Volume 103 — Mississippi Reports

Hon. G. A. McLean, Judge. Suit by L. M. Trimble against the Yazoo & Mississippi Valley Railroad Company. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Appear from the chancery court of Bolivar county. Hon. M. E. Denton, Chancellor. Suit by R. E. Wiggins and others against W. L. Pear-man. Prom an order granting a preliminary mandatory injunction, defendant appeals. The facts are fully stated in the opinion of the court. We maintain that the chancery court had no jurisdiction of this cause under the facts set up in the bill. 2 Story Eq.

Hon. E. N. Thomas, Chancellor. Suit by Alma S. Hester and others against Bailey Cobb Hester and others. From a decree sustaining a demurrer to the bill and rendering a final decree for defendant, complainant’s appeal. The facts are fully stated in the opinion of the court. A collateral attack by a surviving party on a decree of divorce, after death of party‘obtaining divorce, may be made for want of jurisdiction over the parties or for fraud.

<p>Appeal from the circuit court of Grenada county.</p> <p>Hon. G. A. McLean, Judge.</p> <p>A. P. Magness was convicted of murder and appeals..</p> <p>The facts are fully stated in the opinion of the court.</p> <p>We contend that it was error for the trial judge to extend the term of his court for the purpose of trying two-cases. This is purely statutory and this exact question has never been decided so far as we can find,, but it does-seem that a reasonable construction of section 1009, Code 1906, would justify anyone in concluding that the term of court could only be extended to try one case which was being tried in good faith and in regular order at the very time the term of the court expired; then under the statute it could be carried past the regular term of the court for completion, the court being powerless to-consider any other case except the one carried over. The language of the statute clearly means one ease for the singular number is used and the word.“any case. ” Then further the statute says, “bring it to a conclusion.” Now, these are words of limitations we submit and the statute was intended, to meet the emergency that often arises when a case is begun in term time and is unexpectedly extended beyond the term time, but there is no authority at law or anywhere else for a., trial judge to suspend a case, one of the highest known to law, for the purpose of beginning the trial of another ease in order to carry that second case beyond the regular term of the-court, especially so when it was evident and admitted that the case already on trial would have to be carried past the regular term of court for completion. We in•sist that the suspension of one murder case in order to begin the trial of another in order to take both past the regular term of court is unheard of, improper arid illegal, .and this one act alone convinces this court, no doubt, that Magness could not have had a fair and impartial trial at the January term of the court in Grenada county.</p> <p>We come now to the application for change of venue. ■Certainly this application should have been granted. ’Thére was no conflict in the evidence. There was no dispute about the matter at all and on the evidence introduced to support the motion the change of venue ■should have been granted. But when this court looks to the entire record of the case, to the manner, in which •the case was tried, when it looks to the examination of •the veniremen, there cannot be any possible doubt in the court’s mind that it was little short of a crime to try Magness in Grenada county at the time he was tried. Everything points to a wild and fierce desire to convict this man of murder, regardless of law and regardless of justice. The application for a change of venue is a strong •one. The testimony of the sheriff albne unsupported by-the other witnesses entitled the defendant to a change. The sheriff of the county stated that he had to take the ■defendant to Hinds county jail in Jackson for safe-keeping; that he had to guard the jail at this term of the court; that he had heard of a mob being organized at that term •of the court to lynch the prisoner. One witness testified that he had heard at least one hundred men at that term of the court express the opinion that Magness should be convicted and to the same effect some other witnesses testified. It is true that some of the witnesses for the defendant testified that Magness could have a fair and impartial trial in Grenada county, • but this faith was based on their county pride. They believed that the men of Grenada county were as fair and impartial as of any other county. When the court remembers that this homicide occurred during a session of a circuit court of Grenada county, that men from all parts of the county were assembled at the county seat, that the ease was under discussion constantly during the entire term of the court, that the news spread that the defendant had been tried before for homicide in this county and acquitted, and that this case was discussed in connection with the present case, it seems to us that the motion for a change of venue should have been instantly sustainded. We cite the familiar cases of Saffold v. State, 76 Miss. 258; Tennison v. State, 79 Miss. 708; Brown v. State, 83 Miss. 645; Anderson v. State, 92 Miss. 656.</p> <p>The first assignment of error is, did the court have the right to try this case at the time it did? We submit that it did not. Another murder case was sidetracked after it had begun and when the evidence was not quite concluded for no other reason than to start the Magness case, and then sidetracked this also in order to extend the term of the court and try two cases after the time fixed by law for the termination of that court. If this could be done in this instance, then a term of court could be continued indefinitely simply by impaneling the juries in the different cases before the time fixed by law for the court to expire, and endless confusion would result therefrom, and the reason for the terms of court as fixed by law would be done away with.