Volume 117 — Mississippi Reports

HoN. Jam:es H. Neville, Judge. Suit by Joe Alves by next friend, against the Sea Food Company. From a judgment for plaintiff, defond- . ant appeals. The facts are fully stated in the opinion of the court.

HoN. D. M. Russell, Chancellor. Injunction by the Poplarville Sawmill Company against A. Marx & Sons. From a decree sustaining a demurrer to the bill and awarding damages, complainants appeal. The facts are fully stated in the opinion of the court. The question is, has the mayor of a town the right to try civil actions in his capacity as a justice of the peace within the corporate limits of his municipality.

Hon. E. W. Heidelberg, Judge. Suit by Mrs. Annie Markline, as administratrix of George H. Markline, deceased. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

I~IoN. Claude Claytou, Judge. Suit hy Lawerence Maxwell against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

HoN. Gr. C. TaNN, Chancellor. Suit by Gr. L. Keeton against the board of supervisors of Clarke county. Prom a decree dismissing the bill, complainant appeals. The facts are fully stated in the opinion of the court. This is a friendly suit testing the validity of the proposed bond issue for the Carmichael consolidated school district.

Hon. C. B. Hamelton, Special Judge. Proceeding by mandamus, by tbe Dixon-Paul Printing Company against the Board of Public Contracts of the state of Mississippi. Demurrer to petition sustained, and petitioner appeals. The facts are fully stated in the opinion of the court.

<p>1. Municipal Corporations. Extension of territory. Liability for debts.</p> <p>Section 3301, Code 1906, as amended by Laws 1908, chapter 186, and the other cognate sections in chapter 99 of the Code on municipalities provide alone for power in a municipality to incorporate by extension of its limits, adjacent unincorporated territory. Those sections nowhere look in any of their provisions to any grant of power to an existing municipality, to extend its territory over the territory of another municipality and thus absorb it, so that where a city extended its boundaries in ignorance of the fact that the new boundaries included another incorporated town, its ordinance was void, and it did not thereby become liable for the debts of the town thus attempted to be absorbed.</p> <p>2. Same.</p> <p>In such case where the incorporated town thus absorbed was later dissolved and afterwards the city again extended its boundaries, so as to include the territory of such town, the city was not liable for the debts of the town, since at the time of the valid extension of its boundaries- there was no existing incorporated town.</p> <p>3. Municipal Corporation. Extension of territory. Liability for debts.</p> <p>Where a city extended its boundaries so as to include the territory of a formerly incorporated town, the city had no power at the suit of a creditor of such town to tax the included territory to pay the debts of the town which had been abolished.</p>

On suggestion oe error. Appeal from the chancery court of Quitman county. Hon. Joe May, Chancellor. Suit between the Biechman-Crosby Company and B. Dinwiddie. From a decree for the latter, the former appeals.

Hon. J. D. Cabe, Judge. Suit by Chester Thompson against the United Woodmen Benefit Association. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Appear from the chancery court of Adams comity. Hon. R. W. Cutrer, Chancellor. Bill by Tim E. Cooper, assignee and receiver of th.e Century Banking Company against the Robertson Investment Company, and others. From the decree rendered, plaintiff appeals. The facts are fully stated in the opinion of the court.

IíoN. Jas. H. Neville, Judge. Suit by J. S. Adkinson against the Gulf & Ship Island Eailroad Company. From a judgment for plaintiff, defendant' appeals. Held: “It is the right to travel upon it by all the world, and in the exercise of the right, which makes it a public highway; “and the evidence discloses that all the world has had a right to travel oipthis road in question.

Hon. B. W. Heidelbeeg, Judge. The Guaranty Loan, Trust & Banking Company, the First National Bank of Meridian, Mississippi, and the Citizens National Bank of Meridian appealed to the circuit court from the order of the board of supervisors assessing their property for taxation. From the judgment of that court, the attorney-general appeals and the hanks move to dismiss his appeal. The facts are fully stated in the opinion of the court.

