and it is assigned as error in this court. .

Hon. H. C. Mounger, Judge.' Bob Flowers was convicted of an assault and battery with intent to kill and murder and appeals. The facts are fully stated in the opinion of the court. . No brief of counsel in the record.

Hon. G. G. Lyell, Chancellor. Suit by John F. Oldfield against J. W. Persons. From a decree for complainant, defendant appeals.

Hon. W. A. Henry, Judge. Suit by J. L. Lowery against Floyd Willis. From a judgment for plaintiff, defendant appeals. The appellee, who was the plaintiff in the court below, brought suit against the appellant for a balance alleged to be due him as salary. From a judgment for plaintiff, defendant appeals. The opinion states the facts. On the trial the court, over the qbjection of the defendant, gave the following instruction at the request of plaintiff, to-wit: “No. 1.

Hon. N. A. Taylor, Judge. Grant Neal was convicted of assault and battery with intent to kill and appeals. The facts are sufficiently stated in the opinion of the court. We commend the court to that greatest of all books of its kind, Wigmore on Evidence, sections 977 to 989, inclusive.

Hon. Gr. A. McLean, Judge. Suit by John McCorkle against the Illinois Central Eailroad Company. From a judgment for defendant, plaintiff appeals. This action was begun by the appellant, who was the plaintiff in the court below, and is for damages for injuries alleged to have been sustained by him while attempting to debark from the passenger train of the appellee. The railroad company set up contributory negligence of the plaintiff as a defense to the action.

Hon. Sam Whitman, Jr., Chancellor. In the matter of the estate of B. M. Wells, deceased. From a decree sustaining the objections of J. B. Mc-Alpin, administrator to claims of F. 0 Horne, claimant appeals. The facts are fully stated in the opinion of the court.

Hon. J. T. Blount, Chancellor. Suit by Mrs. M. J. McAllister against S. M. Richardson. From a decree for defendant, plaintiff appeals. Motion in supreme conrt to docket and dismiss appeal.

Hon. W. A. Henry, Judge.. Garnishment by W. E. Mallett against the Southern Lumber & Manufacturing Company. From a judgment in the justice of the peace court for the garnishor, the garnishee appealed to the circuit court and from an order sustaining an objection to the filing of an answer in that court, the garnishee appeals. The facts are sufficiently stated in the opinion of the court.

Hon. W. A. Henry, Judge. Jennie Minter was convicted of keeping liquor for sale and appeals. This is an appeal from a conviction of keeping liquor for sale. The appellant was prosecuted in the police court of the city of Jackson under an ordinance making criminal laws not amounting to a felony offenses against the city. From a conviction she appealed to the circuit court, where she was again convicted. The opinion state the facts.

Hon. J. Q. Robins, Chancellor. Suit for divorce by Maggie Hall Forrester against Wm. Forrester. From a decree denying the divorce, complaint appeals. The appellant brought suit against appellee for divorce, and obtained a decree in her favor carrying alimony. Afterwards a petition was filed by appellee to set aside tbe decree on the ground that appellee had never been served with summons.

Hon. J. H. Mitchell, Judge. Suit by M. A. Candler against King Cromwell et al. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. C. L. Dobbs, Judge. ' Suit by Ann Cole et al. against the New Orleans, Mobile & Chicago Eailroad Company. Prom a judgment for plaintiffs, defendant appeals and plaintiff prosecutes a cross-appeal. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

Hon. T. B. Carroll, Judge. Suit by J. T. Westmoreland against Walter S. Fisher et al. From a judgment for plaintiff defendant appeals. The appellee was running a sawmill.

Hon. Geo. H. Ethridge, Special Judge. ~W. H. Guriy was convicted of manslaughter and appeals. Among other instructions granted by the court for the state is the following: “No. 6.

Hon. G-. Gr. Lyell, Chancellor. Bill by Mary Ann Comans et al. against Iola Tapley et al. to revive a suit. From a decree denying relief, complainants appeal.

Hon. Sam Whitman, Chancellor. Suit by A. M. McKinzie against Mrs. H. C. Fellows. From a decree for defendant, plaintiff appeals. Motion to docket and dismiss the appeal. The facts are fully stated in the opinion of the court.

Hon. W. A. Roane, Judge. Suit by J. B. Sanders against McAlister Bros. & Co. From a judgment for defendants, plaintiff appeals. The facts are fully stated in the opinion of the court. Fraud is never presumed and the burden of proving it rests upon him who asserts it is so well settled that argument is unnecessary. 20 Cyc. 108, 109; Ency. of Evi., Vol. 6-8; Archer-v. Helm, 70 Miss. 874.

