Volume 115 — Mississippi Reports

Hon. J. H. Neville, Judge. Suit by C. J. Strickland against the Gulfport Turpentine Company. Prom a judgment for- plaintiff, defendant appeals.

Hon. A. Y. Woodward, Chancellor. Bill by Carrie Applewhite and others against C. C. Kelly and others. Demurrer to bill being overruled, defendants appeal. The facts are sufficiently stated in the opinion of the court.

Hon. F. E. Everett, Judge. Replevin by Mrs. Homer B. Forrest, administratrix of the estate of Homer B. Forrest, deceased, against Mrs. Annie Hunter. Judgment for claimant allowing recovery of part of the property involved, defendant appeals .and claimant cross-appeals. The facts are fully stated in the opinion of the court. The only question involved in this suit is, to whom does the property herein involved belong?

Hon. J. B. Holden, Judge. Suit by A. E. Ainsworth against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We respectfully submit to the court that the court below erred in overruling the motion made by the defendant at the close-of plaintiff’s testimony to esclude the evidence and instruct the jury peremptorily to find a verdict in favor of the defendant.

Hon. A. E. Weathersby, Judge. Attachment suit by O. Gr. Jolly against Gr. R. Terry. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The first question necessarily arises from an investigation of the record on the attachment issue. Was this attachment rightfully sued out?

Hon. E. F. Everett, Judge. Suit by tbe Bank of Hickory Flat against W. T. Adair. From a judgment for plaintiff, defendant appeals. Tbe facts are fully state in tbe opinion of tbe court.

Hon. F. E. Everett, Judge. Blackie Borowitz alias Ed. Cameron, was convicted of murder and appeals. The facts are fully stated in the opinion of the court.

Hon. W. H. Potter, Judge. Suit by T. C. Holliday against, the Maryland Casualty Company. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The last charge is the one charge which appellant is aggrieved at.

<p>1. Reformation of Instruments. Voluntary conveyances.</p> <p>The general rule that voluntary conveyances being without consideration gives • the grantee no right to reform without the consent of all parties, applies only in cases between'the donor and donee.</p> <p>2. Same.</p> <p>This rule does not apply to conveyances in execution of a family settlement.</p> <p>3. Same.</p> <p>Complainant, a voluntary grantee of his deceased mother, had the right to have the deed reformed as against his brother, also a voluntary grantee from his mother, where it clearly appears that through mistake the deed failed to carry out the intention of the donor.</p>

On Suggestion oe' error. Tliis is a suit to recover the twenty-five dollars, statutory penalty for the appellant’s failure to deliver a message under Laws 1908, chapter 76, page 65, which reads as follows: ‘ ‘A telegraph or telephone company shall deliver all messages addressed to a person residing or having a place of business in any city, town, or village where it may have an office, or within one mile of its office; and if any telegraph or telephone company shall receive…

Hon. E. M. Heidelbtjrg, Judge. Suit by Mrs. Ether Farrior against the Mobile & Ohio Eailroad Company and another. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

' Hon. O. B. Taylor, Chancellor. Bill by the Mobile & Ohio Railroad Company and another against the Mississippi Railroad Commission, to enjoin the commission from executing* its order requiring* the erection of a passenger and freight depot and alteration of tracks. From an order making the injunction perpetual, the commission appeals. The facts are fully stated in the opinion of the court.

Hon. D. M. Russell, Chancellor^ Bill .by Trustees of Walton School and others against the Board of Supervisors of Covington County and others. Bill dismissed and petitioners appeal. Held: and confirmed from a negative'view of the case it was certainly the duty of the court to give the affirmative relief, or vice versa.

Hon. J. D. Carr, Judge. Attachment hy W. A. Turner against J. J. Crane. Prom a judgment awarding defendant damages for the wrongful suing out of the attachment, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. O. B. Taylor, Chancellor. Suit by H. S. Orr against the Jackson Jitney Car Company and another wherein one Dumford intervened. From the judgment rendered, Orr and Dumford appeal. Held: however, that where a seller sell§ personal property to one whom he authorizes to resell it, and the same is resold, the retention of title by the first seller loses its efficacy. Columbus Buggy Go. v. Turley, 73 Miss. 529; Parry Mfg. Go. v. Lowenberg, 88 Miss. 532.

Hon. J. H. Neville, Judge. Suit by Abasi Bros., against the Louisville & Nashville Railroad Company. From a judgment for defendants, plaintiff appeals. The facts are fully stated in the opinion of the court.

