Volume 127 — Mississippi Reports

■ Hon. Y. A. Griffith, Chancellor. Suit by W. W. Howell, as administrator of the estate of Thomas Howell, deceased, and others, against R. D. McLeod. Decree for the defendants, and the plaintiff: appeals, and defendant brings cross-appeal. There was no effort made to dissolve this injunction in vacation but there was an agreement to try the cause on its merits, and no motion was made to dissolve the injunction until the cause came for hearing on its merits.

,.,;t.APiíB4íL from circuit court-of 4ee,icount^ir¡ -.¡i t ;,-w.PE n> .■ Andy, Parham was. convicted of unlawful; -safe¡of- dbitosi->.catiug.■ liquors, and.he ¡appeal^* fill-' •:.(. >:i: '■:>! . • . <>! -0 !>e convicted upon mere speculation, conjecture or guess-work, ■thenthis- court» must necessarily ¡reverse tMsi-eaqe' andf discharge» the defendant.; Wliilfe it is ¡true defendant is.ohácg--5 ed. ■ yiit'h -• a¡violatiom -. oh ¡ the liqiúór» flawy,an-»dffense agaihfet…

.Appeal from chancery court of Harrison county., Ji.ON. D, M, Russell, Chancellor. .

T. L. Lamb, Judge-. ¡ .•» • ..d i •! Suit hy S.’ S. Rodgers against Walter -Whitehead; and -another-. * ■ Judgment for the»-defendants, 'and¡the'plaintiff appeals. Held: that he was none the less liable on the unpaid notes. The contract made was a lawful one, and imposed upon the buyer an absolute obligation to pay. To relieve him from this obligation, the court must make a new agreement for the parties instead of enforcing the one made, which it cannot do.

Hon. Thos. B. Carroll, Judge. Suit by Chaillos Cross against the Fidelity & Casualty Company of New York. Default judgment in favor of plaintiff, and defendant appeals. The fact that service of process was made on the insurance commissioner does not obviate the necessity for compliance with section 920.

Hon. C. P. Long, Judge. Suit by tbe E. L. Young Heading Company against John Barton Payne, Director General of Railroads and Agent of tbe United States. Directed verdict and judgment for tbe defendant, and tbe plaintiff: appeals.

Hon. S. F. Davis, Judge. Action by the Queen City Hoop Company against Milton Barnett and others. Judgment of dismissal on demurrer, and plaintiff appeals. This is a suit by the appellant, Queen City Hoop Company, against the appellees, Cohn Bros. & Barnett, a partnership, for damages for the breach of an alleged contract of purchase by the appellant from the appellees of stump-age or standing timber.

Hon. S. F. Davis, Judge. In the matter of proceedings by the board of supervisors of Sunflower county in laying out a highway. Held: it has not been altered or amended in any way. The case was not only ably briefed before the court, but a suggestion of error was filed in which the correctness of this decision was challenged; but this suggestion of error was overruled, and it occurs to us that the decision is perfectly sound.

Hon. H. M. Graham, Judge. Bastardy proceeding by Lollie Havard against Ernest Welford. Verdict and judgment for the plaintiff, and defendant appeals. Held: or within such time as the court may allow, file a declaration in bastardy cases and the defendant may plead thereto as in other cases, and the issue shall be made up, making the trials of such cases civil and not criminal in their nature.

Hon. D. E. Beams, Judge. Action by tbe Nashville Saddlery Company against B. J. Green and others as partners. Judgment for the defendants, and plaintiff appeals. Appellant perceives but two questions presented by this record for adjudication by this court: 1. Were the partners ever adjudged bankrupts and relieved from the liability as endorsers? 2. Are the endorsers relieved of their liability by a composition which has the effect of a discharge of the principals?

Hon. J. G-. McGowen, Chancellor. Suit by Mrs. E. A. Maxwell against Minnie Lake and others, to contest the will of W. T. Smith, deceased. Judgment for defendant, and plaintiff appeals.

Hon. R. S. Hall, Judge. Suit by the Liberty Mills against the Evans-Terry Company. Held: that the fact that the seller not only has the goods consigned to his order, but the bill of lading is forwarded to the seller’s agent with draft 'attached to be delivered to the buyer on payment of the draft, is an additional circumstance showing the seller’s intention of not parting with the title to the property sold. 35 Cyc. 333;…

Hon. R W. Cutrer, Chancellor. Suit by A. H. Jones and others against John C. Day and others, for an injunction. Bill dismissed, and botla parties appeal.

Hon. J. D. Fatheree, Judge. Action by Eva C. Day against James C. Davis, Director General, Agent, etc., for the Mobile & Ohio Railroad Company. Judgment for the plaintiff, and defendant appeals. The peremptory instruction for the defendant ought to have been granted in this case. The statute upon which this suit is based was for the protection of passengers, and passengers alone. Plaintiff came into Shubuta on a passenger train with her husband and two little girls.

Hon. E. N. Thomas, Chancellor. Bill by Ben Hicks against Luther Sullivan and wife, to enforce a vendor's lien. From a decree dismissing the bill, the plaintiff appeals. The defendants below rested their case solely on the testimony of Mr. J. B. Small, which was to the effect that he heard a conversation between complainant and Luther Sullivan and that complainant agreed to pay off this lien.

Hon. S. F. Davis, Judge. Two suits by the Fourth National Bank of Montgomery against the Delta Insurance & Realty Company and Shelby S. Steele on notes. The actions were consolidated and Gwin & Mounger were made defendants. Judgment entered against the defendants without stay of execution, and the defendants appeal.

Hon. D. 0. Russell, Chancellor. Application of J. T. Maskew for appointment as guardian of certain minors. Bruce Parker and others opposed the appointment. Judgment for Parker, and Maskew appeals.

Hon. A. J. McIntyre, Chancellor. • Suit by S. D. Bell and others against John W. Kaye. Prom a judgment dismissing the bill, the plaintiffs appeal. Quoting from section two of the brief for appellee: “Appellants ask relief from the payments of the rates complained of, yet at no time do they allege in their bill that these rates are unreasonable or exorbitant, nor do they show any injustice in the rates.” It is true that no such allegation is made in the bill.

