Volume 107 — Mississippi Reports

Hon. Sam Whitman, Jr., Chancellor. Bill in chancery by E. H. and E. L. Carter against the New Orleans, Mobile & Chicago Railroad Company. From a decree for complainants, defendant appeals. Appellees were complainants in the court below, and appellant defendant.

Hon. T. A. Wood, Chancellor. Bill by Florian Dedeaux against Lorance Cuevas and others. From a decree dismissing the bill and granting the relief prayed for in defendants’ cross-bill, complainant appeals.

Hon. J. L. Buckley, Judge. Suit by the American Funding Corporation against A. J. Pennington. From a judgment for defendant, plaintiff appeals. Held: “When the ap-pellee purchased the land, he knew that the debt to the Mortgage Company had not been paid. He knew, or is presumed to have known (Deason v. Taylor, 53 Miss. 697), what the recited consideration in the deed was. This knowledge was sufficient to have excited his attention and put him upon inquiry.

Hon. Monroe McClurg, Judge. Suit by Mann’s Mercantile Company against A. B. Smith. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Appeal' from the circuit court of Forest county. Hon. Paul B. Johnson, Judge. Suit by Adolph Dantzler against the J. J. Newman Lumber Company. From a judgment for plaintiff, defendant appeals. Appellee, a negro boy about sixteen or seventeen years of age, was plaintiff in the court below, and appellant was defendant.

Hon. W. A. Henry, Judge. Suit by J. L. Criscoe against the Postal Telegraph Company. From a judgment for plaintiff, defendant appeals. Appellee was endeavoring to secure families of laborers for A. E. Jennings and E. J. Marley, for tenants on their plantations. Jennings and Marley had agreed to pay appellee twenty-five dollars for each family of laborers secured.

Appear from the circuit court of Harrison county. Hon. J. H. Nevirr, Judge. Suit by Louis Job against the Ingram Day Lumber 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.

Hon. Monroe McClurg, Judge. Suit by Eva Lynchard against the Yazoo and Mississippi Valley Railroad. From a judgment for plaintiff, defendant appeals. Appellant purchased a ticket from Morehead to In-wpod, a flag station on the line of the appellee, a distance of four or five miles. She boarded the northbound train and took a seat in the rear coach.

Hon. Paul B. Johnson, Judge. A. H. Akroyd was convicted of larceny and appeals.

Hón. J. F. McCool, Chancellor. Will contest between Mrs. Melzie Spivey and Eoxie Walton and others. From a judgment in favor of the latter, the former appeals. Luke Spivey and his wife, Mrs. Jennie Spivey, executed what purported to be a last will and testament, making the sole beneficiary of same their son, B. A. Spivey, who was unmarried, and who lived with them.

Hon. W. A. Henry, Judge. Suit by Charles Palotta against the Jackson Light & Traction Company. Prom a judgment for defendant, plaintiff appeals. Appellant brought suit for damages for injuries alleged to have been sustained by him. The case was submitted to a jury, who returned a verdict for defendant. The appellee owns a street railway system in the city of Jackson, Mississippi; a part of the line extending over what is known as West Capitol street.

<p>Master and Servant. Disobedience of rules. Ground for discharge.</p> <p>The owner has the right to make reasonable rules for the government of his plantation and where a manager of such plantation refuses to obey these rules the owner has the right to discharge him.</p>

Hon. J. H. Mitchell, Judge. Suit by North State Cotton Company against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Plaintiff sued defendant for the value of certain cotton shipped over defendant’s railroad from Corinth, Mississippi, to points in North Carolina, alleging that defendant had .issued its bill of lading covering said cotton ; said bill of lading being in favor of one Latham, and by Latham assigned to plaintiff.

Hon. J. H. Mitchell, Judge. Suit by W. N. Hardin against C. W. McKnight and others. Held: and the character of the supervision given by the directors to the concerns of the bank; to show the state of the account between G-idwitz and the bank, and other like evidence, all of which was excluded. ’ ’ Wolfe v. Simmons, et al., 75 Miss. 539; Solomon v. Bates, 54 Am. St. 730, 731; 1 Morse on Banking, see. 138; 17 Am. So Eng.

Hon. A. E. Weathersby, Judge. Suit by John Fortenberry by next friend against the New Orleans Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Appellee, by his next friend, brought suit against the appellant in the circuit court of Marion county, Mississippi, for injuries sustained by him while a passenger on •one of the trains of appellee going from New Orleans, Louisiana, to Columbia, Mississippi.

