Volume 114 — Mississippi Reports

Hon. E. D. Dinkins, Judge. Suit by Tate County against the United States Fidelity & Guaranty Company and another. From a judgment for plaintiff, defendant appeals.

Hon. James F. McCool, Chancellor. Suit by J. M. Dodwell and others against J. A. Reeves, receiver for the Merchants’ & Farmers’ Bank of Yaiden. The prayer of the petition that the court instructed defendant receiver to prosecute an appeal to ■ the supreme court from a decree of the chancellor vacating an assignment for creditors made by the bank, was denied, but the court granted an appeal to petitioners.

Hon. E. E. Jackson, Judge. Suit by Mrs. Allie Legett Case against the Yazoo & Mississippi Valley Eailroad Company. From a. reduced judgment, plaintiff appealed. Appellant was plaintiff in the court below and brought an action against the appellee, claiming damages because of the alleged negligent acts of the servants of appellee in permitting her to get off of her train before it reached her station.

<p>ll Sale. Action. Breach of warranty. Recoupment. Question for jury.</p> <p>In a suit on the purchase money notes for a piano, where defendant filed a plea of recoupment and there was evidence that the piano did not meet the warranty given by the seller, the issue should have been submitted to the jury.</p> <p>2. Sales. Breach of warranty. Waiver of damages. Acceptance of goods.</p> <p>The acceptance of a piano bought under a warranty, but which did not meet the warranty, was not a waiver of the purchaser’s claim for damages for such breach of warranty.</p> <p>3. Compromise and Settlement. Execution of agreement. Abortive attempt.</p> <p>Under the facts as set out in this case the court held that there was no binding compromise and settlement between the parties, but that the agreement of settlement was only tentative and never executed.</p>

Hon. Frank E. Everett, Judge. Suit by W. T. Pitts against E. B. Cook. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Cook was not'a resident of Sunflower county, when the suit was filed, and was served at his home in Sharkey county. This court had no jurisdiction to enter any judgment, or to take any step in the case, after the motion for a change of venue was made.

Hon. A. E. Weathersby, Judge. Suit by W. F. Kohler against Jerry Oliver. From a judgment for defendant; plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. R. F. Jackson, Judge. Suit by J. A. Cox 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.

Hon. Frank Everett, Judge. Suit by Holmes Bros, against Neal McCall. From a judgment for defendant, plaintiff appeals.

Hon. W. H. Hughes, Judge. Suit hy S. F. Thigpen against J. O. Denson. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

' Hon. B. W. Ctjtrer, Chancellor. Petition seeking the probate of a claim by the Mississippi Central Bailroad Company against L. P. Conner, receiver of the First Natchez Bank. From a decree sustaining a demurrer to the petition, and dismissing the petition, plaintiff appeals. The facts are fully stated in the opinion of the court. The petition, as we submit, presents several grounds of relief.

Hon. J. D. Carr, Judge. Action between F. W. Williams and the Meredian Lights Bail way Company. From a judgment for defendants, plaintiffs appeal. The facts are fully stated in the opinion of the court.

Hon. W. H. Potter, Judge. Suit by Gr. D. Purser against E. B. Yarbro. Prom judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. C. G. Tann, Chancellor. Petition by W. E. Baskin and R. É. Wilbourn, partners doing a law business as Baskin & Wilbourn against E. P. Anderson, State Bank Examiner, Liquidator of the Bank of Newton. Prom a decree overruling a demurrer to the petition, the defendant appeals.

Hon. H. H. Rodgers, Judge. Suit by Margaret Hawkins against the Illinois Central Railroad Company. From ,a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. Claude Clayton, Judge. Suit by J. L. Dickerson against the Western Union Telegraph Company and the Postal Telegraph Cable Company. From a judgment for defendant, plaintiff appeals. See also 111 Miss. 264. Plaintiff J. L. Dickerson filed suit in the circuit court of Lee county against the Western Union Telegraph Company and Postal Telegraph Company for damages for the failure to deliver a message from E¡.