</p> <p>Should the change of venue have been granted? A strong case for the change was made by the witnesses, leaving out the sheriff, but with his testimony we submit that there could be no doubt. This testimony taken in the motion for a change of venue was as conclusive of a prejudgment of this man’s case in the public mind as it was possible to be. Even this testimony demonstrated beyond peradventure that this man could not get that impartial trial guaranteed by the law to every citizen. There were threats of mob violence; there was the hurrying of the prisoner from Calhoun county to Jackson, not daring to carry him through Grenada county. The governor, as Magness passed back in custody of the sheriff, notified other sheriffs along the line and these other sheriffs, accompanied by other men of their counties, escorted the prisoner to Grenada. The whole county seemed to be infuriated and this was shown by the examination of the veniremen on their voir dire. To talk of an impartial trial, under such circumstances as this is mockery. This man had just arrived in Grenada on Tuesday evening of the second week of the court. He was immediately arraigned, his case set for announcement the next morning, before any announcement from him and before any announcement was possible from him, over the strenuous protest of his counsel, Mr. Hill, as shown by this record, stating to the court at the time that the man had just arrived, that the drawing of a special venire at that time might jeopardize some of the rights of the defendant, that the defendant could not be advised of the status of affairs at that time is apparent,, yet in spite of these protests the venire was drawn on the simple announcement of “ready” by the state, and now the state, having forced this matter within less than twenty-four hours after the defendant had arrived in Grenada, after having been sped all over the state by the sheriff to keep him from mob violence, solemnly argues that the defendant was estopped to ask a change of venue after this. According to this view all that has to-be done to estop the defendant from asking a change of venue is to “cut in” ahead of him before he announces what he intends to do or before he could know and move for a special venire. But in this ease it was a denial of a constitutional right to a fair and impartial trial, because it was utterly impossible for that prejudgment, which was shown so manifestly throughout the trial and especially throughout the examination of the jurors who were to-try this ease, not to invade the jury box. That being true, that is that prejudgment was likely to invade the jury box, it was the duty of the court to grant the change of venue, because a fair and impartial trial under the circumstances was not likely.</p> <p>The cases of Saffold v. State, 76 Miss. 258; Tennison v. State, 79 Miss. 708; Brown v. State, 83 Miss. 546 and Anderson v. State, 92, Miss. 656, are no stronger on their facts going to show prejudgment and ill will in the minds of the public than this case, and in truth this case is a much stronger one on its facts for a change of venue than either of those cases by reason of the remarkable showing of prejudgment of the case in the public mind as disclosed by examination of the jurors on their voir dire.</p> <p>It was said by this court in Cheatam’s case, 67 Miss. 355, that the question of error or no error as to a change of venue was not determinable alone from the standpoint occupied by the court in passing upon the question before the trial was commenced, but should be determined from the whole ease including the examination of the jurors on their voire dire, etc. In that ease a jury was selected from a venire of fifty men and the defendant did not exhaust his peremptory challenges. Look at this case according to the rule laid down in the Cheatham case and it will be apparent that a change of venue should have been granted.</p> <p>In investigating the question of whether the court had the right to extend the term of court and try this case when he already had on trial the Caffey case, which could not be completed during the term as fixed by law, we have searched all the authorities at our command. We have been unable to find any case where a judge has undertaken to carry over more than one case. Indiana has a statute very much like ours on this subject, and in none of the cases construing this statute, and we found some eight or ten cases construing it, had the court undertaken to carry over more than one case. Being unable to find any authorities directly in point we go back to the purpose for which the statute was passed and while it is not on the exact point this question is very much illuminated by the opinion'in Lipscomb v. State, 76 Miss. 248. In that case it is said that for the sure and true interpretation of statutes four things are to be considered; 1st, the old law; 2nd, the mischief; 3rd, the remedy; 4th, the reason of the remedy. The mischief to be remedied was to prevent the cessation of a trial and the loss of what had already been done simply because the court term was not long enough to finish it. In other words it was to enable the court to complete a case which in the ordinary course had been taken up for trial and which on account of dilatory tactics, or on account of the length of the case, could not be finished within term time. It was not intended by the lawmakers to extend the term of the court' by this statute so that more than one case might be taken up and finished after the expiration of the term, for if this had been the intention they would simply have lengthened the term of the court. The language of the statute itself limits the right to try eases after the expiration of the term to one ease and we submit that a construction of the statute that would permit the trial of more than one case after the expiration of the term, would do violence to the words of the statute and be entirely at variance with the purpose and intention of the lawmakers and have no connection whatever with the evil which they sought to remedy by the statute. If the judge can begin two cases for the purpose of carrying both over beyond the term of the court then he may begin three, four, five, or in fact as many as may be on the docket and have the court terms thereby fixed not by law but by the whim of the judge. This action of the court in beginning the trial of this case when he did and when he had another ease on trial which could not be completed .during the term, was without warrant of law and the court had no jurisdiction to try the case, receive the verdict of the jury and impose the sentence.</p> <p>I shall consider the second, sixth, seventh and fifteenth assignments of error together. These assignments of error being based upon the fact that the court, after the trial of the ease of the State v. Sim Caffey had commenced, had no right to suspend the trial of that case for the purpose of taking up the Magness case. I submit that a just construction of this record and a fair understanding of the same will show conclusively that the court did not exceed its authority in this matter, and that no injustice nor harm resulted to appellant by reason of the action of the court, but on the other hand that the action of the court in the matter was not only commendable but was within the strict line of his authority. I take it for granted that this court will agree with me when I say that the object and the purpose of the lawmakers in enacting statutes is not only to secure to a defendant all such rights as he may justly be entitled to, but also to secure to the state the right to a speedy trial when the laws of the country have been outraged.</p> <p>Counsel for appellant rest their contention upon section 1009 of the Code of 1906, which is as follows:</p> <p>“When the trial or hearing of any case, civil or criminal, has been commenced, and is in progress in any court, and the time for the expiration of the term as prescribed by law shall arrive, the court may proceed with said trial or hearing, and bring it to a conclusion in the same manner and with the like effect as if the stated term had not expired.”