Hon. M. E. Denton, Chancellor. Suit by George Leavenworth against J. F. Smith et al. Fronl' a decree for complainants, defendants appeal. Complainant filed a bill in chancery, setting up his claim to fractional section twenty-four, township twenty-seven, range seven W., in Coahoma county, and alleging that defendant Smith claimed title to section fourteen adjoining and that said lumber company claimed the timber on said section fourteen by virtue of a deed from said Smith.

Hon. Sam Whitman, Jr., Chancellor. Suit by Henry Evans et al. against H. W. Hoye et al. From a decree dissolving a temporary injunction and dismissing tbe bill, complainants appeal.

Hon. Sam. Whitman, Jr., Chancellor. Suit by W. H. Eichelberger against A. W. Cooper. From a decree dismissing the bill, complainants appeal. Appellant was complainant in the court below, and appellée was defendant. The case comes to the supreme court from a decree overruling complainant’s demurrer to defendant’s plea to the jurisdiction and dismissing the original amended bills of complaint.

Hon. ,Gr. G-. Lyell, Chancellor. Suit by R. E. Kennington against T. W. Hemingway et al. Prom a decree dismissing the bill, complainants appeal. In 1882 T. W. Hemingway married Mrs. E. L. Catchings, and they lived together as husband and wife until 1907, when they were divorced.

Hon. Patjl B. Johnson, -Judge. Emma Hoggett was convicted of unlawful retailing. The sentence of the court was suspended for a while and at the next term of the court imposed, and she appeals. The facts are stated in the opinion of the court. I most respectfully submit that the judgment of the lower court is illegal and void, and that this cause should be reversed, and the defendant discharged. The court has no power to arbitrarily exile a person.

Hon. Paul B. Johnson, Judge. Bossie Hoggett was convicted of vagrancy and appeals. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

Hon. H. C. Mounger, Judge. Suit by Meredith Isaiah Canada against the Yazoo & Mississippi Valley Eailroad Company. Prom a judgment for defendant, plaintiff appeals.

Hon. W. A. Henry, Judge. Anna Smith was convicted of vagrancy and appeals. The facts are fully stated in the opinion of the court. The last assignment of error which we care to discuss is with reference to the first instruction given for the state, an instruction right in the teeth of two recent decisions of this court, to-wit: Permenter v. State, 54 So. 949, and Irving v. State, 56 So. 377. The last case was decided by Mr. Justice Smith on the 6th of last month.

Hon. G. A. McLean, Judge. Mandamus by tbe town of Durant against Attala county. Petition dismissed and plaintiff appeals. . The facts are fully stated in the opinion of the court.

Hon. T. H. Barrett, Judge. Suit by J. B. Cunningham by next friend against the Finkbine Lumber Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. In view of the undisputed facts in this case, it is practically immaterial whether the defendant is to be regarded as an employee or not, for, upon the plaintiff’s own showing, no conceivable liability is established.

Hon. D. M. Miller, Judge. Bright Compton was convicted of the illegal sale of intoxicating liquors and appeals.

Appear from the circuit court of Simpson county. Hon. W. H. Hughes, Judge. Cabe Parrett was convicted of exhibiting a deadly weapon and appeals. The facts are fully stated in the opinion of the court. The court said in the Traylor case, on page 523 of the opinion, under black letter, subdivision 5: “We know •of n.o rule of law which, will justify the court in convicting a person of any crime unless the offense comes under the letter of the statute.

Hon. M. E. Denton, Chancellor. Bill by the Interstate Cooperage Company against W. M. Simpson to set aside a tax. deed. From a decree for plaintiff defendant appeals. The Interstate Cooperage Company purchased the land in controversy on September 6, 1906. The taxes for 1906 not having been paid, the land was on March 4,1907, sold for taxes, and purchased by appellant Simpson.

Hon. W. A. Henry, Judge. James Dixon was convicted of manslaughter and appeals. Held: speaking through Chief Justice Cooper, said that: “Under said statute one is not incompetent as a juror merely because, on his voir dire, he states that he lives in the immediate neighborhood where the crime was committed, had heard it discussed, and had formed an opinion as to the guilt or the innocence of the accused of such a…

Hon. R. E. Sheehy, Chancellor. Suit by Wm. Walker et al. against W. C. Ellis & Company et al. Prom a decree for plaintiff, defendant appeals. This snit was commenced by bill in chancery by the appellees.

