Volume 124 — Mississippi Reports

I-Ion. R. S. Hall, Judge. Replevin by J. M. Bryant against B. F. Horton. A judgment dismissing this suit was entered, reinstatement denied, .and plaintiff appeals.

Hon. G. 0. Tann, Chancellor. Suit by C. M. Wright against the board of supervisors of Lauderdale county to restrain the issuance and delivery of certain road district bonds. From a decree sustaining a demurrer, and dismissing the bill, complainant appeals.

Hon. D. M. Graham, Judge. Action by E. W. Bailey against the Petroleum Iron Works. Judgment for plaintiff, and defendant appeals. Suppose we were to admit everything appellee will contend in its brief, that is, that Dan Daugherty was a foreman, the situation would not be changed. The title cuts no figure. It is well settled that the nature of the work performed and not title of an employee governs his status as an employee.

Hon. C. P. Long, Judge. Action by J. R. Gooch against J. H. Glidewell. Judgment for defendant, and plaintiff appeals.

Hon. E. Dl Dinkins, Judge. Action by tbe Hercules Manufacturing Company against J. H. Wallace. Judgment for defendant, and plaintiff appeals. While there are two assignments of error, they will be argued together, as they stand or fall together. The contract in this cause is a regular printed form, usually given out to salesmen procuring orders. It is partly written and partly printed.

Hon. E. D. Dinkins, Judge. Proceedings by the board of supervisors of Tallahatchie county against A. H. Smith and J. P. McMullen, to condemn a right of way for a change in a public highway. Judgment for plaintiff on a peremptory instruction, and defendants appeal.

Hon. R. E. Jackson, Judge. Action by J. S. Merrill against Octavia Dockery. Judgment for defendant, and plaintiff appeals. This case should be reversed for the reason that the court awarded the following instructions to the appellee: Instruction No. 1.

Hon. J. G. McCowan, Chancellor. Action by J. A. Hardin, administrator, against M. T. Lunceford and others, to establish a vendor’s lien. Judgment for plaintiff, and defendants appeal. The appellee’s proposition is that if Hardin was not vendor, then the transaction amounted to an equitable assignment in writing of the purchase money note by Batchelor, the vendor, to Hardin, carrying the security and lien under the statute.

Hon. W. M. Den,ny, Jr., Chancellor. Attachment in chancery by E. J. Bowers against Melondia E. Jones and another. Judgment for defendants, and plaintiff appeals. There is of course, no contention on the part of the appellant, that an indivisible contract made and entered into on Sunday is not in violation of the law of this state, under section 1366 of the Code of 1906, (section 1102, of Hemingway’s Code), and that such contract is void and unenforceable.

Hon. L. F. Easterling, Chancellor. Suit by E. K. Jayne and others against E. E. Howard and others. On petition of M. A. Lewis and another, as receivers, for confirmation of sale of land. Held: that where a receiver of a warehouseman’s property is authorized to take charge of wheat stored in his warehouse and collect for storage, etc., sold certain screenings and chop found in the warehouse, the court’s approval of his report ratified and made valid the sale.

IIon. T. P. Guyton), Chancellor. Suit by W. H. Mars and others against W. C. Longmire. Decree for plaintiffs on overruling of defendant’s demurrer, and defendant appeals. At- the very outset of consideration of this cause we are presented Avith the question as to whether or not a deed, good on its face, can be set aside and cancelled for a failure to pay the purchase money or for failure of consideration. This court has repeatedly held that this cannot be done.

Hon. A. E. Weathersby, Judge. Mandamus by the Lacey Lumber Company against Pearl River County to compel the issuance of a warrant for the payment of money. Judgment for plaintiff, and defendant appeals.

Hon. A. J. McIntyre, Chancellor. Suit by the Acme Building Supply Company against the Aberdeen Lumber Company and another. From a decree overruling separate demurrers, defendants appeal.

ITon. D. M. Russell, Chancellor. Proceedings between G-. W. Tullos and others and the Board of Supervisors of Simpson County. Judgment for. the latter, and the former appeals. On motion to strike transcript.

Hon. C. P. Long, Judge. Action by Jeff Glenn against tbe Gilmore Puckett Company. Judgment for plaintiff, and botb parties appeal. Delivery is a question of intention of tbe parties. (See cases cited at page 3 original brief.) Tbe intention of tbe parties can only be arrived at by tbeir declarations and actions made at tbe time of tbe transaction and by their subsequent acts during its execution.