</p> <p>Now if I understand the contention of counsel it is that the court, having already proceeded with the trial of the Caffey case (although the Magness ease was called two days before the trial of the Caffey case was commenced), thereafter had no right under any circumstances to suspend the trial of the Caffey case, and call for an announcement in the Magness case, or draw a special venire in the Magness case, or impanel a jury in the Magness ease, but that before any steps could be taken in the Magness case the Caffey case must have first been completed. I submit that such a contention is not consonant with reason, justice or a proper construction of the statute in question.</p> <p>The Lipscomb case, 76 Miss. 223, determines that the trial of a criminal case has begun and is in progress when the court enters upon the impaneling of the jury for the trial of the matters of fact presented by the pleadings; therefore this case had been commenced and was in progress before the January term of the court expired, because at midnight on the last day of the term there were nine qualified men in the jury box.</p> <p>There can be no question but the action of the court in suspending the Caffey case and calling the Magness case for announcement and also drawing the special venire in. the Magness case was far from error, and it has been so decided by this court. See Penn v. State, 66 Miss. 450.</p> <p>So the only question presented to the court is as to whether the action of the court in proceeding to impanel the jury in the Magness case during the suspension of the trial of the Caffey case constituted error. I submit that this court ought not to reverse upon this point unless it is shown that some harm resulted to the defendant thereby. The record shows that there was absolutely no interruption in the Magness case from the time of arraignment on Tuesday until .the verdict was returned into court. He was arraigned on Tuesday, the case set for call on Wednesday, and on Wednesday when it was called and the defendant asked for further time in order that his process might be returned, same was passed until Thursday, when it was again called, and was then again passed until Friday, at which time it was again called, and it appearing that some of the appellant’s witnesses were still absent, the case was passed until Saturday, at which time the special venire was returnable. On that date appellant filed his motion for a change of venue, the hearing of which was promptly entered upon, and after this motion was overruled appellant immediately asked for an opportunity to prepare a written application for a continuance, which was granted by the court, and after said application was overruled the impaneling of the jury was then commenced. After the special venire had been exhausted, the court, as is customary in such cases, ordered the sheriff to summon an additional number of men from the body of the county, and the sheriff having stated to the court that he could not execute this order before a certain time, the court as is usual, passed the ease until that time, and on that date the jury was completed and the hearing of the testimony commenced. There never was at any time the slightest interruption in the progress of this case, and I submit that it is impossible to conceive of a case that progressed so smoothly and so uninterruptedly as the ease at bar. No harm could possibly have resulted to appellant by this course, and he cannot be heard to complain simply because he was given his constitutional right to a speedy trial.</p> <p>Now it might be that if the suspension of the Caffey case and the interruption in the progress of that case had resulted in harm to him (Caffey) then Caffey, if he had been convicted, might have been in a position to have shown that some harm resulted to him and that his interests were prejudiced by such numerous interruptions of his trial, but Caffey was acquitted and therefore is urging no complaint.</p> <p>Suppose Caffey had been on trial for misdemeanor and through some peculiar and unusual condition of affairs the case was prolonged, probably unnecessarily, would this court hold that the court below would have no authority or power to have suspended the trial of that case and have taken up the trial of the Magness ease, one of much greater importance? It might be that Caffey could have complained at the suspension of his trial if he could have shown that he was harmed thereby, but surely Magness could not complain. Or further, in order to show the absolute unreasonableness of the contention of counsel for appellant, suppose that the case on trial had been a civil ease, would this court hold that the court below had no right to commence the trial of a capital ease and suspend the trial of the civil case? Certainly not. It might be that if the losing party in the civil case could show that his case was prejudiced by such suspension, or interruption, that the court would grant him a new trial, but surely the defendant in the capital case would not be heard to complain where his case proceeded uninterruptedly, and there was no unusual delay in the proceedings.</p> <p>In the ease of Ouidas v. State, 78 Miss. 622, the point was there made by Ouidas, appellant, that it was error to suspend the trial of his ease in order for the court to hear and determine a statutory reward matter but Judge Terrell, in delivering the opinion of the court, very properly held that as no harm could have been suffered by him by reason thereof that his contention was not well-founded, but on the other hand was purely technical. The determination of the whole matter rests upon the fact as to whether or not any harm results to a defendant by reason of the particular action. And since the court has held in the Penn case, supra, that it is not error to draw a special venire and set a case for trial pending the trial of another case, upon what theory of reasoning can it be held that the drawing of the special venire, setting the case for trial and partially impaneling a jury, would constitute reversible error? It strikes me that the main cause of complaint that appellant has in this ease is that he was given a speedy trial at the first term of court, which'was his constitutional right, although not asserted by him. The language of Chief Justice Campbell in the caes of Jones v. State, 60 Miss. 123, is indeed pertinent. He says:</p> <p>“The case presents an instance of commendable determination by the officers of the law to insure to the accused a ‘speedy’ trial which was his constitutional right, if not asserted by him. The too common practice of permitting a term of the court after a homicide to pass before the trial of the slayer was justly departed from in this ease, and the trial and conviction accurred in the same month in which the crime was committed. Such promptness may excite some surprise but it meets our hearty approval since a careful examination satisfies us that no wrong was done the prisoner. ”</p> <p>To the same effect is the case of Freeman v. State, 29 So. 75.</p>