<p>Appeal from the circuit court of Union County.</p> <p>Hon. J. Bates, Judge.</p> <p>Suit by W. M. Wills, sheriff, for use of J. A. Jumper, against the New Albany Wholesale Grocery Co. and others. Prom a judgment for plaintiff, defendants appeal.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>The matter of the return of the bond as directed by the statute has been passed on by this court as early as 1846, under a statute almost identical with the one referred to above 'lifts Case, 7 S. & M. pp. 91, 2143, Code 1906, holding that the return of the bond with the execution, or attachment was jurisdictional, to the same effect was the holding of the court in the Butler Case, 51 Miss. 47, a case almost, or quite on “all-fours” with the case, at bar, it ought to settle this case without further argument, or consideration, etc. If our contention is right as to the return of this writ, or the failure to return it, as required by said statute, then the lower court had no jurisdiction to try the case and the bond could not become the basis of a suit at law until returned as directed, etc. If a sheriff is' allowed to take a bond (a public record), and stick it down in his pocket, or pigeonhole it in his office for years, giving out a copy of it in the meantime to attorneys, for the purpose of suing on it, and -then misplace the same bond and thus deprive defendants of their rights in the matter of getting it into' the court, etc., then the statute is a vain thing.</p> <p>The burden was on plaintiff, (as a condition precedent), to show that the bond had been properly returned. In fact this should have been alleged in the declaration; without this allegation no cause of action was stated. Butlers Case, supra, 51 Miss. 47.</p> <p>It was fatal error to instruct the jury to return a verdict for appellee, plaintiff below, under the condition of the pleadings and proof in the case, etc.</p> <p>To defendant’s special plea, “that the bond had never been returned in accordance with the statute” appellee replied with his amended declaration, filed thereafter, setting out fully the conditions of the bond and stating that the bond was at the time it should have been returned temporarily lost, and stating that when it was found that it was then properly returned to the justice court on December 2, 1912, and that the original bond and written selection were then and there filed and sent up by the justice to be and was filed in the circuit court as a part of the records in this suit. This is a complete answer to appellant’s special plea.</p> <p>The statement of appellant’s special plea that “a failure to return the bond makes it null and void” is not a statement borne out by the law.. *</p> <p>There is no condition in the bond that it should be filed or returned before liability attached and this condition cannot be read into it. No indorsement that, the sheriff or justice could have put on it would-have affected its validity after it was executed and delivered. Garter v. Noland, 6 L. E. A. 693; Boykin v. State, 50 Miss. 375.</p> <p>Section 2144 of Mississippi Code of 1906 follows: ‘ ‘After the execution of such bond, the defendant in the execution or attachment shall be barred of any claim against the officer so seizing or selling the property, unless the obligors in the bond be or .become insolvent, or the bond be otherwise invalid; and the defendant in execution or attachment may sue on the bond in the name of payee, for his use, and recover double damages for the loss he has sustained by the seizure or sale of the property.” This section authorizes suit on the bond, regardless of whether it has been returned.</p> <p>There are two separate estopples that are fatal to appellant in reference to this bond; First, appellant’s attorneys under whose direction the sheriff was working instructed the sheriff, To keep this bond for his protection” and they are now estopped in law and good-conscience from saying that it ought to have been returned and filed with the justice of peace. However, this very thing was done, as soon as the bond which was temporarily lost was found.' Second, appellant is estopped to claim the bond was not returned at the proper time, because appellant through their attorneys received full benefits therefrom.</p> <p>‘Acceptance of any benefit from a transaction or contract with knowledge or notice of the facts and rights will create an estopple.” 10 E. C. D. 694.</p> <p>“One is held to a representation made or a position assumed where otherwise inequitable consequences would result to another, who having the right to do so under all the circumstances of the case, has in good faith, relied thereon.” 10 E. C. L. 689; American Gas é V. M. Go', v. Wood, 43 L. E. A. 457.</p> <p>“That a man should be allowed by his own speech and conduct to lead another astray, and thereby take substantial benefit from the error of which he was the cause, is subversive of natural justice.” Caswell v. Fuller, 77 Me. 105; Stanwood v. Mclellan. 48 Me. 275; Aetna Insurance Go., 30 N. T. 136-164; Marston v. Kennebec Mut. Life Ins. Go., 89 Me. 266; Travelers Indemnity Go. v. Fawkes, 45 L. E. A. (N. S.) 331.</p> <p>“The obligors on a bond, that is, the principal and his sureties are estopped from denying the recitals contained therein, and cannot defeat their liability because of some irregularity in the proceedings in which the bond origináted.” 10. E. C. L. 812.</p> <p>This bond certainly had the effect in the proceedings to deprive plaintiff of his legal exemption and defendant got the money, and a's between defendant and plaintiff, defendant certainly will not be allowed to successfully complain. Bank v. Oneal, 89 Miss. 54, 38 So. 630; Parsons, May-Oberschmidt v. Furr (17285), 70 So. 895; Carlisle v. Silver Greek, 85 Miss. 380, 37 So. 1015.</p> <p>There are three reasons why this case is different from the case of Butter v. Alcus, cited in 51 Mississippi, 47. First: In the Butler v. Alcus case, the bond was never returned but in the ease at bar, immediately, when the bond which had been lost was found it was returned to the justice court, filed and also sent up to the circuit court and there filed and was produced and used on the trial of this ease. -Second: In the Butler v. Alcus case, the court held as a matter of fact, “There was no ■evidence that the bond had ever been taken and returned, as the law required, and that the plaintiff had been ■damnified,” but in the case at bar, plaintiff specifically provided by ex-sheriff Wells that on written demand to him he demanded indemnifying bond, and the bond was regularly taken, and was the only bond taken. Page 45 Eecord. Third: In the Butler v. Alcus case, plaintiff failed to prove there was any damage to him, but in the case at bar plaintiff clearly showed that his stock .of goods was worth six hundred dollars and that he was deprived by this writ of the entire stock. So the facts are entirely different that would justify recovery in the two cases.</p> <p>The defendant offered no testimony, but rested its ease on the testimony offered by plaintiff, and on motion to plaintiff a peremptory instruction was asked and given by the court for plaintiff, for the two hundred and twenty-seven dollars and seventy-five cents.</p> <p>The court may properly direct a verdict for the full amount of the penalty, whereby uncontradicted evidence it appears that damage in excess of that sum has been sustained. 5 Cye. 855 B. Ladd v. Smith (Ala.), 10 So. 836.</p> <p>Regardless of our statute, this bond was a binding and valid obligation at common law, or as a simple written contract, which could be successfully sued upon, and on which appellee could declare. Its execution was not put in issue by a plea of non fist factum and the demurrer was properly overruled. Fenton v. Williams (Ala.), 43 So. 211.</p>