<p>Appeal and Eebob. Motion granted to continue case until trial court could correct record involved.</p> <p>Where a motion is made to continue a case ponding on appeal until the trial court can, at the next term thereof, correct a part of the record, a continuance will be granted if it appears that possibly such correction can be made, though such power to correct may be doubtful or uncertain. In the present case this court reserves decision as to such power until the court below has acted on the motion and its action brought up for consideration.</p>

Hon. E. D. Dinkins, Judge. Jesse Stribling was convicted of feloniously manufacturing and distilling intoxicating liquors, and he appeals. The first error of which we complain was the admission by the court over the objection of the defendant of the testimony of Dr. Williams, that Mr. Powers when arrested stated that Stribling could tell him or show him where the still was, when defendant denied that he could do so. This testimony was clearly incompetent.

IIon. W. E. Baskin, Special Judge. Habeas corpus by W. C. Mabry, Sheriff of Newton County, against M. J. L. Hoye, Superintendent of East Mississippi Insane Hospital, to obtain the custody of J. N. Horne, an insane person. Petition dismissed, and petitioner appeals.

11 on. G. C. Tanin, Chancellor. Suit by Mrs. S. K. Lincoln, executrix of the estate of John Kerr, deceased, against the Equitable Life Assurance Society and another. From an adverse decree, plaintiff appeals.

Hon. B. W. Heidelberg, Judge. . Claim by F. Y. Brahan, attorney, to lien on judgment rendered in suit by one Thomas against the National Life & Accident Insurance Company. Judgment for defendant, and plaintiff appeals.

Hon. G-. E. Williams, 'Chancellor. Suit by L. E. Edward,s and others against the Board of Supervisors of Bolivar County for an injunction. Held: “at the right place” as commanded by the statute. The statute commands that the election shall be held at “a convenient place,” and not at three places as was done in the instant .case.

Hon. E. N. Thomas, Chancellor. Suit by Willis Brumfield against M. D. Alexander. From a judgment overruling a demurrer, defendant appeals. Nothing is, better settled in the law than that an authority to sell the land when not coupled with an interest may be revoked at the will of the principal. 1 Am. Eng. Enc. L. (2 Ed.), 1216, and authorities cited in Note 3.

Bon. Di. M. Graham, Judge. Action by George Gibbs against the Gulf Coast Stevedoring Company. Judgment for plaintiff, and defendant appeals. On motion by defendant to strike part of record. Appeal from circuit court of Harrison county. Hon. D. M. Graham, Judge. Proceedings between the Gulf Coast Stevedoring Company and George Gibbs. Judgment for the latter, and the former appeal. On motion to strike certain portions from a paper signed by the trial judge. Motion overruled.

Aituía'l from chancery court of Tallahatchie county. Hon. W. F. Gee, Chancellor. Suit by C. I. Belt and others against J. C. Adams. Decree for defendant, and plaintiffs appeal. The appellants filed a bill in the chancery court of Tallahatchie county against the appellee for the possession of certain lands and for rents thereon from 1917 to the date of the filing of this suit.

Non. R. E. Jackson, Judge. Action by tbe Ismert-I-Iincke Milling Company against the Natchez Baking Company. Verdict and judgment for defendant, and plaintiff appeals. This is a case in which only fundamental principals of law are involved and in which it is unnecessary to cite legal authorities.

Hon. C. P. Long, Judge. Action by J. D. Halbert against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. The second and third special pleas set up the fact that the message in question was an interstate message for the reason that the message was relayed through relay office at New Orleans,, Louisiana, which is its proper relay office for handling messages between.

IIon. A. E. Weathersby, Judge. Action by A. E. AUsAvortli against the Western Union Telegraph Company. Judgment for plaintiff!, and defendant appeals. The appellee sued the appellant for damages for failure to deliver a telegram sent from Slidell, La.,, to Camp Shelby, Miss. There was no undue delay in the transmission and no question as to the correctness of the message, but the telegram was never delivered.