Hon. M. E. Denton, Chancellor. Snit by T. R. Henderson, executor, and others against W. R. Henry, and others, to construe a will. From a judgment construing the will, defendant appeals. For a former decision of this case see 101 Miss. 751.

Hon. T. B. Carroll, Judge. Suit by Mathew-McDonald Lumber Company against the Southern Railway' Company in Mississippi. From a judgment for plaintiff, defendant appeals.

Hon. Jno.'L. Buckley, Judge. Suit by Nami Nebham against Elias Kouri Juden and others. Judgment for plaintiff. From an order denying defendants motion for a new trial, they appeal. Held: before the adjournment of the term at which tMs ease was tried.

Hon. M. E. Denton, chancellor. Suit by the United States Fidelity & Guaranty.

Hon. W. A. Henry, Judge. Suit by Lucinda Hardy against the Masonic Benefit Association. From a judgment rendered on a peremptory instruction for defendant, the plaintiff appeals. The defense was that the plaintiff’s husband was never a member of the order, and never had a policy in the order, but that the application which was exhibited was a forgery, and -the claim an attempt to defraud.

Hon. Sam M. Whitman, Chancellor. Bill by Mrs. M. J. Murphey against the city of Meridian. From a decree dismissing the bill, plaintiff appeals.

Hon. Paul B. Johnson, Judge. Sam Tucker was convicted of burglary and appeals. The facts are fully stated in the opinion of the court.

Hon. Sam C. Cook, Judge. Major Braxton was convicted of manslaughter and appeals. The facts are fully stated in the opinion of the court. We submit that if for no other reason this case should be reversed because the sentence of the court is a nullity in this, that it fixes no time for said sentence to commence. Kelly v. State, 3 S. & M. 518; Wharton v. State, 41 Miss; 680; Easterling v. State, 35 Miss. 210.

Hon. J. S. Hicks, Chancellor. Suit by the Presbyterial Church of Fayette against the Thomas Hinds Lodge No. 58 F. & A. M. in which defendant filed a cross-bill. From a decree granting relief to both parties, both parties appeal. The facts are fully stated in the opinion of the court.

Hon. Jno. H. Mitchell, Judge. The facts are fully stated in the opinion of the court. The sole question presented in this case is whether or not the trial court abused its judicial discretion when it refused to set aside the verdict of the jury and the judgment of the court and grant the appellant a new trial.

Hon. Sam C. Cook, Judge. Suit by Mrs. M. A. Smith against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Held: “that if it is sufficient to show, in cases where life.and liberty are involved, that the wrong was the ‘mediate cause,’ it must surely be sufficient where nothing more than money is involved.” 1 Thompson on Negligence, see. 149; see also section 150 with cases cited.

Hon. G. G. Lyell, chancellor. Suit by James K. Vardaman against F. M. Peyton and others. From a judgment dissolving an injunction in part and allowing defendant’s counsel attorney fees, defendants appeal and complainant files a cross-appeal.

Hon. W. A. Henry, Judge. Suit by H. C. Lawrence against E. S. Middleton, tax collector. Prom a judgment for defendant, plaintiff appeals. Appellant was plaintiff in the court below, and appellee defendant. Suit was brought to recover the amount of the privilege license alleged to have been erroneously levied and collected of plaintiff for conducting a garage.

Hon. Geo. J. Leftwich, Special Judge. . Suit by Merchants & Farmers Bank of Pontotoc for. use of J. A. Powell against W. R. Perkins. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. E. N. Thomas, Chancellor. Suit by Rudolph Weil against the Equitable Life Assurance Society of the United States. From a decree overruling a demurrer to the bill, defendants appeal. Held: as appellee’s proper proportion of the accumulated surplus, a sum in excess of twelve hundred and sixty-two dollars, and by its false and untruthful representations to appellee, it induced him to accept the sum of four hundred and fifty-three dollars and thirty cents. .

Hon. G. A. McLean, Judge. Suit by M. B. Grace agianst S. A. Floyd. From a judgment for plaintiff, defendant appeals. Remanded to docket with leave to file another brief. The facts are fully stated in the opinion of the court. Where can the appellee be deprived of any of his rights by the court considering these notes? Where can he be damaged in the least? He does not contend that he will in any way be damaged by the court considering the evidence in this case.

Hon. Sam Whitman, Jr., chancellor. Bill by J. B. Marshall and others against the mayor and board of aldermen of the city of Meridian. From a decree for defendants, complainants appeal. The facts are fully stated in the opinion of the court. ■

Hon. M. E. Denton/' Chancellor. Suit by J. F. Anderson and others, against T. R. Henderson and others. From a decree dissolving an injunction and dismissing the bill, complainants appeal. The facts are fully stated in the opinion of the court.

Hon. J. I. Bellenger, Special Judge. Walter Benoit was convicted of the illegal sale of intoxicating liquors and appeals. The facts are fully stated in the opinion of the court. The court erred in permitting the witness R. J. Murtagh to testify, in reading from the docket of the mayor’s •court, as to the number of times and the crimes for which the appellant was convicted. These propositions can also be argued together.

Hon. W. A. Henry, Judge. J. D. Drummond was convicted of receiving stolen goods and appeals. The facts are fully stated in the opinion of the court. The court gave the following instruction for the state: “No. 2.

Hon. W. H. Hughes, Judge. Tim Cherry was convicted of disorderly conduct and appeals. The facts are fully stated in the' opinion of the court.

Hon. D. M. Millek, Judge. Tony Huggins was convicted of murder and appeals. The facts are fully stated in the opinion of the court.

Hon. T. H. Barrett, Judge. Suit by H. E. Delmas against the Pascagoula Street Railway & Power Company. Erom a judgment sustaining a demurrer to plaintiff’s declaration, he appeals.

Hon. Jno. H. Mitchell, Judge. Suit by W. M. Mauldin against the New Orleans, Mobile and Chicago Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. There is not one item or proof of negligence on the part •of the railroad company.

court of Tippah county. Hon. H. K. Mahon, Judge. ■ Suit by the Continental Jewelry Company against D. T. Braddock. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The seventh instruction asked by appellant and refused ought to have been given. It summarizes the facts as shown by the evidence and declares that it is the duty of the defendant to notify the plaintiff that the show case would not be accepted at Ripley.

