Volume 102 — Mississippi Reports

Hon. E. N. Thomas, Chancellor. Suit by Eichard Griffith against the mayor and board of aldermen of the city of Vicksburg. Held: even though the indebtedness do not exceed two-thirds of the assessed valuation. On the other hand, where the indebtedness does exceed two-thirds of the assessed valuation, an election must be held, whether the qualified voters protest or not, and due notice of the election must be given by advertisement in the local papers.

Hon. Paul B. Johnson, Judge. Henry Benson was convicted of murder and appeals. The facts are fully stated in the opinion of the court.

Hon. J. A. Leathers, Special Judge. Suit by T. N. Jordon against the Gulf & Ship Island Railroad Company et al. From a judgment for defendant, plaintiff appeals. The facts disclosed by the record are, in substance, as follows: Appellant purchased from one McSwain forty head of oxen at Hattiesburg, Miss., and instructed McSwain to load them on two cars of the Gulf & Ship Island Railroad.

Hon. N. A. Taylor, Judge. Suit by John A. Reed against 3. P. Heard. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The plaintiff below, appellant here, introduced the tax collector’s deed, which is under section 1983, Mississippi Code 1906, prima facie evidence that the assessment and sale of the land was legal and valid.

Hon. John H. Mitchell, Judge. Suit by Asa W. Allen Company against the Mobile & Ohio Railroad Company. From a judgment for defendant, plaintiff appeals. The appellant shipped a carload of mules, twenty-seven in number, from St. Louis, Mo., to Tupelo, Miss». The mules were shipped by the National Stockyards at; East St. Louis, 111., and loaded in the car in apparently' sound condition.

Hon. W. A. Henry, Judge. Suit by Gí. W. Kirk against the'Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We submit that the giving of the peremptory instruction on the second trial with regard to the statutory penalty was clearly erroneous, nor can we conceive how the judge was led into such error.

Appear from the chancery court of Jones county. Hon. Sam; Whitman, Jr., Chancellor. Suit by T. J. Harris and others against A. E. Grayson. Prom a decree overruling a demurrer to the bill, defendant appeals. The facts are fully stated in the opinion of the court. All we see in this case is one question the answer to which in the affirmative will result in the affirmance of the action of the court below; in the negative, a reversal of the decree below.

Hon. W. A. Henry, Judge. Gertrude Johnson was convicted of unlawfully keeping intoxicating liquors for sale and appeals. The facts are fully stated in the opinion of the court. Appellant denied having the liquors for sale, or having sold any; and the testimony on both sides clearly showed that her husband was a hard drinker and spent most of his time and money that way. There was no evidence of any sale .by either husband or wife.

<p>1. Insurance. Action on note. Consideration.- Fraud. Question for jury.</p> <p>Where a fire insurance company brought suit on a note given by defendant to it for the premium upon a fire insurance policy which policy was received by defendant but returned to the company, and defendant testified on the trial that he did not read the application for such insurance, which was made out by the agent of the company upon whom he relied to fill it out correctly; that the understanding between himself and the agent was that a different policy was to be issued to him from that which he received; that he returned the policy, because it did not conform to the contract applied for and agreed by the agent to be issued. In such case a peremptory instruction for plaintiff should not have been given.</p> <p>2. Same.</p> <p>If the facts testified to by defendant were true the policy sent him was fraudulent as to him and he was not bound to keep» it, although he had signed an application, without actual knowledge of its contents, and at the instance of the agent, which, conformed to the terms of the policy.</p> <p>3. Same.</p> <p>In such case the application was admissible in evidence to contradict the defendant; but it was for the jury on .the whole facts to say whether or not he in fact and with full knowledge made the application and whether or not he did get the policy for which he applied or whether a fraud was perpetrated upon him.</p>

Appear from the chancery court of Tunica county. IIon. M. E. Denton, Chancellor. Suit by A. I. Dorsey et al. against the Phenix Insurance Company. Prom a judgment for plaintiffs, defendant appeals. The facts are fully stated in the opinion of. the court. Counsel for both sides filed elaborate briefs too long for publication.