<p>Appeal from the circuit court of ‘Washington, county.</p> <p>Hon. F. E. Everett, Judge.</p> <p>Suit by L. Herzog & Brothers Dry Goods Company, against Robert Doyle. From a judgment for plaintiff, •defendant appeals.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>This suit is a controversy over interest in the sum of sixty dollars and eighty-five cents on an account for the sale of merchandise. Two errors are assigned: First, the court below erred in rendering a judgment in favor of plaintiff and against defendant for the interest, being the sum of sixty dollars and eighty-five-cents; second, the court below erred in rendering a judgment in favor •of the plaintiff and against defendant for costs.</p> <p>As the second assignment stands or falls with the first, we shall confine our observations mainly to the latter, giving to the other only a brief mention in ■closing.</p> <p>The defendant, appellant here, seeks to avoid the payment of this interest because of a violation of section 2678 of the Mississippi Code of 1906, as amended by ■chapter 229 of the Acts of 1912. In the statement of facts, shown on pages 11 and 12 of the record, it is agreed that plaintiff, appellee here, charged, and rendered invoices and accounts to appellant for interest in a sum greater than eight per cent, per annum. Chapter 229 of the Acts of 1912 as announced in Ford v. Waterworks Co., 102 Miss. 717, embraces two classes of persons who come under the condemnation of the statute First, those who contract to receive a rate of interest in excess of that allowed by law; and, second, creditors who receive a rate of interest greater than that allowed by law.</p> <p>The law as now existing was not in force when the case of Planter’s Bank v. Snodgrass, 4 Howard, 573, was decided. The law under which that case was decided being found in the revised Code of Mississippi of 1823, pages 460 and 461. The law then in force did not embrace the second class of persons named, and we are not to be considered as calling into question the soundness of the court’s decision in the Planters bank ease.</p> <p>It is agreed in the statement of facts, already referred to that appellant never at any time agreed to pay excessive interest: Hence, we may eliminate from our consideration the first class of cases mentioned in the Water Works ease, which restricts the present inquiry to whether appellee’s claim comes under the condemnation of the second class.</p> <p>It is well to note here that it is well settled, by a long line of decisions of this court, that if it is shown that usury existed in any particular the entire contract is tainted, and this we take to be too well established for argument or citation of authorities.</p> <p>It is admitted that an amount exceeding all interest, and interest charges, still remains unpaid. Did appellee then receive a rate of interest greater than that allowed by law?</p> <p>That appellee was charging excessive and illegal interest, is admitted; but it will be contended that the payments, in contemplation of the law, were to be applied to the valid part' of the demand and not to the illegal portion. Our answer is that appellee did not do this, .and there is nothing in the record to justify a supposition, or even a suspicion, that he did. Certainly it can-mot be maintained that appellee could not have applied the payments to the illegal interest if he so desired. If he then, in point of fact, did so, there is nothing left for the law to contemplate or presume.</p> <p>In receiving the payments, what was appellee’s intension, and in fact, his action regarding their application? ‘Can it be contended for a moment that he intended to apply, or did apply, the payments to the extinguishment of the principal before paying the interest? Such a view would be contrary to universal custom and in direct contradiction to natural law. It would suggest to ■even the simplest mind the ridiculous spectacle of killing a bird and leaving its tail to fly around in space.</p> <p>How then, can appellee, in view of his own conduct, he heard to'say that he is not'guilty of receiving greater interest than the law allows. Moreover, section 2681 •of the Mississippi Code of 1906, expressly provides that payments are first to be applied to the interest, and the statute does not specify the nature of the interest, whether legal, contract or excessive.</p> <p>But we do not admit the soundness of- the contention that the law, regardless of what appellee may have done, will apply the payments to the valid part of the demand and not to the illegal portion. In cases of this kind in which the creditor has applied the payments to the illegal items, there would be merit in the contention that the court would, at the instance of the debtor shift the payments and apply them to the legal items. It. .seems to us elementary that the debtor would have such .a right. But we have no such request from them here. Appellant is not asking the court to disturb the application of the payments, and we are confident that the •court will not countenance such maneuvers on appellee’s part to escape the consequences of his own misconduct.</p> <p>It will also be contended that this case does not come within the second class mentioned in the Water Works case for the reason that the debtor cannot sue and recover back the interest illegally paid. The reason is good but the conclusion is wrong. The cause of this is that the right of the creditor to retain the money paid is evolved from the doctrine of setoff, the debtor still being indebted, and not from any lack of application of the principle asserted by appellant.</p> <p>To hold contrary to appellants view would impose upon a debtor the useless and hazardous burden of paying all of the legal demand and a part of the illegal demand before he could avail himself of the usury statute. Under such a construction, just so the illegal performance was consummated the former debtor could sue and recover back all interest paid; but so long as any part of the transaction remained incomplete be could not avail himself of the defense of usury, -though at such a stage it could be done without litigation. Under such a rule, the honest man who would not conceal his intention of availing himself of his creditor’s unfairness would find far less favor with the law than the crafty dishonest one, for such a decision would not only encourage litigation, but would furnish a ready incentive to trickery, duplicity, and deception.</p> <p>The statute under which usury is claimed by appellant is contained in the Laws of 1912, chapter 229, the .part relating to this case being as follows: “If a greater rate of interest than eight per cent, per annum shall be stipulated for or received, in any case, all interest shall be forfeited, and may be recovered back, whether the contract is executed or executory.”</p> <p>As stated by appellant, the agreed statement of facts shows that there was no stipulation for excessive -interest, so the only question before the court is whether or not interest above eight per cent, per annum was received.</p> <p>As this amount on July 1, 1915, was seventy-six dollars and twenty-six cents, and the total of all payments after that date was seventy-five dollars, it is plain that, under any possible interpretation of the statute appellee has not received a sum equal to eight per cent, per annum on its account.</p> <p>Therefore, in order for appellant to secure a reversal of this- case, he must show to the court that the mere presentation of an open account showing an interest charge greater than eight per cent, constitutes usury. The case of Ford v. Watenvorks. Company, 102 Miss. 717, decided in 1912, settles this question. The Waterworks Company brought suit for a water bill with interest, and an additional ten per cent., under their rules, for failure, to pay within a certain time. The very excellent brief of attorneys in that case showed that the authorities were uniform that the collection of this ten per cent, additional would constitute usury, and the court reversed the case because it had been allowed by the circuit judge, but rendered a judgment for the water bill and legal interest, holding that the mere claim of suit for the additional ten per cent, did not make the appellee guilty of violating the usury laws.</p> <p>The case of Puckett v. Fore, 77 Miss. 391, and numerous other cases also settled this question, by holding that- payments are applied by the law to the items of the account which are valid, and not to the illegal portion. Therefore, even under this construction, if the seventy-five dollars had been more than interest at eight per cent., the payment would have been applied to the legal part of the account, which would be the principal and legal interest and nothing to the payment of a usurious interest charged, and there could be no usury until the creditor had received payments,greater than the sum of the principal and eight per cent, interest.</p> <p>. As shown by the agreed statement of facts, there was mo usury in the various statements rendered up to July 1, 1915, at which time Mr. Doyle had paid seven hundred and fifty-three dollars and fifty cents on an account of one thousand, twenty-seven dollars and eighty-two cents, including interest, so that, if payments are applied first to the legal interest and then to the principal, he had paid all of the interest in the account except the sum of two dollars and fifty-five cents before ■any usury was ever claimed. At that time, the balance due was about two hundred and forty dollars and four •cents, which included the principl and six per cent, interest, so that, if there is any usury even under their contention, it amounts to only about two dollars and fifty-five cents as the total of interest which the circuit judge allowed which accrued after July 1, 193.5, was only this small sum.</p> <p>If we are correct in our interpretation of the law ihat payments are applied first to the legal interest and "then to the principal, this would be true of all payments made after July 1st, and therefore there could be no usury until the creditor had received payments greater than the total sum of the principal and interest at ■eight per cent, per annum. Under this view of' the case, there could not possibly be any usury, and we think this correctly states the law.</p> <p>It was Mr. Doyle’s contention, however, that the fact that they presented him an account showing an amount greater than eight per cent, as interest made the whole amount usurious, and gave .him the right to have all his payments theretofore made applied to the principal of the indebtedness, and narrowed the. issue in this case •case down to the interest. The first page of this brief, which has figures based upon that proposition, shows that, accepting this horn of the dilemma, and segregating all interests as having not been paid at all, the total payments, after the first claim of usury, were for a sum of seventy-five dollars, whereas, the interest involved at eight per cent, for the same length of time was for a sum not less than seventy-five dollars and twenty-six cents and not more than seventy-seven dollars and seventy-two cents, so that, if Mr. Doyle has the right at this late day to deny that he had paid interest, and that all amounts theretofore paid by him should have been on the principal, he has yet failed to show that creditor has received, after usury was claimed, a sufficient sum to cover interest at eight per cent., because the lowest amount, according to the figures on the first page, is .seventy-six dollars and twenty-six cents,- whereas, the dotal payment after that time was seventy-five dollars, the surplus in favor of' the creditor being one dollar ■and twenty-six cents.</p> <p>Wherefore, we say that, under any interpretation of ‘the law, no usury appears in this account.</p>