HoN. D. M. Milleb, Judge. Unlawful entry and detainer, by the Georgetown Mercantile Company against R. B. Middleton and others. From a judgment on peremptory- instruction for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

HoN. E. N. Thomas, Chancellor. In the administration of the estate of Bernard Sinai, deceased, a decree was entered allowing certain creditors ’ claims and disallowing the claim of M. TI. Bogers. Prom the decree allowing these claims, Morris, Bosen-stock, executor and others appeal, and from the decree disallowing his claim, M. H. Bogers appeals. The facts are fully stated in the opinion of the court.

Hon, J. L. Bates, Judge. J. W. Cantwell was convicted of refusing to point out property sought to he replevied, and appeals. The facts are fully stated in the opinion of the court.

<p>On suggestion oe erbok.</p> <p>Appeal from the chancery court of Wayne county.</p> <p>Hon. W. M. Denny, Chancellor.</p>

Hon. Jas. H. Neville, Judge. . Suit by Hattie Allen and others against the McIntosh Lumber Company and the Southern Paper Company. The court granted a peremptory instruction for the Southern Paper Company and submitted the case to the jury as to the McIntosh Lumber Company and from a judgment for defendant, plaintiffs appeal. The facts are fully stated in the opinion of the court.

Appear from the circuit court of Lowndes county. Hon. T. D. Carroll, Judge. Suit by Mrs. Bessie McC. Funderburk against the Mayor and Board of Aldermen of the City of Columbus. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The lower court erred in its general conclusion that the plaintiff’s title was insufficient to maintain this action.

<p>Mobtgages. Trust deeds. Right to attorney fees.</p> <p>Where default was made in the payment of the amount named in a trust deed and the trustee at the request of the beneficiary advertised the land for sale, but before the date fixed for the sale, a third party bought the land covered by the trust deed and tendered to the trustee the amount mentioned in the deed of-trust, interest thereon, and the accrued expenses for advertising and the trustee’s fees, which the trustee at the instance of the holder of the indebtedness secured, refused to accept but demanded attorney fees in addition. In such case the attorney fees not being mentioned in the trust deed though named in the note evidencing the debt, and the purchaser of the land having no notice of such fees being included in the debt secured, the trustee was wrong in refusing such tender and the purchaser of the land having enjoined the sale by the trustee, the beneficiary could not recover attorney fees for defending such suit since their wrong caused the litigation and the attorney’s fee, all of which was unnecessary.</p>

Hon. O. B. Tayloe, Chancellor. Petition by Louis Cohn as assignee of the Commercial Bank & Trust Company and others against J. B. Nalty. Demurrer to the petition was overruled and an appeal granted to settle the law of the case. The facts are fully stated in the opinion of the court. This is one of the main contentions in the demurrer.

Hon. J. L. Bates, Judge. Suit by the Dahnke-Walker Milling Company against T. J. Phillips & Sons. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

HoN. W. M. DeNNy, Jr., Chancellor. Suit hy J. L. Jones against A. C. Bruce and. others. From a judgment for complainant, defendants appeal. • The facts are fully stated in the opinion of the court, The hill is defective' because it fails to aver that Eugenia Isaacs was living on the land, or had erected buildings or machinery of a useful hind upon the land, or that she had same, or any part of it in cultivation.

<p>3. Justice of the Peace. Summons. Service. Sufficiency.</p> <p>A judgment by default against two defendants jointly as an entire judgment, cannot be valid, and cannot be supported unless there be service of process on each of the defendants. If it is void as to one, it is void as to all.</p> <p>4.' Justice of the Peace. -Jurisdiction. Return of process.</p> <p>In order to justify a default judgment before a justice of the peace, it must appear not only that summons was served on defendant by the officer but that the summons was returned to the justice of the peace, because he would not be authorized to proceed until such return was made.</p>

HoN. Paul B. JohnsoN, Judge. Petition for writ of mandamus by Davis and Zoola-Clark against the Board of Trustees of the Loper Line Consolidated School' District. From a judgment dismissing the petition, plaintiff appeals. The facts are fully stated in the opinion of the court. The demurrer is found on page 8 of the record and is a general demurrer. The question raised by the demurrer is whether the writ of mandamus will lie.

