Volume 106 — Mississippi Reports

Appeal- from the chancery court of Attala county. HoN. J. F. McCool, Chancellor. Suit by Hattie Strahan against Z. M. Guess et al. From a judgment for complainant, defendants appeal. Tbe facts are fully stated in tbe opinion of tbe court. Tbe bill is multifarious because: 1. It seeks to fix tbe amount of money tbe executor shall spend on appel-lee each year. 2. It seeks to try title and fix tbe ownership of certain notes. 3. It seeks to try title to certain land.

HoN. Mormon McClubg, Judge. Alonzo Walford was convicted of murder and appeals.

Hon. O. L. Dobbs, Judge. Suit hy United States Fidelity & Guaranty Company against F-. L. White. From a judgment for defendant, plaintiff appeals. Plaintiff was surety on the bond of defendant, who was an employee of the Newton Oil Company. The oil company claimed that the defendant had defaulted as its employee and made demand on plaintiff as defendants bondsman for the amount of the defalcation.

HoN. W. A. HeNry, Judge. Suit by A. D. Offutt against O. P. Barrett and others. Prom a judgment for defendants, plaintiff appeals. Appellant brought suit against appellees for commissions as a real estate broker on the sale of certain lands. He testifies that appellees listed the land with him and other real estate dealers for three thousand dollars, and agreed to pay a commission of five per cent, to the dealer in case of a sale.

Hon. C. L. Dobbs, Judge. Suit by Gr. B. Cox against tbe Alabama & Vicksburg Railway Company. From a judgment for plaintiff, defendant appeals. Tbe facts are fully stated in tbe opinion of tbe court.

Horn Morbos McClurg, Judge. Suit by Mrs. Hassie A. Causey and others against the Illinois Central Eailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of. the court, The record in this case, although it presents an important issue, is really not very complicated, and the points for discussion are hut few.

<p>Appeal from the circuit court of Newton county.</p> <p>HoN. C. L. Dobbs, Judge.</p> <p>Suit by L. J. Alford Lumber Company against D. L. Bagland. From a judgment sustaining a demurrer to the declaration, plaintiff appeals.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>Since the demurrer did not go the entire declaration, it should .have been overruled; the appellee required to plead to the declaration; the appellant to file his replication ; and thus have gotten the case to trial on the merits. “If the declaration is good as to part of what is demanded, a demurrer to the whole declaration should be overruled.” Board Ed. v. B. B. Gó., 71 Miss. 500’; Cummings v. Daugherty, 73 Miss. 405; Washington v. Soria, 73 Miss. 665. See, also, Lynn v. J. G. B. B., 63 Miss. 157; State v.' Swinney, 60 Miss. 39; Wilmont v. Bailroad, 76 Miss. 374. “A declaration in replevin is divisible, as between that part seeking a recovery of the property, and the part seeking a recovery of damages; and if it be good as to one, though bad as to the other, a demurrer to the whole declaration must be overruled.” Newell v. Newell, 34 Miss. 385.</p> <p>We think that the demurrer to the amended declaration of the appellant should have been overruled; the demurrer is to the whole declaration and if the declaration is good in part, the demurrer should have been overruled. State Board of Education v. M. & G. B. B., 14' So. 445, 71 Miss. 500; Cummings et al. v. Daugherty reported in 18 So. 656, 73 Miss'. 404. The latter opinion being rendered by Chief Justice Cooper, is as follows: The demurrer was to the whole, but some of the causes assigned related to only a part, of the declaration. The court overruled it except as to the grounds going only to a part of the declaration, as to which it was sustained. A demurrer is an entire thing, and must be overruled or sustained, and if it is not a full defense to. the whole declaration or count to which it is applied it should be overruled. Chit. PI. 664. As a demurrer to the whole declaration it is bad, for on the facts stated the plaintiff was entitled to some recovery. The judgment is reversed, and cause remanded. Washington v. Soria, 19 So. 485; 73 Miss. 665. We think from the pleadings in this case that the appellant was entitled to a trial by a jury and therefore this case should be reversed and remanded.</p> <p>There is only one question to be determined by this court in this case, tbiat is whether or not an action in breach of contract and an action in replevin can be joined in one and the same declaration. I submit that by no rule of pleading known to the law can this be done and no authority can be found in the books for it. Plaintiff files his declaration in replevin for certain specific property and then sets up a claim in the same declaration for a breach of contract. This will be perfectly manifest to the court from the reading of the declaration.</p>

Hon. Paul B. Johnson, Judge. Suit by L. T. Spinks against tbe New Orleans, Mobile •& Chicago Eailroad Company. From a judgment for ■defendant, plaintiff appeals. Appellant, having been assaulted- by a fellow passenger while traveling on one of appellee’s trains, seeks to recover from it damages alleged to have been sus-tamed by Mm by reason thereof. The court below instructed the jury peremptorily to find for appellee, and there was a verdict accordingly.

Hon. D. M. Miller, Judg’e. Suit by Mrs. Fannie Walters against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The record in this case has been lost.

How. James A. Teat, Judge. Application by B. P. Prewitt for bail pending an appeal from a conviction of a felony. The.facts are fully stated in the opinion of the court. The record in this case is lost.

