Volume 123 — Mississippi Reports

Hon. R. W. Ctitrer., Chancellor. Suit by R. C. Ramsey against I. F. Gaulden, administrator of Mrs. O. D. Graves, deceased; to have the administrator ordered to sell realty to pay complainant’s probated claim against the estate, with answer by the administrator and the heirs. Decree for complainants, and the administrator appeals. This was the case of an aged mother living with her daughter., Could there be a closer family relation1?

<p>1. Wills. Profit of sale of real estate is not income.</p> <p>When the will devises the income of invested money, and it appears that the money.was invested in real estate, and the real estate was then sold at a profit, the profit so obtained was not income, but a part of the-capital, and the remaindermen are entitled thereto.</p> <p>2. Wills. Devisee of income held to waive right to have trustee pay him money advanced to purchase realty.</p> <p>When a devisee invests his own money in the purchase of land with the trust fund, and agrees that the title to the land shall be vested in the trustee, and also agrees that the land so bought shall be impressed with the conditions of the will, he loses his * right to claim that the trustee shall pay to him the amount so advanced.</p>

Hon. W. H. Hughes, Judge.' Action by B. T. Pickering against Covington county. Judgment for plaintiff, and defendant appeals. Held: “That courts must look to the statute itself. for the legislative intent, and cannot make law by judicial construction. ” When the legislature said “dip” it certainly did mean “dip,” and it was manifest error for the court to charge the jury “that dipping in this state is either dipping by carrying the animal through the vat or'by…

Hon. E. L. Brien, Judge. W. R. Hackett, Treasurer of Warren County, presented a claim for the balance of his salary to the Board of Supervisors of Warren County. Claim rejected, and on appeal to the circuit court there was judgment for the Treasurer, and the Board of Supervisors appeals.

Hon. R. W. Outrer, Chancellor. Suit in partition by J. L. Criscoe against L>. ML Adams. Decree for defendant, and plaintiff appeals. Held: “A deed conveying land in consideration of an agreement to support the grantor, ’cannot be cancelled for breach of the undertaking, the remedy being by action on the undertaking.” Lee v. McMorris, 107 Miss. 889; Lowrey v. Loivrey, 111 Miss. 153; Dixon v. Milling, 102 Miss. 449; Gadberry v. Shepherd, 27 Miss. 203; Memphis etc.,…

Hon. Frank Roberson, Special Chancelor. Suit by the City of Jackson against Mrs. Agnes Buckley, with cross-bill by defendant. Decree for defendant, and complainant appeals. I. The court erred in dismissing the bill of the city of Jackson. The principles in this case have been passed upon by this court in case of Edwards Home v. City of Jackson, — So. 14; Sparks v. City of Jackson, 79 So. 67.

Hon. Frank Roberson, Special Chancellor. Suit by the City of Jackson against Mrs. Deeta Mims, Decree for defendant, and complainant appeals. The resolution declaring, the work necessary and stating the street, etc., and the resolution providing the plans and specifications were all of the notices required by law to be given the property owner to do the. work himself or so that the city would do the work and charge him with the cost thereof.

Hon. E-. D. Dinkins, Judge. O. K. Haley, was convicted of manslaughter, and lie appeals. The separation of the jury, was in violation of the rights of the defendant and it is immaterial whether improper influence was exerted upon the jury or not.

Hon. D. M. Graham, Judge. Replevin by Mrs. Nannie Telhiard against Mrs. Jos. Oppenheimer, brought before a justice of the peace. A judgment by default was rendered and on trial de novo in the circuit court plaintiff recovered judgment, and defendant appeals. Is a conditional sale recognized by the law of Louisiana, in which state the contract of sale involved in the case at bar was executed?

Hon. E. N. Thomas, Chancellor. Suit by Mrs. Evie May Brown against Charles H. Brown for divorce and for custody of the child. Decree for complainant awarding alimony and attorney’s fees, and defendant was granted an appeal with supersedeas, and appellee moved for alimony pendente lite and for attorney’s fees in the supreme court.

Hon. D. M. Graham, Judge. C. Y. Crawford was convicted of operating a moving picture show on Sunday, for an admission, in the city of Pascagoula, and he appeals. As stated in the statement of facts, this ease hangs and depends upon whether or not section 1368, Code 1906, section 1104, Hemingway’s Code, can be construed to include what is known in this day and generation as a moving picture show.