Hon. J. L. Buckley, Judge. Suit by Celia Smith against the Odd Fellows Benefit Association. From a judgment for plaintiff, defendant appeals.

Hon. J. H. Mitchell, Judge. Suit by J. H. Ault against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals.

Hon. R. E. Sheehy, Chancellor. Suit by Mrs. Rosa C. Boutwell against J. P. Conn et al. Prom a decree for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court- No brief of counsel on either side found in the record-

Ajppeal from the circuit court of Newton county. Hon. C. L. Dobbs, Judge.

Hon. Jno. L. Buckley, Judge. Ballard McNiece was convicted of perjury and appeals. The facts are fully stated in the opinion of the court. False swearing in order to be perjury in law, must be done with reference to some matter material to the determination of the issue involved. Jennings v. State 7 So. 462. It was incumbent npon the' state to prove that perjury was committed with reference to a material fact, hut the state offered no proof on that question.

Hon. II. K. Mahon, Judge. Henry Isabel was convicted of felonious assault and. he appeals. The facts are fully stated in the opinion of. the court. The first ground which I desire' to argue on this appeal is the failure on the part of the state to prove the venue in this case in the trial of the court below.

Hon. W. A. Henry, Judge. Geo. Fannie was convicted of murder and appeals. The facts are fully stated in the opinion of the court. filed an extended brief too long for publication in full contending. First.

Hon. H. K. Mahon, Judge. Will Oliver was convicted of the unlawful sale of intoxicating liquor, and appeals. The facts are fully stated in the opinion of the court. Section 1762 of the Code of 1906 is very broad in its scope; it allows ever so many sales to be given in evidence but it does say that the state is confined to sales made “anterior to the date laid in the indictment”— not the day of “filing” of the indictment, where the date is laid.

Hon. Sam C. Cook, Judge. Henry Lee was convicted of murder and appeals. The facts are fully stated in the opinion of the court.

Hon. C. L. Crum:, Special Judge. Noah Wilburn was convicted of the unlawful sale of intoxicating- liquors and appeals. The facts are fully stated in the opinion of the court.

Hon. George S. Dodds, Special Judge. Frank E. Johnston was convicted of grand larceny, and appeals. Appellant was convicted of grand larceny, being charged with stealing a steer valued at thirty-five dollars. According to his testimony, his brother, Arthur Johnston, was the owner of certain cattle, which were out on the open pasture, and said Arthur Johnston took appellant with him and pointed out two steers, and employed appellant to drive them to town to a butcher.

Hon. D. M. Miller, Judge. Leslie Hurst was convicted of carrying a concealed deadly weapon and appeals. The facts are fully stated in the opinion of the court. On motion of the district attorney, the court excluded all the testimony of Ford, including of course both threats — the one at the mill in February and'the one at church on the day of the trouble.

Hon. W. H. Hughes, Judge. Suit by Mrs. Laura Cole against the Gulf & Ship Island Bailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. T. A. Woods, Chancellor. Suit by Wirt Adams, state revenue agent against W. K. M. Dukate and others. From a judgment overruling a demurrer to the bill, defendants appeal. The facts are fully stated in the opinion of the court. filed an elaborate brief fully covering all the points in the case but too long for publication. filed an extended brief, too long for publication.

Appear from the chancery court of Hinds county. Hon. G. G. Lyerr, Chancellor. Suit by the state on the relation of S. S. Hudson, attorney-general, against the Jackson Loan & Trust Company. From a judgment enjoining defendant from further prosecuting its business and appointing a receiver, defendant appeals.

Hon. Sam: C. Cook, Judge. This was a quo warranto proceeding by the state of Mississippi on the relation of W. A. Alcorn, Jr., district attorney, against H. C. Crenshaw and others. From a judgment granting the writ, defendants appeal. The facts are sufficiently stated in the opinion of the court. • No brief of counsel on either side found in the record.

Hon. Sam Whitman, Jr., Chancellor. Suit by Wirt Adams, state revenue agent against Eastman, Gardiner & Company. Judgment for plaintiff, and defendant appeals. Held: that a municipality is powerless, under the Constitution of 1890, Sec. 100, to refund money of the city, which was forfeited to the city by a breach of contract in respect to public work.