Hon. O. B. Taylor, Chancellor. Bill hy Mrs. K. Eckert against R. J. Searcy and another. Bill dismissed and plaintiff appeals. The facts are fulfy stated in the opinion of the court.. Searcy held three notes of Lewis’ for one hundred dollars each, one of which was then due in a few days, to secure the payment of ninety-eight dollars and seventy cents, the three notes being secured hy retained title to one thousand dollars worth of hotel fixtures.

Hon. J. B. Holden, Judge. Suit by Wm. A. Boyce against the Mechanics & Traders Insurance Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Our statute, section 2779, fixes the status of mortgagor and mortgagee. It is therein provided: “Before a sale under or deed of. trust, the mortgagor or grantor shall he deemed the owner of the legal title of the property conveyed in such mortgage or deed of trust.

Hon. W. A. Alcorn, Judge. Suit by Ellengton M. Fant against B. B. Warriner, receiver. From a judgment for plaintiff, defendant appeals. - The facts are fully stated in the opinion of the court.

<p>Appeal from the chancery court of Jasper county.</p> <p>Hon. G. C. Tann, Chancellor.</p> <p>Suit by Gilchrist-Fordney Company against S. F. Thigpen and others. From a judgment for defendants, complainant appeals.</p> <p>The facts are fully stated in the opinion of the court.</p>

Hon. E. L. Brien, Judge. Action of replevin by C. B. Clark, trustee against C. A. French trustee. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We believe that the trial court, in making its rulings, assumed, the absolute truth of Clark’s testimony, and he would not have been justified in granting the instruction upon any other assumption.

Hon. E. N. Thomas, Chancellor. Suit between the Vincennes-Mississippi Land & Lumber Company and Calhoun Wilson and others. Prom a judgment for the former, the latter appeals. The facts are fully stated in the opinion of the court.

Hon. J. A. Mat, Chancellor., Suit by C. W. Partee, Sr., against Mrs. Mattie E. Partee. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Suit by tbe Peoples Bank of Waynesboro against David Moreland and others. From a judgment for plaintiff, defendants appeal. Tbe facts are fully stated in tbe opinion of tbe court. The appellee’s attorneys seem to be laboring under the impression that this case is being heard upon an issue of facts, when it is only upon the pleas to the declaration and the demurrers to the pleas.

• Hon. A.. J. McIntyre, Chancellor. Bill by W. D. Brown and others against J. W. Wesson, H. C. Stovall and another in which defendants named, answered with a cross-hill. From a decree dismissing the bill in part, plaintiffs appeals and defendants cross-appeal.