TIon. T. L. Lamb, Judge. Lem Ervin was convicted of manslaughter and he appeals.

Hon. R. S. Hall,, Judge. Eugene Clark was convicted of murder, and k¿ appeals.

'Hon. Gr. C. Tann, Chancellor. Suit by the Philip Gruner Lumber Company against the Algonquin Lumber Company and others, with cross-bill by defendant named. Held: in the case of Hardy Tynes Foimdry Machine Go. v. Glen Allen, Oil Mills, 36 So. 2'62, that stipulations of this nature should be construed, with reference to the other: parts of the contract, so as to reconcile them thereto.

Hon. A. J. McIntyre, Chancellor. Suit hv Mrs. J. II. Scruggs against Mrs. Irene Northern and others, with answer and cross-bill by defendants. Decree for defendants, and complainant appeals.

Hon. E. N. Thomas, Chancellor. Suit by Morris Eosenstock against the Board of Supervisors of Washington County and others to enjoin a bond issue. Judgment for defendants, and plaintiff appeals. Held: the bond issue would have been valid. Robertson v. Board of Supervisors, 119 Miss. 621.

Hon. A. Y. Woodward, Chancellor. On motion to correct judgment.

hon. B. B'. Mates, Special Chancellor. Bill by the state, on relation of Boss A. Collins, Attorney General, against the Grenada Cotton Compress Company. From a decree of dismissal relator appeals. Held: that a statute imposing a license upon “dealers in pistols, Bowie knives, and dirk knives ’ ’ must be construed as applying to each dealer in pistols, or in Bowie knives, or in dirk knives, and not merely to dealers in all of these articles.

<p>1. Covenants. Covenant of seizin is broken only by paramount title in a third party.</p> <p>The covenant of seizin in a general warranty deed does not embrace a title already vested in the vendee, but only extends to dnd is broken only by a paramount title existing in a third party.</p> <p>2. Evidence. Terms of warranty deed cannot be added to or contradicted by contemporaneous oral agreement.</p> <p>A written warranty deed is the sole evidence of the contract of purchase between the vendor and vendee, and cannot be contradicted or its terms added to by an. alleged contemporaneous oral agreement.</p> <p>Holden, J., dissenting.</p>

Appear from chancery court of Attala county. Hon. A. Y. Woodward, Chancellor. Suit between E. S. Ward and Mrs. Sallie Ward, administratrix. Judgment for the latter, and the former appeals.

Hon. D. M. Graham, Judge. Action by Miss Carmen Martin against Hanun Gardner, receiver of the Great Southern Hotel Property. Judgment for plaintiff, and defendant appeals.

<p>1. Criminal Law. Error, not substantially injuring accused, will not cause a reversal.</p> <p>Error which has resulted in no substantial injury to the accused on trial will not cause a reversal.</p> <p>2. Criminal Law. Evidence, admitted without objection, cannot be complained of.</p> <p>Exidence which was introduce^ without objection cannot be complained of on the ground that it was not competent in the case.</p> <p>3. Homicide. Evidence ■held to sustain conviction.</p> <p>Evidence held sufficient to sustain a conviction of murder.</p>

<p>1. Homicide. Evidence of deceased’s good reputation inadmissible, where not attacked.</p> <p>Upon the trial of one indicted for murder, evidence of the general good reputation of the deceased is incompetent, when the defendant had made no attack of any kind upon deceased’s character.</p> <p>2. Criminal Law. Defendant’s statement that accused tried to kill him held self-serving.</p> <p>A statement by the accused to his wife a'few minutes after the fatal shots were fired that, “Sheppard tried to kill me, and I shot him, is a self-serving declaration, and inadmissible. ( ■</p> <p>3. Homicide. Words of reproach will not reduce murder to manslaughter.</p> <p>No mere words of reproach, however grievous or provoking, unaccompanied by any assault or mutual combat, are sufficient provocation to reduce an intentional and unjustifiable homicide from murder to manslaughter.</p>

Hon. D. M.'Gtraham, Judge. Action by Clozelle Landier against the Ingram Day Lumber Company, and others'. Plaintiff required to elect upon which count he would proceed, and verdict for plaintiff on that count, and he appeals.