<p>1. Railroads. Injuries to persons or property by violation of statute limiting speed actionable.</p> <p>Section 4047, Code 1906 (section 6671, Hemingway’s Code), prohibits the moving of cars or an engine into or along a passenger depot at a greater rate of speed than three miles per hour, and requires every such train or cars or engine backing into or along a passenger depot and within fifty feet thereof to be preceded for at least three hundred feet before it reaches or comes opposite such depot by a servant of the railroad company on foot to give warning, such servant to be not less than twenty feet nor exceeding forty feet in front of such car, train, or engine, and provides: “For every injury inflicted by a railroad company while violating this section, the party injured may recover full damages without regard to mere contributory negligence.” This section covers injuries to property as well as to the person, and is not confined to passengers or those intending to take passage on the trains of the railroad company.</p> <p>2. Railroads. Gross contributory negligence necessary to defeat recovery for injuries by violation of statute limiting speed. '</p> <p>Where persons or property are injured by a railroad company operating its cars in violation of section 4047, Code of 1906 (section 6671, Hemingway’s Code), it takes gross contributory negligence to defeat a right of action for such injury; and the mere fact that a person drives upon the track near such depot without stopping,. looking, or listening for an approaching train or cars .or engine will not defeat his right of recovery for an injury by such cars operated in violation of this statute. Facts of the case held not to show gross contributory negligence.</p> <p>3. Railroads. Absence of warning held proximate cause of injury.</p> <p>The facts of this case examined, and held that the failure of the defendant to have one of its servants precede the cars and give warning was the proximate cause of the injury.</p>

Hon. T. L. Lamb, Judge. Ejectment by Wesley Yarbrough and others against Albert Gannon. Judgment for plaintiffs, and defendant ap- ■ peals. Appellees assert no title to land in section 27, neither does appellant assert any paper title to land in section 28.

<p>Railroads. Punitive damages not recoverable against- Director General.</p> <p>Under the Federal Control Act of March 21, 1918 (Federal Statutes, Annotated, 1918, Supp., pp. 757, 762; U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, Section 3115; 40 Stat. at Large 451), punitive damages are not recoverable against the government or Director General; and where an instruction authorizing the infliction of punitive damages has been given, the judgment will be reversed unless the court can say with confidence that the jury was not influenced by the instruction and that only compensatory damages have been awarded.</p>

Hon. W. H. Hughes, Judge. Action by J. J. Mangum against Smith County. Judgment for plaintiff, and defendant appeals. Held: that a verbal contract by the board, or authority given verbally to the sheriff; to rent offices for the accommodation of county officials, will not bind the county upon an expressed contract; but if the county by the verbal action or contract use the property of another, it will be bound as by an implied contract, upon the principle…

. Appeal from circuit court of Panola county. Hon. Greek L. Rice, Judge. James Oliver sued out a writ of habeas corpus before the circuit judge alleging unlawful detention by J. A. Carter, Sheriff of Panola county. The court sustained a motion to dismiss the writ but announced that the relator could amend his petition to show that the bond was excessive, but refused to hear relator on the merits or hear evidence as to his guilt or innocence, and the relator appeals.

Hon. J. G. McGowan, Chancellor. In the matter of the assignment of J. P. Headers. Sayers & Scovill Company filed a cross-petition against L. T. Doak, assignee-receiver of the estate. Decree for the receiver, and the Sayers & Scovill Company appeals. This is a contest between appellant, Sayers & Scovill Company, and appellee, Doak, as assignee-receiver of the assets of J. P. Headers, an insolvent debtor.

Hon. S. F. Davis, Judge. Action by Mrs. Nellie Langford against the Belzoni Hardwood Lumber Company. From the judgment defendant appeals directly, and plaintiff cross-appeals. I confidently assert that the judgment in this cas'e'should be reversed and judgment rendered in this /ydurt in favor of the appellant, because at the time Langford received the injuries which resulted in his death/he was not acting within the scope of his employment, and was a mere volunteer.

Hon. W. H. Hughes, Judge. Herschel Walker was convicted of violating tbe prohibition law, and he appeals. We submit that no one can be convicted of crime on the uncorroborated confessions of himself alone, and in support of this we beg leave to cite the following authority: Jinhins v. State, 54 So. ’158'; Pitts v. State, 48 Miss. 472; Stanley v. State, 34 So. 360; Bolden v. State, 54 So. 241.

. Hon. T. B. Carroll, Judge. Action by Myrick Cox against Simon Levinson. Judgment for plaintiff, and ,the defendant appeals.

- Hon. W. H. Hughes, Judge. Hulon Patterson was convicted of unlawful making and distilling intoxicating liquors, and he appeals.

<p>Appeal from chancery coürt of Madison county.</p> <p>Hon. Y. J. Stricker, Chancellor.</p> <p>Bill by J. T. Welsh against I. Hesdorffer and others. From the decree defendants appeal.</p>

Hon. R. S. Hall, Judge. Action by the Harris Ice Cream Company against L. J. Hartsock. Judgment for plaintiff and execution issued. Defendant replevined property levied on, and after an indemnifying bond was given, and after a judgment adverse to defendant in justice court, it was on appeal agreed that the suit should be considered as brought on the bond. Judgment for defendant, and plaintiff appeals.

Hon. D. M. Graham, Judge. Action by Stokes V. Robertson, State Revenue Agent, against Harrison county. Judgment of dismissal, and plaintiff appeals.

IIon E. D. Dinkins, Judge. - Action by Frank Wilbourn against the Charleston Cooperage Company. Judgment for defendant on a di: rected verdict, and plaintiff appeals. Appellant, Wilbourn, sued the appellee, Charleston Cooperage Company, a corporation under the laws of this state, for damages for an injury caused by having the forefinger of his left hand cut off by a circular saw operated in appellee’s stave mill.

Appeal 'from circuit court of Perry county. Hon. E. S. Hall, Judge. Action by the Cudaby Packing Company against the Anderson Mercantile Company.' Prom a judgment by default, defendant appeals.

Hon. H. M. Graham, Judge. Suit by Pascale Lefere against Henry Krobn and otters. Judgment for tbe defendant, and tbe plaintiff appeals. We are at a loss to present argument in a case of this sort. To prove to an impartial mind that a peremptory instruction was the grossest outrage in this case we are up against tbe difficulty one would have to prove that one and one are two.

<p>Appeal from circuit court of Harrison county.</p> <p>Hon. D. M. Graham, Judge.</p> <p>Action by R. L. Jewett against W. R. Boggs. From a judgment for plaintiff, defendant appeals.</p>

Hon. T. L. Lamb, Judge. Jesse Estes was convicted of murder, and be appeals.

