Volume 121 — Mississippi Reports

Hon. D. M. Miller, Judge. Suit by Mrs. Jennie Hardenhergh against the Continental Casualty Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. D. M. Graham, Judge. Hattie Cook was convicted of violating a city ordinance prohibiting the possession of intoxicating liquors and appeals. The facts are fully stated in the opinion of the court. The only question presented by this appeal is the validity, or legality of Ordinances No. 1915-17 of the city of Pascagoula, which is set out at length in the record.

Hon. W. A. Alcorn, Jr., Judge. Proceeding by Stokes V. Robertson, State revenue agent, against the United States Nursery Company to bask assess defendant on its capital stock. The board of survivors disallowed the assessment, and on appeal to the circuit court, a peremptory instruction was granted the corporation and the state revenue agent appeals. The facts are fully stated in the opinion of the court.

Hon. E. S. Hall, Judge. John C. Smith was convicted of .knowingly altering and defacing the brand or mark of an animal and appeals.

Hon. E. S. Hull, Judge. Frank House was convicted of burglary and appeals. The facts are fully stated in the opinion of the court. The first instruction authorizes a conviction if the property is believed to he property of the Southern Eailroad Company when the indictment alleges it was the property of the Southern Eailroad Company a coi*poration.

Hon. H. H. Elmore, Judge. Suit by D. Collatta against the Western Union Telegraph Company. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Alcorn, Judge. Suit by E. H. McGhee against Walter D. Hines, Director General, The Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The court erred in refusing to give appellant the peremptory instruction asked for. This is the only proposition that we have raised in this appeal. We contend that' there is no conflict in the testimony at all.

Hon. R. W. Heidelberg, Judge. M. W. Buckley was convicted of recovering a deposit having good reason to believe the bank insolvent and appeals. The facts are fully stated in the opinion of the court.

<p>1. Criminal Law. Necessity of stating defense in application to withdraw plea of guilty.</p> <p>Where, in a criminal case, a plea of guilty is entered and is afterward sought to he set aside, the applicant should at least state the substance of his defense, so that the court may judge of the merits.</p> <p>2. Criminal Law. Trial court’s statement accepted as true on appeal, as against ex parte affidavits.</p> <p>The trial judge’s statement on appeal must be accepted as true as against a mere ex parte affidavit, especially where the statements made by the judge are not directly contradicted.</p> <p>3. Criminal Law. Refusal to permit withdrawal of plea of guilty sustained.</p> <p>Where in a criminal case a defendant entered a plea of guilty and afterwards sought to withdraw such plea stating in his application to .withdraw that the plea of guilty,was made through ignorance, but did not set forth the facts alleged to constitute a defense, and the trial court stated in the record that accused had made a full statement regarding the offense charged when the plea of guilty was entered which statement of facts was no defense. In such case there was no abuse of discretion in denying the application.</p>

Hon.. Joe .May, Chancellor. Petition for the establishment of a drainage district by Thad Arterbury and others, opposed by J. S. Equen and others. From an interlocutory decree confirming’ the report of a commission, the opposing parties appeal. The facts are fully stated in the opinon of the court. I will deal with hut two aspects of the case leaving the presentation of authorities to the opening brief of appellants.

Hon. Joe .May, Chancellor. Suit by U. S. .Biles against E. Y. Walker. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. J. H. Neville, Judge. Suit by S. H. Carter against the International Shipbuilding Company. Prom a judgment for plaintiff. Defendant appeals. The facts are fully stated in the opinion of the court. We submit that appellee could not declare upon one theory or ground of action, and recover upon another. He must recover if at all upon the theory or ground of action relied upon in Ms declaration.