Hon. D. M. Miller, Judge. Z. P. Jones was indicted for embezzlement. From a judgment sustaining a demurrer to the indictment, defendant appeals. The facts are fully stated in the opinion of the court. Held: that a storekeeper of a county jail whose duties are defined by statute was not guilty of' embezzlement for wrongfully converting money which he was not allowed to receive. It is true that in a few cases, such as People v. Royce, 106 Cal. 173; People v. Robertson, 6 Cal.

A. E. Weathersby, Judge. W. L. Slaydon was convicted of larceny and appeals. The facts are sufficiently stated in the opinion of the court.

Hon. W. A. Henry, Judge. ■ • Ollie Parker was convicted’of manslaughter and appeals. • The facts are fully stated in the opinion of the court.

Hón. J. F. McCool, Chancellor. Suit by Allen & Enoch against Archie Boyd. From a decree for complainants, defendant appeals. The parties to this suit are Indians, and the dispute is over the title to certain lands in Neshoba conuty. The appellees were the complainants in the court below, and the appellant was the defendant.

Hon. T. A. Wood, Chancellor. Bill by Mrs. Joseph H. Roca and others against George l’Hote and others. From a judgment for complainants, defendants appeal. The facts are fully stated in the opinion of the court.

Hon. D. M. Miller, Judge. Suit by W. E. Pennington against J. T. Ritchie. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated, in the opinion of the court, A deed of conveyance from Ritchie to Pennington,, properly executed and delivered, precludes Ritchie from recovering rent from any source in an action at law. The deed is regular in form and the description of the' land, perfect.

Hon. D. M. Miller, Judge. Suit by P. M. Ott against George McElveen. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. Paul B. Johnson, Judge. Marie Warwick was convicted of vagrancy and appeals. This is an appeal from a conviction for vagrancy and an imposition of a jail sentence of ninety days.

Hon. Jno. L. Buckley, Judge. B. W. Moore was convicted of an assault with intent to commit rape and appeals. The facts, are fully stated in the opinion of the court'. My first contention for the appellant is, that the demurrer should have been sustained by the lower court because the indictment failed to charge that the said Eula Floyd was of previous chaste character.

Hon. Paul B. Johnson, Judge. Suit by H. T. Bosworth against Williams & Freeman. A judgment was rendered in favor of plaintiff, from which defendants appealed, and after they had become bankrupt a motion was made by their sureties on their appeal bond to be relieved from liability. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

Hon. W. A. Henry, Judge. Edgar Martin was convicted of petty larceny and appeals. Held: while the plaintiff had a right to introduce evidence in rebuttal, and before the plaintiff had rested in rebuttal, and before the case was closed in each instance, and both civil cases, and before it was necessary to make a motion to reopen as the cases were not closed.

.Appeal from the circuit court of Marion county. Eon. A. E. Weathersby, Judge. •June Jefferson was convicted of unlawful retailing and appeals. Held: and properly so, that the offer was not limited to the particular trait involved in the nature of the charge against the defendant. In the case at bar, the defendant was being prosecuted for selling liquors and the inquiry was as to his general reputation for the sale of liquors.

Hon. A. E. Weathersby, Judge. Missie Chatman was convicted of unlawful retailing and appeals. The appellant was indicted and convicted of the unlawful sale of intoxicating liquors.

Hon. Sam Whitman, Jr,., Chancellor. Bill by T. J. Sessum and others against the Newton Oil & Manufacturing Company. From an order overruling a demurrer to the bill, defendant appeals. The facts are fully stated in the opinion of the court. There will be no limit to the issues that will arise in this case. Each man’s claim tried and determined by the chancellor separate and apart from all others.

Hon. J. M. MoCool, Chancellor. Suit by the Bank of Carrollton against A. M. Kirby. From a decree for complainant, defendant appeals. On December 18,1896, J. L. Henderson, who was a son-in-law of appellant, Kirby, purchased from one Ricketts the land in controversy.