Hon. W. A. Roane, Judge. Gus Griffin was conyicted of feloniously distilling intox- ' icating liquors, and he appeals. The facts in this case are that this appellant was arrested and carried before the mayor’s court as a witness against Cleve Tucker and others on a charge of making whisky, placed on the stand as a witness, and testified, some claim without being forced to do so, and some that he was compelled to do so.

IIon. E. S. Hall, Judge. Lloyd Walters was convicted of the unlawful sale of intoxicating liquors, and he appeals. Held: in a prosecution for unlawfully selling- intoxicating liquors, that the circuit court did not abuse its discretion in proceeding with the trial in the absence of the accused, where he departed from the court room without leave after having remained in attendance three days. This case is practically identical with the case at bar.

Appear from chancery court of Pike county. Hon. R. W. Cutrer, Chancellor. Bill for specific performance by A. T. Morton against Mrs. Mamie Varnado. From a decree dismissing the bill, plaintiff appeals. It is plain that the contract in controversy here was not only upon proper consideration but was valid and binding on Mrs. Yarnado, and was not as the court held revocable at the discretion of either party.

I-Ion. E. S. Hall, Judge. Lillie B. Lowe was convicted of having intoxicating liquors in lier possession, and she appeals. Held: in effect, that this evidence was admissible under the general rules of evidence.

Hon. J. D. Magruder, Special Chancellor. Bill by Sam Montgomery against J. D. Hollingsworth for injunction, and from an order dissolving a temporary injunction, plaintiff appeals. We invite the court’s special attention to the opinion of Justice Calhoun in the case of Mallett v. Lewis, in 61 Miss. 105, which, according to our understanding, is absolutely conclusive of the case above.

Hon. Y. J. Stricker, Chancellor. Suit by Stokes V. Robertson, State Revenue Agent, against Burnell Shelton, Tax Collector. Held: in an opinion never since questioned in this state, that the officer was not entitled to the commissions. Commissions are given as a compensation for services really performed; and when these are not performed, compensation cannot be justly claimed. We know of no such service by an officer as constructive service.

<p>Appeal from circuit court of Forrest county.</p> <p>Hon. R. S. Hall, Judge.</p> <p>Charley Gordon was convicted of manufacturing intoxicating liquor, and he appeals.</p>

<p>Criminal Law. Instruction as to accomplice’s testimony held sufficient.</p> <p>In a criminal prosecution, where the state introduces and relies upon the testimony of an accomplice to obtain a conviction, the defendant is entitled to an instruction that the testimony of an accomplice is to be considered with great care and caution, but the words used in conveying such idea are not material so long as it conveys the idea; and, where the defendant obtains an instruction that the law requires more evidence than that of the accomplice alone, no prejudicial error is committed in refusing an instruction that such testimony itnust be considered with care, caution, and suspicion.</p>

Hon. E. S. Hall, Judge. Hazel McDonald was indicted, tried, and convicted of unlawfully becoming a vagrant, in that sbe is a common prostitute, and she appeals. The appellant in this cause ivas convicted of being a vagrant in that she was a common prostitute. The evidence in the case fails to show that the appellant at any time sold her body for immoral purposes. It does not show a line of circumstances that would convince a reasonable mind that she was guilty of any wrong.

<p>Appeal from circuit court of Bolivar county.</p> <p>Hon. W. A. Alcoen, Judge.</p> <p>Sam Hogan was convicted of murder, and be appeals.</p>

<p>Appeal from circuit court of Lowndes county.</p> <p>IIon. Thos. B. Carroll, Judge.</p> <p>Action by Cecil M. Bennett against the Mobile & Ohio Railroad Company and another. Judgment for plaintiff, and defendants appeal.</p>

1-Ion. W. J. Hughes, Judge. T. M. Puckett was indicted for obtaining money by false pretenses, Ms demurrer to the indictment was sustained, and the state appeals.

Hon. D. M. Graham, Judge. Suit by Sussman, Wormser & Co. against the Sea Food Company. Judgment for defendant, and plaintiffs appeal.

Hon. J. G. McGowan, Chancellor. Action between Blair Patterson and others and the Holly Springs Separate School District. The decree recited that an appeal is granted. Upon motion to docket and dismiss such appeal.

Hon. V. J. Stricker, Chancellor. Action by Stokes V. Robertson, State Revenue Agent, against the Aetna Insurance Company and others. Judgment for plaintiff, and defendants appeal. On motion by appellee to discharge a supersedeas staying an order to pay over to plaintiff certain money impounded in the hands of receivers.

Hon. W. A. Alcorn, Jr., Judge. Replevin by the Mengel Box Company against P. H. Joest. Judgment for defendant against plaintiff and the sureties on its replevin bond, and plaintiff appeals. The appellant, Mengel Box Company, brought replevin ag'ainst the appellee, P. H. Joest, in the circuit court of Bolivar county for a steel barge of the value of twelve thousand dollars.

Hon. W. H. Potter, Judge. Beverly Winston was indicted for murder and convicted of manslaughter and sentenced to a term in the penitentiary,… Held: that although the prisoner was absent from the court room and in jail when the district attorney commenced his argument, and he was brought into court and the district attorney repeated substantially what he had said and neither the prisoner nor his counsel objected to what had been done in the prisoner’s absence, until after…

Fannie Walden was convicted of murder, and sentenced to life imprisonment, and she appeals, and, the record not being sent up in time, she petitions for certiorari.

Hon. A. J. McLaurin, Judge. Petition by R. L. Pool, alleging that T. C. Brown, an attorney at law, had represented him in a prosecution styled R. L. Pool v. J. M. JAnton 'to compel an accounting for money alleged collected therein. Default judgment for petitioner, and order entered that the attorney be disbarred from practicing law until the judgment was paid, and the attorney appeals.

Hon. T. L. Lamb, Judge. On motion to correct judgment by eliminating that portion embracing damages at the rate of five per cent, as not recoverable against the United States or the director general.

On suggestion of error. The Avord felonious is defined by Webster as meaning malignant, malicious, villainous, traitorous and perfidious. Section 1345, HemingAvay’s Code, Section 1578, Code of 1906, defines felony as any violation of the law punishable by death or confinement in the penitentiary. Felonious homicide is the offense of killing a human creature Avithout excuse or justification.