Hon. J. M. Cashin, Judge. Suit by the Employer’s Liability Assurance Corporation, Limited, against the Delta Electric Light, Power & Manufacturing Company. From a judgment for plaintiff, defendant appeals. An automobile belonging to and driven by E. L. Smith collided with a street ear of the appellant on a public street in the city of Greenville.

Hon. J. L. Buckley, Judge. Amelia Webster was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court. We desire first to discuss the question as to the admission of the evidence of a plea of guilty in the mayor’s court, and the admission of the mayor’s docket to show a conviction of a similar charge in the mayor’s court. • It is well settled in this state that the unsworn pleadings of the parties are not admissible in evidence.

<p>The opinion in this case was rendered on suggestion of error.</p>

Hon. Jno. L. Buckley, Judge. - Suit by William Hoke against the National Life & Accident Insurance Company. From a judgment for defendant, plaintiff appeals. Held: in the Miazza ease that there was no distinction between a representation and a warranty. We submit that they are mistaken in this.

Hon. G. A. McLean, Judge. E. E. Buck was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court.

Hon. D. M. Miller, Judge. Action by the state against the Butterfield Lumber Company. From a judgment for the defendnat, the state appeals. The facts are fully stated in the opinion of the court.

Hon. N. A. Taylor, Judge. . Suit by S. B. P. Parish under name of Parish Company against the Yazoo & Mississippi Valley Railroad Company. Prom a judgment for nominal damages for plaintiff, he appeals. The facts are fully stated in the opinion of the court. Under the facts of this case, appellant was entitled to recover the loss of the profits caused by the breach of his contract of sale..

Hon. J. A. McLean, Judge. Suit by A. P. Dacus against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are sufficiently stated in the opinion of the court. We call the attention of the court to the fact that the plaintiff’s own evidence appears in full in the record, beginning at page 14. On page 15 is found his statement of his transaction, and he says: “I asked him to give me three tickets to Memphis, round trips.

Hon. J. Q. Robins, Chancellor. Application of A. C. Carter for habeas corpus to compel the granting of bail. Prom a judgment denying bail, the appellant appeals. The facts are fully stated in the opinion of the court. My understanding of - the law is that where there is a reasonable doubt arising from the testimony as to whether or not a person is guilty of murder in killing another then the proof is not evident and the presumption is not great and he is entitled to bail.

Hon. N. A. Taylor, Judge. Suit between the city of Water Valley and the state on the relation of Ross Collins, attorney-general. From a judgment for the state the plaintiff appeals. The facts are fully stated in the opinion of the court. The facts are fully stated in the opinion of the court.

Hon. G. A. McLean, Judge. Suit by J. M. Brown and others against the Southern Railway Company in Mississippi. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The deceased, a woman sixty-two years old, approached the railroad from the south on foot, traveling along the street of the village of Stewart, the most frequented street and principal thoroughfare of the village.

Hon. M. E. Denton, Chancellor. Bill for injunction by the Carrier Lumber & Manufacturing Company against the board of supervisors^ of Quitman county, and others. From a decree overruling a motion to dissolve an injunction, defendants appeal. The facts are fully stated in the opinion of the Court. Boards of supervisors are vested with full jurisdiction over roads, ferries and bridges by the Constitution of the state. Constitution, section 170.

Hon. E. N. Thomas, Chancellor. Bill in equity by Warren county against Bomer Brothers and others. Erom a decree overruling a demurrer to the bill defendants appeal. Held: “These facts were sufficient to have put the Newmans on inquiry, and an inquiry would have shown that J. F. Tillman was dead and Ms estate in process of admmistration, and that Williams Wood & Company were not entitled to the proceeds of the note when collected. . . .

Hon. G. A. McLean, Judge. Omar Smith was convicted of murder and appeals. Held: in that ease, should have been done-, and put that deliverance partially on the ground that all the testimony before the first jury was not begun anew and offered over again after the new juror had been selected. That is all the court decided in this case.

Hon. N. A. Taylor, Judge. Suit by Mrs. Lily Baker against the Supreme Lodge of the Knights of Pythias. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The only question before this court now is, was the trial court warranted in charging the jury as a matter of law upon the record made, that deceased’s, Baker’s, death was caused or superinduced in consequence of a duel, in which he was a participant?

Hon. G. G. Lyell, chancellor. Suit by A. L. Kreutzer and others against D. L. Thompson, state auditor and others, treasurer of the state, to enjoin the collection of a privilege tax. From a decree overruling a demurrer to the bill, defendants appeal. The facts are fully stated in the opinion of the court.

Hon. D. M. Miller, Judge. Suit by Wirt Adams, state revenue agent, against L. F. Noble and others. From a judgment sustaining a demurrer to the declaration, plaintiff appeals. The facts are fully stated in the opinion of the court. The act of 19-10 itself is illegal and is void. It was passed at. a special session.

Hon. J. S. Hicks, chancellor. Suit between the Bank of Roxie and T. D. Lampton and others assignees. Judgment for Lampton and others and the Bank of Roxie appeals. Cause remanded to the docket with leave to appellee to comply with paragraph 3, rule 7 of Supreme Court Rules. The facts are fully stated in the opinion of the court.

Hon. A. E. Weathersby, Judge. Suit between the Mississippi Central Railroad Company and J. F. Chambers. From a judgment for plaintiff, the defendant appeals. The facts are fully stated in the opinion of the court.

Hon. N. A. Taylor, judge. Suit by H. L. Nixon and others against the Illinois Central Railroad Company. From a judgment for defendant, the plaintiffs appeal. The facts are fully stated in the opinion of the .court.

Hon. J. H. Mitchell, Judge. Petition by Luther Bookout and others for mandamus against the board of supervisors of Itawamba county and petition by the road commissioners for certiorari against the same dfendants. Both writs being denied, petitioners appeal.