IIoN. Jas. H. Neville, Judge. Walter McVey was convicted of murder and appeals. The facts are fully stated in the opinion of the court. As to appellant’s contention about the drawing of the special venire, the attorney-general attempts to justify the procedure by section 2718 of the Code of 1906, on the theory that the jury law is directory.

HoN. E. L. BeieN, Judge. Replevin by Mary Williams against Mary A. Williams. From a judgment rendered, defendant appeals. , Tbe facts are fully stated in tbe opinion of tbe court.

<p>Appeal from the chancery court of Hinds county.</p> <p>HoN. O. B. Taylor, Chancellor.</p> <p>Suit by the Mobile & Ohio Railroad Company and others against the Mississippi Railroad Commission. From a decree for complainants, defendants appeal.</p> <p>The facts are fully stated in the opinion of the court.</p>

On suggestion of error overruled. Appeal from tile circuit court of Forest county. HoN. Paul B. JohNSON, Judge. Action between the Tallahatchie Lumber Company and C. F. Thatch. From a judgment for the latter, the former appeals. The facts are fully stated in the opinion of the court.

IioN. A. E. Weatheesby, Judge. Suit by the Lumbermen’s Supply Company against the Poplarville Sawmill Company. 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 Henry Fountain, by next friend, against tbe J. J. Newman Lumber Company. From a judgment for defendant on peremptory instruction, plaintiff appeals. Tbe facts are fully stated in tbe opinion of tbe court. Tbe points made and urged by tbe appellant in this appeal on this record are: First, tbe peremptory instruction was improperly granted.

Hon. Frank E. Everett, Judge. Suit by C. C. Finley, administrator, against Lee-Armstrong. From a judgment fot defendant, plaintiff .appeals. The facts are fully stated in the opinion of the court.

HoN. A. E. Weathersby, Juidge. Suit by J. ft. Polk against the Hinton Bros. Lumber Company. From a judgment for plaintiff, defendant appeals. Appellant is a corporation engaged in tbe manu: facture of lumber, and appellee was one of its employees, who was injured, as be alleges, because of appellant’s negligence. In connection with appellant’s other machinery it operates a planing mill in which there are sis planing machines for the dressing of lumber after it has been sawed.

Hon. Wm. A. Alcobn, Jb., Judge. Olivia Houston was convicted of manslaughter and appeals. The facts are fully stated in the opinion of the-court.

HoN. G. C. TaNN, Chancellor. Bill by H. M. McLain by his next friend, A. L. Mc-Lain, against Albert Beard. There was a decree for defendant, dismissing the suit and later a decree setting aside the former decree, and on a new hearing a decree was rendered for complainant, and defendant appeals. The facts are fully stated in the opinion of the court.

<p>1. Insurance. Fire insurance. Assignment of policy. What constitutes.</p> <p>The assignment of an insurance policy as collateral security for a debt, ,is not such an assignment as will invalidate the policy, and is not a violation of the terms of the insurance contract, which prohibits an assignment of the. policy before loss without the consent of the insurance company.</p> <p>2. Same.</p> <p>The stipulation in the policy, providing that it shall be void if assigned before loss without the consent of the company eon- . templates a general or complete unconditional assignment of the ownership of the policy, and is not intended to work a forfeiture of the rights of the insured, where the policy is assigned merely as collateral security for a debt, and its real ownership remains in the insured.</p> <p>'3. Evidence. Parol evidence. Explaining writing. Admissibility.</p> <p>Oral testimony, which does not contradict the written assignment of a fire insurance policy, is admissible to show the real purpose and character of the assignment.</p> <p>4. Eire Insurance. Additional insurance. Waiver. .</p> <p>Under a fire insurance policy which provided that the policy should be void if additional insurance should be procured on the property by insured, such provision was waived where the agent of the insurer knew of and wrote an additional policy upon the property for a number of years and the mere fact that the insured had such additional insurance canceled and took a policy for such additional insurance in a different company did not work a forfeiture of the main policy under such over insurance clause.</p>

HoN. Paul B. JOHNSON, Judge., Bastardy proceedings by Ernie West, by next friend, .against Elmore Ham. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

IIoN. W. H. Hughes, Judge. Suit by McOonnon & Co. against Frank P. Richardson, and others, From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. E. L. Beiek, Judge. Suit by G-. W. Alexander against the Pullman Company. 'Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of tire court.