Hon. W. A. Henry, Judge. Petition by T. C. Wright et al. for a writ of mandamus against the Edwards Hotel and City Railroad Company. Prom a judgment dismissing the petition the petitioners appeal. The facts are fully stated in the opinion of the court.

Hon. T. H. Campbell, Special Judge. Suit by Geo. W. Taylor against the Farmers Fire Insurance Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The first proposition of appellee is for a harmonious construction that will save the force of both statutes. The second is, that section 3127 is repugnant to state and Federal Constitutions because it limits the right of contract.

Hon. Sam Whitman, Jr., Chancellor. Suit by Mrs. E. L. Corley against M. M. Bishop. From a decree for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. No brief of counsel for appellant found in the record.

Hon. M. E. Denton, Chancellor. Suit by Grabe Chatman et al. against Amanda Poindexter. Erom a decree dismissing the bill, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. T. H. Barrett, Judge. Suit by J. S. Thomas against the First National Bank of Gulfport. From a judgment for defendant* plaintiff appeals.

Hon. W. A. Roane, Judge. Suit hy C. B. Fox against Lee Baggett. From a judgment for defendant, plaintiff appeals. The appellant was plaintiff in the court below, and appellee was defendant.

Hon. D. M. Miller, Judge. Suit by I. S. Pillows against the Mississippi Central Bailroad Company. From a judgment for plaintiff, defendant appeals.

Hon. M. H. Wilkinson, Judge. Suit by Ed. Ash against the International Harvester Company of America in which defendant filed a cross-action. • Prom a judgment for defendant in the principal action and for plaintiff in the cross-action, plaintiff appeals. The facts are fully stated in the opinion of the court. In this case, it would be exceedingly difficult to find a material point upon which the judgment ■ ought not to be reversed.

Hon. T. Hi Barrett, Judge. Action, of replevin by L. A. Wachstetter against H. W. Brown for a launch. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The action of the court in granting a peremptory in•struction to find for the appellee is manifestly erroneous, in view of the testimony.

Hon. W. IT. Cook, Judge. Gr. F. Pittman was convicted of obtaining money under false pretense and appeals. The facts are fully stated in the opinion of the court. The intent of the appellant at the time of the making of the contract is the essence of this case. And before this verdict and judgment can be upheld, the testimony must be so strong on the point of intent to defraud' as to dispel any reasonable doubt of such intent. 20 So. 629.

Hon. W. A. Henry, Judge. Suit by Mrs. M. Gr. Muckenfuss against the city of Jackson. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. John L. Buckley, Judge. Suit by Miss Susie Russell Godfrey against the Meridian Railway & Light Company. From a judgment for defendant plaintiff appeals. The appellant brought suit against the appellee for the sum of five thousand dollars damages for the alleged failure of the defendant to stop its car and admit her as a passenger at a street crossing in the city of Meridian.

Hon. P. O. Chapman, Special Judge. Suit by the Greenwood Grocery Company against W. B. &• T. R. Bennett. Prom a judgment quashing the attachment plaintiff appeals. Held: under the law, to the very highest degree of care to commence and carry out his proceeding according to law.

I4on. Paul B. Johnson, Judge. Eldgar Britton was convicted of unlawful retailing- and appeals. The facts are fully stated in the opinion of the court.. No brief found in the record.

Hon. A. E. Weathersby, Judge. John Payne was convicted of unlawfully pointing a gun at a person and appeals. The facts are fully stated in the opinion of the court. We think it is only necessary to call the court’s attention to the special bill of exceptions taken by appellant in the court below.

Hon. G. A. McLean, Judge. Suit by Mrs. Roxie Boyles Townsend against J. D. Harris, administrator. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Henry, Judge. J. H. Burrage was convicted of murder and appeals. The facts are sufficiently stated in the opinion of the court. We cannot in this brief or in oral argument, which we desire, elaborate all of the errors that we have assigned, twenty-five in number, and will have to trust to the court to give to each assignment, such consideration as may he merited.

Hon. Jno. L. Buckley, Judge. Lambert Overton was convicted of murder and appeals. The facts are fully stated in the opinion of the court. While the assignment of error contained ten grounds, we shall rely upon only two for the reversal of this case. First, the court refused to consider more than twelve instructions for the defendant,- giving as a sole reason that the instructions presented were a greater -number than twelve.

Hon. A. E. ■Weathebsby, Judge. , . J. W. McCoy was convicted of white-capping and appeals. Appellant was indicted at the April term of the circuit court of Pearl Biver county for the crime commonly called “white-capping,” as defined by Sec. 1398, Code of 1906. He was convicted, and sentenced to the penitentiary for five years. Prom this sentence and judgment, he appeals to this court.