Hon. J. H. Fati-ieree, Judge. Action by Theodore Friedhof, Jr., against the Postal Telegraph & Cable Company. Judgment for plaintiff, and defendant appeals.

Hon. E. N. Thomas, Chancellor. Bill by Amelia Hossley against George Williamson and others, Highway Commissioners, to prevent the construction of culverts from certain highway funds. A demurrer to the bill was overruled, and the defendants appeal.

Hon. J. D. Fati-ieree, Judge. Action by R. P. Osier against the Atlas Assurance Company on a tornado policy. Peremptory instruction for the defendant, and from the judgment thereon the plaintiff appeal. The decisions in this case, under the pleadings narrows itself dmvn to the answer of the following clauses in the policy. Did any change other than by death of the insured take place in the interest or title of the property insured?

Apbal from chancery court of Pontotoc county. Hon. A. J. McIntyre, Chancellor. Bill in chancery by John T. Short against T. L. McDaniel and others to cancel certain deeds, remove clouds, and validate title under deed of trust foreclosure. Decree for the plaintiff, and the defendants appeal. There are two distinct questions presented by this record to which we desire to call the attention of the court, and they are as follows: First.

Hon. E. N. Thomas, Chancellor. Bill in chancery by S. H. Kent and others against W. E. Stevenson and others, for specific performance of a contract containing a deed, and for an injunction to restrain the defendant above named from foreclosing a mortgage. Motion to dissolve temporary injunction was granted, and decree entered accordingly, and plaintiffs appeal.

Hon. T. L. Lamb, Judge. Suit by Gowan Brothers against P. R. McKinnon, county superintendent, and others, to enforce a mechanic’s lien against a school building. Judgment for the plaintiffs, and the defendant appeals.

<p>Appeal from circuit court of Warren county.</p> <p>Hon. E. L. Bjriein, Judge.</p> <p>Suit by David Branciere against E. Bonelli, Sr., and others, for personal injury. Judgment for plaintiff, and ■ defendants appeal.</p>

<p>CARRIERS. Whether ticket agent, causing arrest of passenger, was acting in carrier’s business and within scope of employment held for jury,.</p> <p>Where, as a result of a controversy over the price of a ticket purchased by a passenger, the agent of a' railroad company caused the arrest of the passenger who was waiting on the depot platform for the arrival of a train upon which he intended to take passage, and the testimony as to the acts and conduct of the agent, and the circumstances of the arrest, is conflicting, the question of whether, in causing the arrest, the agent was acting in the master’s business and within the scope of his employment is one for the determination of the jury.</p>

Appear from circuit court of Panola county. Action by E. M. Rotenberry, trustee, to use, etc., of tlie Panola Mercantile Company, against J. H. Steiner. Judgment for plaintiff, and defendant appeals. The questions submitted for decisions are: First. Was the attempted substitution of Rotenberry as Trustee in the place of J. G. Wilson valid? I respectfully submit that it ivas not.

Hon. Y. A. Griffith, Chancellor., Suit'by A. Gotelli and others against W. P. Fountain and others for an injunction. From a decree dissolving the injunction and awarding damages, complainants appeal. Certainly the injunction was proper to prevent a sale of property to satisfy a judgment. The thing the chancery court should have done was to simply sustain the injunction and direct the circuit court case to be tried.

Hon. Y. J. Stricter, Chancellor. Action by Peter McConnell and others against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiffs, and both parties appeal. The bill shows that the several complainants each own, in fee-simple, a separate tract of land, and that each sues for damage, not because of any interference with the drainage by one embankment, or the closing of one stream.

Hon Jno. W. Kyle, Judge. Suit by W. W. Woods against Richard Speer and others before a justice of the peace. Held: but to the circuit court of the second judicial district of Yalobusha county.

Hon. Y. A. Griffith, Chancellor. Bill by the Martin Oil Company against Jeff Griffis to cancel defendant’s alleged title to certain lands, and to quiet and confirm complainant’s title thereto. From a decree for the complainant, the defendant appeals.

<p>Evidence. Deed near time for assessment is admissible as to value, but not if given some time previous, unless any variation in value is shown.</p> <p>A deed given at or near the date fixed as the time for liability for assessing property for taxation is admissible on the question of value; but its recitals as to consideration are not conclusive, but are subject to explanation or contradiction. If an appreciable lapse .of time exist between the date for assessment and the date of sale, such deed is not admissible, unless the party offering it in evidence couple it up by showing there was no variation in values between such dates, or, if there is a variation, by. showing the nature and extent thereof, with reasonable certainty.</p>

Hon. A. J. McIntyre, Chancellor. Bill by Mrs. Lena McNeil against Curtis McNeil and others for alimony and for suit money and to set aside a conveyance as in fraud of her marital rights, in which the defendant answered and filed a bill asking for divorce. The chancellor refused to allow alimony pendente lite or attorney’s fees in the alimony suit, but allowed five hundred dollars as attorney’s fees for defending the divorce issue in the cross-bill.

Hon. J. D. Magrtjder, Special Chancellor. Petition by George Edward Williams against Myrtle D. Williams, for the amendment of a decree of divorce in favor of the defendant. Decree for complainant, and defendant appeals. Under what circumstances may decrees and judgments be corrected after the term on. the ground of mistake? A. A decree may be corrected on the ground of fraud.

Hon. G. C. Tann, Chancellor. Suit by the Long Bell Company against A. F. McLendon. Decree for defendant, and plaintiff appeals.