HoN. W. H. Potter, Judge. • Suit by the Jones-Wilson Mercantile Company against Ethel A. Patterson. From a judgment for plaintiff, defendant appeals. Held: that by making a delivery the lien was lost. In McCormick v. Blum, 75 Miss. 83, there was a shipment by the employee to the party who received it, and it was held incompetent to attempt to claim the lien under section 2682, which is section 3042: “Waiver.

Hon. J. D. Cabe, Judge. Suit by Dr. T. Q. McGee against the Alabama & Vicksburg Railway Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. J. D. Carr, Judge. Proceedings by X. A. Kramer and others to have a tax levied against the property within the Standing Pine Drainage District. Prom a judgment of the circuit court sustaining a refusal of the hoard of supervisors to levy a tax and denying the relief prayed for, the petitioners appeal. The facts are fully stated in the opinion of the court.

HoN. E. L. Beien, Judge. Proceedings by the state for the assessment of the property of J. M. Dutton. From a judgment sustaining' the finding of the hoard of supervisors rejecting the assessment, the state appeals. The facts are fully stated in the opinion of the court.

' •• Hon. H. H. Rodgebs, Judge. Suit by Lucy Jane Teague and others against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Appellee Lucy Jane Teague is the mother, and the other appellees are the next of kin, of Simon Teague, deceased. They instituted this suit against the Western Union Telegraph Company for the alleged negligent failure of the defendant company to deliver a telegram.

<p>1. Equity. Pleading. Demurrer. General demurrer.</p> <p>Where three separate demurrers were interposed to a bill in equity two of which were by counsel termed special demurrers and one a general demurrer and each challenged the complainant’s right to recover at all, and each demurrer was to the whole hill, and each submitted reasons claimed to be in bar of any recovery. In such case all three of the demurrers were general demurrers.</p> <p>2. Equity. Pleading. Answer overruling demuri-er.</p> <p>Where a defendant demurred generally to a bill in equity and then answered the whole bill denying every material averment thereof. In such case the answer overruled the demurrer and the supreme court on appeal was precluded from considering the grounds of the demurrer.</p> <p>3. Equity. Pleading. Demurrer. Charge of fraud.</p> <p>A defendant charged with fraud may always challenge the suf- ' ficiency of the complainant’s averments of fraud, and if the bill does not in fact set out the facts and circumstances forming the basis of the alleged fraud, or to state differently, if the bill does not in fact charge fraud, the defendant may always demur without interposing an answer.</p> <p>4. Same.</p> <p>If, on the contrary, the bill upon the allegations of fraud states a good ground for relief along this line, or charges frauc], that is material, and which, if true, entitles to relief the respondent should answer denying the fraud. He may then demur if a demurrer be limited to other separate and distinct parts of the bill, setting up other equitable grounds for relief disconnected from the fraud.</p> <p>5. Equity. Pleading. Demurrer. Answer.</p> <p>If the different paragraphs of a bill in equity are merely successive steps in stating the complainant’s case and are interdependent so that the bill cannot be segregated into partf, the defendant cannot demur to a part and answer a part.</p>

Hon. B. W. Cutrer, Chancellor. Controversy between the Mechanics’ Bank and the First National Bank of McComb City and others. From the decree rendered, the former appeal. Held: that it is entirely legitimate to give a mortgage for some certain sum named in a deed when that sum is intended to cover future advances, and the amount named in the-security is valid as to third persons but not beyond that amount.

HoN. A. Y.’ Woodward, Chancellor. l Suit by Lou Roberts against W. B. Burwell and others. From a decree dismissing the bill, H. S. Roberts, executor of Lou Roberts, deceased, appeals.