■Hon. W. A. Alcorn, Judge. Suit hy Burch Williams against the Yazoo & Mississippi Valley Eailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. J. H. Neville, Judge. Suit hy the Gulfport Fertilizer Company against J. A. McMurphy. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. E. I). Dinkins, Judge. Mandamus hy J. Hieskell Weatherford against the Board of Supervisors of De Soto County and others-From a judgment for petitioners, the county appeals. The facts are fully stated in the opinion of the court. This is one of the cases in which a full statement of it is about the best argument that can be made. When chapter 149, Acts of 1910, is construed, the case settles itself.

Hon. E. D. Dinkins, Judge. Petition by Pidgeon-Thomas Iron Company to the Board of Supervisors of De Soto County. Prom an order of the board adverse to petitioner, it appealed to the circuit court where it had judgment and from this judgment the board of supervisors appeal.

Appear from the circuit court of Smith county. Hon. W. H. Hughes, Judge. Petition by Arthur J. Cox to Board of Supervisors for chang'e in the assessed valuation of land, relief denied, and on appeal to the circuit court order reversed and reduction granted and board of supervisors appeal. Appellee filed his petition before the board of supervisors of Smith county at the August, 1916, meeting praying for a change in the assessed valuation of his lands.

Hon. O. B. Taylor, Chancellor. Suit by Earl Mallett and others against the United States Fidelity & Guaranty Co., and another. From a decree for plaintiffs, the defendant appeals. The decree awarded a recovery to appellees against C. J. Mallett .for one thousand, six hundred and seventy-three dollars, and fifty-four cents, and against appellant, the surety on his guardian’s bond, for one thousand, two hundred dollars, the amount of the bond. The surety company alone appeals.

Hon. Paul B. Johnson, Judge. Suit by A. B. Nix against P. M. Ikler. From a judgment for plaintiff, defendant apepals. This is an appeal from a judgment in the circuit court in favor of appellee for the sum of one thousand, five hundred dollars for injuries received by him while employed in appellant’s sawmill.

Hon. E. W. Cutrer, Chancellor. Suit by J. G. Fortenberry against Mrs. L. Gr. Davis and another. Held: conceding that the situation is such that Feed had a legal right to demand a passage through the land of appellant, he can only procure it by proceeding to have, a private way established in accordance with section 3901 of the Code of 1892, or section 4411 of the Code of 1906. “Implied reservations are not favored as against the…

<p>Appeal from the circuit court of Lauderdale county.</p> <p>Hon. W. W. Venable, Judge.</p> <p>On Suggestion of Error, see 74 So. 422.</p>

Hon. J. L. Bates, Judge. Suit by W. T. Smith against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. This is an appeal from a judgment for seven hundred and fifty dollars for actual and punitive damages alleged to have been sustained by the appellee because of the negligence of the appellant in delivering certain shipments of cattle shipped from Lamar, Miss., to National Stockyards, 111.

Hon. J. F. McCool, Chancellor. Suit by Tchula Co-operative Stores against the Southern Realty Company. From a decree overruling a demurrer to the bill, defendant appeals. The appellee is a corporation organized and existing under and by virtue of a charter granted to it by the state of Mississippi, on the 3rd day of November, 1888.

Hon. “J. G. McGowen, Chancellor. Bill by Elisha Godwin and others against Sam Hill and others. From a judgment for plaintiffs, defendants appeal. Appellees were complainants in the court below, and appellants were defendants.

Hon. A. J. McIntyre, Chancellor. Suit for injunction by J. L. S. Rodgers and others against the board of supervisors of Union county. From' an order dismissing an injunction, plaintiffs appeal. The facts are fully stated in the opinion of the court.

Hon. R. W. Cutrer, Chancellor. Suit hy Mary Chisholm against Elliott Chisholm. Motion to dismiss hill overruled and defendant appeals. Appellee filed a hill in the chancery court praying for a divorce from appellant and for custody of their children. Appellant demurred to the bill, and the court overruled the demurrer, whereupon appellant filed an answer, denying all the allegations of the bill of complaint.

Hon. W. M. Denny, Chancellor. Suit for injunction by John H. Lang against the board of supervisors of Harrison county. From a decree sustaining defendant’s separate demurrer and dismissing the bill, plaintiff appeals. The appellant filed a bill in the chancery court of Harrison county seeking to enjoin the board of supervisors from issuing road bonds in districts Nos. 14 2, and 3 of said county under chapter 172 of the Laws of 1916.