<p>Appeal from chancery court of Chickasaw county.</p> <p>Hon. A. J. McIntyre, Chancellor.</p> <p>Bill by the Hill Manufacturing Company against the Gulf, Mobile & Northern Eailroad Company. Judgment for the plaintiff, and the defendant appeals.</p> <p>Counsel for appellee conceded that the Hill Manufacturing Company had no lien on the property of the New Orleans, Mobile & Chicago Railroad Company at the time it was sold through the district court of the United States at Mobile. The Hill Manufacturing Company had nothing but a claim. If it should prosecute its claim to judgment and get a lien while the property remained in the hands of the New Orleans, Mobile & Chicago Railroad Company the claim could be collected, and the judgment would have .taken precedence of the outstanding mortgage on the rolling stock. In other words there was property belonging to the railroad company against which appellee had its claim that could have been subjected to the payment of the claim when it should be reduced to judgment. But the claim itself had no priority- and was secured by no lien. A judgment against the same company in favor of the.bondholders would have been just as good as the judgment on the claim which appellee had. When counsel for appellee makes concession that the claim was secured by no lien they go a long way toward the solution of the question presented by this appeal. In other words this appellant bought the property free from any and all liens. When this present controversy with the judgment creditor of the New Orleans, Mobile & Chicago Railroad Company arose there was no longer a mortgage; there had been a sale; the property was not covered by a mortgage lien; it had been sold by order of court and subject to the debts of the New Orleans, Mobile & Chicago Railroad Company. This appellant is not the mortgagee, it is the purchaser. It does not simply hold a lien, it holds the absolute title. And it is conceded by learned counsel for appellee that when appellant bought the property, it had no lien on it. This appellant became the purchaser in 1916 and the judgment Avas not rendered until April, 1918. At the time appellant boughfthe property not only was there no judgment against the NeAV Orleans, Mobile & Chicago Railroad Company on the claim of this appellee but there had been a judgment of the circuit court of Chickasaw county in favor of the New Orleans, Mobile & Chicago Railroad Compa'ny and against this appellee. When the judgment ivas finally rendered against the New Orleans, Mobile & Chicago Railroad Company in April, 1918, that company had no property whatsoever. It had been sold by its creditors and subjected to the payment of its debts. Mechanics, materialmen and laborers are by the statute given liens and the liens are carefully defined. The South Carolina Statutes, somewhat similar to ours (section 1528, General Statutes South Carolina) makes judgments upon claims of the character of this, of appellee, relate back to the date the cause of action accrued, and the lien is fastened upon the property as of the date the damage was suffered.</p> <p>But as conceded by counsel our statute creates no lien, gives no perference. It does nothing more than to make a judgment lien against the rolling stock and earnings superior to the lien of a mortgage on the same property.</p> <p>Then we have it that this appellant bought property on which there was no lien and then a judgment was later procured against appellant’s predecessor in title. The judgment against the former .owner was obtained about a year and one-half after appellant became the owner. The appellant was not a party to the proceeding in which the judgment was obtained. And yet it is treated as being personally liable for the judgment just as if it had been a party defendant to that action. If this appellant is required to pay that judgment it will be compelled to pay it without having had any chance to defend in that suit. According to the theory of appellee the party in interest after the sale of the property was this appellant and not the New Orleans, Mobile & Chicago Railroad Company. It could make no difference with the latter company how the controversy should go since it had partéd with all its property. The corporation vitally interested from there on, on the theory of the chancellor’s decree herein, was this appellant and not the New Orleans, Mobile & Chicago Railroad Company. This present proceedding is not one to subject ’certain property on which, in the hands of the former owner, the creditor had a lien. But, the purpose is, and the effect of the chancellor’s decree is, to compel this appellant to pay a judgment rendered against its predecessor in the title simply because if the New Orleans, Mobile & Chicago Eailroad Company had not sold the property, the claim could have been made out of the property in its hands. 120 and 12, North Carolina.</p> <p>Tn the case of Trust Company of America v. Norfolk & Southern, 192 Fed. 80S, cited by appellee, the judgment creditor, Talbott, sued the original company and obtained judgment and had it enrolled before the order of sale was made and was allowed to be paid out of the proceeds of sale. In King v. Thompson, 110 Fed. 819, also cited by counsel for appellee, the petition of the judgment creditor was presented in the foreclosure proceeding. In fact the cases in the books where there has been occasion to construe these statutes intended to prevent mortgages from wrapping up the property so as to exclude other creditors, the controversy has arisen over the distribution of the proceeds of sale except in the North Carolina cases above mentioned.</p> <p>The Decree of the District Court of the United States for the Southern District of Alabama and the Eastern Division of the Southern District of Mississippi.</p> <p>Learned counsel for appellees ignore altogether these decrees. The property of the New Orleans, Mobile & Chicago Eailroad Company was directed to be sold. It is true that it was sold in execution of the lien of a mortgage. But the property was sold without any liens against it, except those specially mentioned in the decree. This appellant bought the property and paid the value. If appellee had a claim against the property, it was entitled to its share in the distribution of the proceeds of the sale. It knew of the sale long before it got judgment-; it had notice of the sale and of what was paid for the property by virtue of the , instruments recorded in the chancery clerk’s office at Houston in the latter part .of 1916. It kneiv of the receivership proceedings and it knew that this appellant had' bought the property and what it paid for it and in what courts the receivership was being administered. This appellant had paid its money into court; it was a perfectly legal sale of the property; and the sale was made according to law and it was confirmed-by a final decree of the said courts. Appellee would brush these decrees aside in this collateral proceeding and treat them as if they had not been rendered. And the original bill filed in this cause sets up this proceeding through which appellant claims title to the said property. It other words appellee knew that the Gulf, Mobile & Northern Railroad Company was buying this property and taking possession of it and paying its money into court and paying for the property and yet it took no steps to get its share in the distribution of proceeds of sale. Chauncey H. Murphy, from whom appellant bought, was the highest and best bidder. . What he paid into court for the property is what the property was supposed to be worth. The proceeds of sale would not go to mortgage creditors alone but all claims having priority for any reason would be fastened upon the proceeds. But this appellant stood by and let the proceeds of sale be distributed and now calls upon the purchaser personally to pay its claim on the theory that the purchaser has received property which might, in the hands of the New Orleans, Mobile & Chicago Railroad Company, have been subjected to the claim.