Hon. A. J. McLauein, Judge. Action by Flora Willie Shields against F. M. Roell and others. Judgment for plaintiff, and defendants appeal. On the — day of July, 1920, this court rendered its opinion in the case of Ladner v. Ingram-Day Immher Company et al.,,85 So. 196, wherein it was held directly that the plaintiff in a suit such as the one here in question, would have to elect to rely either on the intrinsic value, or the statutory penalty for trees cut on his lands.

I-Ion. Y. J. Stbigkhr, Chancellor. Proceeding between B. F. Bacot and others and board of supervisors of Hinds county. Dtecree for the latter, and the former appeal. This is an appeal by an intervening- taxpayer from a decree of the court below in a proceeding- authorized by chapter 28, Laws Ex. Sess. 1917, validating an issue of one million dollars of county road bonds authorized by a majority of the qualified electors of Hinds county at an election held on October 1', 1920.

Hon. C. P. Long, Judge. Action by Jesse Jackson against Monroe County. From the judgment, plaintiff appeals. Held: at least to some extent, to create a rule of property and should not be invaded unnecessarily, so as to hamper or embarass the county authorities in making necessary changes, many of which have to be made in building improved modern highways. The court should be extremely cautious in the matter here involved.

BOon. R. S. Ball, Judge. Sam Rich was convicted of murder, and he appeals. Held: error; the court saying: if an explanation of the term aiding and abetting as used in our statute, or in the common law definition of an accomplice, should be deemed necessary, it is proper that the explanatory terms used should convey a correct idea of the meaning of the offense..

Hoin. D. M. Graham, Judge. Action by Will H. Rich against Emma P. Moore and another. Judgment for plaintiff and defendants appeal. The principles of law applicable to this care are almost elemental and there are carefully and correctly set forth in the first instruction giv^n for the defendant.

I-Ion. E. D. Dinkins, Judge. Action by J. B. Andrews against Walker D. Hines, Director General of Railroads, and the Illinois Central Railroad Company. Judgment for plaintiff, and defendants appeal.

ITon. E. L. B'jrien, Judge. Action by Mrs. Alice Cole against the Sovereign Camp of the statute by the legislature in any manner affects and defendant appeals.

Hon. I-I. H. Elmore, Judge. Action by J. T. Middleton against the City of Green-ville. Judgment for plaintiff, and defendant appeals. The appellant contends that the court erred in refusing the peremptory instruction for the defendant because the evidence failed to shoAV any negligence in the city of Greenville. And further, that the .verdict is contrary to the evidence.

Hon. E. L. Brien, Judge. Action by Inez L. Blum against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. We respectfully submit that the court should have directed the jury to deduct from any claim for loss the amount of the insurance collected by the plaintiff.

Hon. L. F. Easterling, Chancellor. Suit by Winfred Levy against the Merchants’ Bank & Trust Company,, executor of the estate of Marx Levy. From the decree plaintiff appeals, and from part thereof defendant prosecutes a cross-appeal.

.Appeal from cliancery court of Bolivar county. Hon. Gr. E. Williams, Chancellor. Suit by S. C. Taylor against W. L. Ross and another. Held: in cases too numerous to mention, that this section is absolutely binding upon the supreme court and relieves it from the' duty of determining Avhich jurisdiction was proper for the trial of a given cause. That this section applies to interlocutory orders as Avell as final decrees has been held several times.

I Ion. E. S. Hall, Judge. Petition for mandamus by J. J. Steele against the board of supervisors of Forrest county. Judgment for petitioner, and defendant appeals. Oral proof is not admissible to prove- a judgment alleged to have been rendered by a certain court.

IIon. W. M. Denny, Jr., ‘Chancellor. ■ Suit by the Lyon Company against R. A. Roberts and others. Judgment for complainant, and defendants appeal. On motion to strike stenographer’s notes from the record.

Hon. G. C. Tann, Chancellor. Suit by J. B. Gunn and others against the board of supervisors of Lauderdale county for an injunction. From a decree dissolving a temporary, injunction, and dismissing the bill, complainants appeal. Since the chancellor’s finding of fact cannot be said to be manifestly wrong, we assume that the court will affirm the decree in so far as it may be sustained by that finding of fact.

ITon. R. S. Hall, Judge. Action by F. M. Reynolds against tbe city of Hattiesburg. From a judgment for plaintiff, defendant appeals. The municipalities are not insurers of the safety of persons using streets and sidewalks. The only duty devolving upon them is to use ordinary care to provide reasonably safe streets and sidewalks for persons using due care and prudence.