Hon. Claude M. Clayton, Judge. Petition by D. E. Clark and others, drainage commissioners, against Johan Schlicht to condemn land for the construction of a drain. Award in eminent domain court for defendant for six hundred dollars and he appealed to the circuit court, where upon trial de novo, judgment was awarded for defendant for eight hundred and thirty-three dollars and sixty-four cents and defendant appeals. ' The facts are fully stated in the opinion of the court.

Appear from the chancery court of Adams county. Hon. E. W. Cutrer, Chancellor. Suit by Mrs. Mary Sawyer against L. P. Conner, receiver of the First Natchez Bank. From a decree dismissing the petition, the complainant appeals. Appellant, Mrs. Sawyer, a resident of Natchez, Miss., was the owner of a house covered by a policy of fire insurance in the Caledonia Insurance Company.

Hon. O. B. Taylor, Chancellor. Suit by Letita King, Administratix of the Estate of C. L. King against J. M. Kellogg, executor of the estate of M. R. Miles. From a decree for plaintiff, defendant appeals and complainant cross-appeals. The facts are fully stated in the opinion of the court.

Host. J. D. Carr, Judge. Suit by George Alig against H. C. Lackey. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinión of the court.

<p>Descent and Distribution. Preference of whole Mood. Statute.</p> <p>Under Code 1906, section 1649, providing that the descendants of the sister or brother of the intestate inherit in equal parts among them their deceased parents, share and section 1650 providing that there shall be no distinction between the kindred of the whole and half blood, except that the kindred of the whole blood, in equal degree shall be preferred to the kindred of the half blood in the same degree and section 1653, providing that personalty shall descend as realty and section 1655, providing that all illegitimates shall inherit from their mother, and from her other chidren, and from her kindred, according to the statutes of descent and distribution; the illegitimate son of a sister of 'the whole blood with intestate took the intestate’s personalty to the exclusion of the children of a sister of the half blood with the intestate where both sisters predeceased the intestate and she died without children or descendants of children.</p>

Hon. E. N. Thomas, Chancellor. Bill by Mrs. Kate C. Archer against the Southern Railway Company, in Mississippi. Prom a decree dismissing the bill, complainant appeals. The facts are fully stated in the opinion of the court. Appellant bases her claim upon the following propositions of law: First: Under the deed from Deaton & Skinner to the Georgia Pacific Railway, defendant’s predecessor in title, which deed is Exhibt A to the original bill, no riparian rights were granted.

Hon. E. L. Brten, Judge. •Action by Olive Buford, by next friend, against the Yalley Dry Good Gompany. Held: that unless a plaintiff proved the identical words laid in the declaration, he failed in supporting his action, but this strictness has long been relegated, and it is now sufficient, as is conceded by the defendant’s counsel, if the plaintiff proves that the defendant spoke words substantially the same as those laid in the…

Hon. O. B. Taylor, Chancellor. Suit by Edward- F. McQuaid against the St. Paul Fire & Marine Insurance Company. From a judgment for plaintiff, defendant appeals. Held: in our judgment, that one who. answers a telephone call from the place of business of the person called for and undertakes to respond as his agent is presumed to speak for him in respect to the general business carried on by such person at that place. This is a new rule of agency. 27 L. R. A. (N. S.) 1110.

Hon. F. E. Everett, Judge. Certiorari by Frank Word and others against the Board of Supervisors of Sunflower county. From a judgment for plaintiff/ defendants appeal.

Hon. P. B. Johnson, Judge. Suit by Mrs. William J.’ Meyers against the Gulf & Ship Island Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We will consider the several assignments of error in the order assigned. First, the trial court erred in refusing the requested peremptory instruction to find for defendant.

Hon. D. M. Russell, Chancellor. Suit by Jefferson Davis county against the United States -Fidelity & Guaranty Company .and another. From a judgment for plaintiff, defendant appeals. This is the second appeal of this case. The first, appeal will be found reported in Jefferson Davis County v. Burkett, 109 Miss. 436, 69 So. 223. The allegations, of the bill are fully outlined in the former opinion. B..