Appear from the circuit court of Harrison county. Hon. W. C. Wells, Jr., Special Judge. Suit by Mrs. Alvin 0 ’Pry against W. H. Hardy. Prom .a judgment for plaintiff, defendant appeals. The appellee was plaintiff in the court below, and appellant. was defendant.

Hon. Sam Cook, Judge. Action of ejectment by C. B. Vance against C. W. Partee. From a judgment for plaintiff, defendant appeals. Held: speaking through Justice Calhoun, as follows: ‘ ‘ The swamp and overflowed lands were never the subject of taxation and sale for nonpayment.

Hon. J. S. Hicks, Chancellor. Bill by J. J. Terry et al. against O. R. Hageman. Held: ^ ‘Without attempting to draw any precise line to which courts of equity will advance and which they cannot pass, in restraining parties availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment and of which the injured party could not…

Hon. Sam Cook, Judge. -' Barney Cunningham was acquitted of unlawful retailing and the state appeals. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

J. Q. Robbins, Chancellor. Suit by W. T. Adams and others, alleged heirs of W. W. Adams, deceased, against. America Adams, the alleged widow of decedent, and another, for the possession of property of which decedent died seised. From a decree for defendants, complainants appeal. As an exhibit to the bill the decree of adoption is filed.

Hon. W. A. Roane, Judge. Suit by E. J. Crawford against the St. Louis & San Francisco Railroad Company. From a judgment for defendant, plaintiff appeals. This suit is brought by the appellant, for the death of his son, who was killed by a freight train of the appellee about nine o’clock at night, within the corporate limits of the town of Hickory Flat, between two public road crossings which are about one hundred yards apart.

Hon. J. H. Mitchell, Judge. C. T. Williams was convicted of unlawful retailing and ■appeals. • The appellant was indicted for the unlawful sale of •intoxicating liquors. The indictment charged that sale was made on the 20th day of November, 1911. On the trial he pleaded former acquittal.

Hon. D. M. Miller, Judge. Suit by Minerva Smith against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Appear from the chancery court of Washington county. Hon. E. N. Thomas, Chancellor. Suit by the Supreme Lodge Knights of Pythias and others against the Knights of Pythias of North America and South America, Europe, Asia, Africa and Australia. From a judgment for defendants, complainants appeal. .

Hon. Z. P. Landrum, Special Judge. Ejectment by Mrs. M. E. Connell against J. W. Norment et al. From a, judgment for defendants, plaintiff appeals. The facts are fully stated in the opinion of the court. No brief of counsel on. either side found in the record.

Hon. T. A. Wood, Chancellor.. Suit by L. M. Keel et al. against J. T. Jones et al. From a judgment for defendants, complainants appeal. This suit was begun by five complainants, the children of W. S. Keel, and its purpose was the cancellation of certain deeds executed by the widow of said W. S. Keel and mother of complainants.

Hon. A. E. Weathersby, Judge. Suit by Phoenix National Bank against J. J. Saucier and others. Prom a judgment for defendants, plaintiff appeals. The appellant was plaintiff in the court below, and apepllees were defendants. This suit was begun by' a declaration filed in the circuit court on a note, which is copied in the opinion. The defendants pleaded failure of consideration, in that the property sold was not as represented.

Hon. W. A. Henry, Judge. Suit by Ball Jones against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. This is an appeal from a judgment of the circuit court for two hundred and twenty-five dollars in favor of the appellee, who was plaintiff below, for the killing of a mule in the nighttime by the train of appellant. On the trial the defendant asked, and was refused, a peremptory instruction.

E. N. Thomas, Chancellor. ■Suit by' the Yazoo & Mississippi Valley Railroad Company ag’ainst A. Blum et al. to enjoin the prosecution of actions at law filed by defendants. From a decree for defendants, complainants appeal. Certain of the appellees had shipped cotton to Green-ville, Mississippi, by way of the appellant railroad company, to Messrs.