Hon. E. E. Jackson, Judge. Suit by Bartley Woods and others against John Alexander and others for damages resulting from the wrongful suing out of an injunction. Held: “The mere fact that a claim might be propounded in a suit does not make it res adjudícala if in fact it was not embraced in it.” And. cites Hubbard v. Fling.

Hon. J. F. McCool, Chancellor. The facts are fully stated.in the opinion of the court. “Surface waters are such as diffuse themselves over the surface of the ground, following no definite course or channel, and not gathering into or forming any more defined body of water than a mere bog or marsh.” 40 Cyc., page 639. “Surface water ceases to be such when it empties into and becomes part of a natural stream or lake, but it does not become a watercourse by being gathered into…

Hon. J. L. Bates, Judge. Jesse Pitts was convicted of grand larceny and appeals. The facts are fully stated in the opinion of the court.

<p>Appeal from the circuit court of Warren county.</p> <p>Hon. E. L. Brien, Judge.</p> <p>Yincent Romano was convicted of having possession of an unlawful quantity of intoxicating liquors and appeals.</p> <p>The facts are fully stated in the opinion of the court.</p>

Hon. D. M. Bussel, Chancellor. Bill hy J. M. Little against G. M. Martin, Sheriff. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. W. W. Venable, Judge. Suit by T. H. Nix, by next friend against Walker Bros. From a verdict for plaintiff botb parties appeal. The facts are fully stated in the opinion of the court. . We think the court erred in refusing instruction No. 1, asked for on the part of the defendants.

Hon. Paul B. Johnson, Judge. E. Harring’ton was convicted of perjury and appeals. Held: in Whitfield v. The State, 76 Miss. 327, 30 So. 722, and in Davis v. The State, 43 So. 81, that the record in the justice of the peace court should have been introduced.

of Lamar county. Hon. D. M. Russel, Chancellor. Suit for injunction by R. W. Hinton and others against J. C. Shedd, Sheriff of Lamar County and others. From a decree of the chancery court dissolving the injunction obtained by complainants in the court- below, complainants appeal.

Hon. Joe May, Chancellor. Two suits hy Stokes v. Robertson as revenue agent •against the F. Goodman Dry Goods Company and Greenwood Lumber Company. From orders sustaining the demurrer to the bills and ordering their transfer to the circuit court, complainant appeals. The facts are fully stated in the opinion of the court. The briefs filed in the case of the revenue agent .against The Goodman Dry Goods Company cover the •contentions involved in this case.

Hon. W. M. Denny, Jr., Chancellor. Bill by the Aetna Insurance Company against Mrs. J. M. Pelham and others. From a decree for defendants, complainants appeal.

Hon. H. H. Rodgers, Judge. Suit by the Yazoo & Mississippi Valley Railroad Company against Grenada county and others to recover laxes paid under protest. Held: following Beck v. Allen, that the general act did not repeal or take away any of the rights given by the former local law and the tax levied thereunder, was upheld. In this case, likewise, the local act had been executed and the bonds issued thereunder.

Hon. E. D. Dinkins, Judge. Quo .warranto by the state, on the relation of Ross A.. Collins, Attorney-General, against the Senatobia Blank Book & Stationery Company. From a judgment of the court sustaining a demurrer to the information and dismissing the case, the relator appeals. The facts are sufficiently stated in the opinion of the-court.

Hon. W. H. Hughes, Judge. Suit by J. S. Tullas and others against J. Cooley and others. From a judgment for plaintiffs, defendants appeal. Appellees were employed as laborers at the sawmill of appellants, and were engaged in the manufacture of lumber.

Hon. O. B. Taylor, Chancellor. The matter of the guardianship of Lenora J. Wins-low, a minor, from an order of the chancellor holding Louis Cohn surety on the guardian’s bond liable for loss of the minor’s money, he appeals. L. H. Baggett was appointed by the chancery court of Lincoln county guardian of the estate of the appellee, a minor, and executed .bond with appellant, Cohn, and one Becker as sureties on his guardian’s bond.

Hon. F. E. Everett, Judge. Suit by the Yazoo & Mississippi Valley Eailroad Company against the McG-ee-Dean Company. From an order sustaining a demurrer to the declaration, plaintiff appeals. This suit was instituted by the appellant as plaintiff in the court below, to recover of the appellee a balance alleged to be due on freight charges upon, a shipment of ■cotton. The declaration alleged that the agent had undercharged the appellee.