HoN. F. E. Everett, Judge. Suit by Harris Roberts, executor of Tom Roberts, deceased, against W. B. Burwell and others. Held: on or before the day when any rent shall become due shall have like remedy; and a like apportionment shall be made in the case of annuities.” The record does not show when the tenants were to pay rent, but it does affirmatively appear that they ■actually paid the same and that Burwell actually received the same before the death of…

<p>1. Instjbance. Surrender value of automatically paid-up policy.</p> <p>Where by insured’s failure to pay the annual premium on a three thousand dollar life policy it automatically became, according to its provisions, a paid-up policy for six hundred dollars. In such case the policy-holder had no right upon the lapse of the old policy to take down in cash the amount of the reserve except in the manner specifically provided by the old contract, and having made no election to accept the real cash surrender value of the old policy within the time stipulated by the contract, when the policy became a paid-up policy for six hundred dollars, the insured no longer enjoyed the right to withdraw his reserve in cash or to compel the company to pay anything prior to his death.</p> <p>2. Pleading. Complaint. Sufficiency of general demurrer.</p> <p>If the complainant under any view has stated a case in his bill a general demurrer thereto should be overruled.</p> <p>3. Insurance. Action on policy. Pleading.</p> <p>In a suit in chancery, seeking to have the court decree that accrued dividends and surplus thereon, which were alleged to have been in fact earned and in the company’s possession, be applied to the payment of a premium, for nonpayment of which the company claimed a forfeiture of the policy, the bill was not defective in not expressly charging that any portion of the surplus or the dividends had in fact been set aside or placed to the credit of the policy, since it would be presumed that the company had complied with its policy contract tó declare dividends and ascertain and set apart surplus annually.</p> <p>■4. Insurance. Di-vidends. Application.</p> <p>Although a life insurance policy provides for forfeiture of the policy for nonpayment of annual premiums, where it also provides that dividends shall, at insured’s election, annually be either paid in cash or applied to the payment of premiums or applied to the purchase of paid-up additions or left to accumulate a further ' provision giving the company, in case insured makes no election, the option to apply the dividends to the purchase of paid-up additions, applies only where the insurance is being kept in force, and, where insured is in default for nonpayment of premiums, the dividends are applicable to payment of such premiums.</p>

HoN. AY. H. PottpR, Judge. Suit by Bryson Pillars against E. J. Eevnohls Tobacco Company and another. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. . AYe admit very frankly that the general rule is that the manufacturer is not liable to the ultimate consumer for damages resulting from the defects or impurities in the articles manufactured'by it, hut that is merely the general rule.

HoN. T. B. Cabboll, Judge. Suit by Mrs. Allie Pope against Gates T. Ivy and others. Prom a' judgment for defendants, plaintiff appeals. The facts are fully stated in the opinion of the court.

HoN.'Joe May, Chancellor. Suit between Dorsey A. Joiner and Mrs. N. R. Joiner to construe a will. Prom the decree rendered, Dorsey A. Joiner appeals. The facts are fully stated in the opinion of the' court. There can he no dispute that item 2 of the codicil is inconsistent with and repugnant to at least a part of item 3 of the original will. What rules of construction govern when there are inconsistent and repugnant clauses?

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HoN. A. E. Weatheksby, Judge. Mandamus by the state, on relation of' Boss A. Collins, Attorney General, against E. I. Watts, Superintendent of Education of Márion County. From a judgment denying relief, the relator appeals.. The facts are fully stated in the opinion of the. court.

.'«tiisvin i'-MWiu'iS! Xo r.'.sw'tiin^ .Siw VT -x's'C .Wi J aíxixihO X . Held: in effect, that silence of defendant’s attorney or the failure of the attorney then and there to accept the court’s offer of a new jury or a trial de novo, could in no way waive the error, and the court winds up the opinion by quoting very freely from Sherrod’s case, 93 Miss. 774, to the effect that in capital cases defendant cannot…

' PIoN. J. -L. Bates, Judge. Suit by the Hill Manufacturing Company against the New Orleans, Mobile & Chicago Eailroad Company. From a judgment for the defendant, plaintiff appeals.