<p>1. Wills. Execution. Subscription by witness. Sufficiency.</p> <p>Where, when a will was executed, there were present the testator ,and two witnesses and one of the witnesses signed with the testator and the other witness was about to sign when the testator requested him to take his acknowledgment to the will as he thought that was better, which was accordingly done, the acknowledgment being on a blank, and the will and acknowledgment were folded together and handed the testator who handed it back to one of the witnesses with the request that he take good care of it, the will in such case was sufficiently attested,, since it was apparent that the witness took the acknowledgment and signed his name to the same for the purpose of showing that he witnessed the execution of the will.</p> <p>.2. Same.</p> <p>Where the names of attesting witnesses to a will are on separate sheets of paper from that of the testator, the will is sufficiently attested if these sheets are physically connected, and the same result will follow where the testator, knowing what the signature of the witness was intended to he, handed the two papers, folded together, to one of the witnesses as his completed will.</p>

. Hon. N. A. Taylor,'Judge. Suit of replevin by Mitchell and McLendon against W.. A. Burkhalter. From a judgment for plaintiffs, defendant appeals. The facts are fully stated in the opinion of the court.. The testimony of every witness in the case conclusively shows that at the time Mitchell, appellee, attempted to retain title to the mule, he had no title.

Hon. H. E. Mahon, Judge. Suit by Elisha Bowles, by next friend, against the St. Louis and San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Appellee (plaintiff below), a negro boy, by his father and next friend, brought an action against the appellant for damages for injuries received by him while in appellant’s employ.

Hon. J. H. Mitchell, Judge. Suit by W. A. Williams against the Southern Bailway Company. Held: reading from Tus-enrabia to Corinth, with the day of that date on the back of the same, was a mute but powerful witness of the truth of appellant’s explanation, and it was the duty of the auditor to have accepted such explanation, and to have treated appellant as a passenger, until he ascertained the truth or falsity of such…

Hon. H. K. Mahon, Judge. Suit by Merchants & Farmers Bank against W. T. Smith. ' From a judgment for defendant,' plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. I. Q. Robins, Chancellor. Suit by American Laundry Machine Company, against the Citizens National Life Insurance Company and others. From a decree for insufficient relief, plaintiff appeals. The facts are fully stated in the opinion of the court. The appellant relies upon the principals of law as established in the following cases, to wit: Weathersby v. Sleeper, 42 Miss. 732; John Vam, Range Co. v. Allen, 7 So. Rep. 499; Boone v. Mendenhall Lbr.

Hon. I. Q. Robins, Chancellor. Proceedings by Mrs. Lottie Hamblin against John Hamblin for contempt in failing to comply with order of the court to pay alimony pendente lite. From a judgment against defendant, he appeals. The facts are fully stated in the opinion of the court.

Hon. C. L. Hobbs, Judge. H. F. Sively was convicted Of receiving deposits in an insolvent bank, and appeals. The facts are fully stated in the opinion of- the court. No brief of coniisel found in the record.