Hon. E. W. Heidelberg, Judge. Suit by Joe Scarlet against the New Orleans & Northeastern Eailroad Company.- From a judgment for plaintiff, defendant appeals. Appellee was a fireman upon the second engine of a double header freight train upon the appellant’s railroad. The train stopped at a small station, and in starting again the engine and tender upon which appellee was riding pulled apart, due to the breakage of the king pin, which fastened the drawbar to the tender.

Hon. J. C. Bryson, Special Judge. Suit hy A. Gr. Tillman against Joseph Lavecchia. UProm an order sustaining a demurrer to his pleas, defendant appeals. Appellee, the owner of a storehouse in Vicksburg, leased same to the appellant.

Hon. R. E. Sheehy, Chancellor. Suit by M. H. Thomason, against the Board of Supervisors of Lawrence county. From a decree for defendant, plaintiff appeals.

Hon. E. L. Brien, Judge. Sam Gilford was convicted of burglary and appeals. The evidence showed that a warehouse in the city of Vicksburg was robbed of certain groceries; that appellant had in his possession groceries of the same description in large quantities a day or two after the storehouse was robbed. There was no evidence that a lock had been broken, or window raised.

Hon. R. W. Cutrer, Chancellor. On Suggestion oe Error. Appellants, who were complainants in the court below,, filed a bill in chancery against appellee, the purpose of' which was to obtain a decree of the chancery court apportioning the accretion which had formed in front of the property on the hank of the Mississippi river, so-that they would have a water frontage on the new bed of the stream.

Appeal-from the chancery court of Harrison county. Hon. W. M. Denny, Jr., Chancellor. Suit by Thomas L. Bradley against the Richmond Paper Company. Prom a judgment for plaintiff, defendant .appeals. The facts are fully stated in the opinion of the court.

Hon. A. E. Weathersby, Judge. Suit by Warden & Barrett against the board of supervisors of Lamar county. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. E. H. Dinkins, Judge. Suit by the state of Mississippi against John H. Al■dinger for the forfeiture of a vehicle used in transporting intoxicating liquors. Prom a judgment of forfeiture, «defendant appeals. Phe facts are fully stated in the opinion of the court.

Hon. Claude Clayton, Judge. Suit by George W, Pickle against the receiver of the St. Louis & San Francisco Railroad Company. From a judgment on a peremptory instruction for defendant, plaintiff appeals. The facts are fully stated dn the opinion of the court.

Hon. H. H. Rodgers, Judge. Suit by Smith McKinnon & Son against the Palatine Insurance Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. .

Appear from the circuit court of Calhoun county. Hon. J. L. Bates, Judge. Suit by Big Creek Drug Company against the Stuyvesant Insurance Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. W. H. Hughes, Judge. ■ Suit by C. R. Rodgers against the Lumber Mineral ■Company. From’ the judgment rendered, both sides appeal. The facts are fully stated in the opinion of the court.

Hon. E. E. Jackson, Judge. Suit by Mrs. Clara J. Mullins, Administratrix of James X). Mullins deceased, against the Yazoo & Mississippi Yalley Eailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. E. L. Brien, Judge. Suit by Mrs. Lucy L- Montgomery against the New York Life Insurance company. From a judgment for plaintiff, defendant appeals. Appellee brought an action in assumpsit against the appellant, based upon two policies of insurance upon the life of her deceased husband, David Montgomery.

Hon. Joe May, Chancellor. Petition by Mrs. M. B. Hayward against H. C. Morgan and others. From an order overruling a demurrer to the petition, defendants. appeal. The facts are fully stated in the opinion of the court.-

<p>1. Appeal and Error. Law of the case.</p> <p>The well recognized rule that the court ordinarily after having laid down principles governing a case on one appeal will not review its holdings on a subsequent appeal but will ordinarily adhere to its former decision and not inquire into its correctness, is not so fixed and binding upon the court, that it may not depart from its former decision in a subsequent appeal, if the former decision in its judgment is clearly erroneous and would lead to unjust results and especially where no rights have accrued in reliance upon its former decision. '</p> <p>2. Adoption. What law governs. Inheritance.</p> <p>Where a child was adopted in the state of Kentucky, under whose laws it- inherits land from its adoptive parent, and upon its decease in infancy without issue the land so inherited reverts to the next of kin of such adoptive parent, such inheritance rules do not violate the Constitution or public policy of Mississippi, and will be applied to lands situated in this state.</p> <p>On Suggestion op Error.</p> <p>3. Courts. Previous decisions as precedents. Power to overrule.</p> <p>Under Constitution 1890, section 144, vesting the judicial power of the state in the supreme court and such other courts as are provided for in the Constitution, and under section 146, providing that the supreme court shall have such jurisdiction as properly belongs to a court of appeals there is no limit of the appellate jurisdiction that may be conferred upon the supreme court, and such court has the power to overrule or change its decision whenever they are in its opinion erroneous or wrongful; and such change of decision would not violate the rule of res adjudicata.</p> <p>4. Courts. Erroneous decisions. Litigants.</p> <p>A litigant has no vested interest in a court’s mistake where the mistake is discovered before the final ending of the litigation.</p>

Hon. W. H. Hughes, Judge. Suit between the Metropolitan Casualty Insurance Company of New York and J. B. Sullivan, on motion to strike bill of exceptions. The facts are fully stated in the opinion of the court.

Hon. T. B. Carroll, Judge. Suit hy the Southern Eailway Company in Mississippi against D. S. Pate Lumber Company. Prom a judgment for plaintiff, defendant appeals. The railway company brought this action in the court below to, recover freight charges alleged to be due on carload shipments of lumber from points in Alabama to points in Illinois and other states, via Columbus, Miss, where it was dressed in transit.

Hon. A. J. McIntyre, Chancellor. Suit by the Merchants’ & Farmers’ Bank of'Starksville against J ames W. Norment. From a decree overruling complainant’s petition to correct the decree for complainant and from the decree sought to be corrected, it ■appeals.

Hon. O. B. Taylor, Chancellor. Bill by H. H. Brickell and others against H. B. Light-cap and others. From a decree dismissing the original and amended bill, plaintiff appeals. The facts are fully stated in the opinion of the court. 1.