Hon. B. E. Sheehy, Chancellor. Bill by Charlotte Eastman et al. against the Wyatt Lumber Company et al. for the cancellation of certain contracts for the sale of lands. Prom a decree for defendants, complainants appeal.

Hon. J. H. Mitchell, Judge. Harvey Smith was convicted of arson and appeals. For former opinion, see 58 South. 979. The facts are fully stated in the opinion of the court. Outside of the inherent improbability of the story of Bryan Morrow and the incapacity of the witness, the record is full of contradictions.

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

Hon. W. A. Henry, Judge. Lee Donaldson was convected of forgery and appeals. On suggestion of error. Former opinion, 58 South. 835. The appellant was indicted and convicted for the crime of forgery.

Hon. Sam Whitman, Chancellor. Bill by H. L. Bauer et al. against J. M. Little et al. From a decree sustaining defendant’s demurrer to the bill, complainants appeal. In 1872 the land.in controversy was sold to the state for the taxes of 1871. In 1907 the state patented said land to George Bauer, through whom appellants claim as heirs at law. This suit was begun by bill in chancery filed by appellants seeking the confirmation of their title.

Hon. Jno. L. Buckley, Judge. Suit by Mrs. M. M. Montgomery against S. H. Hairs-ton et al. From a judgment for plaintiff, defendants appeal. The facts are fully stated in tbe opinion of tbe court. We submit that the court erred in not excluding tbe itemized statement offered by tbe plaintiff and in not giving a peremptory instruction when tbe appellee rested ber case. This was a suit based on a contract and not on an open account.

Hon. Geo. S. Dodds, Special Judge. Suit by McCall Company against W. D. Hughes. Prom a judgment for defendants, plaintiff appeals. The facts are fully stated in the opinion of the court. In The Bank of Newberry v. Stegall, 41 Miss. 142, it was held that if one part (of a contract) is good, and can be separated from the bad, the whole will not be held void, and to bring the case'within the rule invoked, the matter must be entirely independent of the bad.

Hon. Jno. L. Buckley, Judge. Suit by Mrs. L. Y. Sbepard Brown against the city of Meridian. 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 J. B. Burns against the Board of Supervisors of Smith County. From a judgment sustaining a demurrer to the petition, plaintiff appeals. The facts are fully stated in the opinion of the court.

T. D. Young, Special Chancellor. Suit by Alcorn county against the Tuscumbia Drainage District. From a decree sustaining a demurrer to the bill and dismissing the same, complainants appeal. The facts are fully stated in the opinion of the court. The bill which is filed by the appellant in this case is in the nature of a bill of review. The first question, then, to be considered is the right of the appellant under the law to file this bill.

Hon. T. A. Wood, Chancellor. Suit by Merrick E. Saucier against Mrs. C. M. Randall. Prom a decree pro confesso against defendant she appeals. The facts are fully stated in the opinion of the court. Held: by the Maryland court that “where an executor, pending a suit against him, dies after plea, filed, and the administrator is made a party, a new plea need not be filed.” See Mitchell v. Williamson, 9 Gill, 71.

Hon. J. M. Cashin, Judge. Suit by William G. Beach against J. N. Johnson. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. Plaintiff’s testimony clearly shows that the profits of this business were within the contemplation of both parties at the time of making the contract and that the loss of these profits was the proximate and natural result of the breach of the contract.

Hon. T. A. Wood, Chancellor. Suit by Mrs. Amelia 'M. Bailey against William Beeves, Jr., et ah, to enjoin a sale of lands under execution. Held: and we think correctly, that if one is bound as surety for another to pay any judgment that may be rendered in a specified action, if the judgment is defeated by the bankruptcy of the person for whom the obligation is assumed, the surety will be released.

Hon. Monroe McClure, Judge. John Hubanks, and others, were indicted for obtaining money under false pretenses. From a judgment sustaining a demurrer to the indictment, the state appeals. The facts are fully stated in the opinion of the court.