<p>Appeal from the circuit court of Leflore county.</p> <p>Hon. Monroe McClure, Judge.</p> <p>Suit by Arizona Shelton against the G-rand United Order of Odd Fellows, which interpleaded Ira Minnis, from a judgment for Minnis, plaintiff appeals.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>On the proposition of Arizona Shelton, although an illegitimate child, being embraced within the meaning of the word “children,” as used in the by-laws of the defendant order, we are inclined to believe that both opposing counsel, and ourselves have been far estray from the proper point of view in the discussion of this feature, in the briefs already filed in this case. The holding of the Massachusetts court in Ligue des Patriots, 54 L. ft. A. 814, cited by opposing counsel, to the effect that the word, “children” did not embrace, within its meaning, an illegitimate child, was an interpretation of the meaning of the word as used in a statute and not as used in the constitution and by-laws of the association as stated by counsel. In all cases where the use of a word in a statute, is under consideration, such a construction is proper. But the word, as used in the by-laws of the Odd Fellows Benefit Association, should be construed to mean what the parties to the contract intended it to mean. And in seeking to ascertain whether or not the parties to this insurance contract intended to exclude illegitimate children, the use of the word “children” in the by-laws of defendant order should be given its common, ordinary and popular meaning, and not such legal technical meaning, as is given it, by the court in interpreting its meaning as used in a statute. The law can determine the meaning of the word “children” as used in the statute, but not as used in a contract, where the intention of the parties alone governs the interpretation; and it must be taken that the word “children,” as used in the case at bar, was intended to be used in its commonly accepted, ordinary and popular sense. Webster’s International Dictionary, 1911 Edition, defines the word “child” to mean “a son or daughter; a male or female descendant in the first degree; the immediate progeny of human parents ; in law legitimate offspring. ’ ’ This definition is, in substance, as given in other standard dictionaries. The meaning of the word “children,” as commonly and ordinarily understood and used, by people generally, does not exclude illegitimates. Bacon on Benefit Societies, sec. 257; 37 L. Ed., U. S. Rep. 745; 39 L. Ed., IT. S. Rep. 549; 40 L. Ed., U. S. Rep. 203; 1913 Ann. Cases, 1243.</p> <p>If there is any doubt of the ordinary meaning of this word, when used by people generally, there can certainly be none when used by members of the negro race in dealings and contracts among themselves. It is a matter of such common knowledge, as the court can take judicial notice of, that the custom prevails, not only in this state, but through the entire south, of there being no distinction recognized by negroes, between legitimate and ille-gitimates, when they used the word “children,” in dealings between themselves. 1 Elliott on Evidence, sec. 64; 2 Elliott on Contracts, secs. 1513, 1517, 1705-, 1713, 1720, 1721, 1790. Spegler v. Williams, 67 Miss. 1; Hancock v. Naval Stores, 93 Miss. 822.</p> <p>We submit, that if there should be any- doubt, in the mind of the court as to whether or not the use of the word “children,” in the by-laws of the defendant order, included illegitimates, such doubt will be resolved in favor of appellant, Arizona Shelton.</p> <p>It is asserted that Arizona Shelton was eligible to be named as a beneficiary, notwithstanding her illegitimacy.</p> <p>The purpose for which the association was created was to provide an endowment fund to be paid only to certain designated relatives of deceased members, to wit-: Husband, wife, mother, father, children, sister, brother, uncle, aunt, nephew, niece or dependent relatives.</p> <p>It is claimed that Arizona Shelton, an illegitimate child, is a child of the assured within the meaning of the word “children” as used in section 4 of the Constitution and by-laws. It is said that the popular meaning of the word “children” includes illegitimate as well as legitimate children. This, I expressly deny. Webster’s International Dictionary, 1911 Edition, referred to by the attorneys for the appellant, defines the word “child” to mean, “A son or daughter; a male or a female descendant in the first degree; the immediate progeny of human parents; in law legitimate offspring. ’ ’ This very authority cited by counsel itself defines the word “child” to mean legitimate offspring.</p> <p>In the Black’s Law Dictionary, the word “children” is defined as follows: ‘ ‘ Offspring; progeny; legitimate offspring’; children horn in wedlock.”</p> <p>In no dictionary that I have been able to find does the word “children” appear to be defined as including illegitimate offspring. On the contrary it is defined as including legitimate offspring. Therefore, I contend that the popular meaning of the word ‘ ‘ children ’ ’ includes, and only includes, legitimate offspring of their parents and never illegitimate offspring. .</p> <p>The word “children,” when used in the statutes of any state, the constitution or by-laws of any corporation, or when used in any contract whatever, has always been constructed to mean legitimate children unless a contrary intention is clearly expressed. This is'the universal rule of construction and in the absence of anything clearly indicating an intention to include illegitimate, the word ‘1 children” has never been construed to mean any but legitimate offspring.</p> <p>But I take it that I am unnecessarily taking up the time of this court on this question. This court, I take it, is not going to construe the word “children” as used in section 4 of the constitution and by-laws of the Odd Fellows Benefit Association to include illegitimate children. The purpose for which this order was created was to create an endowment fund to be paid, among others, to the legitimate children of the member of the order and this court will not hold that the purpose for which that order was created was'to create a fund to be paid to the illegitimate children of its. members. Therefore, I contend that Arizona Shelton,' as an illegitimate child, was not of the class for whose benefit the order was created and to whom the fund created should be paid, and not being of that class, a certificate in which she is named as beneficiary, is, by virtue of section 16, a nullity. This section not only provides that no payment shall be paid on such a certificate, but it, in effect as well, provides that the certificate itself shall be void.</p> <p>The laws of the association not only prescribe those to whom the fund shall be paid, but as well prescribes, that no benefit shall be paid to any one not of that class and in addition, that if a certificate to that effect is issued, it shall be void. Even if section 16 was not incorporated in the constitution and by-laws of the order, I would still contend that a certificate in which one not of the class prescribed by section 4 is named as beneficiary, would be a nullity.</p>

Hon. J. H. Mitchell, Judge. Suit by the state for the use of John A. Johnston, and others against W. W. Cunningham and others. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. J. I. Ballinger, Judge. Eugene Jackson, was convicted of unlawful selling of liquors and appeals. The facts are sufficiently stated in the opinion of the court. Held: by a long line of decisions, that the mere possession of any quantity of intoxicating liquor does not raise any presumption as to the guilt of the accused. See cases of State v. Stansbury, 98 Miss. 406 -MoComb City v. Hill, 100 Miss. 193; Byrd v. The City^ of Hazlehurst, 101 Miss. 57, and many others.

Hon. A. E. Wethersby, Judge. Arch Pitman was convicted of carrying concealed weapons and appeals.