Hon. R. E. Jackson, Judge. Action by Clarence McNeeley against the Yazoo & Mississippi Valley Railroad, and Walker D. Hines, Director General of Railroads, in which on motion John Barton Payne was substituted as agent for the Director General.' Verdict for plaintiff, and John Barton Payne, agent, appeals.

<p>Appeal from circuit court of Leflore county</p> <p>Hon. S. F. Davis, Judge.</p> <p>.Mandamus by the Ben L. Jones Agircultural High School against the Board of Snpervistors of Leflore County. Writ denied, and plaintiff appeals.</p>

Hon. E. L. Brien, Judge. Action by L. M. Cole against Walker D. Hines, Director General of Railroads, and another. From a judgement for plaintiff, defendants appeal. Facts show no liability. Peremptory instructiin should have been given defendant.' Plaintiff injured in fight, personal to himself and his antagonist. Railroad Company v. McAfee, 71 Miss. 70; Railroad Company v. Harz, 88 Miss. 681; Railroad Company v. Latham, 72 Miss. 35, 36.

Hon. D. M. Graham, Judge. Action by Mrs. Eugenia Manuel and Elores Manuel, a minor, against the City of Biloxi and the Gulfport & Mississippi Coast Traction Company. Judgment for plaintiffs, and defendants appeal.

<p>1. Pleadings. Demurrer does not admit facts set forth in improper or illegal pleadings.</p> <p>The rule with reference to the admission by a demurrer to a pleading is that a demurrer admits all facts well pleaded to he true. It does not admit the facts set forth in improper or illegal pleadings.</p> <p>2. Pleading. Defendant must cither deny or admit plaintiffs pleading.</p> <p>The pleadings of a defendant must either deny or admit the plaintiff’s or complainant’s pleading. If he admits the facts set forth in plaintiff’s pleadings, he may avoid by affirmative averment, hut he must either deny or confess and avoid. He may not allege facts neither in denial nor' in confession and avoidance.</p>

Hon. W. A. Alcorn, Jr., Judge. Ejectment by Levi N. Frank against Medora Jones, and others. Judgment for plaintiff on a directed verdict, and certain defendants, including the named defendant, appeal. We submit that the fundamental error committed by the trial court upon the trial of this ease was when it permitted the appellee, over the objection of appellants, to introduce as evidence the trustee’s deed.

Hon. J. G. McGowan, Chancellor. Suit for injunction by T. M. Garrott and others against the Indian Creek Drainage District No. 1 of Q,uitman, Tunica, and Panola Counties' and others. From a decree overruling the motion to dissolve a temporary injunction theretofore granted, defendants appeal.

Hon. B. WÍ. Cutrer, Chancellor. Suit by W. E. Fauntleroy and others against Chas. Mardis and others. From a decree dismissing the bill, plaintiffs appeal. It will not escape the attention of this court that this is not an appeal from the decision of a chancellor upon a controverted issue of fact. Therefore there is no presumption of correctness attached to the finding herein.

Hon. . C. L. Long1, Judge. N. F. Barrett and others, as taxpayers of Cedar Hill Consolidated School District, appealed from an order of the board of supervisors, directing an issuance of bonds to equip a school building in such district. From a judgment affirming the order, Barrett and others, taxpayers, appeál.

Hon. W. H. Potter, Judge. Proceedings by Stokes V. Robertson, State Revenue Agent, to back-assess the Bank of Yazoo City, the Citizens’ Bank & Trust Company, and the Delta Bank & Trust Company, with protest by the banks filed with the board of supervisors.

Hon. Z. A. Brantley, Special Chancellor. Proceeding betiveen William McDaniel and others and J. R. McDaniel to determine heirship. Prom the decree, both parties appeal.

Hon. R. W. Cutrer, Chancellor. riuit for injunction by Adams County against J. H. Neville and others. Injunction granted, motion to dis-. solve the injunction and. a demurrer to the bill overruled, and defendant, Neville, appeals. This suit is solely for injunction. There is no other relief sought. Injunction is a summary and extraordinary proceeding. It has been spoken of as the strong arm oi equity.