IIon. James P. McCool, Chancellor. Suit by Mrs. Nora Milling and others against S. I. Dixon. From a decree for plaintiff, defendant appeals. The facts are fully stated in the opinion of The court. Appellees, by their hill, and the entire proceedings shown by this record, undertake to completely destroy and blot out a good and valid deed on its face, by parol testimony, a proposition as we believe, unknown to the law.

. Hon. Sam Whitman, Chancellor. Suit by B. K. Dent and wife against the Merchants and Farmers Bank and others. From a judgment overruling a demurrer to the bill, defendant appeals. The facts are fully stated in the opinion of the court. At the outset let it be understood that the appellants do not contend that the alteration charged in the bill does not avoid the deed of trust. This is elementary.

Hon. John L. Buckley, Judge. Suit by C. C. Johnson against J. L. Ward. From a judgment fox defendant, plaintiff appeals. , The facts in the case are fully stated in the opinion of the court.

Hon. Jno. H. Mitchell, Judge. Suit by M. B. King against the National Life and Accident Insurance Company. From a judgment for plaintiff, defendant appe.als. The facts are fully stated in the opinion of the court. “Contracts of insurance must have effect like all other written contracts. The intention of the parties must govern and control, and when the language is plain and unambiguous, such intention must be gathered from such language.

Hon. Sam. Whitman, Jr., Chancellor. Suit by Mrs. Alice’ Daughdrill and others against Beard Bros. Company. From a decree in favor of tbe plaintiff, defendants appeal. Tbe facts are fully stated in tbe opinion of tbe court. Tbe agreement of counsel, which was introduced, and now in the record on page 16, we regard as most important and we think it really settles this case in favor’of .appellant.

Hon. Geo. S. Dodds, Special Judge. Suit by T. N. Gordan against Holmes & Herrick in which defendant filed a plea of set-off. From a judgment over for defendants, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. Sam Whitman, Jr., Chancellor. The facts are fully stated in the opinion of the court. The court knows from the history of the church that the so-called “Land Markers” were unknown and unheard of in the history of that great Church until ten or twelve years ago. And that if the church in question was organized in 1891, that there was not at that time a “Land Mark” Baptist Church in existence.

Hon. Sam Whitman, Jr., Chancellor. Suit by Mrs. H. L. Davis against the Board of Election ■Commissioners of Rankin County. From a decree overruling’ a demurrer to the bill, defendant appeals. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the rec■ord.

Hon. H. C. Mounger, Judge. Suit by the Vicksburg Waterworks Company against the Yazoo & Mississippi Valley Railroad Company. From a judgment for the defendant, plaintiff appeals. The fact are fully stated in the opinion of the court. As we understand the law a plea of accord and satisfaction must set up a new contract in reference to the settlement of a disputed account, and the new contract must be based on a good and valid consideration.

ITon. Jno. L. Buckley, Judge. Prom a demurrer' sustaining an indictment against J. N. Tucker, tlie state appeals. Tke facts are fully stated in the opinion of the court. 1st: Is the indictment insufficient in that it fails to state that the defendant had not been examined? 2nd: Are the sections of the Code upon which the indictment is founded, unconstitutional?

Hon. John L. Buckley, Judge. Suit by Walter Gr. Hodges against Truebart Moore. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. C. L. Dobbs, Judge. Ceph Ellis was indicted for burglary. From a judgment sustaining a demurrer to the indictment, the state appeals. The facts are fully stated in the opinion of the court.

Appear from the circuit court of Simpson county. Hon. W. H. Hughes, Judge. V. Harvey was convicted of carrying concealed weapons and appeals. The facts are fully stated in the opinion of the court.

Hon. H. C. Moungeb, Judge. John Mathews was convicted of larceny and appeals. The facts are fully- stated in the opinion of the court. The alleged confessions to Mr. Magruder which were admitted in evidence were inadmissible on two grounds, to-wit: First. Because the first confession made to Mrs. Heath, being tainted with the effect of threats, persuasion and violence would be presumed in law to make illegal and impertinent any second confession.