Hon. G-. Gr. Lyell, Chancellor. Suit by G-eo. T. Douglas and wife against the Parsons-May-Oberschmidt Company. Motion to dismiss and discharge the supersedeas bond in the supreme court. Gleorge T. Douglas and wife, being indebted to the Parsons-May-Oberschmidt Company, executed a deed of trust to secure said indebtedness.

Hon. D. M. Kimbrough, Chancellor. Suit by Matt T. Sowell et al. against John L. Sowell et al. From a judgment ordering sale of lands for partition, defendant appeals. The appellee filed a bill in chancery against appellants, alleging that they were tenants in common of certain lands described in the bill, and praying for a sale of said lands, for a division of the proceeds among the owners according to their respective interests.

Hon. Sam Whitman, Jr., Chancellor. .Suit by F. O. Horne against the Laurel Oil & Fertilizer Company and others. From a judgment overruling a demurrer to the bill, defendants appeal. On December 4, 1907, appellee executed and delivered to the Laurel Oil & Fertilizer Company a deed of trust covering certain land, in Newton county to secure an indebtedness then past due, for which he then executed a note due March 1, 1908.

Hon. W. H. Hughes, Judge. Suit by E. M. Odom against the Gulf & Ship Island Railroad Company. From a judgment sustaining a demurrer to the declaration, plaintiff appeals.

TIon. M. E. Denton, Chancellor. Bill in chancery by Kate Taylor against Willis Garrett. From a decree for defendant, complainant appeals. Appellant filed her bill in chancery, alleging that Samuel Garrett and his brother, Willis Garrett, purchased and became tenants in common of certain land in Issaquena county. About the year 1893 Samuel Garrett died without issue, leaving, as the bill alleged, as Ms only heir at law, the appellant, his wife, now Kate Taylor.

Hon. J. F. McCool, Chancellor. Suit by Elizabeth Baldridge against S. B. Stribling and wife. From a decree for defendants, complainant appeals. Mrs. Baldridge filed a hill in the chancery court against S. R. Stribling and wife for an accounting.

Hon. D. M. Miller, Judge. Suit by Jake Bichards against the City Lumber Company. From a judgment for defendant, plaintiff appeals. Held: that it would not retrospect, so as to take away a right of action to which a party was before that time entitled, but applied only to promises made after the 24th of June, 1677.” If it could take away no right of action from the plaintiff, then it could take away no right of defense existing to the defendant. “It is not pretended…

Hon. T. A. Wood, Chancellor. Bill by the Bank of Commerce against A. L. Thornton and others. From a decree for complainant, but dismissing the bill as to A. L. Thornton, defendant Kelly appeals and complainant prosecutes a cross-appeal.

, Hon. J. F. McCool, Chancellor. Suit by J. W. Rosamond against Carroll county and another. From a judgment for defendants, plaintiff appeals. This suit was begun in the chancery court by the appellant, who sought to recover damages of the county of Carroll and one Briscoe, who owned property adjacent to that of appellant.

Hon. Sam Whitman, Jr., Judge. Suit by the state for the use of Eva Mae Gillaspy and others against the Aetna Indemnity Company and others. Held: as guardian, a note payable to himself, as guardian, for ten thousand dollars which was a part of the assets of the estate of his wards in his hands, for which he was bound to account to the court, and touching the collection of which, it was his duty to exercise reasonable care and diligence.

Hon. M. H. Wilkinson, Judge. Suit by R. L. Weathersby and another against W. L. Robinson Company. Prom a judgment for plaintiff, defendant appeals. On December 2, 1907, Weathersby Bros., who were the owners of land in Amite county, Mississippi, agreed to sell and executed bond for title to T. S. McGehee.

Hon. J. Q. Bobine, Chancellor. Snit by W. W. Whitfield et al. against Frank Miles. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion of the conrt. No brief of counsel on either side found in the record..

Hon. D. M. Miller, Judge. Woodson Atkinson was convicted of embezzlement and, pending appeals, applied for bail. The facts are fully stated in the opinion of the court- No brief found in the record.

Hon. M. E. Denton, Chancellor. Suit by T. E. Henderson, executor, and others against W. E. Henry and others to construe a will. Prom a judgment construing the will, defendants appeal. The facts are fully stated in the opinion of the court. No brief of counsel for either side found in the record.