<p>1. Electricity. Contract for payment of arrearages. Void.</p> <p>A provision in. a contract between an electric light company and a customer by which the customer is required to pay before installation of service, a previously contracted, bill for services at another location, is without consideration and void.</p> <p>2. Electricity. Electric light company liadle for damages for delay in furnishing service.</p> <p>Ail electric light company is liable for actual damages for its delay 'in furnishing service to a customer because the customer refused to pay for arrearage on account of service at a former residence.</p>

Hon. Kobt. S. Hall, Judge. Suit by M L. Norman against the Western Union Telegraph Company v. Hawkins, 73 So. 873, of the defendant appeals. The facts are fully stated in the opinion of the court. 1.

Hon. R. W. Cutrer, Chancellor. Bill by Earl Rawlings and others by next friend against Thomas Rawlings. From a decree for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. I submit with confidence the lower court should have sustained the demurrer, even if the hill of complaint can be treated as if it had charged defendant was able to support complainant’s and had wrongfully refused to do so.

Hon. O. B. Taylor, Chancellor. Suit by F. W. Foote against J. M. Ware and Benjamin A. Dickson. From a decree dismissing the hill as to defendant, Ware, plaintiff appeals. The facts are fully stated in the opinion of the court. We say that under the facts of this case as disclosed by the bill of complaint that there does not exist for the appellant that full, adequate and complete remedy at law that must exist before a court of equity will refuse its aid.

<p>1. Criminal Law. Petition ■ for writ of error coram nohis taken as true on'demurrer.</p> <p>A demurrer to a petition for a writ of error coram nohis admits all facts well stated or pleaded in the petition.</p> <p>2. Insane Person. Common law prevails where insanity is made known at the, trial. .</p> <p>There is no statute in this state which lays down the procedure in cases where it is made known to the court that the defendant is insane at the time he is placed upon trial for a felony, but in such case the common law on the subject is clear and must prevail.</p> <p>3 Insane Persons. Not to he arraigned for crime.</p> <p>If a man in his sound memory commits a capital offense and before arraignment becomes mad he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought.</p> <p>4. Insane Person. Not to he tried for crime.</p> <p>If after a prisoner has pleaded he becomes mad, he cannot be tried, for he cannot make his defense.</p> <p>5.- Same.</p> <p>If after one charged with a felony has been tried and found guilty, he loses his senses before judgment, judgment should not be pronounced.</p> <p>6. Same.</p> <p>If after one charged with a felony has been tried, convicted and sentenced, he becomes insane, execution should be stayed.</p> <p>7. Criminal Law. No appeal hy one convicted while unknown to he insane.</p> <p>"Where an accused was arraigned, tried and convicted while insane, such insanity being unknown to the court he has no remedy by appeal.</p> <p>8. Criminal Law. Writ of coram nobis recognized.</p> <p>A writ on tlie nature of the writ of coram nobis has always been recognized in this state as a common-law remedy in appropriate cases.</p> <p>9. Criminal Law. Writ of coram nobis.</p> <p>A writ in the nature of a writ of coram nobis is applicable to criminal as well as civil proceedings. It is founded upon the inherent power of the court over its judgments and proceedings</p> <p>10. Criminal Law. Writ of coram nobis applies to reverse conviction of one insane at trial.</p> <p>A circuit court judge has power, after the expiration of a term, to issue the writ of error coram nobis to reverse a judgment of conviction in a criminal case, where it appears that the defendant was insane at the time of the trial, and the fact was not made known at the trial, and upon the assignment of such error in fact, if disputed by the state, to cause a jury to be impaneled in term to try such issue; and the venue for the trial of such issue may be changed to another court but the change carries the whole case.</p>

Hon. W. H. Hughes, Judge. Hulon King was convicted of seduction and appeals. Held: The third assignment challenges the propriety of the trial court’s permitting the female seduced to testify as to acts of sexual intercourse between herself and the prisoner and as to the birth of her child, subsequent to her seduction. There was no controversy as to these facts.