Hon. H. K. Mahon, Judge. Felix Mosley was convicted of the unlawful sale of liquor and appeals. Appellant was convicted, of the unlawful sale of intoxicating liquors.

Hon. H. F. Mahon, Judge. Suit by T. F. Saxon against the town of Houlka. From a judgment for the defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. Counsel for appellee gives briefly four reasons why lie contends this case should be affirmed. I shall make a few observations in reply taking them up serially. 1.

circuit court of Lincoln county. Hon. D. M. Miller,. Judge. Wesley Roundtree was convicted of obtaining goods under false pretense and made a motion for a new trial on the ground of newly discovered evidence. From an -order overruling the motion he appeals. Appellant was convicted of obtaining goods under false pretenses.

Hon. N. A. Taylor, Judge. Suit by John Sayle against the Globe Rutgers Fire Insurance Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. First, there was no service on appellant in court below. The summons issued by the. deputy circuit clerk is bad, if not void, for the want of the seal of the court. John Pharis v. Uriah Conner, 3 S. & M. 87.

Hon. Monroe McClurg, Judge. J. M. Moore was convicted of uttering a forged instrument and appeals.

Hon. T. B. Watkins, Judge. Suit by Mary F. Robinson against the Yazoo & Mississippi Valley Railroad for damage for personal injury. From a judgment for plaintiff, defendant appeals. Plaintiff alleged that by the violent jerking of the train she was thrown suddenly to the floor of the car and the lower joint of her spinal column injured. She asked for thirty thousand dollars damages and recovered ten thousand, five hundred dollars.

Hon. H. C. Motjnger, Judge. S. L. Johnson was convicted of murder and appeals. The facts are fully stated in the opinion of the court. Held: that: “The question as to the mental condition of the accused at the time of making the confession is held to be for the jury to determine upon such evidence as both sides may submit. ’ ’ The court in excluding the evidence of Dr. Acker from the consideration of the jury, left the jury nothing on which to base a finding against the…

Hon. J. 31. Mitchell, Judge. Suit by B. M. Tubb against Lafayette Mitchell. From & judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We submit first that the general laws for assessment and collection of taxes and sale under said assessments during the years 1889, 1890, 1891 and part of 1892 was the so-called Madison Act as passed by the legislature of 1888 and found in the Laws of 1888, on page 24.

Hon. E. N. Thomas, Chancellor. Suit by Patrick Henry against Mrs. L. S. Cochran and others. Prom a decree overruling the demurrer to complainant’s bill, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. J. Q. Robins, Chancellor. Bill by Mary Ann D'avis and others against Sallie S. Davis and others. From a decree for defendants, •complainants appeal. Appellants were complainants in the court below, and appellees were defendants.

Ho-N. Claude ClaytoN, Judge. Suit by the Henderson Hardware Company against J. J. Dockery in which plaintiff issued a garnishment against Monroe county for a debt from the county to the defendant, and J. D. Bryan and others intervene. Prom a judgment for plaintiff in garnishment, claimants appeal. Monroe county was indebted to J. J. Dockery on a road contract.

Hon. J. A. Teat, Judge. S. E. McConnico, was convicted of receiving a deposit in a hank, of which he was cashier, when he knew, or had good reasons to believe, the bank insolvent, and appeals. The facts are fully stated in the opinion of the court.

H.ON. N. A. Taylor, Judge. Suit by the First Baptist Church of Oxford, Mississippi, against W. M. Hendricks and others. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. J. Q. Robibs, Chancellor. Suit between Wallace Deanes and N. W. Whitfield. From a judgment for Whitfield, Deanes appeals. The facts are fully stated in the opinion of the court.

Hon. N. A. Taylor, Judge. Suit by S. M. Weld & Co. against J. C. Austin. From a judgment for defendant, plaintiff appeals. Tbe facts are fully stated in the opinion of the court.

Hon. H. K. Mahon, Judge. Suit by J. B. Sanders against McAlister Bros. & Co. From a judgment for plaintiff, defendant appeals. This case is before the court for the second time, the first decision being reported in 101 Miss. 227, 57 So. 801.

Hon. II. K. Mahon, Judge. Suit by tbe Bowles against the Brevard-Wood Stave Company. From a judgment of the circuit court dismissing the appeal, J. M. Bowles appeals. The facts are fully stated in the opinion of the court- The weight of the testimony shows that the bond was. presented in time but it seems that the court sustained the motion on the ground that the testimony of the justice of the peace was conflicting.

Hon. J. Q. Robins, Chancellor. Suit by II. P. Pace against W. M. Pace and others. Prom a decree dismissing the bill, complainant appeals. The facts are fully stated in the opinion of the court. We will briefly treat the instrument as a deed of gift, 'inter vivos, and, in so doing, we must not be held to waive the argument heretofore made that the instrument is a valid conveyance, for a valuable consideration and definite end.