Hon. J. T. Blunt, chancellor. Suit by S. M. Richardson and others against Mary J. McAllister. From a decree for complainants, defendant appeals.

Hon. M. E. Denton, Chancellor. Suit by Cudahy Packing Company against the estate of C. E. Miller, deceased. Erom a decree sustaining an objection by the executor to plaintiff’s claim, it appeals. The facts are fully stated in the opinion of the court. The petition and affidavit attached thereto are in substantial compliance with section 2106 of the Code of 1906. Substantial compliance with the statute is all that is required.

Hon. H. K. Mahon, Judge. Suit by J. C. Moore against the Woodland Gin Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. An owner allowing the public to use a path across his land is.not bound to keep his entire premises in safe eon-, dition for pedestrians, and when a person leaves the path and wanders in a ditch partly concealed from view, the owner is not hable. 50 S. E. 1003.

Hon. H. C. Mounger, Judge. Suit by S. A. Neville against H. R. Ihrie. From a judgment for the defendant, plaintiff appeals.

Hon. M. E. Denton, chancellor. Suit by Lizzie Baldwin against E. L. Anderson. From a decree for defendant, complainant appeals. The facts are fully stated in the opinion of the court.

Hon. J. Q. Robins, Chancellor. • Suit by the Gilmore Pucket Grocery Company against the J. Lindsey Wells Company. From a judgment for defendant, plaintiff appeals. The Gilmore Puckett Grocery Company purchased of the J. Lindsey Wells Company certain cottonseed meal, which was recommended, as an excellent feed.

Hon. J. H. Mitchell, Judge. Suit by A. F. Wamble against the Southern Express Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. N. A. Taylor, Judge. Suit by Mrs. A. P. Boxley and others against the Carrier Lumber & Manufacturing Company. From a judgment for plaintiff defendant appeals.

Hon. M. E. Denton, Chancellor. Suit by Wirt Adams, State Revenue Agent, for the use of the town of Charleston against the Lamb-Fish Lumber Company. From a judgment for defendant, complainant appeals. The facts are fully stated in the opinion of the court.

Hon. H. C. Mounger, Judge. Suit by Pearl Morris against the Alabama & Vicksburg Bailway Company. Prom a judgment for plaintiff, defendant appeals. . The sections of the Code of 1906 under review are as follows: “4059.

Hon. H. K. Mahon, Judge. Watson Howell was convicted of a crime and appeals. The facts are fully stated in the opinion of the court.

Hon. Sam Whitman, Jr., Chancellor. Suit by Mrs. Louisa C. Germain against J. M. Harwell and others. From a judgment for defendant plaintiff appeals. The facts aré fully stated in the opinion of the court.

Hon. H. C. Mounger, Judge. Suit by Henry Scott against the Yazoo & Mississippi Valley Bailroad Company for personal injuries. From a judgment awarding insufficient damages, plaintiff appeals. Plaintiff was a brakeman of five or six years’ experience, earning about seventy-five dollars per month, and at the time of his injury was engaged in the performance of his duties in the employ of defendant.

Hon. J. P. McCool, Chancellor. Suit by Mrs. Norma W. Latimer and others. Prom a decree for complainants, defendants appeal. The facts are fully stated in the opinion of the court.

Hon. G-. J. Leptwich, Special. Judge. Suit by.T. J. Phillips & Company against the Mobile, Jackson & Kansas City Railroad Company and others. .Prom a judgment for plaintiff, defendant appeals. This is an appeal from a judgment of the circuit court of Pontotoc county awarding damages to appellee from the loss of a shipment of dry goods sent by freight.

Apbal from the circuit court of Monroe county. Hon. J. H. Mitchell, Judge. Suit by R. M. Cox against the Amory Independent. Telephone Company. From a judgment for plaintiff, defendant appeals. Section 2740 of the Code of 1906, referred to in the opinion, is as follows: “2740.

Appear from tbe chancery court of Lowndes county. Hon. J. F. McCoon, Chancellor. Suit for partition by D. D. Richards, guardian of Mrs. S. B. Hardy, against T. W. Hardy, executor of tbe estate of Cornelius Hardy, deceased. From an order allowing attorney fees tbe executor appeals. Tbe facts are fully stated in tbe opinion of tbe court.

, Hon. B. E. Shbeiiy, Chancellor. Suit hy H. B. Gates Mercantile Company and others, against W. C. Ellis and others. Prom a decree for complainants, defendants appeal.

Hon. T. A. Wood, Chancellor. Suit by Geo. Wood Lewis against Mary E. Griffin for the purpose of canceling defendant’s claim of title to certain lands. From a decree denying the relief prayed for, he appeals. The facts are sufficiently stated in the opinion of the court. The first question to be determined in the consideration of this case is whether or not the tax sale to J. P. Carter is void.

Hon. H. C. Motingeb, Judge. Suit by W. C. Porterfield against the Vicksburg, Shreveport & Pacific Railroad Company. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. This particular brief on behalf of the appellant shall be solely directed to the proposition that the circuit court erred in declining to peremptorily instruct the jury to find a verdict for the defendant below.

Host. Gr. Gr. Lyell, Chancellor. Suit hy Mrs. Annie Lewis and others against J. L. Miller, sheriff, and others. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. N. A. Taylor, Judge. Suit by the board of supervisors of De Soto county against M. W. Jones and others. From a judgment sustaining a demurrer to the declaration, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. Sam Whitman, Jr., Chancellor. Suit by Jessie Catar against the Meridian Light & Railway Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. For former opinion see 60 South. 15.