Appear, from the chancery court of Carroll county. • Hon. James F. McCool, Chancellor. Habeas corpus by Mrs. S. F. Kinnaird against Mrs. Nancy Lowery for the custody of her infant children. From a judgment awarding the children to defendant,, plaintiff appeals. From the testimony it appears that the appellant has-been married three times.

Q Hon. Paul B. Johnson, Judge. Suit by the Dunagin-Whitaker Company against W. P. Valentine. From a judgment for plaintiff, defendant appeals. The appellant was the owner of certain property in Jones county, and executed a deed of trust to E. H. Whitaker, trustee, to secure an indebtedness due the appellee. Default having been madq, in the payment of said indebtedness, the trustee advertised same for sale and proceeded to sell it to satisfy the debt.

Hon. Moneoe MoCluege, Judge. Charles Straughter was indicted. From a- judgment sustaining a demurrer to the indictment, the state appeals. The facts are fully stated in the opinion of the court.

Hon. T. H. Barrett, Judge. B. E. Durden was convicted in a justice of the peace •court, appealed to the circuit court, which dismissed his appeal for failure to appear when his case was called for trial. From this judgment of dismissal he appeals. The facts are fully stated in the opinion of the court. The appeal from the justice court was had by virtue of section 87, Code 1906.

J. L. Buckley, Judge. Bruce Butler was convicted of an offense and appeals. The facts are fully stated in the opinion of the court. The learned judge in his great zeal for -an abundant week’s catch was no doubt moved-by the highest motives. Lie undertook to put his spirit into the juries before they commenced their labors.

Hon. G-. G-. Lyell, Chancellor. Suit by Robert Sullivan and another agaisnt Y. Otis Robinson. Held: “A mere change in the form of indebtedness will not discharge the lien unless the parties clearly intended to extinguish it; but equity will consider it alive or not as accords best with justice and the parties’ actual intention.” It is to* be noted in this case (a) that there was no intention at all on the part of Howell or any of…

Hon. Paul B. Johnson, Judge. Lark Sowell was indicted for disturbing public worship. From a judgment sustaining a demurrer to the indictment the state appeals. Held: “That charging when one hissed, applauded, laughed was sufficient to charge offense.” I submit that under all the authority the indictment at bar is sufficient.

Hon. W. H. Hughes, Judge. Ellis Jennings was convicted of carrying intoxicating liquors to a place of public worship and appeals. The facts are fully stated in the opinion of the court. The fourth assignment of error is that the court erred n refusing to grant for the defendant a peremptory instruction to which we call the court’s special attention.

Hon. D. M. Miller, Judge. Emmett Simmons was convicted of acting as agent for the purchase of intoxicating liquor and appeals. The facts are fully stated in the opinion of the court.

Appeal 'from the circuit court of Pike county. Hon. D. M. Miller, Judge. Sam Brumfield was convicted of assault and appeals. The facts are fully stated in the opinion of the court.. This case should be reversed and remanded for the reason that the trial court required the defendant to go to trial without his material eyewitnesses, viz.: Tom May and Robert Conerly.

Hon. J. C. Ward, Special Judge. Suit by Mary B. Williams against the Southern Railway Company. From a judgment granting insufficient relief, plaintiff appeals. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

ITon. Sam Whitman, Jr.,° chancellor. Suit by Mrs. Emma Dunbar against Interior Lumber Company. From a decree of dismissal, plaintiff appeals. The facts are fully stated in the opinion of the court. The sale having been made the law presumes that the sheriff and tax collector did his duty and made the deed as required by law. Not only is the deed presumed by law to have been executed but is shown to actually have been executed.

Hon. W. H. Hughes, Judge. Sylvester Gentry was convicted of burglary and appeals. The facts are fully stated in the opinion of the court. No briefs of counsel on either side found in the record.

Hon. C. L. Dobbs, Judge. B. A. Ware was convicted of unlawfully exhibiting a deadly weapon in a justice of the peace court and appealed to the circuit court, where he filed a demurrer to the affidavit which, being sustained by the court, the state appeals. The facts are fully stated in the opinion of the court.. This is an appeal by the state. The defendant was indicted for exhibiting’ a deadly weapon in a rude, angry and threatening manner.