Hon. A. E. Weathersby, Judge. Suit by A. T. Morris against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. J. Q. Robins, Chancellor. Suit hy R. E. Beckett against the Planters’ Compress & Bonded Warehouse Company and others. Prom a judgment sustaining a demurrer to the bill, complainant appeals. The facts are fully stated in the opinion of the court. A stockholder may object to an ultra vires act, or if the act be already committed, may hold the directors to account for it. 2 Cook on Corp. (6 Ed.), paragraphs 493, 663, and 482, and numerous authorities there cited.

Hon. J. Q. Robins, Chancellor. Bill by the Choctaw Bank against C. T. Mitchell and •others. Prom a judgment overruling their demurrer, defendants appeal. The facts are fully stated in the opinion of the court. The will made an exhibit to the bill creates an active trust, and if the defendant, C. T. Mitchell, in the court helow, had any interest in the estate under the said will, the court will not condemn it for the sale of his debts.

Hon. A. E. Weathersby, Judge. Suit by Z. W. Jordan against the Mississippi Central Railroad Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. N. A. Taylor, Judge. Suit hy S-. E. Stark against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. T. H. Barrett, Judge. Suit by Mary J. Seutter against the Bank of Commerce of Gulfport. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. H. K. Mahon, Judge. Suit in ejectment by J. F. Buttler against Mrs. Priscilla Burton. From a judgment for plaintiff, defendant appeals. Appellant and appellee jointly inherited a section of land. Appellant inherited the east one-half and appel-lee the west one-half. The original survey of this section was made in 1841, but the government marks seem to have been destroyed.

Hon. J. M. Stevens, Chancellor. Suit by Pretonia Leonard against the H. Weston Lumber Company. From a judgment for the defendant, the plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. T. A. Wood, Chancellor. Suit by J. H. Long, against J. H. Newton. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The estate embraced in the lease from Hode to Leath-■erbury, which passed on down to the Standard Naval Stores Company, is not in existence and was absorbed before the execution of the lease of Hode to Newton, .appellant, authorizing him to back-box or cup the timber .on said land.

Hon. Claude Clayton, Judge. Petition by Floyd Robinson and others, road commissioners, to the board of supervisors of Itawamba county, for an order for publication of the sales of bonds, and from an order of the circuit court affirming an order of the hoard denying the order, petitioners appeal. The facts are fully stated in the opinion of the court.

Hon. Sam C. Cook, Judge. Suit by G. Y. Crawford against the Yazoo & Mississippi Valley Bailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. W. H. Hughes, Judge. The board- of supervisors of Covington county raised the valuation upon the land of the Conner Lumber Company, which appealed to the circuit court. Held: on viewing the whole record, that the real.and true assessment was that shown by the assessment roll filed with the clerk and approved by the board of supervisors at the time and place when they were required to examine and approve the roll.

Hon. Sam Whitman, Chancellor. Suit for penalties for the violation of the anti-trust laws of the state of Mississippi, on the relation of the attorney-general against the Standard Oil Company of Kentucky and others. From an order overruling their demurrer, defendants appeal. The facts are fully stated in the opinion of the court.

Hon. A. E. Weathersby, Judge. Suit by Mrs. Chrstine Humphreys against the New Orleans & Northeastern Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The only duty owing by a railroad company to a trespasser is not to wantonly or wilfully injure him. Railroad Co. v. Burnsed, 70 Miss. 473; Railroad Co. v. Mc-Afee, 71 Miss. 70, and many other Mississippi cases announcing this rule.

Hon. Paul B. Johnson, Judge. E. A. Smith was convicted of attempted subornation of perjury and appeals. Appellant was indicted and convicted of attempting to-suborn perjury.

Hon. M. E. Denton, Chancellor. Petition by the board of supervisors of Tunica county against W. H. Powell, receiver of the Bank of Tunica, praying that the claim be declared a trust fund payable do the county and given a first preference lien. Prom a decree for the county, the receiver appeals. The facts are fully stated in the opinion of the court.

Hon. J. I. Bailengeb., Judge. W. Rouse was convicted of unlawful retailing, and appeals. The facts are fully stated in the opinion of the court. The record shows that the only witness giving testimony that would have any hearing on the case at all, was Edward Saucier, and his testimony is not positive.

Hon. J. I. Ballenger, Judge. John Skermetta was convicted of the unlawful sale of intoxicating liquors, and appeals. The facts are fully stated in the opinion of the court.

Hon. M. E. Denton, Chancellor. Exceptions were filed to the account of Mrs. Kate Blumenberg, as administratrix de bonis non, by H. H. Davis, and others and both sides except to a decree entered on the report of a commissioner to whom the account was referred.