<p>1. TaxatioN. Expiration of time for redemption. Who entitled to notice.</p> <p>Under Code 1906, section 4333 (Hemingway’s Code, section 6967), requiring the clerk of the chancery court to give notice to the owner of the expiration of the time for redemption of land sold for taxes, the clerk must give notice to the owner of the land, if he he a resident of this state and his address is known to said clerk and it is immaterial to whom the land is assessed, except that it is presumed that the person assessed is the owner.</p> <p>2. Chancery Clerk. Tax sale. Time for redemption. Notice. Knowledge of ownership. Question for jury.</p> <p>In a suit against the chancery clerk for damages for failure to give the notice required by Code 1906, section 4333 (Hemingway’s Code, section 6967), of the expiration of the time for redemption of land sold for taxes, where it appeared that the assessed owner was dead, but her will was being probated in his office, the clerk must affirmatively show that he did not know the facts as to ownership shown by the will and in such case the question as to knowledge of such ownership by the clerk was a question for the jury.</p>

Hon. R. W. Cuteee., Chancellor. Suit by Jones B. Lehman against the Regina Flour Mills Company. From a decree for complainant, defendant appeals. The facts are fully stated in the opinion of the court.

HoN. F. E. Everett, Judge. Suit by the Panola County Bank against the J. C. Nessen Lumber Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

HoN. W. M. DeNNy, Jr., Chancellor. Action by the city of Gulfport against the hank of commerce of Gulfport and another. Decree for the city and defendants appeal. The facts are fully' stated in the opinion of the court.

HoN. J. H. Neville, Judge. Suit by Virginia Ragland against the Native Lumber Company. Prom a judgment for the defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

HoN. D. M. Russell, Chancellor. ■ • Bill by M. D. Tate1 and wife against L. Mohr & Sons. From a judgment for plaintiffs, defendants appeal. The facts are fully stated in the opinion of the court.

HoN. O. B. Tayloe, Chancellor. Petition by Odessa Adams, a minor, by her next friend,, against Inez Hudson and others. Prom a decree dismissing her petition, plaintiff appeals. Tbe facts are fully stated in tbe opinion of tbe court. Counsel for appellant in bis-brief admits, that if tbe will established- a trust in tbe executor that tbe appellant lias no cause of action.

Hon A. E. Weatherby, Judge. Suit by J. M. Thompson & Company, against the Lamar County Agricultural High School and A. B. Talbert.. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The school is the board of trustees, and vice versa the board of trustees is the school.

<p>1. MoRtgages. Assignment of part of debt. Bona-fide purchasers.</p> <p>Where a series of notes are all secured by a common deed of trust and a common security, the holders of the notes are entitled to share pro rata in case the security is not sufficient to pay all.</p> <p>2. Same.</p> <p>A bona-fide purchaser without notice from the indorsee of part of a series of notes secured by a trust deed are not affected by a collateral agreement between the payee and his indorsee, that the notes retained should have priority of payment over those endorsed, but in such case they are entitled to share pro rata.</p> <p>3. Mortgages. Notes. Indorsers. Liability.</p> <p>Where the .payee and his endorsee of part of a series of purchase money notes secured by a trust deed collaterally agreed that the notes retained by the payee should have priority as to security and the indorsed notes have passed to a bona-fide purchaser without notice of such agreement, and the security is prorated between such holder and the payee to the latter’s loss, in such case the payee is entitled to judgment against his indorsee, for such loss.</p> <p>4. Same.</p> <p>If the payee’s signature is forged by one in possession of a " part of a series of notes secured by a trust deed, a bona-fide purchaser is postponed to the rights of the payee in the security and in such case the purchaser takes only the rights of his transferror.</p>

' Hon. A. E. Weathekby, Judge. Snit by the J. H. Miner Saw Manufacturing. Com.pany against the New Orleans & Northeastern- Railroad Company. From a judgment for plaintiff, defendant appeals. Held: “There is no doubt from the record that the carrier was negligent, and that at the time the contract was made the carrier was fully advised of the probable consequences of its negligence.” And, therefore, the plaintiff should recover. In C. of G. R. R. Go. v. Goodwater, Mfg.

Hof. A. J. McINtybe, Chancellor. Suit by S. H. McCreight against Mrs. M. E. Lampkin, executrix, and others. From an adverse decree, defendants appeal. The facts are fully stated in the opinion of the court. This ease is controlled or should be controlled by the equitable proposition that an agent cannot, by a breach of duty to his principal, secure and retain the fruits of any transaction, involving such breach of good faith.