<p>Appeal from the circuit court of Attala county.</p> <p>Hon. Gr. A. McLean, Judge.</p> <p>Suit by E. L. Fuller and others against the Illinois Central Eailroad Company. From a judgment for plaintiff defendant appeals.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>It would be profitless for us to undertake to discuss at length the cases in which punitive damages are allowed. The rule which our court has adopted and which is the universal rule on this subject is well stated in 13 Cyc. 108. 1. G. R. Go. v. Dodd, 53 So. 409; Y. & M. V. R. Go. v. Harris, 55 So. 967; Godfrey v. Meridian Lt. Ry. Go., 58 So. 534; By. Go. v. McLeod, 78 Miss. 334. The court erred in giving an instruction authorizing recovery for pain and suffering.</p> <p>The death of Mr. Fuller was instantaneous. Pain and suffering was not an element of damage to he considered by the jury, because there was no pain and suffering under the facts of this case. The law under which this right of action must exist is found in section 721, Code 1906, as amended by Laws of 1908, page 183. This is the law which gives the right of action for injury producing death. But for this statute no suit could be maintained and under the statute the suit can be maintained for only such damages as the statute authorizes to be recovered. This law provides that: “Whenever the death of any person shall be caused by any wrongful or'negligent act, etc., as would, if death had not ensued, have entitled the party injured to damages, to maintain an action, the action shall survive to certain designated parties. When stating what character of. damage may be recovered the statute limits it to damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit. ’ ’</p> <p>The character of damages which may be recovered is particularly set out in this act. First, “all damage of every Mud to the decedent;” and second, “all damage of every kind to any parties interested.” The parties interested in the suit have not suffered any damage on account of pain and suffering of the deceased, and if they have the right to sue for this, they obtain it through the deceased as damage to him. But he was killed instantly and there was, therefore, no such damage suffered by him. B. B. Go. v. Pendergrast, 69 Miss. 425; McVey v. B. B. Go., 73 Miss. 487. It was error for the court to instruct for any punitive damage.</p> <p>Our contention in this case is that under our statute no such damage can be received where the injury results in death.. Under the common law there conld he no suit for damage when the injury resulted in death. This rule is still in force in this state except to the extent it has been abolished by statute. Our statute gives a right of action for injuries resulting in death, even when the death is instantaneous, but the statute fixes the character of damage which may be recovered and nothing can be sued for other than what the statute allows. Grudup case, 63 Miss. 291; 13 Cyc. 106; Eardie v. T. & M. V. R. Go., 55 S. R. 970.</p> <p>Now, to the point. While our statute gives a right of action where death ensues from a negligent act, this right of action extends only so far as the statute expressly states, the common law is still in force except as it is expressly displaced by statute. The statute does not alloiv parties suing for death to recover that character of damage which finds its basis in what is considered to be for the public good. The statute confines those suing to such damage as happens “to the decedent” and such damages as happens “to the interested parties.” But not such damage as is allowed for the public good. Ita lex scripta est. We feel that this case is bound to be reversed. Let counsel cite this court to one case where punitive damage has been allowed in a case of death like this. We have not found it.</p> <p>Damage Excessive. We have already argued this to the court, and .will not repeat the argument here.' In this case the facts show a skimpy actual damage of one thousand eight hundred dollars, or two thousand dollars. The judgment is for ten thousand dollars. There is no basis to rest it on.</p> <p>The appellant complains that their first instruction should have been given. The lower court in view of the conflict in the testimony as to whether the employees were guilty of simple negligence or gross negligence did right in refusing their first instruction'. The question of negligence or no negligence was a matter for the jury. They were the judges of that, and it would have been error for the court to have invaded the province of the jury in this case. Under the statute the burden was upon the defendant to offer credible and reasonable testimony to exonerate the company in hilling the deceased, and this testimony should be of such character and weight that the jury will believe it.</p> <p>The doctrine of the last clear chance, announced by Judge McLean, applies to this case in all of its force and effect. 100 Miss. 706. The case of N. O. M. & G. B. B. v. Harrison, reported in 61 So. 655 was not as strong a case as this, yet this court affirmed it.</p> <p>As was well said in the case of C. 1. Company v. Stead, 95 U. S. 161, 24 Law Ed. 403, the warning must be reasonable and timely. It cannot be such if the speed of the train is so great as to render it unavailing. Bailroad Go. v. Hawlcins, 82 Miss. 209; Fuller v. I. G. Bailroad Go., 56 So. 783.</p> <p>Counsel in his brief lays great stress on the table of mortality and the expectancy of life, but this court pays but little attention to those rules and those tables, and they cut very little figure in trying cases of this character. The life of a parent is not measured by actual dollars or actual earning capacity, but his daughters and his sons have a right to his society and the pleasure coming from that, and that is an element of damages, and no doubt went to enlarge the verdict that the jury gave us in this case.</p> <p>It is contended again that these appellees cannot recover punitive damages, even if the facts would warrant it, because the statute does not provide for it. The mere reading of the Acts of 1908 on page 183, which gives the right of action for injuries producing death, would demonstrate that the appellees were entitled to sue for punitive damages. They were entitled to all the rights and remedies that the deceased was entitled to had he been living. If he had had a leg or arm cnt off, and if the proof had warranted the infliction of punitive damages against the appellant, he would certainly be entitled to recover. That being admitted, then under the Acts of 1908, his next of kin have the same right and standing that he had.- Tbe statute says: ‘ ‘ Taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.”</p> <p>There is no proof here that the deceased was killed instantly. The proof is that he was caught on the cowcatcher and tossed up and up until he was finally thrown over the embankment and killed. It was evident from this testimony, that he was not instantly killed. He sufr fered pain during his horrible experience, even for a few moments and this would call for damage in this case.</p> <p>In the Grudup case, 63 Miss. 291, the court announced, the rule then existing under the statute. That statute was first incorporated into our law by the Code of 1880 and Judge Campbell in ingrafting that statute in 'the Code, followed literally and substantially Lord Campbell’s Act and all the states of the Union, nearly, in providing for this statute, use this Campbell act. In codifying the Code of 1892 the same act was brought forward and not until in 1898 was any change made. At that time the legislature made a marked change in the act so as to make it apply not only for damages suffered by persons who should bring the suit, hut as well as to all damages suffered by the party who was killed. This marks a great change in the law. And that change has been carried on and adopted in the Code of 1906 and it has been further amended and enlarged by the act of 1908, page 183. So that the Crudup case relied on by counsel for the appellant, is not authority in this case, made so by reason of the changes above noted.</p> <p>While punitive damages are not given by statute to any person suffering an injury, yet it flows as an incident to the main action in every case calling for or warranting the infliction of exemplary damages. For illustration, a right of action is created by section 4043 of the Code of 1906 and nothing is said about punitive damages. Yet this court has in .many cases permitted punitive damages to be recovered where the act made unlawful was done wantonly or recklessly. Section 4045 makes it actionable negligence to fail to ring a bell and blow the whistle on approaching a highway or crossing; and 4046 makes it actionable to make a flying, running, walking, or kicking switch within the limits of a municipality. Yet in actions based upon these statutes punitive damages though not mentioned, are recoverable. In section 4043 and 4026 the damages defined by the statute are such as are suffered by persons or property, words no broader than those used in the death by wrongful act statute. In other words the court has had frequent occasion to construe statutes authorizing the recovery of damage to persons or property and to hold under such statutes that exemplary damages are recoverable. This observation may be considered in connection also with sections 4047, 4049, 4050, and 4051.</p> <p>We, therefore, respectfully ask that the judgment of the lower court be affirmed.</p>