Hon. W. D. Cute.ee, Special Judge. F. D. Hass was convicted of advertising patent medicines without the payment of a privilege tax, and appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Henry, Judge. Proceedings before the Mississippi Railroad Commission for the back assessment of property of the Western Union Telegraph Company. From a judgment of the circuit court, holding void an order of the commission assessing back taxes against such property, the commission ■appeals.

Hon. R. E. Sheeny, Chancellor. Bill by the New Orleans Great Northern Railroad Company against the New Orleans Railroad Company. From a judgment overruling its demurrer to the bill, defendant appeals. Appellee was complainant in the court below, and appellant was defendant. Appellant is referred to as the Northeastern Railroad, and appellee as the Great Northern.

Host. W. A. Henry, Judge. Charm Chester was convicted of keeping intoxicating liquors for sale, and appeals. The facts are fully stated in the opinion of the court.

Hon. P. B. Johnson, Judge. W. F. Jones and others were acquitted of crime and the state appeals. The facts are sufficiently stated in the opinion of the court. '

<p>Appeal from the circuit court of Pike county.</p> <p>Hon. D. M. Miller, Judge.</p> <p>The opinion of this case is on a suggestion of error. 'The case is reported in 105 Miss: 48.</p>

. Hon. H. K. Mahon, Judge. Will Brantley was convicted of acting as agent of the purchaser in the unlawful sale of intoxicants and appeals. The facts are fully stated in the opinion of the court. As far as I have been able to discover, after exhausting every resource at my command and making a very exhaustive search, there is no authority of this court •directly in point.

Hon. J. F. McCool, Chancellor. Petition by S. L. Dodd and others against C. C. Kelly and others. From an order denying complainant’s motion requesting the chancellor to recuse himself from sitting in a trial, petitioner appeals. The facts are fully stated in the opinion of the court. The disqualification relied upon is kinship to parties in interest.

Hon. E. N. Thomas, Chancellor. Drainage proceedings by the Bogue Phalia District. .Erom a decree confirming an assessment by the drainage cohimissioners, Wheeler & Sibler appealed and the decree having been affirmed (64 So. 375) and a suggestion of error overruled without a written opinion, appellants-moved for an order and certificate that a Federal constitutional question was raised on the suggestion of error, for the purpose of appealing to the United States supreme…

Hon. J. A. Teat, Judge. Jack Gaston was convicted of unlawful retailing of intoxicating liquors and appeals. Held: in the case of Hogget v. State, 57 So. 812, that: “Where a greater punishment may be inflicted for a second subsequent violation of a penal law than for the first, the fact that the offense is for a second or subsequent violation must be directly averred in the information or indictment to justify the increased punishment,” the court…

Hon. W. A. Henry, Judge. C. C. Smith was convicted of committing a fraud on the state, and appeals. Appellant was indicted for committing,.a fraud upon “the- state, and was convicted and sentenced to the penitentiary and deprived of the office of penitentiary trus1 tee, to which he had been elected. The record, shows that appellant was the owner of a certain Buick automobile No.. 19 .which he purchased from one Withers for. the sum of five hundred dollars.

Appeal- from the chancery court of Newton county. Hon. Sam Whitman, Jb., Chancellor. Bill by J. M. Simmons and others against J. E. Blythe and others. From a decree of complainants, defendant Blythe appeals.

, Hon. W. A. Henry, Judge. W. A. Montgomery was convicted of misconduct in the «discharge of his duty as a penitentiary trustee, and appeals. The facts are fully stated in the opinion of the court.

Hon. E. N. Thomas, Chancellor. Bill by M. D. Beer against the American Express Company. From a decree overruling a demurrer to the complaint, defendant appeals. Sections 5 and 7 of the act of the Mississippi legislature of 1914 known as House Bill No. 5, are as follows: Sec. 5.

Hon. D. M. Miller, Judge. O. A. Pigott was convicted of murder and appeals. The facts are fully stated in the opinion of the court.. Held: “This instruction unmistakably singled out the-defenclant and marks him for discredit by the jury, and it is not true, moreover, that because of liis interest in the result of the verdict, that the jury might arbitrarily reject this evidence and refuse to consider it.” It will be-noted that the court holds, as a matter of law, that…

Hon. N. A. Taylor, Judge. Walter Ferguson was convicted of manslaughter and appeals. The facts are fully stated in the opinion of the court.. The first and most important question, to the defendant, to be discussed in this case, is whether or not, hé-has had a constitutional trial by a legally constituted jury. If he has not, this court will not hesitate to grant him that right.

' • Hon. N. A. Taylor, Judge. Jim Owens was indicted for acting as agent in the sale •of intoxicating liquor. From an order sustaining a demurrer to the indictment the state appeals. The facts are fully stated in the opinion of the court. The laws of Mississippi relating to intoxicating liquors ■do not require a person to sell liquor; if he acts as agent he is as guilty as if he had sold the liquor.