Hon. A. E, Weathersby, Judge. Action by John R. Sauls and others against the Denkmann Lumber Company. Verdict for plaintiffs as to a part of their claim. From the rulings and judgment, plaintiffs appeal. The deed for the timber which appellants made to appellees recited as follows: “All pine timber and timber-like trees now being, growing and standing, etc.” Under this deed appellees claimed and cut all the timber of every kind found on the land.

Suit between A. D. McFarlane and Frank O. Dormand. Application by the stenographer of the Ninth chancery court district for an extension of thirty days in which to transcribe and file his notes of the evidence in the cause.

<p>Appeal from circuit court of Lauderdale county.</p> <p>Hon. R. W. Heidelberg, Judge.</p> <p>Action by the Mayor and Board of Aldermen of the Town of Hickory against J. IT. Semmes and others. Judgment for defendants, and plaintiffs appeal.</p>

IIon. W. H. Hughes, Judge. Action by S. B. Thompson against the Western Union Telegraph Company. Demurrer to defendant’s special plea sustained, and judgment for plaintiff for .punitive damages, and defendant appeals.

Hon. Z. A. Brantley, Special Chancellor. Suit by the G'win Lewis Grocery Company against the 'Cape County Milling Company and the Cape County Savings Bank and others. Decree for the Grocery Company, and the Milling Company and the Bank and others separately appeal, and the appeals were consolidated. 1.

<p>Appeal and error. Judgment entered on appeal, where decree was not in conformity with prior opinion.</p> <p>Where, on second trial, the legal questions were precisely the same as those presented on former appeal reversing decree for defendant, and the evidence was not materially different and amount plaintiff was entitled to recover was proved, on appeal from a judgment for defendant, decree would be entered for plaintiff.</p>

Hon. R. S. Hall, Judge. Action in justice court by the Trustees of Indian Springs Public School against Levi Carter and another. Prom a judgment of the circuit court for defendants on appeal, plaintiffs appeal.

AppExIl from circuit court, Jefferson Davis county. Hon. W. A. Shipman, Special Judge. Action of replevin by Jesse Richmond against M. L. Langston, with claim by W. F. Boone. Held: (A) That the appellee had no claim to the land in section 31 because it was the homestead of Langston and wife and that his wife did not join in the deed of trust, and for the further reason that the deed of trust could not be reformed as against Richmond.

Hon. A. J. McIntyre, Chancellor. Suit by F. G. Hawkins against the Clay County Cotton Oil Company and others. Demurrer to amended bill sustained, and bill dismissed, and plaintiff appeals.

Holy. A. J. McIntyre, Chancellor. Suit by W. E. Holt against C. F. Stubblefield. Held: so far as I have been able to find, that when the instrument stated absolutely and without qualification, as does the instrument in the case at bar, that it is to take effect at the death or after the death of the maker, then it is testamentary in character and inoperative as a deed.

Hon. C. P. Long, Judge. Action by the Monroe County Hay Exchange against Allen & Co., with counterclaim by defendant. Verdict and judgment for plaintiff,, and defendant appeals.

ITon. H. H. Elmore, Judge. Action in replevin by G. M. & E. G. Ham against Bessie Wilson. Judgment for defendant, and plaintiffs appeal. Held: in Walker v. Jeffries et al., 45 Miss 160, that mere knowledge of the lender of the illegal pnrpose for which the money is Avanted does not vitiate*the loan.

Hon. Or L. Ciium, Judge. N. D. Adams was charged with having intoxicating liquor - in his possession unlawfully. From a directed verdict of acquittal, the state appeals. The appeal is taken by virtue of paragraph 2, section 16, Hemingway’s Code (section 10, Code of 1906). There seems to be some, confusion in the decisions of the court relative to the right of the state to appeal in a criminal case where the defendant is acquitted in the circuit court.

Apeal from circuit court of Tallahatchie county. Hon. W. E. Stone, Special Judge. Woodson Walker was, convicted of manslaughter, and sentenced to a term in the penitentiary, and he appeals. In the instant case all the appellant could have been convicted of was manslaughter if the evidence in the case would have supported a verdict of manslaughter, since he had once been tried for and acquitted of the crime of murder and upon this trial found guilty of manslaughter.