Hon. C. L. Dobbs, Judge. Suit by Johnson County Savings Bank against R. E.-Yarbrough and others. From a judgment for defendant, plaintiff appeals. The facts' are sufficiently stated in the opinion of the court. The record in this case is lost..

How. T. B. WatkiNs, Judge. Suit by the Mound Bayou Oil Mill and Manufacturing Company against Charles Lindsley. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion- of the court. The record in this case has been lost.

HoN. J. A. Teat, Judge. B. P. Prewitt was convicted of assault and battery with, intent to kill and appeals. The facts are fully stated in the opinion of the court. Counsel on both sides filed elaborate briefs too long for publication.

HoN. MoNeoe McClueg, Judge. Suit by W. T. McCarley against the Yazoo & Mississippi Valley Eailroad Company and others. From a judgment for plaintiff, defendant appeals and plaintiff moves to dismiss the appeal. The facts are fully stated in the opinion of the court.

Hon. Paul B. Johnson, Judge. Ada Johnson was convicted of murder and appeals. The facts are fully stated in the opinion of the court. First, we submit that the verdict of the jury in this case is an illegal verdict, or rather is no verdict at all. It shows, by a simple reading thereof, that the jury left something not finished and uncompleted.

IloN. W. A. HeNby, Judge. James Gr. Bennett having been convicted of bigamy, filed a writ of error coram nobis, and from an order denying the writ, appeals. The facts are fully stated in the opinion of the court.

HoN. H. C. MouNgeb, Judge. Suit by Myron 0. Davidson against the Yazoo & Mississippi Valley Bailroad Company. From a judgment for plaintiff, defendant appeals. This -is an appeal from,a judgment for two thousand dollars against the appellant for damages for ejection of appellee from a passenger train of appellant.

HoN. W. A. IIeNry, Judge.; Suit by S. P. and John J. Jones against .Virgil Berry. Prom a judgment for plaintiffs, defendant appeals. The facts are fully stated in the opinion of the court. Held: and without exception so far as we have been able to.find, that in civil actions it is irrelevant to show the good character of either party.

Hon. H. K. MahoN, Judge. Thomas Rylee was convicted of obstructing a public highway and appeals. The facts are fully stated in the opinion of the court.

Hon. Sam WhitmaN, Jr., Chancellor. Suit by F. M. Barber and others against Mrs. S. E. Barber and another. From a decree for defendant, complainants appeal. The record shows that, in 1910, JVH. Barber died intestate, leaving certain real estate and a small amount of personal property. His heirs at law were his widow, Mrs. S. E. Barber, and six children; the appellant being one of them.