</p> <p>It is well settled that there is no duty ever resting upon the purchaser at a judicial sale to look after the distribution of proceeds of sale. All lie has to do is to pay in the money as directed by decree of the court when the sale is confirmed. The Gulf, Mobile & Northern Railroad Company and Chauncey H. Murphy had no power, right nor duty to direct the distribution of the proceeds and are in no way responsible for the failure, if there was such failure, on the part of the receiver to hold the money intact for the payment of claims that might at some time .arise and be adjudged preference claims. The Hofstetter case, 85 Fed. 75.</p> <p>Counsel for appellee at page 16 of tbeir brief say that this decision has no application. 1. Because the mortgage was not a consolidation mortgage and therefore not ■ within the provisions of the act.</p> <p>Counsel evidently did not read the opinion. Instead of it being true that the court reached the conclusion it did because the mortgage in question was not a consolidation mortgage, it is true that the court found that the law applied to all mortgages of all railroads, and that the question of consolidation had nothing to do with it.</p> <p>The Decree op the Chancellor.</p> <p>Counsel for appellee submit the decree of the chancellor with the statement that it was proper. They have no authority to support it and no reason to support it. If this decree can stand, then there must be, somewhere, a rule of law that whoever buys a piece of property must pay any judgment that may be rendered against the former owner of the property provided it could be shown that the property, if it had remained in the hands of the former owner, could have been subjected to the payment of the judgment. We do not know where to find any such rule.</p> <p>Section 6694, Hemingway’s Code (section 4065, Code 1906), provides that: “When any railroad shall be sold under execution, or under a deed of trust, or by a decree of a court enforcing a mortgage or other lien, the purchasers thereof, and their assigns and successors shall be entitled to and be invested with all the -franchises, rights, powers, privileges and immunities, not inconsistent with the provisions of this chapter (on railroads) appertaining to and possessed by the company or corporation whose property and franchises were sold.” It then provides what the purchaser shall (lo before it shall operate such property when they shall thereupon become vested with all the powers, rights, privileges and benefits thereof not incon-' sistent with the provisions of this chapter, in the same manner and to the same extent as if they were the original corporators of said company, and shall thereby become a railroad corporation.</p> <p>Section 6695 (section 4066, Code of 1906), provides that: “The said purchasers and assigns may meet and organize a new corporation under the provisions of this chapter, and have all the powers, franchises, rights, privileges, and immunities provided herein, and none other, and may give it such a name as may be adopted,” etc.</p> <p>Section 6696 (section 4067, Code 1906), reads as follows : “Mortgage or deed of trust subordinate to certain claim; a mortgage or d£ed of trust conveying the income 'of future earnings or the rolling stock of a railroad company shall not be valid against liabilities incurred by such company as a carrier of freight and passengers, or for damages sustained by person or property.”</p> <p>■ It will be noted that under the provisions of the first two sections of the chapter above quoted, the purchaser or his assigns and successors, shall be entitled to and be invested with all the franchises, etc., not inconsistent with the provisions of this chapter, and may be authorized to operate said railroad corporation or reorganize same under the provisions of this chapter, one of the provisions to which such purchaser, or his assigns and successors, is subject under section 6696, last above quoted is, that a mortgage or deed of trust conveying the income of future earnings or the rolling stock of a railroad company shall not be valid against liabilities incurred by such company as a carrier of freight and passengers, or for damages sustained by persons or property.</p> <p>It is not denied that the claim of appellee ivas of the character described in the above section of the Code, nor is it claimed that appellant was a ‘bona-fide purchaser of the property of the New Orleans, Mobile & Chicago Eailroad Company for value without notice of the appellee’s claim, but even if such were the case it would not avail the appellant, as hereafter shown, the fact that the appellee’s suit was of record in itself was constructive notice of the claim. The Rospigliosi Transcript introduced in evidence at the trial and made part of this record by agreement of counsel, shows that Murphy was simply the representative of a reorganization committee representing the bondholders and stockholders of the New Orleans, Mobile & Chicago Eailroad Company and merely purchased the property at the sale with the understanding that he was to convey it to the reorganized company, which he later did. ■ It is conceded that the only title appellant has to the property is through the mortgage of the News Orleans, Mobile & Chicago Eailroad Company and the foreclosure proceedings had thereof in the federal courts and as the assignee of the committee purchased at the sale thereunder. Appellant is but the reorganized company formed as the result of the articles of agreement shpwn in the Eospigliosi Transcript, pages 181-202.</p> <p>A railroad corporation has no power to mortgage its property at all in the absence of express legislative grant authorizing it to do so, and this authority may be limited and circumscribed as the legislature deems proper. This proposition is no longer open to question, nor does the appellant dispute it. 3 Cook on Corporations (6 Ed.), sec. 780, p. 2728; 33 Cyc. 483 and 485; lb. 486 (C); Frazier v. Railway Company, 88- Tenn. 138, 12 S. W. 537; Raihoay Company v. Frazier, 139 U.’S. 283, 35 L. Ed. 196; So. Ry. Co. v. Bouknight, 25 U. S. App. 415, 70 Fed. 442,17 C. O. A. 181, 30 L. E. A. 823; Trust Co. of America v. Norfleet & So. Ry. Co., 183 Fed. 803.</p> <p>The legislature then, having the power to make a valid limitation of the kind in question, it only remains to ascertain the true meaning of the provision. Our own supreme court has-said that this provision needs no construction. N. O., M. & C. R. Co. v. Carter, 107 Miss.l, 64 So. .842.</p> <p>The language is plain and unambiguous. It not only applies to mortgagors and mortgagees, but it also applies with like force to purchasers, and their assigns and successors, under such foreclosure proceedings. We do not claim that this statute creates any lien on the rolling stock franchises, income and future income and earnings of the railroad company, although this may be its legal effect. We do assert, however, that such mortgages or deeds of trust, shall not be valid against liabilities incurred, etc., , independent of any question of liens or priorities of liens, Nor is it necessary .that a claim should be reduced to judgment to be within the protection of the statute. Such mortgages or deeds of trust are absolutely invalid against liabilities incurred, of the character mentioned. That provision by force of law is read into every mortgage and deed of trust given on the class or property to which it applies just as if it were there in express terms, and every purchaser and successor for purchaser takes subject to its terms. So. By. Go. v. BotolmigM, 70 Fed. 442, 30 L. E. A. 823; East Term., etc., By. Go. v. Frazier, 139 TJ. S. 283, 35 L. Ed. 196; King v. Thompson, 110 Fed. 319.