Appear from circuit court of Pontotoc county. Hon. Crauue .Oeayton, Judge. Joe ITorton was convicted of seduction and lie appeals. In the brief for appellee, counsel admits that there was no proof of venue in the court below, but takes the position that as no special objection or exception on that account was made in the court below, it cannot be urged for the first time in this court.

Hon. C. C. Miller, Judge. Ed. Culpepper was convicted under an affidavit by the City of Meridian charging unlawful drunkenness in his own home and loud and boisterous language and offensive conduct, and he appeals.

Hon. R. S. Hall,- Judge. A. N. McAlpin was convicted of receiving stolen property, and he appeals. The learned attorney-general in Ms brief states that the first assignment of error of appellant can avail him nothing for the reason that the American Railway Express Company and the American Express, Company are one and the same corporations.

• Hon. E. L. Brien, Judge. E. L. King and three others were convicted on an indictment charging an unlawful conspiracy in making assault on and smeafing the body of a named female, pursuant to which they unlawfully assaulted and tarred her, and they appeal.

ITon. C. Lee. Crum, Judge. B. P. Kyle was convicted in the mayor’s court of the town of Calhoun City for the violation of an ordinance by wagering or betting, and from a conviction on appeal to the circuit court, Kyle appeals. It is well settled in this state that our courts other than municipal courts do not take judicial notice of town ordinances.

I-Ion. D. M. Miller,. Judge. Santy Abney was convicted of manslaughter, and she appeals. It is insisted that there is no reason in law or in principle why the prosecuting attorney should not state to the jury the maximum and minimum punishment in the event of a conviction of manslaughter, provided only that he states the law correctly, and it is even insisted by counsel for appellee that it would be wise and just for the district attorney to do so.

D. M'. Gkai-iam, Judge. Action by G. J. Boltz against the'Wrought Iron Range Company and another. Judgment for plaintiff, and defendants appeal. We will consider the first two assignments of error together, one being that the court erred in not giving a peremptory instruction in favor of the Wrought Iron Range Company and the other that the court erred in not giving a peremptory instruction in favor of Clark Young., which instructions were requested separately.

Hon; E. L. Brien, Judge. Action by W. B. Godley against Walker D.. Hines, Director General of Railroads, agent of tbe United States, and the Yazoo & Mississippi Valley Railroad. Held: “Where a servant is injured by reason of a defect in a tool, or appliance, one of the essential elements of negligence on the part of the master is knowledge, actual or constructive of the existence of the defect in the tool or applihnce.

<p>Injunction. Constitutionality of lata under which Governor appointed auditor not be raised by injunction.</p> <p>Where the Governor appointed an auditor under Code 1906, section 2388, and Laws 1914, chapter 241, to audit the boohs of county officers, an injunction should not issue .to restrain the auditor from presenting an account for his services and to restrain the circuit judge from approving the auditor’s account for services in such auditing before the completion of the audit; the proper remedy being for the board to raise the question when the account is presented for allowance, when the sufficiency of the petition and the constitutionality of the law may be raised and passed on.</p>

I-Ion. G-. E. Williams, Chancellor. Suit by T. C. Buford and others against the Virginia Trust Company and others. Demurrer to the bill overruled, and defendants appeal. It seems to be a well-established rule of construction by the courts of the country that powers that are considered to be purely discretionary, or naked, or collateral can be exercised, only by the designated donees in the will in person and acting jointly.

I-Ion.IL H. Elmore, Judge. Action by Despres, Bridges & Noel against the Hough' Drug Company. Verdict for defendant, motion for new trial was overruled, and plaintiff appeals. Held: in substance that to be subject to the statute there must be some local domicile or branch house within the state of Mississippi. Fraud of Part in Manufacturing Company.

I-Ion. E. S. Hall, Judge. Certiorari by W. E. Melton and others to the board of supervisors of Forrest county and others, to revieiv an order requiring cattle to be clipped. From the judgment both parties appeal. This is an appeal from a judgment rendered by the court below in a matter removed to it from the board of supervisors of Forrest county by a writ of certiorari.

Lamar F. Easterling, Chancellor. Suit by Mrs. Serena Johnson against the Copiah Hardware Company. From a decree overruling a demurrer to the bill, defendant appeals. The only proposition discussed by appellee is that the phrase “before or after November 1, 1918” in the renewal-covenant of the lease contract is ambiguous, and renders this covenant so uncertain as to be void and unenforcible.