HoN. R. E.. Sheehy, Chancellor. F. E. Millis was imprisoned for contempt of court in failing to pay alimony and appeals. The facts are fully stated in the opinion of the court. The first point we desire to call the court’s attention to, is the one raised by the assistant .attorney-general, in which he contends that this is a civil contempt and,the punishment coercive in its nature, and for that reason the chief justice erred in granting the appeal under section 39, Code 1906.

HoN. Ii. C. Mo'UNgeR, Judge. Suit by Mack White against the Alabama & Vicksburg Bailway Company. From a judgment for plaintiff defendant appeals. The facts are fully stated in the opinion of the court.

.Hon. W. A. Henry, Judge. Suit by J. H. Penis; against the American Central Insurance Company.' From a judgment for defendant plaintiff appeals. Held: on page 664, the following: “We think under these facts there was no compliance with the iron-safe clause.- The reasonable enforcement of the iron-safe clause in insurance policies has been universally upheld by .the courts.

Hon. W. A. Henry, Judge. Suit by Belhaven Collegiate and Industrial Institute against J. H. Magruder and others. From a judgment for plaintiff, defendants appeal. The facts are fully stated in the. opinion of the court.

HoN. C. L. Dobbs, Judge.' Suit by C. W. Crook & Company against the Postal Telegraph and Cable Company. From a judgment for plaintiffs, defendant appeals. Held: First, that the fact that Alexander’s telegram was not the acceptance of an offer and that the delayed telegram would not'form any binding contract between seller and buyer was immaterial.

Horn J. F. McCool, Chancellor. Bill by the Illinois Central Railroad Company against Mary Newell and others. From a decree for complainant, defendants appeal. The facts are fully stated in the opinion of the court. We do not understand that anything is left to be decided in this case by the decision of this court in the cases of Newton Oil & Manufacturing Company v. Sessums, et al., 59 South. 9; and Cumberland Tel. & Tel. Co. v. Williamson, 57 So. 559.

IIoN. Sam WhitmaN, Jb., Chancellor. Bill by Mrs. R. D. Brown against the Williams-Brooke Company and another. From a decree dissolving an injunction, complainant appeals. The facts are fully stated in the opinion of the court. On the 16th day of December, 1911, appellee, defendant below, sued out a writ of attachment against Jim F. Brown and suggested in said writ that appellant, complainant below, be summoned as a garnishee.

HoN. J. A. Teat, Judge. A. P. Magness was convicted of homicide and appeals. The facts are fully stated in the opinion of the court.

HoN. E. N. Thomas, Chancellor. Suit by the Mayor and Aldermen of the City of Vicksburg against Eugene J. Mullane. From a decree granting a motion to dissolve a temporary injunction, complainant appeals. The facts are fully stated in the opinion of the court.

Hon. P. Z. Jones, Chancellor. Injunction by J. E. Pridgen against the state hoard of education and Duncan L. Thompson, auditor of public accounts. Prom a decree for complainant, defendants appeal. Held: and rightly so, that Congress had the authority to pass laws necessary to carry out the general power granted it by the Constitution. But in none of the cases did the court have up for consideration a question similar to the question in the case at bar.

Hon. E. N. Thomas, Chancellor. Bill by Mary Holmes and others against the mayor and board of aldermen of the city of Vicksburg. From a judgment overruling a demurrer to the complaint, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. PI. C. Moun&er, Judge. Suit by the Underwriters' at Lloyd’s Insurance Company against the Vicksburg -Traction Company. From .overruling a demurrer to the answer plaintiff appeals. The facts are fully stated in the opinion of the court. We think that the ruling'of the trial judge in holding the recovery in the O’Neil case a.bar to this action was manifest error.

HoN. Paul B. JouNSON, Judge. Mandamus by T. F. Knight against W. H. Bufkin, chancery clerk. From a judgment in favor of plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Counsel on both sides filed elaborate briefs too long for publication.

Hon. H. C. Mounger, Judge. Suit by Leotine Seay against the Grand Lodge of Colored Knights of Pythias. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. After reviewing all the evidence and the law, the determining question in this case, considered on its merits, is whether or not. under the laws of the order, the contract of Seay had matured. To reach the correct result we must look to the contract itself.

HoN. Sam C. Cook, Judge. Suit by Mrs. J. T. Murphy against the town of Cleveland. Prom an insufficient judgment for plaintiff, she. appeals. The facts are fully stated in the opinion of the court.. Our only assignment of error in this case is that the verdict of the jury was contrary to the law and the testimony, in that it was entirely inadequate.

HoN. W. A. Henry, Judge. Suit by Alexander Allen against the Y'azoo & Mississippi Yalley Railroad Company. From a judgment for plaintiff defendant .appeals. ■ ■ The case was tried on an agreed statement of facts; and on page 3 of the transcript the court will find this: “Plaintiff admits that the bill of lading herein introduced was the contract of shipment.” Thus plaintiff admitted that his contract embraced the stipulation which we have quoted above.