Hon. J. Q. Robins, Chancellor. Suit by M. A. Henderson against John Blair and others. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Appear from the circuit court of Jackson county. Hon. T. PI. Barrett, Judge. M. D. Saucier was convicted of uttering a forged instrument and appeals. Held: “This was not a forgery, because it was an immaterial part of the paper, and because it could not possibly have injured anybody.

Hon. Monroe McClurg, Judge. Stanley Brooks was acquitted on a trial for crime and the state appeals. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

Hon. W. A. Henry, Judge. Mandamus by the state, on the relation of J. H. Howie, district attorney, against mayor and board of aldermen… Held: This being a question of first impression here, we turn to the courts of other states where similar statutes have been enacted to find what they have held; the question has been passed upon only in Iowa (137 Iowa, 452); Washington (35 L. E. A. [N. S.] 802); Kentucky (143 Ky. 422); Kansas (80 Kan. 251); Texas (97 Tex. 1); Illinois (96…

TIon. T. A. Wood, Chancellor. Suit by Mrs. A. V. Hays et al. against Mrs. P. J. Bostick. Prom a decree for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. What is the defense of the defendants'? Bes judicata. They plead the decision of the court reversing the case .as res judicata. Only a final judgment or decree can be .so pleaded, and this case was reversed for a new trial.

Hon. W. A. Henry, Judge. Suit by Fisher Bros, against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Even if the defendant was not entitled to a peremptory instruction so far as the special damages claimed were concerned, grievous error was committed by the court iji giving the instructions asked in behalf of the plaintiffs.

Hon. G-eo. S. Dodds, Special Judge. Suit by Charles E. Chidsey against city of Pascagoula, Prom a judgment for defendant, plaintiff appeals.

Hon. Monroe MoClurg, Judge. Ben Wade, Jr., was indicted for an attempt to commit rape. From a judgment sustaining a demurrer to the indictment the state appeals. The facts are fully stated in the opinion of the court. The demurrer to this indictment contains two grounds stated in one paragraph of the demurrer. First: The indictment does not allege that the defendant failed to commit a rape on the person of Fannie Sample.

H. C. Mounger, Judge. Suit by the Vicksburg Waterworks Company against E. Ford. The facts are fully stated in the opinion of the court. The first and principal error assigned and urged here is that the lower court erred in awarding and adjudging to the plaintiff below the admitted and confessed' penalty or usurious damages of ten per centum on each and all of the debit items or prices of the account sued on.

Hon. J. F. McCooi,, Chancellor. Suit by Mary Jeptha Watson against W. B. Peebles. From a decree dismissing the petition, plaintiff appeals. In April, 1902, the appellant, who was then Mary Jeptha Harris, filed a petition, by her mother and next friend, in the chancery court, alleging .that she was then eighteen years of age, and that it was to her best interest that she be made of age for the purpose of conveying certain real estate owned by her.

Hon. H. C. Mounger, Judge. Suit by Caesar Williams, executor, against tbe Vicksburg, Shreveport and Pacific Bailway Company. From a judgment for plaintiff, defendant appeals. Tbe facts are fully stated in tbe opinion of tbe court.. No brief of counsel on either side found in tbe record..

Hon. John L. Buckley, Judge. Suit by A. L. Van Norman against Meridian Waterworks Company. From a judgment for defendant, plaintiff appeals. The appellant was the owner of certain property in the city of Meridian. Leading from his property into the street were certain water pipes, which connected with the city’s mains. These lateral pipes, which belonged to appellee, burst in the street, and the water which leaked from them caused the street to become muddy.

Hon. H. C. Mounger, Judge. Robert Page was convicted of the unlawful sale of intoxicating liquors and appeals. The facts are fully stated in the opinion of the court. The instruction asked by the defendant which was refused was drawn along the theory that if defendant had merely ordered the liquor out of the state, as an accommodation, he was not guilty of unlawful retailing.