Hon. D. E. Beams, Judge. Peggy McPherson was convicted of murder, and she appeals. The distinguished assistant attorney-general,, Mr. Hemingway, points out in his brief on behalf of the state that the first point for decision is: “The fact that the court failed to enter the order for view of the premises before leaving the courtroom.” That is our first assignment of error.

Hon. E. L. Brién, Judge. Action by Mrs. Mary Adams against the city of Vicksburg. Judgment for defendant on demurrer, and plaintiff appeals. Held: “Where a city grades a street under charter authority, and surface water is by reason thereof thrown upon adjacent property, the city is not liable for the injuries suffered by the property owner, there being no negligence in doing the work.

Hon. R. W. Cutr.ee., Chancellor. Suit by Clark & Parker against the Gum Ridge Drainage District. Decree for complainants, and defendant appeals. It must be manifest that to permit additional compensation to be awarded contractors, as was attempted in this case, would place the financial affairs at the individual disposal of the commission. The bald repetition of the facts in this case is sufficient to condemn the claim of the contractors.

Hon. C. P. Long, Judge. F. E. Lee was convicted of manslaughter, and he appeals. It was my contention in the court below, and ivas so conceded by the state and so held by the court in his written opinion that we have no statute covering the offense in question. If, therefore, the defendant could be prosecuted at all, it was by reason of some offense against the common law.

Hon. W. II. Potter, Judge. Ed Buford ivas convicted of robbery, and he appeals. When there is any serious doubt as to the admissibility of evidence, the doubt should be.resolved in favor of the accused, citing Gamhrell v. State, 92 Miss. 728. The proof in the case shows that at the time the appellant was arrested he had quite a sum of money in his possession.

Hon. E. I). Dinkins, Judge. J. M. Powers ivas convicted of feloniously manufacturing intoxicating liquors, and lie appeals. We contend that the evidence is wholly insufficient to sustain a conviction, that it barely raises a suspicion of appellant’s guilt.

I-Ion. J. W. T. Falkner, Jr., Judge. Matry Johnson was convicted of manslaughter, and he appeals. The defendant, it is true, was violating the law in that he had a pistol in his-pocket and was shooting craps.

I-Ion. D. Graham, Judge. John J. Murphy was indicted for embezzlement. A demurrer to the indictment ivas sustained, and the state appeals. Right of The State to Appeal. There can be no question of the right of the state to appeal from the judgment-sustaining the demurrer to the indictment. Such appeals are authorized by paragraph 1, section 16-, Hemingway’s Code (section 40, of the Code of 1906). The Demurrer Should Have Been Overruled.

ITon. D. E. Beams, Judge. E. C. Smythe was convicted of violating a regulation of the State Board of Health, and he appeals. The certified copy of the regulations over the hand of the secretary of the state board of health Avas introduced in evidence and the objection that this cannot be taken as evidence of a valid regulation in the absence of proof of publication would seem to be of no force.

Hon. C. C. Miller, Judge. • Percy Thompson Avas convicted of an assault with intent to ravish, and he appeals. This appellant has assigned as error the refusal of court to grant him a peremptory instruction. This assignment I submit is well taken in the 'light of this record. The appellant should have been indicted, tried and convicted on a charge of trespass and not the charge preferred.

I-Ion. S. F. Davis, Judge. Fred King was convicted of obtaining money under false pretenses, and he appeals.

Hon. W. I-I. Potter, Judge. Suit by I. W. Davis against tbe Edwards House. Held: “It is well settled that if a person leave at an inn property from which the innkeeper can derive no gain from its keeping, that is, dead property, as it is termed, and goes aAvay himself, and it is stolen in his absence, he shall have no action against his host as innkeeper, for the reason that he Avas not a guest at the time.” See…

Hon. R. W. Heidelberg, Judge. Action by Martha Moore and others against Walker D. Hines, Director General of Railroads, and another. From a judgment for plaintiffs, defendants appeal.

Hon: D. M. Miller, Judge. Action by D. E. Porter and wife against B. B. Nesmith and others. Judgment for defendants on a directed verdict, and plaintiffs appeal. Where the defendants by their negligence produced a state of affairs from which an injury results they are liable therefor and that is exactly this case. The old English Squib case is applicable and illustrative.