Hon. J. H. Mitchell, Judge. Suit by Mrs. Ida Moore and others against the St, Louis & San Francisco Bailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court, No brief of counsel on either side found in the record,

Hon. A. E. Weathersby, Judge. Suit by Mrs. M. E. Walden against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. During the trial of the case appellant’s attorney attempted to introduce three of the jurors for the purpose of proving the reasonable market value of a cow such as described by plaintiff, which, however, was not permitted by the court.

Hon. Paul B. Johnson, Judge. Suit by Kitselman Bros, against B. F. Sumrall and others. From a judgment for plaintiff, defendants appeal. ' ■ This suit originated upon a demand made by the appellees against the appellants, Sumrall and Bush, on open account for two hundred, thirty-two dollars, and thirty cents; the claim being based upon certain articles of wire fencing.

Hon.'D. M. Miller, Judge. Suit by Quitman James against the Illinois Central Railroad Company. Prom a judgment for plaintiff-, defendant appeals. The facts are fully stated in tine opinion of the court.

Hon. T. A. Wood, Chancellor. Suit by Edward Hines against the' Imperial Naval Stores Company. From a decree both sides appeal. The facts are fully stated in the opinion of the court. Counsel on both sides filed elaborate briefs covering all points in the case, but too long for publication.

Hon. D. M. Miller, Judge. Suit by B. L. Pope against D. M. & F. M. Willoughby in which Clide and Iddo Willoughby intervene as claimants. From a judgment for plaintiff, claimants appeal. The facts are fully stated in the opinion of the court. Wc contend that the judgment should be reversed, and judgment entered here for the claimants for the reason that the plaintiff in execution did not show by the testimony that the cotton was subject to the execution and the levy.

Hon. W. A. Henry, Judge. Suit by Mrs. E. D. Carraway against tbe Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. For former opinion, see 58 South. 222. This was an action for damages based upon the al-. leged negligence of the railroad company in the hilling of one W. D. Moore, a brother of appellee. The case' was affirmed without written opinion on April 22, 1912. See 58 South. 222.

Hon. T. H. Barrett, Judge. Suit by Z. T. Champlin against Dr. Chas. Galloway. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Apeal from the chancery, court of Hinds county. Hon. Gr. Gr. Lyell, Chancellor. Suit by the Fidelity & Deposit Company of Maryland against W. H. Potter and another, receiver of the Mississippi Bank & Trust Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Counsel on both sides filed very able and extended briefs but too long for publication.

Hon. J. F. MoCool, Chancellor. Suit by Mrs. H. Patterson by her next friend against Mrs. Fannie M. Humphries as executrix of the will of W. W.… Held: that the will gave the wife an absolute estate in the property, and did not create a precatory trust in favor of the testator’s brothers and sisters.” In the case of Van Gorder v. Smith, 99 Ind. 404, the court says: “Where a testator declared in his will that it was his desire that his' wife use certain moneys to provide a…

Hon. Sam C. Cook, Judge. Suit by D. D. Dodge against J. W. Cutrer. Prom a judgment for defendant, plaintiff appeals. , The facts are fully stated in the opinion of the court. No brief of counsel for either side found in the record.

, Appeal from the circuit court of Forrest county. Hon. Paul B. Johnson, Judge. Will Rodgers was convicted in the circuit court and ^appeals. The facts are fully stated in the opinion of the court.

Hon. J. M. Cashin, Judge. George Smith was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court. 1. The trial court erred in sustaining the demurrer of the state to the plea of autrefois convict interposed by appellant. The plea of autrefois convict interposed by appellant herein met all of the requirements of law and was valid'.

Hon. Paul B. Johnson, Judge. Ben Taylor was convicted of unlawful retailing and appeals.

Hon. H. K. Mahon, Judge. Suit by Johnson County Savings Bank against Moore & Tabb. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The court should have admitted the evidence offered on behalf of appellants in the court below.

Hon. T. B. Carroll, Judge. Suit by R. L. Betty against the Dixie Fire Insurance Company. From a judgment for plaintiff, defendant appeals.

Hon. J. Q. Bobins, Chancellor. Suit by Dave Ardis against Mrs. N. P. Pardue. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We contend that the contract made in contemplation of marriage in this case was not void under par.

Hon. G-eo. S. Dodus, Special Judge. Suit by the state, on the relation of the attorney-gen•eral and the board of oyster commissioners, against the Barataria Canning Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.