Volume 128 — Mississippi Reports

Hfn. T. P. Guyton, Chancellor. Bill by Mrs. Ida Dashiell Smith and others against Mrs. M. A. Beard and others. Judgment dismissing the bill, and plaintiffs appeal. That W. C. Beard, trustee, was disqualified from purchasing the property here involved at the foreclosure sale, as a matter of law, is well settled. Houston v. National Bldg. & Loan Ass’n, et al., 80 Miss. 81, 81 So. 540.

Hon. T. L. Lamb, Judge. Action by J. H. Shaw against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. The only question to be considered in the decision of this case is that of carrier or warehouseman. In other words, were the duties and obligations of the railroad company towards ShaAV that of common carrier or that of warehouseman?

Hon. V. J; Strioker, Chancellor. Bill by John Darrington against Joe Rose and others. From a final decree denying the prayer of plaintiff’s bill, plaintiff appeals, and Jacob Rose and Milton Cannon prosecute cross-appeals. The notice complained of was sufficient. This is a vain point. The notice in each of the four insertions of the paper, except the second one, printed August 13th, is as follows: “Notice to taxpayers.

Hon. E. N. Thomas, Chancellor. Bill by Mrs. Mattie Hardy Pepper against Herbert Hardy and others. Decree for the plaintiff, and defendants appeal.

Hon: E. N. Thomas, Chancellor. Bill by Mrs. Anna C. B. Markham against Mrs. Helen Hammett and others. Decree for plaintiff, and defendants appeal. The first question propounded by the court is as follows : “The court desires to know whether or not item 4 of the will of Mrs. Evelyn Lightcap, which conferred upon the executrix the power of sale upon the death of either Florence or Helen, was ever exercised by a sale of the plantation?” The power of sale was never exercised.

Hon. Y. J. Stricker, Chancellor. Suit by Bailey & Bean against J. E. Wilson. From a dismissal of the bill, plaintiffs appeal. The Act of 1918, chapter 185, section 17, is relied on for the proposition that chapter 89 was repealed.

<p>Appeal from chancery court of Pearl Eiver county.</p> <p>Hon. D. M. Eussell, Chancellor.</p> <p>Suit by the Weston Lumber Company against- L. B. Strahan and another. From a decree of dismissal, plaintiff appeals.</p>

Hon. W. A. Eoane, Judge. J. N. Overall was convicted of obtaining money under false pretenses, and he appeals. It is very evident that Smith knew of Busby’s claim to a landlord’s lien on the cotton before he paid for it and thus completed the sale.

Hon. G. E. Williams, Chancellor. Proceedings by J. S. Isom and others to probate the will of D. L. Canedy, to which J. A. Canedy and others filed a caveat. Judgment for contestants, and proponents appeal.

Hon. Y. A. Griffith, Chancellor. Suit by M. L. Ladner and others against Arthemise Lad-ner, as administratrix of Alfred Ladner, deceased, and others. Decree for plaintiffs, and defendants appeals.

Hon. E. L. Brien, Judge. Action by W. II. Galt against tbe American Railway Express Company. Judgment for plaintiff, and defendant appeals. Held: “Rates authorized for the transportation by express of property, except ordinary live stock, depend upon the value declared in writing by the shipper or agreed upon in writing as the released valué.’5 See also Perishable Freight Classification, 56 I. C. C., pages 449 and 482, decided February 4, 1920.

<p>Appeal from circuit court of Marshall county.</p> <p>Hon. W. A. Roane, Judge.</p> <p>Lee Powell was convicted of attempting to distill intoxicating liquors, and be appeals.</p>

<p>1. Fraud. Proof of agent’s faihire to account does not sustain charge.</p> <p>A recovery cannot be had in an action for deceit, where the evidence fails to sustain the fraud and deceit charged in the declaration, but discloses that the defendant was an agent of the plaintiff, and withholds from him money received by him, and for which he should account to his principal.</p> <p>3. Vendor and Purchaser. One purchasing land and securing vendor’s deed direct to a third party is the vendor of such third party, and not his agent.</p> <p>Where A. has agreed with B. on the purchase by B. of land from A., and before the deed is executed B. sells the land to C. and procures A. to execute a deed thereto direct to C., die relation between B. and C. is that of vendor and purchaser, and not of principal and agent, although B. may have sold the land to C. for a greater sum than he paid A., representing to C. that he was selling it to him for the amount he had agreed to pay A.</p>

Hon. S. F. Davis, Judge. Norman Bradley was convicted of uttering a forged check, and he appeals. From the brief of the learned attorney-general which is eminently fair, the state did not introduce any evidence of the check set forth in the indictment and which appears therein at page 4 of the record and it offered no proof as to the forgery or uttering of this check. Brief of assistant attorney-general, page 2.