How. J. J. Ballenger, Judge. Frank Howell was convicted of robbery and appeals. The facts are fully stated in the opinion of the court. The attorney-general dwells at length on the competency of the proposed jurors, Kennedy and Eubanks. In reply to his argument, we cite and rely on, in support of our contention that said proposed jurors were incompetent, regardless of section 2685 of the Code of 1906; Klycev.

Hon. Claude Clayton; Judge. David Smith was convicted of murder and appeals. The facts are fully stated in the opinion of the court..

Hon. E. N. Thomas, Chancellor. Proceeding for the establishment of the Black Bayou Drainage District. Prom a decree creating the district, W. A. Low and others appeal. The facts are fully stated in the opinion of the court.

Hon. E. E. Brown, Judge. Petition for mandamus by Huey E. Hathorn against W. A. Morgan, as mayor of the town of Woodville. Prom an order sustaining a demurrer to the petition, plaintiff appeals. The facts are fully stated in the opinion of the court.

Bolivar county. Hon. Cutrer, Special Judge. Suit by O. B. Crittended & Company against Waldrop and Thomas. From a judgment for plaintiff, defendants appeal. The facts are fully stated in the opinion of the court.

Hon. J. M. Stevens, Chancellor. Suit by the state against the Louisville and Nashville Railroad Company. From a decree for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. J. L. Buckley, Judge. Jim Baley was convicted of murder, and appeals. This was heard on suggestion of error. Held: however, that a wife is not a competent witness to prove what was said in a conversation by another person with her husband, nor to prove any act done in connection with such conversation and which might be explained thereby.” In Allison v. Barrow, 3 Coldwell, 414, 91 American Dec., 291, it is stated that conversations between…

Hon. J. I. Ballengek, Judge. Joe Pons was indicted for failure to pay a privilege tax on an oil depot. From a judgment acquitting him, the state appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Henry, Judge. Clarissa Collins was convicted of keeping intoxicating liquors for sale and appeals. The facts are fully stated in the opinion of the court. Under the statutes of this state the legislature has seen fit to create two separate and distinct offenses as regards the having of liquor for sale.

Hon. J. M. Stevens, Chancellor. Suit by the Louisville & Nashville Railroad Company against the Western Union Telegraph Company. Held: at pages 752 and 753, that these stipulations contained in the application were valid and enforceable.

Hon. J. Q. Bobbins, Chancellor. Bill by the Home Mutual Fire Insurance Company, against J. E. Huggins. From a decree for complainants, defendant appeals. Appellee was complainant in the court below, and appellant was defendant. From a decree granting the relief prayed by the complainant, this appeal is prosecuted. The opinion states the facts.

Hon. A. E. Weathersby, Judge. Ed Le Barron was convicted of murder and appeals. The facts are fully stated in the opinion of the court. Held: in the case of State v. Coulter, 61 So. 706, that the county prosecuting attorney has this right to appear in the grand jury room during its deliberations, and that this is his duty, and while we have no desire to be placed in the attitude of differing with this court in its construction of the law, yet we feel constrained to present…

Hon. R. E. Sheehy, Chancellor. Suit hy the Mississippi Sawmill Company, against R. J. Douglas, and others. From a decree for defendant, complainant appeals. The facts are fully stated in the opinion of the court. Fraud being admitted hy the demurrer, it must be overruled.

Hon. W. H. Hughes, Judge. E. 0. Wicker was convicted of assault and battery and appeals. The facts are fully stated in the opinion of the court.

Hon. Claud Clayton, Chancellor. Will D. Sharp was charged with a violation of an ordinance of the city of Corinth, and on the hearing in the circuit court he was acquitted; the… Held: we believe without exception, that Constitution provisions of this kind do not apply to municipal ordinances. In the case of Richards v. To%on of Magnolia, 100' Miss. 249, as well as in many other Mississippi cases, the court has had occasion to discuss the question of titles to ordinances.

Hon. P. Z. Jones, Chancellor. Suit by First National Bank of Cannton against Isador Hesdorffer, and others. Held: further, that these deeds should be considered as deeds'of trust for the benefit of Isador Hesdorffer and Ben Hersdorffer, and directed the -commissioner to sell the lands in question and pay, first the amount due the Hesdorffers and all costs, and the balance to be applied on the debt due by the Durant Commercial Company to the…

Hon. D. M. Miller, Judge. Suit by J. J. Maples against the Mississippi Central Railroad Company, and others. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The court erred in permitting an amendment substituting the name of J. J. Maples as plaintiff for that of Mrs. J. J. Maples, plaintiff, after the close of all the evidence.