</p> <p>The statute of Tennessee provides that such mortgages shall not be valid and binding against judgments and decrees and executions therefrom, etc. Frazier v. By. Go., 88 Tenn. 138, 12 S. W. 537, and By. Go. v. Frazier, 139 U. S. 283, 35 L. Ed. 196, the latter affirming the decision of the Tennessee supreme court in the former.</p> <p>The North Carolina statute makes mortgages given on railroad property invalid as to the claims of such parties as have sustained injury at the hands of such railroad. It is like ours in its provisions except that it covers all kinds of property. Trust Go. of America v. Norfleet & So. By. Go., 183 Fed. 803, and Langston v. Greenville, etc., Go., 120 N. C. 132, 26 S. E. 644.</p> <p>The appellant raises the point that if our statute gives the appellee a right to subject the rolling-stock, franchise, income and future-earnings of the old New Orleans, Mobile & Chicago Eailroad Company, now in the possession of the appellant to the payment of the appellee’s claim, others having similar claims may come in and do likewise. We concede this to be correct, subject to the limitation that suit must be brought upon such claim within six years, otherwise they are barred. The mere fact that there may be many or few of these claims is wholly unimportant so far as the protective operation of the statute is concerned. It is to be noted, however, that the appellant has carefully avoided disclosing what, if any, of such claims are still, outstanding, although the same gentlemen who were general counsel for the New Orleans, Mobile & Chicago Bailroad Company are counsel for the appellant in the instance case. It can be fairly assumed that if there were any outstanding claim to which the appellant might, with advantage to itself, have called this court’s attention, it surely would have done so. Every other possible objection has been raised to defeat recovery'from the institution of these suits in February, 1913, to the present time resulting in a delay of nearly nine years. The hope undoubtedly was, that the appellee would become weary of the litigation and expense and quit, but this expectation has so far failed.</p> <p>As to the Cases Eelied Upon by the Appellant. The appellant lays great stress upon the case of Baltimore Trust & Guarantee Go. v. Hofstetter, 85 Fed. 75, decided by Judge Lubton, and contend, that this case holds that a purchaser of railroad property under foreclosure proceedings takes the title clear, notwithstanding the provision of the Tennessee statute declaring that no railroad company shall have the power-to give a mortgage which shall be valid against judgment and decrees for damages to person or property. An examination of the facts of the case and particularly of the Tennessee statute, discloses that the statute‘was entirely different from our own and the decision was put upon grounds which could not arise in the instant case.</p> <p>In the first place, the Tennessee statute was an act to regulate the terms upon which the railroad corporations could consolidate and as a part of tbe consolidation proceedings issued mortgages. In this connection it provided: “No railroad shall have power to give or create any mortgage or other kind of liens on its railroad property in this state which shall be valid and binding against judgments and decrees and executions thereon . . . for damages done to persons and property in the operation of its railroad in this state.”</p> <p>A railroad company gave a mortgage, but not for consolidation purposes. Default having been made in the payment of interest, the mortgage was foreclosed and the property sold. Subsequently a judgment was obtained for personal injuries against the original road which it was attempted to be asserted as a lien on the fund arising from the sale under the mortgage. It was held that the judgment could not participate: (1) Because the mortgage was not a consolidation mortgage and therefore not within the provisions of the act, and, (2) that the act only applied to liens and decrees in effect when the mortgage was given and not to judgments acquired afterwards. It can be readily seen that this case has no bearing upon the issue now before the court.</p> <p>- The case of the Chattanooga R. R. Co. v. Brand, 66 Fed. 809, also relied upon by the appellant, is not in point. Here the court had under its consideration the same Tennessee statute as was discussed in the Trust Co. v. Hofstetter. The decision merely held, that under the wording of the act, for timber furnished and work and labor done, or for damage to person and property in the operation of its railroad in this state, did not include material furnished and work done in the corporation’s machine shop upon locomotives, or railroad supplies such as tools, spikes, hardware, etc., or damages resulting from detention of freight over the line, unless such damage was occasioned by actual injury to the property. This case has no bearing upon the present question.</p> <p>Relying upon the two foregoing cases, the appellant contends that the later decisions of Judge Lukton sustained its contention that the claim of the appellee will not hold against the rolling stock, etc., of the N. O., M. & O. E. Company, now in the hands of the appellant, is without force. We assert that Judge Lurton’s decisions from first to last are entirely consistent, and that there is no pronouncement in either the Hofstetter or the Chattanooga case which is at variance with the propositions which we advance or with the other cases which we have cited.</p> <p>In this connection we might call special attention to in language used in the case of King v. Thompson, 110 Fed. 319, in which Judge Lurton participated, as follows: “The mortgages in foreclosure in this proceeding were executed long after this statute passed, and in such cases, as was said by Chief Justice Fuller, in construing a somewhat similar statute in Georgia, in the case of Railway Go. v. Bouknight, 17 C. C. C. A. 191, 185, 70 Fed. 442, 80 L. E. A. 823: ‘The law enters into and becomes a part of the contract as if it were there in express terms, citing a greát list of cases from the highest courts.’ ”</p> <p>We repeat that appelle has the right to go into a court of equity and subject the rolling stock, income and future earnings thereof in the hands of appellant to the payment of appellee’s claim so established by the judgment of the court of law, under the statute under discussion. It might also be done as to the franchise, income and future earnings of the N. O., M. & C. E. Company under the general law on the subject of Corporations as set forth in section 4076, Hemingway’s Code (section 904, Code 1906).</p> <p>It Was Not Necessary for Appellee to Intervene in the Federal Court to Protect its Eights.</p> <p>The case of Trust Company of America V. Norfleet & So. Ry. Go., 183 Fed. 803, sets at rest the contention that ap-pellee should have intervened with its claim in the receivership proceedings in the Federal court. That contention was also made in that case, and in reply to it the federal court said: “Suppose that the contention of the purchasers be sustained, and he be sent into that jurisdiction, what power has the court to give him relief? It has sold the property out of which his judgment must be collected, the defendant is insolvent, the purchaser has complied with the terms of his purchase, and has possession of the property. To send him into that tribunal would be to keep the promise to the ear and break it to the heart. It is said that he had permission to intervene and protect his rights before the sale was made. The obvious answer is that he was not compelled to do so. It would seem that the parties to the suit should have seen to it that his rights were protected.</p>