<p>Appeal from the chancery court of'Bolivar county.</p> <p>Hon. Joe May, Chancellor.</p> <p>On suggestion of error. For former opinion see 112 Miss. 660.</p>

Paul B. Johnson, Judge. Suit by J. D. Jarreau against the city of Hattiesburg. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

circuit court of Hinds county. Hon. W. H. Potter, Judge. Suit by Mrs. A. M. Oglesbee against J. N. Ambrose. Prom a judgment for defendant, -plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. J. D. Carr, Judge. Suit by S. F. Bowser & Co. Incorporated, against W. J. Munn. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We submit that the appellee cannot maintain its replevin suit.

Hon. A. E. Weathebsby, Judge. B. B. Ball demurred to the affidavit charging him with obtaining property under false pretense and the demurrer being sustained, the state appeals. The facts are fully stated in the opinion of the court. I presume that the second ground of the demurrer was the one upon which the court acted in sustaining the demurrer.

Hon. P. B. Johnson, Judge. Jessie Fairley was convicted of selling intoxicating liquor and appealed. On Motion. The facts are fully stated in the opinion of the court. The appellant was convicted at the March, 1916, term of the circuit court of Forrest county for retailing and sentenced to pay a fine of one hundred dollars and thirty days in jail. Appellant took the pauper’s oath and filed petition for appeal to the supreme court.

Hon. H. H. Bodgers, Judge. Suit by C. A. Bauer against, the Illinois Central Bailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court,

Hon. Claude Clayton, Judge. Suit by the Lann & Carter Hardware Company against Mrs. James Carberry, Administratrix of the estate of James Carberry deceased. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. W. H. Hughes, Judge. Roseoe Boykin was indicted, a demurrer to the indictment was sustained and the state appeals. The facts are fully stated in the opinion of the court. Held: “The fact that Hiram Creekmore was, at the time of the issuance of the writ of attachment which is assailed in the cause, acting as deputy for his father, and was generally recognized by the public as the deputy clerk, is too clearly shown by the evidence to admit of controversy.

Hon. Joe Mat, Chancellor. Suit by Wirt Adams, State Revenue Agent, against the Lamb-Fish Lumber Company. From a judgment, for the defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. Paul B. Johnson, Judge. Suit by W. C. Cole against A. S. Barrett and another, in which an execution was levied on property claimed by Pauline Barrett. From a judgment for plaintiff;, the claimant appeals. The facts are fully stated in the opinion of, the court. There is but one proposition in this case and that is, was Pauline Barrett’s piano liable for the debt of her father? I submit that a minor in Mississippi can own property.

Hon. Claude Clayton, Judge. Suit by Mrs. James Carberry, administratrix, against J. A. Howell. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. As to the application of the thirty-nine d'ollar payment.

Hon. Claude Clayton, Judge. Suit by W. J. Beeves, trustee, against Evans Hath-cock. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The trustee was the proper person to bring this suit' for the legal title to the cotton was vested in him by the deed of trust; and the fact that the mortgagor raised other cotton, not shown to have been assessable here, subject to the deed of trust is no defense to this action.

Hon. J. H. Neville, Judge. Petition by Antonio Grandicli and wife for mandamus against Charlie Moreau and others, school trustees. Prom a judgment granting the-writ, defendants appeal. The facts are fully stated in the opinion of the court.

<p>1. Pakent and Child. Authority of parent to ratify sale of land.</p> <p>A marriéd woman who was not the guardian of her children by a former marriage has no. authority on behalf of the children to ratify her husband’s act in giving an option on land owned by the children and herself.</p> <p>2. Pbincipal and Agent. Delegation of authority.</p> <p>Even though a married woman might be the agent of her minor children by a former marriage, this would not justify her husband in also acting as their agent, since delegated authority cannot be delegated.</p>

Hon. W. A. Alcorn, Jr., Judge Suit by the American Manufacturing Company against E. P. FitzGerald. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The description of the property in the contract of sale is void. Allen v. Bichen, 63 Miss. 91; Nicholson et al. v. Karpe, 58 Miss. 1. The last mentioned decision is so close in point that the court is specially directed to the description therein. Kelly v. Reid, 57 Miss. 89.

Hon. W. H. Potter, Judge. Suit by Edna Lyles and others against the Odd Fellows Benefit Association, to recover the proceeds of an insurance policy also claimed by Susan Eubanks. From a judgment in favor of such claimant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. J. G. McGowan, Chancellor. Suit by E. G. Wallace and others against J. P. Wallace. Prom a decree for defendant, plaintiff appeals. Appellants were complainants in the court below, and appellee was defendant. The suit involves the construction of the following will: Will of James Monroe Wallace.