HoN. IT. C. MouNger, Judge. Suit by the Postal Telegraph & Cable Company against W. C. Craig & Company. Prom a judgment for plaintiff after allowing defendant’s claim, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. H. C. Mounger, Judge. Suit by A. G-. Russell against the Palatine Insurance Company and another. From a judgment for defendant, plaintiff appeals. Held: “That agency cannot be established by the mere declaration of the supposed agent.” Kinnare v. Gregory, 53 Miss. 612; Memphis, etc., B. Go. v. Coche, 64 Miss. 713; Southern Home Btiilding, etc., Go. v. Butt, 77 Miss. 944. As we conceive it, this line of decisions does not reach the facts of this case.

HoN. E. N. Thomas, Chancellor. Suit by Jane Bell against L. R. Williams, executor, and others. ...From a decree'for complainant, defendants appeal.

Hon. J. F. MgCool, Chancellor. Suit by E. W. Doran against E. J. Beale and others. From a decree sustaining a demurrer to the complaint, plaintiff appeals. This is an appeal from a decree sustaining a demurrer to the bill of complaint filed by appellant in the court below. The opinion states the facts.

IioN. Jkto. L. Buckley, Judge. Suit by Will Mobly against the New Orleans and Northeastern Eailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

How. Claude ClaytoN, Judge. Ohecliah Peters was convicted of rape and appeals. The facts are fully stated in the opinion of the court. The text-writers all agree that there is no certain age at which the dividing line between competency and incompetency of an infant’s testimony may be drawn. The consensus of opinion among’ them is, however, that the competency depends on intelligence rather than age.

Hon. N. A. Taylob, Judge. Arnold Patterson was convicted of murder and appeals. The facts are fully stated in the opinion of the court.

HoN. E. E. BlowN, Judge. T. W. Abbott was convicted of violating the rules of the live stock sanitary board and appeals. The facts are fully stated in the opinion of the court.

Hon. MoNuoe MoCluRb, Judge. Lockhart James was convicted of murder and appeals. The facts are fully stated in the opinion of the court. The jury might well, under the testimony, have convicted the appellant of manslaughter under either section 1236 or 1237 of the Code of 1906. Now, if this is true, the failure of the court below to instruct the jury upon the question of manslaughter was a fatal error. The direct question was presented in Jobtson v. State, 75 Miss. 635.

HoN. Paul B. JohNsok, Judge. ■ Grant Martin was convicted under an affidavit charging that he unlawfully resisted an officer by striking him, etc., and appeals. The facts are fully stated in the opinion of the court. The'record in this case is lost.

HoN. W. A. Hekry, Judge. Owen Haley was convicted of carrying concealed weapons and appeals. The facts are fully stated in the opinion of the court.

Iio-N. E. E. BeowN, Judge. Jobn Hoskins was convicted of selling intoxicating liquors and appeals. Tbe facts are fully stated in tbe opinion of tbe court..

HoN. Claude ClaytoN, Judge. Frank Cagle was convicted of the unlawful,sale of intoxicating liquors and appeals. The facts are fully stated in the opinion of the court. When the state rested its case the appellant moved the court to require the state to elect on which sale it would aslc a conviction. This motion the court overruled.

- Appeal from.the-circuit court of Bolivar county. PIoN. T. B. Watk-iNs, Judge. Suit by R. J. Sultan against the Yazoo & Mississippi Valley Railroad Company.

HoN. W. A. HeNry, Judge. Suit by Clarence Thornhill ag’ainst the Alabama & Vicksburg Railway Company. From a judgment for plaintiff defendant appeals. Appellee was plaintiff in the court below, and appellant was defendant. The case went to a jury, who returned' a judgment for five thousand dollars, and the railroad company appeals. The opinion states the.facts.

TIoN. N. A. Taylor, Judge. Suit by J. N. Ryan for the use of A. L. McCormick against the town of Senatobia. From a judgment for plaintiff, defendant appeals. Held: an order similar to the one in the case at bar to be an assignment, and that upon showing that the fund was in the hands of drawee, as-signee could sue at law to recover same. In other words, the legal title there, too, passes.

HoN. N. A. Taylob,.Judge. Quo warranto by the state on the relation of John Baker against E. S. Nichols. From a judgment for respondent relator appeals. The facts are fully-stated in the opinion of the court.

Hon. Sam Whitman, Jr., Chancellor. Suit by the Central Trust Company and others against, the Meridian Light and Railway Company and others. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

How. Sam. C. Cook, Judge. Suit by Mrs. W. H. Hardie against the Yazoo and Mississippi Valley Eailroad Company. From a judgment for plaintiff, defendant appeals. The facfs are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

<p>Appeal from the chancery court of Neshoba county.</p> <p>Hon. J. F. McCool, Chancellor.</p> <p>Suit between Clara Warren and others against A. J. Yates. Motion to retax cost granted.</p>

HoN. A. E Weatherby, Judge. Habeas corpus by W. C. Walters. From a judgment dismissing the petition and ordering the relator into custody he appeals. The facts are fully stated in the opinion of the court. The record has been lost in this case.

Hon. J. F. McCool, Chancellor. On suggestion of error, former opinion overruled and decree reversed and remanded. The facts are fully stated in the opinion of the court.

Hon. E. V.- Hughston, Special Judg'e. Suit by A. W. Holman against the Illinois Central Bail-road Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the .opinion of the court.