1-Ion. D. M. Miller, Judge. Action by H. A. Hayman and others against McComb City to recover for wrongful death.

Hon. ThoA B. Carroll, Judge. Action by Mrs. S. A. Cunningham against E. S. Moore. From a judgment for plaintiff, defendant appeals. The appellant must submit that the authorities cited by appellee are not authorities on the propositions involved in this litigation, and will give the reasons therefor.

On suggestion of error. Tlie provision in the policy covering the right of the company to have an autopsy performed is plain and unambiguous. The appellee seeks to avoid the forfeiture of her rights under the policy arising from a violation of this condition upon the sole ground that in order to avail itself of this right, the company must demand such autopsy prior to the burial of the deceased.

Hon. W. H. Hughes, Judge. Petition by W. B. Thames and others requesting the board of supervisors of Simpson county to levy a school tax. From a judgment sustaining the action of the board in declining to make the levy, the petitioners appeal.

I-IONt. A. J. MoLaurin, Judge. Pet Molphus was convicted of murder, and he appeals. The whole question to be determined by the jury in this case was who was the aggressor in this difficulty and it was certainly a material fact in appellant’s favor that he made overtures for peace and that these overtures were rejected by Mr. Owen.

Proceeding between C. K. Dunn and T. K. Green. Judgment for the latter, and the former applies for a writ of' certiorari.

<p>Judgment. Decree in equity binding. only on parties.</p> <p>A decree in equity is binding only on the parties to the suit in which it was rendered.</p>

Hon. D. M. Graham, Judge. Action by Stokes Y. Robertson, State Revenue Agent, against the H. Weston Lumber Company. From a judgment for defendant on demurrer, complainant appeals. The first defense is the statute of limitations. We take the position that the statute of limitations has no application in this case for two reasons, and the mere statement of them is, we Relieve, sufficient argument.

<p>Appeal from chancery court of Newton County.</p> <p>Hon. S. M. Graham, Special Chancellor.</p> <p>Suit by the Town of Hickory against Frank Russell and another. Decree for plaintiff on demurrer, and defendants appeal.</p>

Hon. G. E. Williams, Chancellor. Suit by Eobert Young and others against A. C. Cobb and others. From a judgment for defendants, complainants appeal. ■ Mr. Pomeroy has clearly defined the status of the title to property when conveyed by an instrument similar to the one which we have here in question. We refer particularly to 2 Pomeroy’s Equity Jurisprudence (1 Ed.), page 604, where he discusses the subject of resulting trusts.

Hon. L. F. Easterling, Chancellor. Suit hy Mrs. Cora E. Rhodes against Myrtle Rhodes and others. From a decree confirming a commissioner’s report of sale, Percy Culley, guardian ad litem of the minor defendants, appeals. No Right to Confirmation in Vacation.

Hon. R W. Heidelberg, Judge. Objections by the Mobile & Ohio Railroad Company against assessments heard by the board of supervisors of… Held: “This is a remedial statute and the decisions of our court are unanimous in giving to it a liberal construction.” In that same case this court, upon the suggestion of error, reported in 109 Miss. 372, affirmed the holding of this court in the case of Bowrd of Supervisors v. Mobile & Ohio Railroad Co., 99 Miss. 845, and holding that…

Hon. L. F. Easterling, Chancellor. Suit by Anna Williams against Emily Butts. Decree for defendant, and both parties appeal. Held: “If a party be. indebted by mortgage, and also by simple contract debts, to the same creditor, and make a payment, and omit to apply it specifically to one of the debts, the law will make the application in the way most beneficial to the debtor, namely first to the mortgage.” So, the record being otherwise silent as to how Mr.…

Hon. B. F. Wasson, Special Chancellor. Suit by P. B. Wool lard, executor of the estate of S. J. Simpson, deceased, against the Dillard & Coffin Company, to remove cloud on title. Decree for plaintiff on demurrer, and defendant appeals.

Hon. R. L. Cobban, Judge. Action by Missouri Hickingbottom against Carl Lehman and others. Judgment for defendants, and plaintiff appeals.