Hon. C. Lee Crum:, Judge. . Our contention is, in regard to the written contract, first, that the contract is too indefinite to be binding under the section of the code .proceeded under, which is as follows: Section 1146,-Code 1906. “Enticing servants: If any person shall wilfully interfere with, entice away, knowingly employ, or induce a laborer or renter who has contracted with another person for a specified time to leave his employer or the leased premises, before the…

Hon. T. L. Lamb, Judge. Suit by Liverpool, London & Globe Insurance Company against the Kosciusko & South Eastern Railroad Company. From a judgment for defendant under a peremptory instruction, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. C. P. Long, Judge. Suit by W. S. Green against the Postal Telegraph-Cable Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. H. H. Elmore, Judge. Suit by E. A. Crowley against the Indianola Cotton Oil Company and another. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

LIon. B. W.. Heidelberg, Judge. Suit by F. Y Brahan against the Meridian Light & Bailway Company. From a judgment granting only a part of the relief demand, plaintiff appeals, and defendant cross-appeals. The facts are fully stated in the opinion of the court. Appellant’s wife was painfully, seriously- and permanently injured by falling upon defendant’s Gas Pipe on Twenty-fifth Avenue in the city of Meridian.

Hon. A. Y. Woodward, Chancellor. Suit between the Board of Highway Commissioners of Edinburg road district and E. B. Warren and others. Prom a judgment for the latter, the former appeals. The facts are fully stated in the opinion of the court. The questions presented by the record in this case are important ones. The sole question is, as to the power of the chancellor in the hearing of objections to the validation proceedings under the Act of September 2, 1917, chapter 29.

Hon. R. S. Hall, Judge. Habeas corpus proceedings by Frank Moody. From a judgment denying- the writ, the petitioner appeals. The facts are fully stated in the opinion of the court.

Hon. J. B. Guthrie, Special Judge. Action by James King against W. E. Jones. Judgment for defendant and plaintiff appeals. The facts are fully stated in the opinion of the court. Was the substitution of G. O. Reid, as trustee in the deed of trust above referred to, valid and in accordance with law, so that he could convey to the grantee at the sale under the deed of trust a good title to the property involved?

■ Hon. R. W. Heidelberg, Judge. Suit by Mrs. ' S. O. Scruggs against the Meridian Sanatorium. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Can the appellee recover damages for negligent handling of the wound after the injury, when she did not sue for injuries caused by such negligence?

Hon. Thos. L. Lamb, Judge. Petition for mandamus, by the state on the relation of Horton against O. F. Lawrence and others. Petition dismissed and relator appeals. The facts are fully stated in the opinion of the court.

Hon. D. M. Miller, Judge. Suit by Henderson & Mathis against W. D. Hines, Director General of Bailroads. From a verdict for defendants, plaintiffs appeal.

Hon. Lamar Easterling, Chancellor. Proceeding by Bachel Hendricks to compel H. H. Brickell, administrator, to complete payment on claim probated against the estate of J. F. Powell. From a decree for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. D. M. Miller, Judge. Suit by the state of Mississippi for the use Mrs. Lola D. Hardy against the United States Fidelity & Guaranty Company and another. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon.- R. E. Jackson, Judge. Actiton by C. E. Thompson against the Postal Telegraph-Cable Company. Judgment for plaintiff was rendered by a justice of the peace. The cause was removed by certiorari to the circuit court, which after overruling a motion to quash and without reversing the judgment of the justice, ordered the case to be tried on its merits but afterwards rendered final judgment for plaintiff and defendant appeals.

Hon. C. L. Rushing, Judge. Suit by Stokes V. Robertson, state revenue agent, against Harrison County. Judgment for plaintiff, and defendant appeals. The facts are fully stated in the opinion of the court.

. Hon. K. S. Hall, Judge. Suit by Jake Pellman against certain parties in justice court. Judgment was rendered for plaintiff and defendants appealed to the circuit court, where a judgment was again rendered for plaintiff, against the said defendant and A. J. Xydias as surety on the appeal bonds, and the surety moved to quash the evecution and set aside the judgment; from the overruling of the motion the surety appeals. The facts are fully stated in the opinion of the court.