Hon. E. E. Brown, Judge. Suit by R J. Smith 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. Should peremptory instruction have been given? We consider this question on the merits of this record uninfluenced by the question of whether or not the Byrd case in 89 Miss, has an application.

IioN. J. A. Teat, Judge. W. S. Howell was indicted for embezzlement and upon demurrer to the indictment being- sustained the state appeals.

IIoN. Gr. Gr. Lyell, Chancellor. Bill by E. L. Trenholm, Trustee, in bankruptcy, against Mrs. Mary B. Miles. From a judgment sustaining a demurrer to the bill complainant appeals. •. The 'facts are fully stated in the opinion of the court.

HoN. T. PI. Barrett, Judge. Suit by F. P. Lizana against the city of Pass Christian begun in a justice of the peace court and appealed to the circuit court. From a judgment in the circuit court, de-, fendant appeals.. The facts are fully stated in the opinion of the court.

HoN. E. Y. HughstoN, Special Judge. Suit by the Bank of Winona against the Merchants and Farmers Bank. Held: be precluded from showing these facts by way of defense to a suit brought by. the-assignee.” And in the next section he lays down the rule to be, “So, where assignees occupy the same position as the payee would, had he sued, the rule.permitting a defense of failure of consideration, as between the original parties, would apply.” At…

IioN. H. K. Mahon, Judge. Suit by B. G. Jones against B. B. Elder and others. From a judgment for plaintiff, defendant appeals. The appellee was plaintiff in the court below and appellant was defendant. Suit was begun in replevin to recover possession of certain mules alleged to be wrongfully withheld from the possession of the plaintiff.

HoN. T. A. Wood, Chancellor. Suit between tbe Bank of Lauderdale and others and W. T. Cole. Prom a judgment for tbe bank and others, tbe defendant appeals. Tbe facts are sufficiently stated in tbe opinion of tbe court:

HoN. T. H. Barrett, Judge. Suit by J. C. Dana against the Gulf & Ship Island Railroad Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. Frank E. Everett, Judge. Suit by Charles Brooks & Company against W. L. Gentry. On motion for an order in the supreme court requiring the stenographers to transcribe and file his notes, or in the alternative to stand committed for contempt to the supreme court. The facts are sufficiently stated in the opinion of the court. No counsel of record.

HoN. N. A. Taylor, Judge. Will Carter was convicted of burglary and appeals. The facts are fully stated in the opinion of the court. The appellant, Will Carter, was indicted by the grand jury of DeSoto county, Mississippi, in February, 1913, for burglary in the breaking and entering and stealing money from S. T. Stewart’s storehouse located in said county. The said storehouse was broken open before nine-thirty o’clock p. m. December 26, 1912.

How. A. E. Weathersby, Judge. Mrs. George Polk was convicted of the unlawful sale of intoxicating liquors and appeals. The facts are fully stated in the opinion of the court. It was never the intention of courts of justice to take advantage of technicalities to maintain a conviction, or to try dead people, or invalids, groping under wreaking pain, over which they have no control.

the chancery court of Bolivar county. Hon. M. E. Denton, Chancellor. Suit by Amos Alexander and others against W. P. Richardson. Prom a judgment dismissing the petition, complainants appeal. The facts are fully stated in the opinion of the court.

HoN. W. A. HeNbx, Judge. Quo ivarrcmto by tbe state, on relation of Ross A. Collins, attorney-general, against P. Z. Jones. From a judgment for respondent, relator appeals. Tbe facts are fully stated in tbe opinion of tbe court.

Hon. Paul B. Johnson, Judge. Lula Johnson was convicted of the unlawful sale of intoxicating liquors and appeals. The facts are fully stated in the opinion of the court.

Hon. G. A. McLeaN, Judge. Suit by L. L. Peeples against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. ' Appellee, who was plaintiff in the court below,-was a fruit tree agent and had made contracts for selling fruit trees, aggregating the sum of four hundred and seventy-five dollars. Said trees were to be shipped to him for delivery at Grenada, Mississippi, by a nursery in Concord, Georgia.

Horn MoNroe McClurg, Judge. P. H. Collier was convicted of rape and appeals. The facts are fully stated in the opinion of the court.

HoN. E. N. Thomas, Chancellor. ■ Drainage proceedings by the Bogne Pkalia Drainage District. From a decree confirming an assessment by the drainage commission, Wheeler and Silby appeal. The facts are fully stated in the opinion of the court.

; ■ Hon. E. N. Thomas, Chancellor. From a decree confirming an assessment by the Bogue Phalia Drainage Commissioners. Frank P. Aldridge and others appeal. The facts are fully stated in the opinion of the court.

. Hon. E. N. Thomas, Chancellor. From a decree confirming an assessment by the drainage commissions, Houston Brothers appeal. The facts are fully stated in the opinion of the court-

' HoN. ,M. E. DeNtoN, Chancellor. Action by.'W.. T. Allen against the Hopson Bayou Drainage District. From a judgment for. defendant plaintiff appeals... . The facts are, fully stated in the opinion of the court. The record in this case is lost.