Hon. W. M. Denny, Chancellor. Bill by L. N. Dantzler Lumber Company against W. W. Walley & Son. From a decree overruling a demurrer to the bill, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. P. B. Johnson, Judge. W. Gr. IJammack was convicted of perpetrating a fraud by giving a worthless cheek and appeals. The appellant was tried upon the following indictment, omitting the caption, to wit: “That W. Gr.

Hon. Paul B. Johnson, Judge. Suit hy W. Fred Skaggs against the Scottish Union & National Insurance Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The subject of the controversy in this law suit was submitted to competent appraisers, who made a valid award, and both parties are bound by it.

Hon. Claude Clayton, Judge. Replevin by Albert Roberts against J. B. Gay and wife. From a judgment dismissing the case, plaintiff appeals. The facts are fully stated in the opinion of the court. We submit that the test of jurisdiction under the decisions of this court in the matter of replevin is the value of the property sued for as set out in the ■affidavit in replevin. Finny.

Hon. Claude Clayton, Judge. Lon Morgan was charged with enticing away a servant, and on arrest sued out a writ of habeas corpus against G. W. Long, sheriff. From a judgment discharging relator, the sheriff appeals.

Hon. R. C. Jones, Special Judge. Proceedings hy Mrs. Milsie Spivey against H. H. Rodgers. From a judgment dismissing the complaint, complainant appeals. The facts are fully stated in the opinion of the court. The learned counsel for appellee seems to reply ón one or two points only to sustain their client’s contention. First, because they say that the case is a suit on a declaration and not a motion.

Hon. B. W. Cutrier, Chancellor. Receivership proceedings, wherein L. P. Conner, as receiver of the First Matches Bank, filed exceptions to a claim of the Commercial Germania Trust & Savings Bank of New Orleans, Louisiana. From a decree rendered, the Trust & Savings Bank appeals. The facts are fully stated in the opinion of the court. A mere statement of this case is its argument.

Appeal- from the chancery court of Warren county. Hon. E. N. Thomas, Chancellor. Suit by Andrew Martin against Lucy L. Graham. From a decree for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The question here is not what did the parties intend to say in the instrument at issue, nor what did they intend the instrument to be, but what is the nature of the instrument in legal contemplation.

Hon. G. O. Tann, Chancellor. Suit by Mrs. L. E. Smith and others against Herbert Gillis, Guardian of Jack C. Jarvis, Jr., and others. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. P. Z. Jones, Chancellor. Suit by R. F. Hargraves against John B. Smith and wife, in which the wife died during the pendency of the suit and it was revived against her heirs. From a judgment for plaintiff, defendant appeals. The fact are fully stated in the opinion of the court.

Hon. W. A. Alcorn, Jr., Judge. Suit by Mrs. Nellie Town against H. Lupkin & Son, brought in a justice court and appealed to the circuit court. From a judgment in the circuit court dismissing the case, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. J. G. McGowen, Chancellor. Partition suit by Mrs. Etta Billingsley and others against W. B. Billingsley. From the part of the decree allowing complainants attorneys fee, defendant appeals. This was a suit for partition filed in the chancery court by appellees against appellant.

Appeai from the circuit court of Copiah county. Hon. Luther L. Tyler, Special Judge. Will Welch and Altha Tillman were convicted of unlawful cohabitation and appeal. The facts are fully stated in the opinion of the court.

Hon. W. B. Ecicles, Judge. - Arthur Garfield was convicted of selling intoxicating liquors and appeals. The facts are sufficiently stated in the opinion of the court. We note that the assistant attorney-general admits that this case comes directly under the provisions of the Luther Jones Case, 66 So. 1915C, page 648; that is, it represents a direct effort to convict on an affidavit charging a sale of liquor on proof of a bona-fide loan.

Hon. O. B. Taylor, Chancellor. Suit by the state of Mississippi and Hinds county, upon the relation of Stohes y. Robinson against Clara Miller. Demurrer to bill overruled and defendant appeals. The facts are fully stated in the opinion of the court. The chancery court is given jurisdiction of suits of this character on the fundamental ground of abating a nuisance.

Hon. H. H. Rodgers, Judge. Suit hy D. E. Bailey against the Scottish Union & National Insurance Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We respectfully insist from this record that no waiver was proven, that as far as the language sworn to hy Sides is concerned, alleged to have been used by Prewitt, it has no reference in the world to the policy.