Hon. R. W. Heidelberg, Judge. Suit by Jesse E. Shaw against Dr. K. T. Klein. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. R. W. Cutrer, Chancellor. Suit by Chas. Held: and in fact, it is the general rule that a defendant may recoup even a claim for unliquidated damages against a plaintiff, who sues him for a definite sum, where the defendant’s claim for unliquidated damages grows out of the same transaction, for which the complainant sues or even out of similar transactions between the same parties…

Hon. D. M. Millee, Judge. Suit by Mrs. M. J. Pomes against McComb City. Prom, a judgment for defendant, plaintiff appeals. The grounds for demurrer mentioned in the opinion are as follows: (1) The declaration in its entirety fails, to state a cause of action against the defendant. (2) A municipality is not required to keep its streets in perfectly safe condition.

Hon. H. H. Elmore, Judge. On suggestion of error, suggestion sustained and cause reversed and .remanded. For former opinion see 82' So. 318,-120 Miss. 604.

Hon. G. C. Tann, Chancellor. Suit between C. E. W'hite and others and the Board of Supervisors of Scott County. The former appeals. The facts are fully stated in the opinion of the court.

Hon. A. E. Weathersby, Judge. Diamond House ivas convicted of murder and appeals. The facts are fully stated in the opinion of the court.

Hon. D. M. Russell, Chancellor. - Bill by H. M. Mclntoch and others against Joe Rut-land and others. From a -decree for complainants, defendants appeal. The facts are fully stated in the opinion of the court.

Hon. E. L. Brien, Judge. Suit by John C. Dees against the Yazoo & Mississippi Valley Bailroad Company. Held: “The distinction between assumption of risk and contributory negligence involves the notion of some fault or breach of duty on the part of the employee; and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to…

Hon. J. L. Bates, Judge. Suit by Threefoot Bros. & Co. against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. First: Does the evidence show that the cotton was delivered to the compress company? Second: If the cotton was delivered, can the appellant be held liable for its destruction by the compress fire?

Hon. E. L. Brien, Judge. Habeas Corpus proceeding by B. J. Goldsby. From a judgment denying relief the petitioner appeals. The facts are fully stated in the opinion of the court.

Hon. Joe May, Chancellor. Suit by Chas. W. Partee, Jr., against S. E. Martin. Prom a decree for complainant, defendant' appeals. The facts are fully stated in the opinion of the court. The line of authorities relied upon by the plaintiff below, setting up the rule that parol evidence is not admissible to contradict a written instrument, is not applicable to this case. This rule is never applicable in matters of consideration.

Hon. W. H. Potter, Judge. Action by Mitchell Handy against the Mercantile Lumber Company. Prom a judgment for defendánt, plaintiff appeals. The facts aré fully stated in the opinion of the court. Every violation of law enacted for the protection of another, that is the proximate cause of injury to that other, is negligence per se, and actionable. Inland Steel Go. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am.

Appeal frcm the circuit ccurt qf Rankin cqunty. Hon. A. J. McLatjrin, Judge. George Howie was convicted of murder and appeals. The facts are fully stated in the opinion of the court.

Hon. G. C. Tann, Chancellor. This was a suit by the Standard Drug Company against the Norwich Union Fire Insurance Company. Defendant filed a suggestion of disqualification of the judge which complainant contested and the chancellor declined to recuse himself,' but granted an interlocutory appeal to settle the principles of the case. The facts are fully stated in the opinion of the court.

Hon. W. A. Alcorn, Jb., Judge. Suit by Sam Eubanks against the Postal Telegraph Cable Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion' of the court. The question presented by the court is within a narrow compass. If it was the duty of appellant under the Federal Law, the measure of damages and their .character are to be determined by that law.

<p>In this case there was a motion to set aside a former judgment of reversal, and determine the case on its merits; the former judgment was set aside, and the judgment affirmed.</p>

Hon. W. A. Alcorn, Judge. J. M. Steele was convicted of obtaining food and lodging with intent to defraud the owner of a hotel, and appeals. The facts are fully stated in the opinion of the court.