HoN. Paul B. JohNSON, Judge. Suit by J. A. Montgomery against the Dunagin-Whitaker Company. From a judgment for plaintiff, ■defendant appeals. The facts are fully stated in-the opinion of the court. No brief of counsel for either side found in the record.

HoN. A. E. Weathersby, Judge. Suit in ejectment by the Hibernia Bank & Trust Company against William Beech. From a decree denying plaintiff motion to dismiss without prejudice, and sustaining defendants’ motion to dismiss because plaintiff had failed to answer interrogatories, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. G. 0. TaNN, Chancellor. Suit by R. H. Day against H. E. Gibbs and others. Prom an adverse judgment, complainant appeals. The facts are fully stated in the opinion of the court. Under the pleadings here there can be no sort of doubt that appellant is entitled to the relief prayed for in his bill if the matter is not res adjudieata as • contended for in the answer of appellant’s bill.

HoN. Albert Y. Woodward, Chancellor. Snit by Johnnie May Flowers ‘ and another against Lang Leflore. From a decree for complainants, defendants appeal. The facts are fully stated in the opinion of the court. First, the deed of conveyance from Eufus Smith to Mrs. Sophia Coleman et. al, created a life estate in the eight grantees, and a contingent remainder in fee in the children of said grantees, which remainder in fee became vested in said children when they were born.

HoN Paul B. JohNsok, Judge Suit by Thomas M. Ferguson against Lamar A. Quick. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. A. J. McIntyre, Chancellor. Suit hy Clenton darner against Starlin Garner. From the decree rendered, both parties appeal. The facts are fully stated in the opinion of the court.

HoN. Albert Y. Woodward, 'Chancellor. Suit by Randle Blewett Schlater, administrator Com Testamento Annexo, of Thomas B. Blewett, Sr., and others against Blewett Lee and others. From a decree sustaining demurrers' to- the hill, complainants appeal. The facts are fully stated in the opinion of the court.

( HoN. E. L. Briex, Judge. Petition by the Vicksburg Sanitorium to the Mayor and Aldermen of the city of Vicksburg for relief from municipal taxation. Upon denial of this petition an appeal was taken to the circuit court where judgment was rendered for the petitioner, from which the city appeals. The facts are fully stated in the opinion of the court. We admit in the outset that the letter of this paragraph seems to sustain appellee’s contention.

' IloN. W. M. DeNNy, Je., Chancellor. Suit by F. W. Elmer and others against Native Lumber Company and others. Held: “One entering land without color of title is limited to possessio pendis.” Niles v. Davis, 60 Miss. 755; Ryan v. M. V. Ry., 62 Miss,'162; Chastang v. Chastang, 37 So. 799; 10 E. C.*L. Adverse Possession, sec. 42, says: “It has been established by the great weight of authority that the rights of those who enter upon the land as mere…

HoN. W. A. AlcorN, Judge. Action in ejectment by A. E. Graham against S. C. Taylor. From a judgment for defendants, plaintiff appeals. The facts are fully stated in the opinion of the court. I contend that the action of the court in excluding the testimony of Lucinda Wilson was clearly error and is settled beyond peradventure of donbt by tbe case of. Covington v. Frank, reported in 77 Mississippi at page 606.

HoN. E. W. Heidelbtjrg, Judge. Suit by Jesse Ellis against the Bear Creek Mill Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

IioN. A. E. Weathebsby, Judge. Suit by the Tate Mercantile Company against the Home Insurance Company. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.. The recovery by the appellee in this suit on contract on the same facts alleged in this suit is res adjudicata 23 Cvc. 1168-1170. Res adjudicata. The doctrine of res adjudicata, or estoppel by judgment, is a rule founded on the soundest considerations or public policy.

HoN. James H. Neville, Judge. Suit by T. H. Krebs against the Pascagoula Street Eailway & Power Company. Prom a judgment for defendant, plaintiff appeals. T. H. Krebs, appellant here, plaintiff below, filed this suit in the circuit court of Jackson county against the Pascagoula Street Eailway & Power Company, appellee here, defendant below, seeking to recover damages for injuries to a Saxon automobile received in a collision between the automobile and appellee’s street car.