Hon. D. M. Miller, Judge. Nathan Jacobs was convicted of crime and appeals. The facts are fully stated in the opinion of the court. I will discuss that part of the district attorney’s argument contained in the special bill of exceptions, relative to what he said about penitentiaries. He said he was becoming wedded to capital punishment; that he would never accept another life sentence where the evidence shows the man is guilty of murder as this does. I say this was improper.

Hon. A. E. Weathersby, Judge. Q. E. Bourne was convicted of crime and appeals. The facts are fully stated in the opinion of the court. As we see it, the only question to be determined in this trial is whether or not the lower court erred in trying appellant Bourne, under the circumstances, in his absence and without his consent.

Hon. C. L. Dobbs, Judge. Louis Biley was convicted of grand larceny and appeals. The facts are fully stated in the opinion of the court.

Hon. J. L. Buckley, Judge. Eugene Waller was convicted of forging and uttering a forged instrument and appeals. The facts are. fully stated in the opinion of the court. Held: “If therefore A he indicted for • an assault with intent to kill B, the indictment will not be sustained by proof that A made the assault with intent to kill C and accidently wounded B.” I commend the facts of this case to the court, as controlling the instant case.

Hon. H. K. Mahon, Judge. Lucius Brown was convicted of manslaughter and appeals. The facts are sufficiently stated' in the opinion of the court.

Hon. W. A. Hughes, Judge. Chas. Shows was convicted of manslaughter and appeals.

Hon. N. A. Taylor, Judge. Petition by the state on the relation of Ross Collins, attorney-general, for prohibition, against the mayor and board of aldermen of the city of Water Valley, together with a petition on the relation of I. T. Blunt for mandamus against the same defendants. Prom a judgment issuing the writs prayed for, defendants appeal.

Hon. G-. A. McLean, Judge. N. H. Chapman was indicted for forgery. From an order sustaining a demurrer to the indictment, the state appeals. Held: that it was necessary that the official character of such trustees, be set out in the bill of indictment and proven as an extrinsic fact. In the case of France v. State, 83 Miss. 281, the instrument upon which the crime of forgery was predicated was as follows: “Port Gibson, Miss.

Hon. H. C. Motjngeb, Judge. Ben Brown was convicted of pety larceny and appeals. The facts are fully stated in the opinion of the Court. Held: he had a right to file a demurrer to the affidavit and that if such affidavit were not in legal form and failed to advise him of the nature of the accusation, his demurrer should have been sustained, and that he should not have been tried on a charge which did not fully advise him of the crime charged.

Hon. C. L. Dobbs, Judge. N. W. Tingle was indicted for seduction. From a judgment sustaining a demurrer to the indictment, the state appeals. The facts are fully stated in the opinion of the court. I have examined with some care the authorities on this proposition, and so far as I have been able to find not a single authority sustaining the decision that an indictment is demurrable for a failure to allege the promise was made to the female who was seduced.

Hon. A. E. Weathbrsby, Judge. Suit by Mrs. A. H. Terry against the New Orleans Great Northern Railroad Company. From a judgment for defendant, the plaintiff appeals.

Hon. A. E. Weathersby, Judge. Henry Long was convicted of murder and appeals. The facts are fully stated in the opinion of the court,

Hon. N. A. Taylor, Judge. Ed. Moore was charged with gaming and acquitted and the state appeals. The facts are fully stated in the opinion of the court.

Hon. E. E. Brown, Judge. . E. A. Cain was convicted of unlawfully acting as agent for a fire insurance business and appeals. Held: and so the statute declares unless surprise is plead.

.Hon. E. E. Brown, Judge. Maier Schwartz was convicted of murder and appeals. Held: or that the prisoner was present in court during the trial or any part of it, or that the court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict, or because of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their…

Hon. M. E. Denton, Chancellor. Suit by E. A. Rowan against Nina W. Carlton and others. From a decree for complainant awarding him a part of the land, both parties appealed. The facts are sufficiently stated in the opinion of the court. It is contended on behalf of the appellant, that the action of the court below in holding that the deed to the appellee executed by (Twin and Hemingway, commissioners, was not such a deed as was required to be recorded, was erroneous.

Hon. T. H. Barrett, Judge. Suit by E. M. Morrison against the Gulfport Creosoting Company. Heard on motion in supreme court to appoint a commission to make a model of a planing machine upon which plaintiff received his injuries. This was a cause of action for personal injuries predicated on a defect in a certain planing machine.

1 Hon. Sam Whitman, Chancellor. Petition by G. M. Martin, administrator, against J. B. Bobinson, for authority to sell lands of the estate to pay debts. From a decree for petitioner, defendant appeals. The facts are fully stated in the opinion of the court.

Appear, from the circuit court of Hancock county. Hon. J. J. Baulenger, Special Judge. Louis Harris was convicted of subornation of perjury and appeals. The facts are fully stated in the opinion of the court. The third error assigned is, the court erred in refusing to exclude all of the testimony of the witness Fayard, because he testified that he swore at a previous trial that he did not remember whether he bought the liquor from Harris within two years.

Hon. M. E. Denton, Chancellor. Suit hy Wirt Adams, state revenue agent, against the First National Bank of Greenwood. From a decree sustaining a demurrer to the hill of complaint, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. W. H. Hughes, Judge. Action hy S. D. Miller against Gr. M. Martin. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. Paul B. Johnson, Judge. Suit by the state against J. C. Burt. From a judgment for defendant, the state appeals. The facts are fully stated in the opinion of the court. The language of sections 2172 of Code 1906 is significant, and shows clearly the legislative intent to require defendants in criminal cases to pay the costs.