Hon. Lamar F. Easterling, Chancellor. Habeas Corpus proceeding by Frank Gray and wife against Dick Gray. From an order entered after decree awarding custody of child to petitioners which required petitioners to permit the child to visit defendant, petitioners appeal. The facts are fully stated in the opinion of the court.

Hon. W. M. Denny, Je., Chancellor. Suit by Mrs. A. L. Spikes against W. L. Blackledge. From a decree for complainant, defendant appeals and complainant cross appeals. ' The facts are fully stated in the opinion of the court.

■Appeal from the circuit court oí Tishomingo county. Hon. C. P. Long, judge. N. C. Davenport was convicted of unlawfuly selling intoxicating liquors and appeals. The facts are fully stated in the opinion of the court.

Hon. G. O. Tann, Chancellor. Suit by E. Raley and others against J. H. Raley and others. From a decree for defendants, plaintiffs appeal. The facts are fully stated in the opinion of the court. As shown by the pleadings outlined above, the appellants assign as error herein (1) an erroneous construction of this deed from A. J. Raley to Jane Raley and (2) the erroneous distributive share awarded appellants two questions in their order.

Hon. C. Lee Crum, Judge.- Samuel W. Pegram was convicted of an'offense and appeals. The facts are fully stated in the opinion of the court. If any offense is charged by the indictment,' or any offense is shown to have been committed by the appellant, it is of course, ■ a statutory offense; and the state seeks to punish the appellant for an alleged violation of section 344 of the Code of 1906, or section 371?, Hemingway’s Code, section —, 112 Miss. 125.

Hon. H. H. Elmore, Judge. Mollie Wemp was convicted of unlawful cohabitation with a male and appeals. The facts are fully stated in the opinion of the court. Replying to the brief of the attorney-general, the decision of this case involves a construction of the Code of 1906, section 1508, being section 1266 of Hemingway’s Code. We wish to say at the outset that this statute is in derogation of the common law and should be strictly construed.

<p>Appeal from the circuit court of Attala county. -</p> <p>Hon. T. L. Lamb, Judge.</p>

Hon. J. H. Neville, Judge. Petition for mandamus by C. R. Tolbert to compel Sylvan J. Lander to draw and deliver to the petitioner a warrant. From a judgment for petitioner, defendant appeals. The facts are fully stated in the opinion of the court. The assignment of errors and the grounds sét out in the demurrer are practically the same.

Hon. E. N. Thomas, Chancellor. Suit by the state on the relation of Ross A. Collins, Attorney-General, against the Crescent Cotton Oil Company. Prom a judgment for relator, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. Lamar F. Easterling, Chancellor. Suit by Sam Lamensdorf by next friend against Claude W. Henry. From a decree for complainant, defendant appeals. • The facts are fully stated in the opinion of the court.

Hon. Wm. M. Denny, Jr., Chancellor. Suit by the Fireman’s Fund Insurance Company against the Gulf Transportation Company. From a decree for the defendant for less than it claims against plaintiff, it appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Alcorn, Jr., Judge. Suit by J. F. McCullers against Walker D. Hines as Director General of Railroads. From a judgment for the plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. G. O. Tann, Chancellor. Suit by the Peters Branch International Shoe Company against R. B. Gunn and H. P. Hurlbert. Held: “We also think that the object of this law was to hold the goods of debtor under such circumstances as a trust fund for the benefit of all the creditors, and to hold the purchaser in possession as a trustee for such creditors.” There was no dissenting opinion.

Hon. W. F. Gee, Chancellor. Bill for specific performance by J. M. Philp against Chas. S. Dana. From a decree for defendant, complainant appeals. The facts are fully stated in the opinion of the court.