<p>Appeal from circuit court of Warren county.</p> <p>Hón. E. L. Bribn, Judge.</p> <p>Action by U. Williamson against the First National Bank of Vicksburg. Judgment for defendant, and plaintiff appeals.</p>

orirt of Bolivar county. I-Ion. G-. Edw. Williams, Chancellor. Bill by W. R. Campbell against the Farmers’ Bank of Boyle. A demurrer to the complaint was sustained, and plaintiff appeals.

Hon. A. J. McIntybe, Chancellor. Bill by the Bank of Tupelo ágainst E. B. Motley. From a decree therein, the plaintiff appeals. What were the rights of Motley under his bill and Us pendens notice? We will assume first (and we believe the position is incontrovertible) that Motley got no greater rights by his bill and notice thereunder than he could have gotten by a reconveyance by Harkey to Mm of the Motley residence at the identical hour he filed his bill and notice.

Hon. G. 0. Tann, Chancellor. Proceeding by John Hunter and others, kinsmen of John G. 'Hunter, deceased, against Anthony D. Hunter, to contest decedent’s will. Verdict and decree for contestants, and Anthony D. Hunter appeals. The learned counsel cite some authorities from different states on construction of statutes which they say are similar to ours on the question of privileged communication.

Hon. G. Edw. Williams, Chancellor. Petition in hateas corpus by S. A. Blackman and Avife against T. B. Birdsong, Jr., Captain, etc., Company I, Mississippi National Guard, for an order to discharge petitioners’ minor son, James M. Blackman, from bis enlistment.

Hon. A. J. McIntyre, Chancellor. Proceedings by Monroe county, to the use of the Splunge Consolidated School District, to validate a bond issue, wherein J. E. Minga and others filed objections. Decree holding the bonds ill >'al, and the County appeals.

Hon. E. L. Brien, Judge. Suit by the Richter Manufacturing Company against the Vicksburg Candy Company, in which peremptory instruction ivas granted to the defendant, and the plaintiff appeals.

Hon. B.. L. Corean, Judge. Action by Mrs. Audrey Buie against Mrs. M. A. Cloy in ejectment. From a judgment therein, the plaintiff appeals.

Hon. G. 0. Tann, Chancellor. 1 ■Bill by J. P. Young, former sheriff of Lauderdale county, against W. 0. Fleming, former clerk of said county, and the United States Fidelity & Guaranty Company, surety on the clerk’s official bond. The guaranty company’s demurrer to the last amended bill was overruled, and it appeals.

Hon. R. W. Cutrer, Chancellor. Bill by J. W. Pickett against J. N. Greer. Judgment for plaintiff, and defendant appeals. The suit is a proceeding to quiet title, under sections 550 and 551 of the Code of 1906.

<p>Appeal from circuit court of Perry county.</p> <p>Hon. R. S. Hall, Judge.</p> <p>E. C. Sellers and another were tried and convicted for contempt of court, and they appeal.</p>

C. P. Long, Judge. Action by W. Jones against J. A. Pinnix in the justice court, which was appealed to the circuit court, and there combined with an action by one Pennington for unlawful entry and detainer. Verdict and judgment awarding the possession of the premises to Pennington, together with double rent therefor, and the defendant appeals.

Hon. G. Enw. Williams, Chancellor. Bill by Edna Wynne against C. P. Thompson. Decree in favor of plaintiff, and defendant appeals. In the case at bar appellee claims to know the amount that is clue yet does not pay this into court.

Hon. A. J. McIntyre, Chancellor. Bill by J. T. Gentry and others against T. L. Pyle. Temporary injunction was issued, and the cause heard on demurrer and motion to dissolve, both of which were overruled, and defendant appeals. The court erred in overruling appellant’s demurrer. .

Hon. S. F. Davis, Judge. Suit by Stokes V. Bobertson, State Bevenue Agent, against the Greenwood Lumber Company, to recover taxes due the state. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Hon. S. F. Davis, Judge. W. T. Hempbill was convicted of kidnapping, and be appeals. Reversed, and defendant discharged. We desire first to call the attention of the court to the fact that Hemphill, the guardian, cannot be convicted of kidnapping under any circumstances, from a legal viewpoint, and second, he cannot be convicted on the facts as exists in this case.

.county. Hon. Y. A. Griffith, Chancellor. Bill by George W. Worth against Jackson County. Held: as stated in the syllabus, “that the defendants could not, under the state of the pleadings, question the character in which the plaintiff sued, nor whether he had properly qualified to act in his fiduciary capacity, and that the evidence offered, was, therefore, properly excluded.” The contention in appellant’s brief that the…

Hon. G. E. Williams, Chancellor. Suits between M. B. Grace and M. F. Pierce and between Mrs. Cora Scruggs and Robert Herman and another were decided in one opinion coming to the supreme court in one record, in which M. B. Grace appeals from a decree in the former, and Mrs. Cora Scruggs appeals from a decree in the latter. Decree in the former case affirmed. The judgments rendered by the justice of the peace courts in the year 1911, against Mr. Scruggs and in favor of Messrs.

Hon. V. J. Stricker, Chancellor. Bill by H. W. Rives, executor, against M. S. McNeil. Complainant’s bill was dismissed, and complainant appeals. On the face of the pleadings, treating the plea and answer of the defendant as properly joined, the complainant was entitled to relief. Certainly he was entitled to a decree canceling and annulling the deed from Biirrage to McNeil.

<p>Appeal from circuit court of Attala county.</p> <p>Hon. T. L. Lamb,'Judge.</p> <p>Joe Williams was convicted of murder and sentenced to death, and be appeals.</p>

Hon. C. P. Long, Judge. Suit by O. D. Perkins against A. D. Thompson, in which a writ of garnishment was. issued and defendant filed a petition, setting up that the judgment entered against him was void, and a demurrer to the petition was overruled and an order entered vacating the judgment, and the plaintiff appeals.

Hon. G. E. Williams, Chancellor'. Suit by T. J. Gee against Calvin Tucker. Decree for defendant, and plaintiff appeals. It occurs to me that the only question in this case requiring serious consideration is the matter of the filing with the clerk, though no emphasis was put on this feature in the lower court, either in the pleading, or in the taking of the evidence.

Hon. E. L. Brien, Judge. Suit by Miranda V. Blake Schuler and others against W. H. McGee in ejectment. Judgment for the defendant, and the plaintiffs appeal. As to Adverse Possession.

Hon. R. W. Cutrer, Chancellor. Suit by George W. Howell against W. F. Middleton and others. Judgment for plaintiff, and the named defendant appeals. There is no equity on the face of the bill, and it states no facts justifying the interposition of a court of equity But shows that appellee’s remedy is full, complete and exclusively at law.

Hon. D. M. Millee, Judge. Ben Faulk was convicted of manufacturing intoxicating liquors, and sentenced to the penitentiary for two years, and he appeals.

Hon. W. H. Hughes, Judge. Suit by Mrs. Floyd Dora Garner against the Sovereign Camp, Woodmen of the World. Held: “That where the waiver relied on is an act of an agent, it must be shown either that the agent had express authority to make the waiver, or that the company subsequently with knowledge of the facts, ratified the action of the agent. This case also holds that it was not necessary that the agent should have notified the society.