IIon. iC. P. Long, Judge. Action by Clabe Thompson against Walker D. Hines, Director General of Railroads, operating the Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. The engineer M. L. Dodd, who has had an experience of forty-seven years as locomotive engineer, is the only witness in the case who gave the facts as to the killing of the mule.

BOon. BE. BE'. Elmore, Judge. Ben F. Wasson was convicted of violating, a city ordinance, and he appeals. This is a case wherein the appellant was convicted on a charge of having violated section 60 of chapter 9 of an ordinance adopted and approved by the city council of the city of Greenville, Mississippi, on the 4th day of June, 1918, a printed pamphlet containing the ordinance is filed with the record in the case as a part thereof.

Hon. W. A. Alcorn, Judge. Action by tlie Goshen Shirt Manufacturing Company against M. Tonkel. Directed verdict, and judgment for plaintiff in part and for defendant in part, and plaintiff appeals. The statute under which this case is brought reads as follows: Section 978 affidavit to account entitles to judgment.

A. E. Weatheesby, Judge. Action by the state of Mississippi, for the use of Alonzo Reed, against D. U. Boutwell and- others. Demurrer to declaration sustained, and plaintiff appeals.

<p>1. Licenses. Privilege tax relating to- trading stamps not increased by doing business in several counties.</p> <p>Under chapter 109, Laws of Mississippi of 1912, imposing a privilege tax on each person, firm, or corporation selling or redeeming trading stamps, only one state tax is imposed upon a corporation engaged in the business in several counties.</p> <p>2. Statutes. Tax laws not construed as imposing burdens on doyfitful interpretation.</p> <p>Laws imposing taxes are not to be construed as imposing burdens upon doubtful interpretation.</p>

Hon. L. F. Easterling, Chancellor. Suit by the United States Fidelity & Guaranty Company against Ed. Jackson and others for an injunction. From an adverse decree, complainant appeals. Held: Under section 237 of the Judicial Code as amended ) September 6, 1916 (chap. 448, 39 Stat. at L. 726, Comp.

Hon. L. F. Easterling, Chancellor. Suit for injunction by L. M. Ashley and wife against R. J. Young. From the decree rendered, defendant appeals. Held: “If the husband elects to invoke the aid of a court of equity rather than resort to a law court, the shadow of the wife’s name as an unnecessary party to the proceeding will not absolve him from, the operation of the rule which requires him to do equity before asking relief in equity.

I-Iojsr. T. L. Lamb, Judge. - Tom Card was convicted before a justice of tlie peace on an affidavit charging the willful, unlawful, and malicious tearing down and removing a fence, and from a judgment of conviction in the circuit court on his appeal he appeals Our view of this cause on the whole record, is that the evidence not only does not tend to prove a violation of the criminal law, but rather shows affirmatively that he is guilty of no offense.

Hon. I-I. H. Elmore, Judge. Action by J. E.. Young against Alexander Bros. Judgment for defendants, and plaintiff appeals. Held: Where a sale of personal property is otherAvise complete, delivery as bet.Aveen the parties to the contract is not necessary in order to invest the purchaser with the title thereto., unless delivery is required by the contractas a condition precedent to the Aresting of title, and the completion of the sale.

I-Ion. A. E. YVeathersby, Judge. Bobert Campbell urns convicted of murder, and sentenced to death, and he appeals. Held: that a neAV trial should have been granted on the shoAving made of neAvly discovered evidence.

IIon. W. ID. Poirier, Judge. Andrew Foster was convicted of grand larceny, and lie appeals. We are familiar with the case of AJcroid v. State, 107 Miss. 51, wherein this court, speaking through the chief-justice, said'that when possession of property is acquired by fraud with the felonious intent then and there to deprive the owner of it, the perpetrator is guilty of larceny.

Hon. A. J. McLain, Judge. Martin Mott was convicted of murder, and he appeals. Held: we think, that previous threats made by either party against the other aro admissible. The defendant introduced Mr. Garl Harris who testified, in the absence of the jury, as to a ¡previous threat made by deceased against defendant. But tliis testimony was excluded and not allowed to go to the jury.