Appear from the chancery court of Sunflower county. Hon. E. W. Thomas, Chancellor. Bill of Mary Browning and others against J. B. Fisher. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. W. H. Cook, Special Chancellor. Bill for partition by H. J. Preston against Gr. W. P. Freeman, and others. From a decree ordering partition, defendant appeals. The facts are fully stated in the opinion of the court. It is manifest that the learned special chancellor assumed that Wm.

Hon. James H. Neville, Special Judge. Suit by J. F. Winn against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Appellee chartered a car of the appellant at Biloxi, Mississippi, for transportation of his household goods and a horse and cow from Biloxi to New Orleans, Louisiana.

Hon. J. M. Stevens, Chancellor. Bill by F. H. Lewis against Lyon Company. From a decree sustaining a demurrer to complainants bill, he appeals. This is an appeal from a decree of the chancery court sustaining a demurrer of the appellee to the bill of complaint filed by appellant. This bill sought a confirmation of a tax title to certain land in George county, based upon a tax sale made by the tax collector on the first Monday (the 5th day) of April, 1910.

Hon. J. L. Buckley, Judge. E. 0. Powe, was indicted for kidnapping. Prom a judgment sustaining a demurrer to the indictment, the state appeals. The facts are fully stated in the opinion of the court.

Hon. Sam Whitman, Jr., Chancellor. Bill by A. J. Lyon & Company, against the Southern Pacific Railroad Company. Prom a decree for complainants, defendant appeals. The facts are fully stated in the opinion of the court. This is the first error of the trial court. A misconception of the former opinion of this court on the former appeal. Having thus decided the liability of appellant, the court below proceeds to assess the damages.

Hon. R. E. Sheehy, Chancellor. Suit by Ed. Y. Price & Company, and others against Rouse Brothers & Smith. From a decree for defendant, complainant appeals. The facts are fully stated in the opinion of the court.

Hon. ft. E. Sheehy, Chancellor. Suit by H. A. Barnes against S. A. & B. C. Jones. From a decree for complainant, defendants appeal. The facts are fully stated in the opinion of the court. The admitted facts in this case, we submit, entitled the defendants to a decree in their favor and require the reversal of the decree rendered against them by the court below.

Hon. Monroe McClurg, Judge. Suit by W. H. Humphrey, survivng partner of Humphrey’s & Co., against the Hoover Commercial Company. Prom a judgment for plaintiff, defendant 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. Bill for injunction by W. G-. Hardee against J. C. Brooks and others. Injunction denied, and bill dismissed and complainant appeals. The facts are fully stated in the opinion of the court.

Hon. A. E. Weathersby, Judge. Suit hy H. Davis against Lamar county. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. We have never before heard the contention advanced that section 311 applied to any sort of a claim against the county, except actions arising ex contractu.

Hon. Monroe McClurg, Judge. Action by J. W. McOlintock, against Jake Cohn and others, executors of the estate of M. Cohn. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. R. E. Sheehy, Chancellor. Bill hy board of supervisors of Lamar county and others against C. C. Elliott. From a decree for defendant, complainant appeals. The facts are fully stated in the opinion of the court. It is the contention of the appellees that no right of way was implied hy the grant and if the county secured a right of way, it would have to do so by condemnation proceedings or eminent domain proceedings and would have to pay for the rights so established.

Son. Sam Whitman, Chancellor. Suit by W. R. Sturges and Company against the Mobile Auto Company and others. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. A. E. Weathersby, Judge. Suit by the Lamar County Bank, against the Peoples Bank. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. In giving us notice that we might file a brief in this matter, the court has suggested that we discuss what hearing, if any, the case of Watts Mercantile Gompcmy v. Buchanan, 92 Miss. 540, 46 So. 66, has upon the case at bar.

the circuit court of Lincoln county. Hon. D. M. Miller, Judge. Suit by the McCall Company against the Parson, May, Oberschmidt Company. From a judgment for plaintiff for insufficient relief, it appeals and the defendant cross-appeals. The facts are fully stated in the opinion of the court.

Hon. Paul B. Johnson, Judge. Petition by W. T. Jones and others for a writ of mandamus against J. D'. Bennett, sheriff and tax collector. From a judgment overruling a demurrer to the petition and directing the issuance of the writ, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. Sam Whitman, Jr., Chancellor. Suit by Edwin McMorries, trustees, against Blewett Lee, and others. From a decree in favor of complainant, defendant appeals. The facts are fully stated in the opinion of the court. Counsel for appellee takes the position that the failure to support in accordance with the agreement expressed in the deed is a failure of consideration. This, I contend is not so.

R. E. Sheehy, Chancellor. Bill by T. R. Buckley against the Forest Product & Manufacturing Company. From a. decree overruling a demurrer to the bill, defendant appeals. The facts are fully stated in the opinion of the court.