' Hon. Wm. D. Bullard, Special Chancellor. Suit by Mrs. Jennie T. Albritton against Mrs. N. M. Fairly. From a decree for complainant, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. H. H. Elmore, Judge. Suit by Jesse D. Jones against J. Gr. Brantley. From a judgment for defendant, plaintiff appeals. Held: etc., most of the work was done on week days- In this suit several different performances on the part of Mr. Jones are clearly shown in the testimony, and while the suit is for a lump sum, nevertheless, under proper instructions, if a portion of the work done by M'r. Jones was illegal because such work was done on Sunday in violation…

Hon. A. J. McIntyre, Chancellor. Suits by Dr. L. C. Feemste against the city Tupelo. From a decree dismissing the bill, complainant appeals. The facts are fully stated in the opinion of the court. We contend that the act above referred to violates the provision of sections 80, 87 and 88 of the constitution. We believe that section 80 of the Constitution is violated, because the act in question seeks by local law to regulate the taxing power of a municipality.

Hon. Chas. L. Bushing, Judge. Suit by W. H. Daniel Auto Company against the St. Paul Fire & Marine Insurance Company. From a judgment for plaintiff defendant appeals. Held: “That the assignment of the contract before suit was filed was not necessary,” a decision which at least possesses the charm of novelty.

Hon. Lamar F. Easterling, Chancellor. Suit by Fred Lynch, Sr., against Chas. A. Lynch. From an adverse decree, complainant appeals. The facts are fully stated in the opinion of the court. Held: “Delivery is a question of intention and it is deducible from all the circumstances of the transaction. ’ ’ “Delivery may be inferred from the fact of acknowledgment.

Hon. C. Lee Crum, Judge. McKinly Carothers was convicted of burglary and appeals. The facts are fully stated in the opinion of the court. The defendant was never warned that what he should say would be used against him. The indictment is bad and, therefore, fatally defective in not charging that the intent to steal, take and carry away certain personal property was a burglarious one.

Hon. W. A. Alcorn, Jr., Judge. Mandamus by the state on the relation of Ross A. Collins, attorney general, against C. W. Taylor, and others members of the Board of Supervisors of Quitman County. From a judgment adjudging defendants in contempt and imposing sentences, they appeal. The facts are fully stated in the opinion of the court. Appellants contend as follows: First: That appellee was not entitled to the issuance of the writ of mandamus in this cause.

of Wilkinson county. Hon. R. E. Jackson, Judge. Suit by Clarence McNeely against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. R. W. Heidelberg, Judge. Suit by J. W. Mullican and others against the Meridian Light & Railway Company and V. L. Crawford. From a judgment for defendant, plaintiffs appeal. The facts are fully stated in the opinion of the court. The only feature of the brief in behalf of the Meridian Light & Railway Company to which we deem proper to make extended reply is the one relating to the proximate cause of the injury and death of Mullican.

Hon. Claude Clayton, Judge. Suit hy McCullar & Co. against W. P. Mink, filed with a justice of the peace. Verdict for plaintiffs in part, and judgment thereon, and plaintiffs appealed to the circuit court, and from its judgment, dismissing the appeal,' plaintiffs appeal. Reversed and remanded.

Hon. J. G. McGowen, Chancellor. Suit by attachment by J. W. Land, administrator, against the Crossett Lumber Company and others named as garnishees. Decree for plaintiff for two thousand dollars, and defendant appeal. Reversed, and judgment entered for defendant.

Hon. Lamar F. Easterling, Chancellor. From a decree affirming and approving an assessment. by the Commissioners of the Straight Bayou Drainage District, C. B. Box appeals. Decree affirmed.

Hon. E. D. Dinkins, Judge. P. W. Darby was convicted of murder, and lie appeals. Keversed, and a new trial granted. We do not think it can be successfully contended that it is not a close question on the facts as shown in this record. Then there was fatal error in the argument of both the county attorney and the district attorney, in arguing to the jury testimony admitted only and admissible only to contradict the witness Ed Darby as direct evidence against appellant.

Hon. A. Y. Woodward, Chancellor. Suit by Carrie S. Applewhite and others against L. Niles Boyd and others. Decree for plaintiffs, and defendants appeal. Affirmed in part, and reversed in part.