Hon. W. H. Potter, Judge. Action of replevin by H. H. Brickell, administrator cum testamento annexo, against Mary Y. Luckett. From a judgment for plaintiff, defendant appeals.

Hon. D. E. Dinkins, Judge. Suit by the Southern School Book Depository against J. L. Donald and others. From a judgment for defendants, plaintiff appeals. The facts are fully stated in the opinion of the court. It is the settled law of this state that, on appeal from a. justice of the peace court to circuit court a trial de novo shall he had, so that the merits of the case may be fully shown. Code 1906. section 86; Code 1906, section 775;. Russell. Admn, v. Moore, 8.

Hon. J. L. Bates, Judge. . Suit by J. L. Deister against the University of Mississippi.- From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Alcorn, Judge. Suit by G-. W. Butler against Mrs. R. Freedman, with .garnishment against the Mechanics & Traders Insurance Company and others. From a judgment for plaintiff .against the garnishees, they appeal. The facts are fully stated in the opinion of the court. We think that this case is governed by section 2353 of the Code of 1906, and the decisions thereunder, and under similar statutes in previous codes.

Horr. E. W. Heidelberg, Judge. Suit hy W. H. Pistole against J. V. Ulmer. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. T. B. Carroll; Judge. Suit by Mrs. Ida K. Broom against the Southern Bailway in Mississippi. The court overrules plaintiff’s demurrer to defendant’s' plea of the statute of limitations and plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. A. J. McIntyre, Chancellor. Bill by T. B. Sykes against Katie Moore and the Odd Fellows Benefit Association. From a decree for defendants, plaintiff appeals. Appellant, as complainant below, filed his bill of complaint against Katie Moore, the widow of Dock Moore, deceased, and against the Odd Fellows’ Benefit Associa-. tion, a negro benevolent insurance order, in which Dock Moore, deceased, was insured in a sum not exceeding one thousand dollars.

Hon. W. H. Potter, Judge. Suit by J. D. Bunch against the Eminent Household of Columbian Woodmen. From a judgment for plaintiff, defendant appeals. Appellant, a fraternal insurance company, prosecutes this appeal from a judgment rendered by the circuit court of Yazoo county in favor of J. D. Bunch, appellee, in the sum of two thousand three hundred dollars.

Hon. J. G. MgiGowen, Chancellor. Suit by the Board of Supervisors of Grenanda County against John S. King. From a decree for defendant, complainant appeals. The facts are fully stated in the opinion of the court.

Appear from the circuit court of Yazoo county. Hon. W. H. Potter, Judge. Suit by J. C. Johnston, state revenue agent against the Board of Supervisors of Yazoo County. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

<p>Guaranty. Discharge of guarantor. Proving claim against bank~ nipt debtor.</p> <p>The probation of a creditor’s claim in bankruptcy against the estate of his debtor and the acceptance of a dividend will not preclude the creditor from relying on the guaranty.</p>

Hon. Ive May, Chancellor. Suit by Lindsey Jackson against Emmett Coleman and others. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The appellees base their case on the following propositions : 1. That the trial court has rendered a decision on a question of fact, and that such a decision will not be reversed; 2.

Hon. W. A. Alcorn, Judge. Suit by E. J. Darnell and others against D. H. Smith and others. From a judgment for defendants, plaintiffs appeal. The facts are fully stated in the opinion of the court.

Hon. J. L. Bates, Judge. Suit by J. D. Peacock against A. T. Kelley. From a judgment for plaintiff, defendant appeals. It will be readily perceived that the contract as made by Kelley with the purchaser Owens (which according to all the testimony was the only contract that Owens ever agreed to make with Peacock for Kelley) was entirely different to the terms of sale provided for in the option contract.

<p>Insurance. Forfeiture. Waiver and estoppel. Knowledge of agent.</p> <p>Under Code 1906, section 2615, defining who are the agents of insurance companies and their powers, where the soliciting agent of a fire insurance company at the time the risk was accepted knew that the owner did not have and did not intend to have, an iron safe and told him it was unnecessary to have such safe, such statement became and was the act of the insurance company, and it was bound in such case both upon waiver and estoppel.</p>

Hon. Claude Clayton, Judge. Suit by S. M. Nabors aeainst M. C. Mathis. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. Claude Clayton, Judge. Suit by Gr. W. Evans against J. W. Carpenter. From a judgment for defendant, plaintiff appeals.' Tbe facts are fully stated in tbe opinion of the court. There is very little controversy about the facts in this case. Patterson lived on Carpenter’s place. Carpenter did not want to furnish him. Evans agreed to furnish him, provided Carpenter would waive his landlord’s lien in favor of Evans.

Hon. R. E. Jackson, Judge. Proceeding by the Gloster Compress & Trading Company against the Mayor & Aldermen of the Town of Gloster on an appeal for municipal assessment for taxes. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

J. L. Bates, Judge. Suit hy Wm. S. Bates and others against the BrevardWoods Stave Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. E. E. Everett, Judge. Suit by E. C. Murphy against G-. Gr. Council. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. E. L. Brien, Judge. Suit by S. Greenwald against the Yazoo & Mississippi Valley Railroad Company. From an insufficient judgment, plaintiff appeals. The facts are -fully stated in the opinion of the court. The court ruled out the testimony of Mr. Bearden as to the value of a dog, like that, in Tennessee.

Hon. J. H. Neville, Judge. Suit by Mrs. J. H. Weeks against J. S. Thomas. 3JTom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We now call the court’s special attention to instruction No. 4, which states particularly the items which the jury may consider in arriving at their verdict if they find for the plaintiff.

Hon. P. B. Johnson, Judge. Suit by Charlie James against J.' P. Eunnels and others. Judgment for plaintiff against all the defendants, which on motion for new trial was set aside as to surety, and principals appeal. The facts are fully stated in the opinion of the court. We cite: 9 S. & M., page 375. This is an old case, and the principle announced therein has never been overruled, so far as we are able to find.