Hon. E. N. Thomas, Chancellor. Suit by Walter Mims against Estes Swindle. Judgment for defendant was affirmed (86 So. 646), and defendant moves for an allowance of attorney’s fees in defending the appeal. The services rendered by counsel for appellee was in an effort to defeat the appellant’s claim on his alleged contract on the merits of the case in a general defense to the suit and not in an attempt to dissolve the injunction. Authorities.

Hon. D. M. Miller, Judge. Trover by E. E. Harlan against W. E. Cotton. Judgment for plaintiff, and defendant appeals. Held: “Some faith and credit is to be given to the acts of sworn officers, and to the return they make in reference to the discharge of their official duties.” In this case, the justice of the peace did not testify that the affidavit had not been made, and his docket showed affirmatively that search had been made for Cotton, as well as…

Hon. J. A. Brantley, Chancellor. Proceedings by R. S. Ward for the probate of the Avill of Ben L. Ward, deceased, in which Mrs. Sallie Ward filed a cmeat. Decree for contestant, and proponent appeals. Upon the conclusion of the evidence the proponents asked for a peremptory instruction, Avhich was refused. The proponents then asked a peremptory instruction upon undue influence, which was also refused.

Hon. E. D. Dinkins, Judge. Proceedings between diaries Farrisli and. J. R. Davis, guardian. Judgment for the latter, and the former appeals. On demurrer to plea in bar of appeal. Section 3112, Code 1906, and Hemingway’s Code, section 2476, áre identical with section 2752 with the exception that one year instead of two years is the prescribed limitation in Hemingway’s Code.

Hon. .C. P. Long., Judge. Oliver iConwill wás convicted of aiming and pointing ■a gun the discharge of which resulted in death, and he appeals.

<p>Appeal from circuit court of Simpson county.</p> <p>Hon. W. H. Hughes, Judge.;</p> <p>Mose Williams was convicted of murder and sentenced to life imprisonment, and he appeals.</p>

<p>Vendor and Purchass®. Shortage in acreage does not prevent specific enforcement where sale expressly not by acre, but in gross.</p> <p>Where a person in negotiating a sale of land states that he thinks the place contains a named acreage, but expressly states to the buyer that he is not selling it by the acre, but selling it as it is and as the purchaser sees it, a material shortage in the estimated acreage will not avoid-the trade nor prevent a specific enforcement of the contract.</p>

<p>Appeal from circuit court of Forrest county.</p> <p>Hon. R. S. Hall, Judgh.</p> <p>Suit by Gust Markowsky against L. Rubenstein and another. Decree for defendants, and .plaintiff appeals,</p>

Hon. K. W. Heidelberg, Judge. Suit by J. F. Pippin against Clarke County: Judgment for tbe defendant on a peremptory instruction, and plaintiff appeals. The only question in this case is whether the cattle were dipped under the supervision of the dipping inspector. The regular day for dipping cattle at De Soto, where the cattle in question were dipped, was on Saturday.

Hon. S. F. Davis, Judge. Ben Wyche was convicted of .assault with intent to rape, and he appeals. Section 1096, of Hemingway’s Code, being the section on which the prosecution is based, makes the previous chastity of Clara Bailey, Jr., a material element of the crime, and this court held in the case of Frost v. State, 94 Miss. 104, that the indictment must allege the previous chastity of the female assaulted.

Hon. V. J. Stricken, Chancellor. Suit by Sarah Jones Lindsey and others against C. T. Maris and others. From a decree mating an injunction perpetual, defendants appeal. Affirmed and remanded.

Hon. Joe May, Chancellor. Suit by Mrs. Emma Rainey and others against Isom W. Rainey and others for construction of a will. From the decree, plaintiffs appeal. The court interpreted the will on this evidence thus:-1.

Hon. D. M. Miller, Judge. Suit by Hollis & Ray against J. M. Isbell. Judgment for plaintiffs before a justice of the peace was reversed on appeal, and plaintiffs appeal. We contend that this case is controlled absolutely by the casé of J. A. Broom v. 8. 8. Dale & Bon, 109 Miss. 52, 67 So. 659. It will be noted that in the case at bar the holder of the vendor’s lien, Win. Atkinson & McDonald Company had no notice that the car had been taken to Hollis & Ray for repairs.