Hon. R. W. Ctjtrer, chancellor. Bill hy Brooks-Scanlon Company and others against H. T. Stoger. From a decree for defendants, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. B. W. Cutrer, Chancellor. Suit by the Interstate Trust & Banking Company dgainst the German-American Bank and Abe Cohn. Interlocutory appeal by defendant bank from an order ■ setting aside a sale of lands. The facts are fully stated in the opinion of the court. It is too late at this second sale to raise any question of the construction of these decrees — they had been construed and construed by the court.

Hon O. B. Taylor, Chancellor. Suit hy J. C. Joiner against the Commercial Bank & Trust Company and others. From an order overruling a demurrer to the bill, defendants appeal.

Hon. E. W. Heidelberg, Judge. Suit by H. L. Hopper against Wayne County. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. A..J. McIntyre, Chancellor. Bill by Mrs. Sallie Cooper and others against J. G. Bell and others, to contest codicil to will of J. G. Bell, Sr. From a decree sustaining the codicil, complainants appeal. The facts are fully stated in the opinion of the court.

Hon. A. J. McIntyre, Chancellor. Petition by Tynes Phillips, minor, by next friend, H. S. Phillips, against W. D. and Odie Tynes, executors, to construe will of W. D. Tynes, Sr. From the judgment, petitioner appeals.

Hon. E. D. Dinkins, Judge. Suit by S. M. Jones 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. Laws of Mississippi 1908, chapter 88, providing for the building of spur tracks by railroad companies so as to connect their main Une with manufacturing or other industrial plants, and for the mVntenance of same when constructed, is unconstitutional.

Hon. Claude Clayton, Judge. Suit by H. L>. Campbell against tbe Mobile & Ohio Railroad Company. From a judgment for plaintiff, defend- ' ant appeals. Tbe facts are fully stated in tbe opinion of -tbe court. We will present to tbe court together tbe refusal of tbe court below to grant tbe peremptory instructions for tbe defendant, and tbe overruling of tbe motion for new trial.

<p>Appeal from the chancery court of Bolivar county.</p> <p>Hon. Joe May, Chancellor.</p> <p>On motion to correct former judgment. See 112 Miss. 660, for former opinion.</p>

Hon. W. H. Hughes, Judge. Suit by George William Beiser against Supervisors District No. 2, Smith County. From a judgment, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. W. M. Denny, -Jr., Chancellor. Suit by John B. Clark as sheriff and tax collector,of Harrison county against the Bank of Commerce and others. From a decree overruling a demurrer to the bill, defendants appeal. The facts are fully stated in the opinion of the court.

Hon. J. B. Holden, Judge. Suit by Mary Willie Johnson, by next friend, against McTighe, Hughey &■ McTighe. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. •The universal rule seems to be that the fact that the same or another person for whom the defendant is responsible did a similar negligent act or showed similar negligent management is irrelevant and cannot be shown. Maltón v. Nesbit, 11.

Hon. E. Y. Hughston, Special Judge. Levy of execution by L. H. Doty wherein the Enterprise Timber Company was claimant. From a judgment for claimant, .plaintiff in execution appeals. The facts are fully stated in the opinion of the court. It being’ conceded by all the parties hereto, that the judgment, execution, and levy were in all things legal and valid; the only points of inquiry presented by this appeal, are briefly as follows: 1.

Hon. J. H. Neville, Judge. Suit by It. E. Collins against B. B. Williams & Co. Erom a judgement for plaintiff, defendant appeals. Appellee was plaintiff in the court below, and appellants were defendants. This suit was filed for damages growing out of the alleged entering by the defendants upon the property described in the declaration and alleged to be the property of the plaintiff and boxing certain pine trees for turpentine purposes.

Hon. R. E. Jackson, Judge. Suit by J. W. Calcóte and others against Elizabeth Stampley and others. From a judgment for defendant, plaintiff appeals on motion .to docket and dismiss appeal. The facts are fully stated in the opinion of the court.

Hon. W. A. Alcorn, Judge. Suit by Mrs. Lizzie Houston against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

Hon. W. M. Denny, Jr., Chancellor. Suit by John B. Clark and others against D. T. Russel and others. From a decree for complainants, defendants appeal. And complainants cross-appeal. One Reeves was tax collector of Harrison county during the years 1910 and 1911, and appellauts and appellees were sureties on his official bond.