Hon. E. N. Thomas, Chancellor. Suit by Mrs. Phillip Better and others against Prank Hirsch, executor, and others. From a judgment for defendants, plaintiff appeals. Appellants, who were certain heirs at law of Mrs. Mollie Hermann-, filed a suit in the chancery court of Warren county, the purpose of which was to set aside and nullify the will of the said Mrs. Hermann, who died a widow without children, leaving appellants and others as her heirs át law.

<p>Appeal from the chancery court of Clay county.</p> <p>Hon. A. J. McIntyre, Chancellor.</p> <p>Suit by John Brand against the Columbia Star Milling Company and others. From a decree pro confesso and final judgment against the named defendant, it appeals.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>There are two points of controversy arising out of this appeal, namely: First: Did the lower court have jurisdiction of the person of appellant by proper process? Second: Did appellant by any act of its own, or by duly authorized attorney, enter a voluntary ap-. pearance to the merits of the controversy?</p> <p>Now adverting to the first topical question we sub-mit: That appellant was never properly served with process in this cause and the court had no jurisdiction . of its person and therefore no right to enter a ■decree in personam, or otherwise! and it may be here stated that the decree rendered was one in personam.</p> <p>This court below found in its final decree, that appellant, had been properly made defendant under section 920 ■ of the Mississippi Code 1906, to which reference is here made.</p> <p>We urge that this was error in the light of the record in this cause. The provisions of the law referred to as applying to non-resident corporations as defined under the preceding section 919 requires that process shall be served upon any agent of the corporation found within the county where suit is brought. It is further provided under section 919, in defining the cases in which such non-resident corporations may be sued in this state, that any corporation having any transaction with persons or having any transactions concerning property situated in this state, through any agency whatever acting for it within this state, shall be held to be doing business here within the meaning- of this section. Under section 920 it is provided that the officer serving process shall “state the facts, upon whom issued,” etc., in his return; but in order that defendant corporation may also have effectual notice, it shall be the duty of the clerk to immediately mail a copy of the process to the home office of the corporation by registered letter, etc.</p> <p>We submit that this provision of law was not complied with. Claughton v. Black, et al., 24 Miss. 185.</p> <p>For a further authority urging the strictest compliance with the requirements of statutory laws relative to the service of process, see the case of Bustamente v, Bvscher, Shultz & Company, 43 Miss. 172, especially the last few paragraphs in the conclusion of the opinion.</p> <p>Inviting the court’s attention now to the second topical question .hereinbefore in this brief announced, we ■submit: that the court was wholly without warrant in ■finding that the appellant voluntarily appeared, notwithstanding the failure of process.</p> <p>It is obvious that if the defendant,' Sehoening, and The Columbia Star Milling Company had been one and the same person, jurisdiction was acquired by the voluntary appearance of Sehoening and for the purpose of -the injunction by process on the trustee, or his appearance, but it is likewise obvious that if Sehoening and ■appellant were different beings in law, then the appellant was improperly joined in this suit and a court of •chancery should not have taken jurisdiction when the hill was amended, because on its face it appeared that the two defendants, Sehoening and appellant, were different persons in law, because an individual and a corporation cannot be one entity, and because the • bill sought an injunction against Sehoening and a decree in personam against Columbia Star Milling Company.</p> <p>All pleadings in the circuit courts of this state are required to be in writing. All pleadings must be filed hy the party or his attorney, section 760. All actions must be commenced in the manner provided by section 728, the cause of action stated and filed in court, and -therefore must be in writing.</p> <p>Moreover all provisions pertaining to the declaration •and commencement- apply to pleas or appearances entered by the defendant, see section 739. It is the spirit ■of our law covering the subject of pleadings and practice that the complainant, or plaintiff, and the defendant, or respondent must appear before tbe courts of the land in a manner accompanied with such dignity or solemnity as that permanent proof or record of the fact may be made. -It is therefore required that all pleadings shall be in writing; all motions must be in writing; all demands made upon the court relative to the quashing of writs, amending of pleas, leave to file pleadings and all matters touching the subject of pleading in court must be in writing.</p> <p>This court so far back as 1860 in the case of Byrne Vance <& Go. v. ,Tejfries) as reported in 38 Miss. 533, recites: “Appearance formerly was by actual presence in court, either in person or by attorney, and such appearance still exists in contemplation or fiction of law, but, in fact this appearance is now effected by making certain formal entries in the proper office of the court expressing his appearance.”</p> <p>The court had no right at the November term to enter a decree pro confesso against appellant, and counsel for Edward F. Schoening, who was himself financially interested in appellant institution, merely thought to show the court a possibility of error, and presented to the ' court the fact that Columbia Star-Milling Company had not been served with process, and that a decree should not be entered against them, pro confesso, at the same time informing the court in open court that he had no employment from Columbia Star Milling Company; did not represent it; all of which is shown by the record in this cause above herein referred to.</p> <p>It is not to be contemplated that parties who are-without counsel, or over whom no jurisdiction had been acquired as provided by the laws of the country, are to be held and bound by any act of friendliness to the-court and to the party on the part of an attorney employed . and representing another party ’ defendant in-the cause, unless such attorney is acting with the knowledge or consent or under the authority of such party;: certainly the courts of the land are not factories out of which may be turned agents and instrumentalities do be enforced upon others. Agencies may be created in only two ways: first, by expressed assent of delegation; second, by implication, or in other words, agencies by estoppel. Certainly counsel for Schoening was not an agent by expressed authorization; as surely he was not an agent by estoppel, because no act of appellant, no knowledge, no assent, no conduct whatever furnished facts upon which estoppel might be predicated.</p> <p>It is recognized that the course which has been made necessary by the action of the court below in assuming jurisdiction without warrant will operate as an appearance to the cause on reversal, when the case will be remanded for trial; appellant having appeared in the appeal, has entered an appearance to the jurisdiction of the court, but this right should be, and will be, ■granted the appellant to defend against an action brought in this state against it, and to present to a court of law its defense to the complaint.</p> <p>It is stated that no copy of the publication was mailed to appellant, whereas a copy of the general docket made a part of the record by agreement, shows that publication was mailed by the clerk to appellant on May 29, 1915.</p> <p>Cases cited by appellant. Appellant cited , three cases: GlaugMon v. Black, et al., 24 Miss. 198; Vance <& Go. v. Jeffries, 38 Miss. 540; Bustamente v. Bescher, ■et al., 43 Miss. 173.</p> <p>The first case was in the circuit court and there was no claim of appearance. The second case is interesting and gives a brief history of the manner formerly of appearing and the manner at the time this decision was rendered, April term, 1860. The court said: “Appearance formerly was by actual presence in court, either in person or by attorney, and such appearance still exists in contemplation or fiction of law. But, in fact, tbis appearance is now effected by making certain formal entries in tbe proper office of tbe court, expressing bis appearance. Bouvier’s Law Diet., title Appearance.</p> <p>“As tbe appearance anciently was an actual one, so tbe pleading was an oral altercation, in open court, in tbe presence of tbe judges. During tbis altercation a minute in writing was made by tbe proper officer, comprising a short notice of tbe nature of the action, tbe time of tbe appearance of tbe parties in court, and tbe acts of tbe court itself during tbe pleading; and tbis was called tbe record.</p> <p>“The appearance of tbe parties is no longer by actual presence in court. It is effected on tbe part of tbe defendant by making certain formal entry in tbe proper office of tbe court, expressing bis' appearance. Stevens on Pleading, 22-26.”</p> <p>But tbe court in that case also said:</p> <p>“If, in the case of Hemphill v. Hemphill, it was intended to say that appearance to tbe action could only be effected by plea, or in proper person without plea in open court, and' making tbe necessary waiver and consent of judgment; and that it could not be done out of term time by entry on tbe complaint of appearance to the action (in tbe proper office, and before the clerk of the court) we are not willing to sanction tbe doctrine of that case to that extent.”</p> <p>We submit it has never been tbe rule and is not tbe rule now that a party cannot make appearance in a case except by signature to some pleading; if be appears in open court and contests tbe right to make an order or take a decree pro confesso makes an “extended and ingenious argument” against it, that is sufficient appearance, not to require him to go to trial then, but to require an answer by tbe next term, thereby giving him plenty of time to prepare bis pleadings and bis defense.</p> <p>Authorities. As stated in appellant’s brief, there are only two questions involved in this appeal: First: Did the service of process give jurisdiction? Second: Did appellant appear? An affirmative answer to either, in effect, disposes of the other question. We submit there was proper service. Section 919, Code 1906; section 920, Code 1906;’ Laws 1908, page 132; Vicksburg 8. & P. R. Go. v. Forcheimer, 74 So. 420, Advance Sheets, Southern Beporter, April 14,1917, page 420 (Miss.)</p> <p>Appearance was such as to require appellant to make answer: Sections 3946, 3947, Code 1906; Fisher v. Pacific Mutual Life Ins. Co., 72 So. 847 (Miss.); Railroad v. Swanson, 92 Miss. 485; Standard Oil Go. of Ky. v. Attorney-General, 65 So. 468 (Miss.); Vicksburg, S. S P. Ry. v. Forcheimer, supra; Young v. Rankin, 4 Howard, 27; Gardiner v. Gardiner, 35' Colorado, 147, 83 Pac. 646.</p>