How. Albeet Y. Woodward, Chancellor. Action by the W. T. Adams Machine Company against H. J. Slawson. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We now pass to the most important phase of this ■case which is the statute of limitations.

Hon F. E. Everett, Judge. Proceedings in attachment by the Weaver Grocery Company against the Cain Milling Company. From a judgment dismissing the action, plaintiff appeals. The facts are fully stated in the opinion of the court. Counsel say they pleaded to the declaration. This being true, the plaintiff was entitled to judgment on the attachment issue. This the court refused to do, but rendered a judgment, quashing the attachment writ and abating the suit.

Hon. Paul B. JohNSok, Judge. Tom Glov.er was convicted of seduction and appeals.. The facts are fully stated in the opinion of the court. Appellant submits that his motion for a peremptory-instruction should have been sustained.

HoN. W. A. AlcoeN, Jr., Judge. Quo Warranto by the state on the relation of E. P. Booze against B. F. Cresswell. Held: 'as provided by that section, so that the legislature has provided the mode of filling the Vacancies in municipal offices and the Governor had no authority under section 103 of the Constitution, to make an appointment, if a vacancy had existed, unless the legislature had failed to provide a mode.

HoN. G-. C. TaNN, Chancellor. Suit by W. J. Sharp against G-. H. Carney and others. !From a decree against him, defendant named appeals. The facts are fully stated in the opinion of the court. A trustee in a deed of trust has only limited powers, which are ended ivhen the foreclosure sale shall have been consummated. This has been discussed in my first; brief.’ Also those who deal with trustees must be aware that they exercise limited and delegated powers.

HoN. J. H. Neville, Judge. Suit by Ester Garner against the Ten Mile Lumber 'Company. From a judgment for plaintiff, defendant .appeals. The facts are fully stated in the opinion of the court. We respectfully submit that the peremptory instruction in this case should have been given. The appellee ■was not directed by the foreman or anyone having the right to direct bis services to assist in straightening the peavey point.

HoN. W. H. PotteR, Judge. Suit by W. A. Pickett against Jesse Barrett. Prom a judgment of the circuit court dismissing the appeal from a judgment of a justice of the peace for plaintiff, defendant appeals. The facts are fully staged in the opinion of the court. The ,one main point to be settled in this case is -whether or not the learned justice of the peace should .have sent the papers to the circuit court as ah appeal, •on the papers and bond filed with him by Barrett.

HoN. D. M. Russel, Chancellor. Bill by Cecil A. Harris against the General Accident, Fire & Life Assurance Corporation, Limited. Held: etc. “It is further held that a release may be set aside on the grounds of mistake (emphasis ours) either of law or of - fact; and the general rule that the mistake must be a mutual one is not of -universal application. (Emphasis ours).

HoN. J. H. Neville, Judge. Suit by E. M. Bufkin against George County. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

HoN. T. B. Cabeoll, Judge. .Tim Ward was convicted of arson and appeals. 'The facts are .fully stated in the -opinion of the court. Held: ‘That tracks about the size of defendant’s were found around the pen, and followed to, and some way along the road leading to-defendant’s house, is insufficient to convict.

IíoN. F. E. • Everett, Judge. Suit by Mrs. Olga B. Moore, against W. H. Neil and others. From a judgment for defendants, plaintiff appeals. The facts are fully stated - in the opinion .of the court. The doctrine of acquiring title by actual adverse possession, is so well fixed and so generally understood, that it seems needless to cite authorities except in exceptional cases.

How. Q^B. Taylob, Chancellor. Suit the city of Jackson against John Hart. Prom 'abridgment for defendant, plaintiff appeals. The fasts are fully stated in the opinion of the court. The question to he decided is whether or not the lead waterpipe can he charged against the abutting property owner as a part of paving. The • statute provides the original cost of the paving may he assessed against the property owner.

HoN. E. D. Dinkins, Judge. Suit by Mrs. E, W. Gibson against the town of Tutwiler. From the judgment rendered, the town of' Tutwiler appeals. The facts are fully stated in the opinion of the court, court.

HoN. W. H. Pottee, Judge. Ejectment by Ct. W. Skates against Marcus Kelly.. Prom a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.