Hon. C. P. Long, Judge. Action by D. L. George against M. M. Davis. Judgment for plaintiff, and defendant appeals. It is my understanding of the law, and I think it is so generally understood that the granting of a peremptory instruction is proper only where there is no testimony tending to make out the opposite party’s case. It is surely unnecessary to cite authorities on this proposition.

Hon. E. N. Ti-iomas, Chancellor. Suit by A. D. McFarlan against Frank C. Dorman. Decree for complainant, and defendant appeals. Held: must go further than a tender on an ordinary contract. 27 Cyc. 1406, p. 2. A tender of payment of performance of a mortgage, to be effective, must be open, fair and reasonable, so clear as to leave no doubt of the intention to satisfy and discharge the mortgage. Darling v. Chapman, 14 Mass. 101; Wesling v. Noonan, 31 Miss. 599.

Hon. I). M. Graham, Judge. Action by Mrs. Mary G. Anticich against the Motor Car' Inn Garage, Incorporated. Judgment for defendant, and plaintiff appeals. We submit, that, taking all of the evidence into consideration, the agency of McLaughlin ivas clearly demonstrated and it was a question for the jury as to what was the difference in value between a new car and the one she received.

IIon. E. D. Dinkins, Judge. Suit by the Metropolitan Discount Company against J. B. Smithers. Judgment for plaintiff, and defendant appeals. Of course section 1938 of the Code of 1906, is highly penal. The legislature so meant it. It can be only strictly construed against him who invites it. The first thing to be determined, therefore, is: Has the plaintiff answered the interrogatories propounded to it in so far as competent and material evidence was sought?

Hon. W. E. Stone, Judge. Flem Clark was convicted of assault with intent to rape, and he appeals. The next assignment of error is that the court erred in .receiving, over objection of appellant, the testimony of W. E. Cross and Georgia Miller, for the state, as to the acts and statements of the prosecutrix in identifying the appellant and relating the alleged commission of the crime.

Hon. J. G. McGowen, Chancellor. Suit by the McAdams Consolidated School District against Prank W. Scarbrough. Prom a judgment for the district, defendant appeals. Chapter 294, Laws 1918, purports to authorize the board of supervisors of Attala county, Mississippi, to levy taxes upon the McAdams public school district to aid in the building, equipping and establishment of an agricultural high school.

Hon. T. L. Lamb, Judge. Action by Alice Tullos and others against the BollingerFranklin Lumber Company. Judgment for plaintiffs,' and defendant appeals, and plaintiffs cross-appeal. No evidence that the trees were not cut by consent of some of the owners of the land.

Hon. W. M. Denny, Jr., Chancellor. Proceeding between Mrs. W. Y. Chin and others and E. B: Barnwell and others. Judgment for the latter, and the former appeal. Affirmed. In view of the information which the court already has conserning the matters presented in this appeal, from the consideration of the facts and arguments in the case of IT7.

Hon. E. D. Dinkins, Judge. Dan Bethany was convicted of petty larceny, and he appeals. The affidavit alleges sole ownership in Will Powell. The only ownership proven by state in said cause was proven by Will Powell and that ownership was shown to be in Dr. Anderson and Will Powell, Dr. Anderson owning a third interest and Will Powell a two-thirds interest.

HIon. A. J. McIntyre, Chancellor. Action by P. M. B. Self, executor of the estate of Charles R. King, deceased, and another against Mrs. Mamie Louise King. Held: I submit that we fully met the burden imposed upon us and that the decree of the chancellor was eminently correct.

Hon. W. H. Hughes, Judge. Andrew Barnett was convicted of unlawfully cutting and hauling wood, and he appeals. The affidavit charges that appellant “did unlawfully and willfully cut and haul fire Avood and also wood for his own use after being ordered to stay off by affiant.” This affidavit is wholly unsupported by the proof.

Hon. C. P. Long, Judge. Action by Mrs. Lena Mayes, administratrix, against the Southern Bailway Company. From a judgment for plaintiff, defendant appeals. The court below erred in sustaining demurrer to the second plea of defendant.

Hon. A. E. Weathersby, Judge. Action by the Tallahatchie Lumber Company against the Cecil Lumber Company. Judgment for defendant on a directed verdict, and plaintiff appeals.. The- appellee agreed to ship the lumber f. o. b. New Orleans, Louisiana.