Hon. H. K. Mahon, Judge. David Monroe was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court. In Rodgers v. City of Hattiesburg, 99 Miss. 643, this court has said: “The question of jurisdiction can he raised at any time. It may be raised for the first time in this court.

Hon. A. E. Weatheesby, Judge. T. M. Freeman was indicted for. obtaining money under false pretenses. A demurrer was sustained to the indictment and the state appeals. The facts are fully stated in the opinion of the court. The.second, third, fourth and fifth grounds of demurrer raise one and the same question. We will consider them together and make only one answer thereto.

Hon. W. A. Henry, Judge. Tlie Buckeye Cotton Oil Company was convicted of working employees over ten hours a day and appeal. The facts are fully stated, in the opinion of the court. The lower court erred in convicting the appellant on each of the separate counts for having worked each of the firemen on the same day more than ten hours per day.

Hon. N. A. Taylor, Judge. Mose Armstead was charged with violating the labor contract law. From a judgment sustaining a demurrer to the affidavit, the state appeals. The facts are fully stated in the opinion of the court. This is a prosecution against Mose Armstead for the breach of a labor contract under section 1147 of the Code of 1906. Judge Taylor, the circuit judge, sustained a demurrer to the affidavit in the case and discharged the appellee.

Hon. Monroe McClurg, Judge. Geo. W. Thomas was convicted of embezzlement and appeals. Held: “The refusal of an instruction in a criminal case propounded a mere truism, as one to the effect that each juror should base his verdict on the law and the evidence and not consent to a verdict merely because it is the verdict of another, or of the majority of the jurors, will not work a reversal in the case of guilt so plain that a…

Hon. J. C. Ward, Special Judge. W. R. Rawles and others were indicted for receiving deposits in an insolvent hank. From a judgment sustaining a demurrer to the indictment, the state appeals. The facts are fully stated in the opinion of the court.

-Appeal from the chancery court of Forest county. Hon. T. A. Wood, Chancellor. Suit by the Scottish Union & National Insurance Company against the Warren-Gee Lumber Company, and others. From a decree sustaining the cross-bill of defendant, complainant appeals. The facts are fully stated in the opinion of the court.

Hon. H. C. Mounger, Judge. C. Horn was convicted of manslaughter, and appeals. The facts are fully stated in the opinion of the court.

Hon. R. C. Russell, Special Judge. Suit by Southern Moline Plow Company against J. D. Gambrell. Prom a judgment for plaintiff, defendant appeals. Appellee was plaintiff in- the court below, and appellant was defendant. This action was begun by the appellee against appellant for certain merchandise sold and delivered to defendant, who had taken bankruptcy after the purchase of the merchandise, and who had been discharged before the institution of this suit.

Hon. T. H. Barrett, Judge. Suit by L. N. Dantzler Lumber Company against Noah Walker: From a judgment for plaintiff, defendant appeals. Appellee was plaintiff in the court below, and appellant was defendant. The plaintiff below filed this suit on open account for two hundred and ninety-four dollars, attaching to the declaration the sworn itemized statement.

Hon. H. C. Mounger, Judge. Suit by Betsy Carroll and others against the Yazoo & Mississippi Valley Railroad Company. From a judgment for the plaintiff, defendant appeals. This is a suit by the parents of John Carroll, a negro boy, seventeen years of age, for damages suffered by reason of the death of their said son, due to the alleged negligence of the defendant railway company of which he was an employee, working under the supervision of a foreman on a grading train.

Hon. R. E. Sheehy, Chancellor. Bill by the Gulf & Ship Island Railroad Company to restrain J. R. Walker and others from prosecuting certain suits and to have them consolidated. From a decree sustaining a demurrer to the bill, complainants appeal. This suit was begun by a bill for injunction to enjoin the prosecution of three actions at law and have them consolidated and tried as one suit in the chancery court.

Hon. J. S. Hicks, Chancellor. Suit between Hyman Mercantile Company and the Summit Saw & Planing Mill. From a judgment ’for defendant, plaintiff appeals. The facts are sufficiently stated in the opinion of the court.

Hon. T. B. Watkins, Judge. M. G. Treweilder was charged with renting a house for purposes of prostitution. Prom a judgment sustaining a demurrer to the indictment, the state appeals. The facts are fully stated in the opinion of the court. The appellee in this ease was indicted in the second district of Coahoma county for renting a house, or premises, to one Maggie Fisher for the purposes of a bawdy-house.

Hon. T. B. Watkins, Judge. A. N. Beattie was indicted for dealing in futures. Prom a judgment sustaining a demurrer to .the indictment, the state appeals. The facts are fully stated in the opinion of the court.

Hon.- J. S. Hicks, Chancellor. Bill by Bentley Woods and others against John Alexander and others, for mandatory injunctions. Temporary injunction granted and defendants appeal and plaintiff moves to dismiss appeal.

<p>1. Corporations. Receivers for solvent corporations. Appointment. Discretion.</p> <p>The chancery court has the jurisdiction to appoint a receiver for a going and solvent corporation at the instance of the minority stockholders on a showing of maladministration, to take charge of the business of the corporation, and if it is shown to the court to be necessary, to wind up such business.</p> <p>2. Receivers. Appointment. Discretion.</p> <p>The matter of the appointment of a receiver pendente lite, as well as a receiver generally, is committed to the sound discretion of the court. The necessity for such an appointment should be clear, and the court in making it should move with due care and in full consideration of the interest of all parties concerned.</p>

Appear from the chancery court of Greene county. Hon. J. M. Stevens, Chancellor. Suit by J. N. Snellgrove against the board of supervisors of Greene county. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.