Hon A. J. McIntyre, Chancellor. Bill by S. A. Wilkerson against C. C. Harrington and others. From a decree, Wilkerson appeals and Har■rington cross-appeals. Appellant, Wilkerson, exhibited a hill in chancery against appellees to cancel certain tax deeds executed by the sheriff of Chickasaw county to appellees and embracing four hundred and eighty acres of unimproved lands.

Hon. J. L. Bates, Judge. Suit by the Phillip J. Toomer Lumber Company against the Ganahl Lumber Company, -wherein the Merchants & Manufacturing Bank of Ellisville filed a claimant’s issue. Prom a judgment against the bank, it appeals. The facts are fully stated in the opinion of the court. This case turns upon one single proposition of law. There is but one question involved in the wholé dispute, and we will therefore confine this argument to that one subject.

Hon. J. H. Neville, Judge. Suit by the Walker Bros. & Co., Limited, against Wm. A. Daggett. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. It is a well recognized rule that delivery to a common ■carrier in the ordinary course of business constitutes ■delivery to the purchaser and in this case purchaser ordered the goods F. O. B. New Orleans, which was an instruction to the appellant to deliver same to the carrier.

Hon. P. B. Johnson, Judge. Suit by the Pittsburg Steel Company against M. J. Fairley and others,.doing business as partners under the firm name of the Hattiesburg Hardware Company. From a judgment rendered, all the defendants except Dan Fairley appeals. The facts are fully stated in the opinion of the court.

Hon. J. O. S. Sanders, Special Judge. Suit by Hessig-Ellis Drug Company against B. C. Wilkerson and others. From a judgment against plaintiff, it appeals. ■ The facts are fully stated in the opinion of the court. The learned special judge, as shown by his opinion, adopted the view expressed by the demurrer filed on beIhalf of Mr. Wilkerson.

Hon. H. H. Rodgers, Judge. Frank McNeal was convicted of manslaughter and appeals. Held: “The admissibility of a dying declaration is to be determined by the court, and where the declaration is manifestly the statement of an opinion, although in form one of fact, it is inadmissible.” Dee House v. State, 94 Miss. 123; Owens v. State, 59 Miss. 549; Gould v. Crawford, 2 Pa. St. 90; 1 Wigmore on Evidence, 632.

Hon. E. N. Thomas, Chancellor. Suit by Josephine Loviza against Charles A. Lynch, administrator.' From a decree disallowing plaintiff’s claims, she appeals. The facts are fully stated in the opinion of the court.

Hon. J. D. Carr, Judge. Suit by L. B. Armstrong against the Gulf and Ship Island Bailroad Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. F. E. Everett, Judge. Ella Walker was indicted for larceny and from a judgment sustaining a demurrer to the indictment the state appeals. The facts are fully stated in the opinion of the court. The first ground of the demurrer is that the indictment does not inform the defendant as to the nature of the accusation against her.

Hon. P. B. Johnson, Judge. Allen Edwards was indicted for an alleged violation of Code 1906, section 1055, and a demurrer to the indictment being sustained, the state appeals.