Hon. John L. Buckley, Judge. Ed. Keeton was convicted of crime and appeals. The facts are fully stated in the opinion of the court.

. Hon. Gr. Gí. Lyell, Chancellor. Suit by ~W. M. Ainsworth and others against the board’ of supervisors of Copiah county. From a judgment for defendant, plaintiff appeals.

Hon. W. A. Henry, Judge. Suit by W. T. Whadley, trustee, in replevin against. J. B. Crisler. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The appellee is merely a nominal plaintiff, and the court does not regard him at ail, but regards the real beneficiary in the suit, which is the Picket,t-Fr an Id i n Co. One nominal plaintiff may be substituted for another. See Denton v. Stephens, 32 Miss. 194.

Hon. W. H. Hughes, Judge. Grus Barnes was convicted of carrying intoxicating liquors to a church and appeals. The facts are fully stated in the opinion of the court.

Hon. IT. K. Mahon, Judge. Jim Clark was convicted of manslaughter and appeals. The facts are fully stated in the opinion of the court. Assignment of error No. 1. In Collins v. State, 56 So. 527, the assistant district attorney used the following language: “This bad nigger killed a good nigger. The dead man was a white man’s nigger and these bad niggers like to kill that kind.

. Hon. Sam Whitman, Jr., Judge. Bill by J. H. Caldwell and others against A. H. George. Held: ante, was void and afforded him no protection.

Hon. W. A. Hughes, Judge. Suit by J. W. Chapman against the Gulf & Ship Island Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The contentions of counsel on behalf of appellee may be summed up as follows: 1st. That the covenant in the right of way deed is not a covenant real and is not binding on the assignee of the covenantor, and that their contention is ■ supported by Spencer’s case. 2nd.

Appeal' from the circuit court of Warren county. Hon. H. C. Mounger, Judge. Georgia Proctor was acquitted of a charge of murder and the state appeals. The facts are fully stated in the opinion of the court. The question presented by this record on the ruling is whether as a general proposition this crime of abortion resulting in the death of the woman, Carrie Hallbach, is murder or manslaughter.

Hon. W. N. Thomas, Chancellor. Suit by L. B. Jones against the Belzoni Drainage District of Washington County, and others. From a judgment for defendants, complainant 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. The J. J. Newman Lumber Company was indicted for working, an employee more than ten hours per day. Held: not only by the decisions of the various state court that have had occasion to judieally examine this question, or doctrine, of constitutional law, but the Supreme Court of the United States in its various utterances on the subject, and all of which are in entire harmony in respect to the constitutional'principle of construction and…

Hon. G-. Gr. Lyell, Chancellor. Suit by E. L. Trenholm, trustee, against Mary R. Miles. Prom a decree dismissing the bill, complainant 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 tbe Cassell Drug Company against tbe Alabama & Vicksburg Railway Company. From a judgment for plaintiff, defendant appeals. Tbe facts are fully stated in tbe opinion of tbe court.

Hon. C. L. Dobbs, Judge. Suit by Earl D. Christian against the Postal Telegraph Cable Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. It was not proved that the defendant’s agents or servants did, with respect to the handling of this message, any wrong except that they did not deliver it according to the contract. This is all that was shown.

Hon. Sam Whitman, Je., Chancellor. Suit by Mrs. O. S. McPherson and others against the Bank of Hickory. Prom a decree for complainants, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Henry, Judge. Suit by Mrs. L. M. Dyer and others against the Yazoo & Mississippi Valley Eailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. G. A. McLean, Judge. Suit by Mrs. Eliza Engle against the Illinois Central Railroad Company. From a judgment- for plaintiff, ■defendant appeals. The facts are fully stated in the opinion of the court. Now it appears from the testimony of plaintiff that this crossing was blocked about fifty-four minutes in all, going and coming.

Hon. T. H. Barrett, Judge. M. D. Saucier was indicted for forgery. From a judgment sustaining a demurrer to the indictment, the state appeals. Held: “A title to lands can only be acquired and lost according to the laws of the state in which they are situate.