Hon. T. L. Lamb, Judge. Action by C. E. Thomas against A. S. Burleson, Director General of the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. The defendant asked a peremptory instruction, also instruction that punitive damages could not be awarded, also that the statutory penalty could not be recovered.

ITon. John Falkneb, Jr., Judge. Quo warranto proceedings by the State of Mississippi, on relation of Lee M. Russell, Governor, to oust E. E. Temple and others from their offices as Mayor,and Commissioners of the Municipality of Oxford. Judgment of ouster, and defendants appeal. I deem it advisable to set out here a certain section of the constitution and certain statutes and divisible parts of statutes in order that their texts may be easily found and retained.

Hon. R. S. Hall, Judge. Action by City of Hattiesburg, to the Use of A. B. Cos-ton, against T. W. Beverly, a policeman of the city, and the United States Fidelity & Guaranty Company, as surety on Beverly’s official bond. Judgment for defendants, and plaintiff appeals. Whether the plaintiff was arrested by Beverly for violating the statute against profanity was made an issue of fact before the jury.

Hon. W. F. Gee, Chancellor. Suits by Joe Stien, owner, against the Greenwood Bank & Trust Company, the Delta Lumber Company, and others, with answer and cross-bill by Greenwood Bank & Trust 'Company against materialmen and other defendants, and answer and cross-bill by Dlelta Lumber Company and the other materialmen against the Greenwood Bank & Trust Company.

I Ion. L. F. Easterling, Chancellor. Suit by William C. Fisher against Charles A. Burk and another. Held: that he could not plead as a defense to a suit by the grantor of A for the possession of the land, or to be subrogated to the rights of A. That the conveyance from the original purchaser to A was defective.

Appear from chancery court of Greene county. Hon. W. M. Denny, Jr-, Chancellor. Suit by C. V. Churchwell and others against the Vinegar Bend Lumber Company and others. From a decree in accordance Avith a master’s report, defendant company appeals.

' ■ Hon. D. M. Bussell, Chancellor. Suit by E. P. Watts against Mrs. Susie Watts for divorce. Decree for plaintiff. Defendant filed a petition to have the decree set aside, and from an order overruling his demurrer thereto plaintiff appeals.

Proceedings between C. IT. Dulaney and B. Tonnar, wlierein the court stenographer petitioned for an extension of time within ivhicli to transcribe and file stenographer’s notes.

<p>Brokers. Failure to sell land prevents recovery of any commAssions based on amount received by oumer.</p> <p>When commissions are based upon the amount “received” by the owner, on a failure to sell the land, without fault of the, owner, no commissions can be recovered.</p>

<p>Appeal from circuit court of Tishomingo county.</p> <p>Hon. C. P. Long, Judge.</p> <p>Action by G-. M. Fowler against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

Hon. D. M. Grai-iam, Judge. Action by L. Luderbacb and L. E. Luderbacb, partners doing business under tbe style of Luderbacb Plumbing, Heating & Electric Company, against tbe Mississippi Centennial Exposition Company. Verdict for plaintiffs, and, on a subsequent suggestion of garnishment against the First National Bank of Gulfport, there was a judgment for plaintiffs and the defendant and the garnishee appeal.

<p>Appeal from circuit court of Kemper county.</p> <p>Hon. Thos. B. Carroll, Judge.</p> <p>Action by Joe Cramer against Dave Burton. Judgment for plaintiff, and defendant appeals.</p>

Hon. W. H. Potter, Judge. Petition by tbe Currie-Fineh Brick & Lumber Company against W. J. Miller, Auditor of Public Accounts, fox a certificate of exemption from taxation. Certificate refused, and petitioner appeals.

Hon. A. J. McIntyre, Chancellor. Suit by Mrs. Elizabeth Wardlaw and others against Frank Scally and others, proponents, to contest the validity of the will of Mrs. Catherine Leslie, deceased. Yerdict for contestants on an issue devisavit vel non, and from the decree entered thereon, proponents appeal.

Bon. S. F. Díavis, Judge. Action by C. B. Stephens against the Beaver Dam Drainage District. From a judgment sustaining a demurrer, plaintiff appeals. Held: that the levee board was liable for darning up Black Bayou, which drained Richardson’s property.