Hon. F. E. Everett, Judge. Gribb May was convicted of unlawfully uttering and publishing a forged check and appe.als. The facts are fully stated in the opinion of the court.

Hon. W. H. Hughes, Judge. Ode and Cooper Williamson were convicted of murder and appeal. Appellants, Ode and Cooper Williamson, were indicted jointly with Mrs. Cola Nichols, for the murder of one Walter Nichols, the father-in-law of Mrs. Cola Nichols, who had separated from her husband, David Nichols, some months prior to the killing.

Hqn. A. E. Weathersby, Judge. Suit by the Leon Michael Company against the 0’Con-nell-Myers Company. Prom a judgment on peremptory instructions for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. Looking through this entire record, one is absolutely at a loss to determine upon what theory the court sustained defendant’s motion to exclude plaintiff’s evidence.

Hon. A. Y. Woodward, Chancellor. Bill by Albert Clark and others against Mandy Clark. From a judgment for complainants, defendant appeals. The facts are fully stated in the opinion of the court.

Hon D M. Miller, Judge. Clarence Rayhorn was convicted of unlawfully, wilfully and maliciously and feloniously setting fire to and burning a fence and appeals. The facts are fully stated in the opinion of the court. The corpus delicti was not proven. The rule as laid down in the Pitts case, 43 Miss. 472, is that the proof must show that the fence was burned and that it was burned through some criminal agency.

Hon. B. E. Jackson, Judge. Suit by C. M. Mardis against the Yazoo & Mississippi Yalley Bailroad Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The lower court committed reversible error in giving instructions Nos. 1 and 3 for defendants. These instructions read as follows: “No. 1.

Hon. Joe Mat, Chancellor. Bill by Bessie Maybelle Nations, a minor, by her next friend, against the Colonial & United States Mortgage, Company, Limited and others. From a decree sustaining defendant’s demurrer and dismissing the bill, complainants appeal. Sections 2764, 2765, 2776, and 2778, Code of 1906, referred to in the opinion, are as follows: .

Hon. W. A. Alcorn, Judge. Suit by S. Rhinehart against C. A. Carroll and others and the Jake Strickland Lumber Company. From the judgment rendered, the Lumber Company appeals. The facts are fully stated in the opinion of the court. We maintain that the funds paid into court should have been awarded to appellant to the exclusion of all 'other parties.

Hon. A. T. Woodward, Chancellor. Bill by J. L. Sanders and wife against J. H. Browne. From tbe decree rendered, defendant appeals. Tbe facts are fully stated in tbe opinion of the court.

Hon. J. L. Buckly, Judge. Suit by Gr. J. Hall and wife against the Meridian Light & Railway Company. On the death of one of the plaintiffs, his executor, W. M. Hall, was substituted. From a judgment sustaining a demurrer to the declaration, plaintiff appeals. This is an appeal from a judgment of the lower court sustaining a demurrer to the declaration filed by the appellant, which is as follows: Declaration. Plaintiff Gr.

Hon. A. Y. Woodward, Chancellor. Bill by the Bank of Durant against J. A. McDonald and the Bank of Lexington, in which B. L. Cooper, special agent was substituted as plaintiff. From a decree for complainant, defendant appeals. This case presents conflicting claims as to the priority of liens of certain deeds of trust held by appellant Bank of Lexington and the appellee as special agent of the Bank of Durant.

<p>On suggestion oe ebeob.</p> <p>The facts are fully stated in the opinion of the court.</p>

Appear from the circuit court of Leflore county. Hon. F. E. Everett, Judge. John Leet Fetterman was indicted for disposing of property subject to a lien, without informing the buyer of the existence of the lien. A demurrer was sustained to the indictment and the state appeals.

Hon. H. H. Rodgers, Judge. Proceedings by the City of Grenada to recover for paving from the County of Grenada. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Chapter 260, Acts of 1912, does not apply to county property.

Hon. F. E. Everett, Judge. ■ Suit by Stokes Y. Robertson, revenue agent, against the First Nátional Bank of Greenwood. From a, judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. J. D. Care, Judge. Suit hy the Edward Thompson Company against Mr. P. Foy. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. Paul B. Johnson, Judge. Suit by Rufus Posey against the Brookhaven Lumber & Manufacturing Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. R. W. Cutrer, Chancellor. Bill for accounting and for an injunction by ThorntonClaney Lumber Company against J. M. O’Quin & Sons. Injunction issued, demurrer to bill sustained, and decree affirmed on appeal, and defendant thereafter filed- a suggestion of damages for the wrongful suing out of the injunction, and from a decree awarding damages, the Thornton-Claney Lumber Company appeals. The facts are fully stated in the opinion of the court.

-Appeal from the circuit court of Bolivar county. Hon. W. A. Alcorn, Judge. Suit by Geo. M. Adams against the Yazoo & Mississippi Valley Railroad Company. Peremptory instruction for defendant and plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. E. N, Thomas, Chancellor. Bill by Katie Jones and others against Allen Grimes and others. The unnamed defendant filed demurrers which the court sustained, allowing an appeal to the supreme court to settle the law involved in the case. The bill in this case was filed by the appellants, Katie Jones, John Jones, Jr., and Sarah Blackman, the widow and children of one John Jones, deceased.

Hon. E. N. Thobias, Chancellor. Bill by Mrs. Mary Hicks and others to enjoin A. J. McClurg from cutting timber and to cancel a contract. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. J. H. Neville, Judge. Suit by A. E. Johnson against the Western Union Telegraph Company. Demurrer to the declaration sustained, and judgment affirmed on appeal without opinion and plaintiff filed a suggestion of error. Suggestion of error sustained, former judgment set aside' and cause remanded.

Hon. E. D. Dinkins, Judge. Suit by the Town of Chenshaw against Panola County. From a judgment of the circuit court reversing a judgment of a justice of the peace in favor of plaintiff and dismissing the case, plaintiff appeals. The facts are fully stated in the opinion of the court. We respectfully contend that the statute of limitations of six years did not apply in this case, and that the claim was not barred by reason of any limitation fixed by statute.