HoN. H. F. MahoN, Judge. John Wilkerson was convicted of rape and appeals. This is an appeal from a conviction of rape. Both appellant and the prosecutrix were negroes; the latter being only twelve years of age, which is the age of consent. The prosecutrix, testifying as a witness for the state, stated that appellant ravished her by force.

HoN. Sam WhitmaN, Jr., Chancellor. Exceptions to the account of Joe and Sam Meyer as executors of the estate of Jacob Meyer, deceased, by Mrs. Sarah Meyer and others. From a decree overruling the exceptions and dismissing the bill, the exceptors appeal. The facts are fully stated in the opinion of the court. The record in this case has been lost.

HoN. J. S. Hicks, Chancellor. Suit by Wilkinson county against the Fidelity & Deposit Company of Maryland and others. From an order-overruling the demurrer of the surety companies, they appeal.

HoN. W. H. WilkersoN, Judge. Suit by George Richardson against W. A. Dumas. From a judgment for defendant, plaintiff appeals. What degree of care did- appellee, as the owner of a sanitarium, owe to Ms patient under his contract in tMs case? The contract, as shown by the evidence, required appellee to furnish the sick man with a competent trained nurse day and night and to furnish him with every attention commensurate with his condition and requirements.

of Lincoln county. Hon. D. M. Miller, Judge. Suit by A. D. McClendon and others against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

IioN. W. H. Hughes, Judge. Suit by S. W. Pierce against the Easterling Lumber . Company. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

HoN. Sam Whitman, Chancellor. Suit by Mrs. S. F. Evans against B. W. Sharbrough. From a decree rendered, both sides appeal. Held: “As a general rule, the measure of damages which a vendee is entitled to recover for the failure of the vendor to convey a title according to the stipulations of his title bond is the amount of the purchase money- and interest. ’ ’ “Anri where such fraud or mistake exists in the contract, as entitled the vendee to a rescission, he is…

HoN. DaN Bbewek, Special Judge. Grant Perry was convicted of the unlawful sale of intoxicating liquor, and appeals. The facts are fully stated in the opinion of the court.

HoN. M. E. DeNTON, Chancellor. Proceeding by the Sevier Lake Drainage District . against J. T. Fargason & Son and others. From a decree for complainant defendant appeals. The facts are fully stated in.the opinion of the court.

HoN. T. B. WatkiNs, Judge. Joe Dixon was convicted of murder and appeals. The facts are fully stated in the opinion of the court. The record in this case is lost.

HoN. E. Y. HtighstoN, Special Judge. Suit by C. E. Castleberry and wife against the town of Durant. From a judgment for plaintiff, defendant appeals. Held: “The legislature has no right to say that property of the individual may be taken or injuriously affected for the public good without compensation.

PIoN. G-. Gr. Lyell, Chancellor. Application of Mrs. W. J. Kirk for the setting apart to her of a year’s allowance. From an order of the-chancellor,, confirming’ the report of the commissioners, setting' apart of one thousand two hundred dollars Imogene Whitehead and others appeal. The facts are fully stated in the opinion of the court.

Hon. D. M. Miller, Judge. Suit by J. A. Holliday against the Crystal Springs lee Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The first question discussed in the court below and in the brief herein, was as to the statute of frauds, par. 4779, Code, 1906. Argument and evidence as to the statute of frauds, pp. 2 to 9 inclusive.

HoN. M. E. DeNtoN, Chancellor. Bill by J. H. Leavenworth against W. D. Beeves. From a decree dismissing the bill, complainant appeals. The facts are fully stated in the opinion of the court.

HoN. D. M. MilleR, Judge. J. E. Simmons was convicted of rape and appeals. The facts are sufficiently stated in the opinion of the court.

HoN. C. L. Dobbs, Judge. Suit by W. A. Turner against E. D. Osborn. From a judgment for defendant, plaintiff appeals. Tbe facts are fully stated in the opinion of the court.

HoN. M. E. DeNTON, Chancellor. Petition by W. J. Brashears against R, B. Johnson, as receiver, for a decree requiring the receiver to allow petitioner to set off his individual deposit against a firm debt, due an insolvent bank. Petition dismissed and petitioner appeals. Tbe facts are fully stated in the opinion of the court. Appellant contends that the debts are mutual and can be set off as prayed for by appellant.

HoN. Jiro. L. Buckly, Judge. Suit by Julia Sudberry and others against the Meridian Fertilizer Factory. From an order sustaining defendant’s demurrer to the replication, the plaintiffs appeal. The facts are fully stated in the opinion of the court. We are perfectly aware of the holding of the court in several cases to the effect that the decision of a court of competent jurisdiction upon the merits precludes all parties in interest.

IioN. E. N. Thomas, Chancellor. Suit by Maria Robinson against Sarah J. Strauther. From a decree sustaining a demurrer to the bill, complainant appeals. Held: That these allegations were not sufficient to establish a resulting trust in favor of the wife, or her heirs in the lands purchased, and that the special promise did not create an express trust, because not in writing.” 40 Miss. 788.

HoN. N. A. Taylor, Judge. Suit by E. F. Myers and others against the Lamb-Fish Lumber Company. From a judgment for defendant, plaintiff; appeals. The facts are fully stated in the opinion of the court.

Appeau from the chancery court of Pearl River county. HoN. R. E. Sheehy, Chancellor. Suit by the state of Mississippi on the relation of the attorney-general against the Edward Hines Lumber Company, and others. From a judgment on demurrer for defendant, the state appeals. The facts are fully stated in the opinion of the court. Section 903 relates to foreign as well as domestic corporations. Foreign corporations have been grantéd no special favors by this state.

HoN. J. F. McCool, Chancellor. Partition suit by V. A.. Dickerson and others against J. A. Weeks. From a conditional judgment for complainants, they appeal. Held: and that he holds- same, subject to the price paid, for the use and benefit of his covenants. Therefore A. L. Dickerson by his purchase at the foreclosure sale,' did not acquire any title to the lands in controversy other than he already had, and he held the lands as trustee for his children.

Hon. Sam C. Cook, Judge. Suit by Mrs. Anna L. Beane against tbe Continental Casualty Company. From a judgment, plaintiff appeals. Tbe facts are fully stated in tbe opinion of tbe court.

HoN. T. H. Barrett, Judge. Pier Bank was convicted of selling intoxicating liquors and appeals. The facts are fully stated in the opinion of the court. We think that the appellant has a right to dismiss his appeal any time before a verdict by the jury or before the jury retired. 2 Ency.

HoN. W. A. HeNRy/Judge. Suit by Sarah Phillips against Lou G-arner. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

HoN. Claude ClaytoN, Judg'e. Earnest Quillen was convicted of the unlawful sale of liquors and appeals. The facts are fully stated in the opinion of the court. On an examination of the record we find that the venue was not proven by the state on the trial of this cause, so we respectfully submit that the motion for a new trial should have been sustained and that the-case should be reversed by this court. Cagle v. State, 63 So. 672.

Horn Juro. L. Buckley, Judge. Suit by L. N. Givens against the Southern Express. Company. From a judgment for the defendant, plaintiff appeals. The facts are fully stated in the opinion of the court, We desire to call the court’s particular attention to the fact that the motion for costs was made by the defendant, not by the officers of the court, and not on their behalf.

HoN. J. A. Teat, Judge. Simpson Quinn was convicted of manslaughter and appeals. The facts are fully stated in the opinion of the court. The testimony of the physicians show that deceased died with pneumonia: Men are not hung or imprisoned in Mississippi because one man being or having been struck in a quarrel, dies with pneumonia.

Hon. J. IT. Mitchell, Judge. John W. Taylor was indicted for receiving deposits in a bank knowing or having good reason to believe the bank to be insolvent. From a judgment sustaining a demurrer to the indictment, 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. J. L. Williams, Special Judge. Suit by Smith-Harrison & Company against W. H. Hutchins. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. According to the undisputed testimony of appellant he agreed to buy of appellee certain goods of a specified kind, quantity and quality and to be made up in a certain designated way.

HoN. H. C. MotjNgeb, Judge. Suit by H. B. Allen 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.

' Horn W. A. HeNRy, Judge. Suit by Harry Chapman, by his next -friend Nellie Chapman, ag’ainst the Jackson Coca Cola Bottling Company. 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 J. S. Meek against S. E. Wall. From a judgment for plaintiff against the defendant and E. J. Bomer and another, sureties on his forthcoming bond, the sureties appeal. The facts are fully stated in the opinion of the court.

Hon. J. G. McGowan, Chancellor. Suit by B. 0. Duncan against the city of Grenada. From a decree dissolving a temporary injunction, complainant appeals. The facts are fully stated in the opinion of the court. The Act of 1912 provides two methods of improving streets, viz: At the expense of the municipality and at the expense of the abutting property owners. Nothing is said about a division of the burden. The two methods are provided, clear and distinct.

HoN. T. H. Barrett, Judge. Suit by J. F. Stuard against the Western Union Telegraph Company. From a Judgment for defendant, plaintiff appeals. This is an action by J. F. Stuard against the Western Union Telegraph Company for damages alleged to have been sustained by plaintiff because of a mistake in the transmission of a telegram. The court overruled a demurrer to defendant’s special pleas, and, plaintiff declining to'plead further, there was a judgment for defendant.

HoN. JNO. L. Buckley, Judge. Barney Reeves was convicted of murder and appeals. Appellant was convicted of murder for the killing of one John Hughes, and sentenced to imprisonment in the pentitentiary for life. The state’s theory of the ease is that the killing was murder, and the defendant’s theory was that the shooting was accidental.

HoN. Gr. A. McLeaN, Judge. Consolidated suits for replevin by Henry Cooper and Della Kern against Allen Kern. From a- judgment for plaintiffs, defendant appeals. The record in this case shows that Martha McCoy, an aged negro woman, lived on a small tract of land which she and her husband had occupied for many years. Her husband, Joe McCoy, died in 1907, and Martha died intestate in 1910. At the time of her death she had a son, Allen Kern, living on a tract of land adjoining.

Hon. E. E. Brown, Judge. Suit by Lizzie Eobinson and others ag’ainst the Mississippi Central Eailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The record in this case is lost.