Abpka'l from circuit court of Sunflower county. Hon. S. F. Davis, Judge. George Hollins was convicted of rape, and sentenced to the penitentiary, and he appeals. We submit that the peremptory instruction should have been given to the defendant in the trial court, and that when this question is settled this whole case is practically settled and Ave base our contention on the grounds as follows, to-wit: 1.

Hon. S. F. Davis, Judge. Action by Washington County against Humphreys county. Judgment for plaintiff, and defendant appeals. Appellee admits that the decision of this matter hinges upon the inter-county agreement, which was ratified by the Mississippi legislature.

Hon. B. W. Outrer, Chancellor. Bill by W. P. Morath and others against H. D. Wood. Decree for complainants, and defendant appeals. Held: following Nivers v. Nesmith64 Miss. 807, that there was nothing to prevent the tenant from acquiring such outstanding title.

Hon. B. W. Cutrer, Chancellor. Bill by W. S. Callender and others against the Board of Supervisors of Claiborne county, in which a preliminary injunction was issued, and on final hearing and motion to dissolve the injunction was overruled, and defendants appeal.

Hon. R. S. I-Iall, Judge. Suit by Thomas E. Beard against the New Orleans & Northeastern Railroad Company for personal injuries. Held: “Unless the injured employee of-an interstate and intrastate carrier is -engaged in interstate commerce at the time of the injury, the Federal Employer’s Liability Act does not apply and it is immaterial whether such employee had previously been or in the immediate future was to be engaged therein.” The same applies to the boiler in…

Hon. W. A. Roane, Judge. Suit by J. W. Manning against H. D. King. Judgment for plaintiff, and defendant appeals. The judgments should have been set aside and a new trial granted because there is no evidence to support the verdict of the jury. Before a verdict for damages should be allowed to stand, damages should have been proven ánd the proof should establish the damages with reasonable certainty.

<p>Account, Action on. Statute requiring affidavit on. actual knowledge held not complied with by affidavit on information and belief.</p> <p>Under section 1978, Code 1906 (section 1638, Hemingway’s Code) which provides that a person desiring to ins.itute suit upon an open account in his favor may make affidavit to 'he correctness of such account, and that it is due from the party against whom it is charged, and in any suit thereon such affidavit attached to the account shall entitle the plaintiff to judgment at the trial term of the suit, unless the defendant make affidavit and file with his plea that the account is not correct, particularizing wherein it is not correct, in which event the affidavit to the account shall entitle the plaintiff to judgment, the account must be sworn to upon the actual knowledge of affiant, and not upon information and belief. The affidavit upon information and belief in such case is not a compliance with this statute.</p>

Hon. W. H. Hughes, Judge. Suit by McConnon & Co. against J. L. Prine and others. Demurrers to pleas were overruled, plaintiff declined to plead further, and suit was dismissed, and plaintiff appeals.

<p>1. Agriculture. In enforcement of laborer’s lien against seed, giving judgment against replevin bond without proof of value of seed, error.</p> <p>Under sections 3043, 3044, 3049, Code of 1906 (sections 3400, "3403, 3407, Hemingway’s Code), it was error to render judgment against replevin bond for seed, where their seizure, value, and liability is not shown by laborer seeking to enforce lien against the seed.</p> <p>*3. Agriculture. Laborer’s lien is enforceable by personal judgment against employer notwithstanding failure against seised property.</p> <p>In such suits the procedure is like replevin cases, but personal judgment against the employer may be rendered for amount due laborer, notwithstanding a failure against the seized property.</p> <p>3. Appeal and Error. Supreme court will render 'such judgment as lower court should have rendered on proof and verdict.</p> <p>This court will render such judgment as the lower court should have rendered on the proof and verdict of the jury.</p>

Hon. G. C. Tann, Chancellor. Suit between J. F. Clark and the Merchants’ & Manufacturers’ Bank. From the decree therein, the latter appeals. On motion to strike transcript.

Hon. D. M Miller, Judge. Tom Tucker ms convicted .of the unlawful making of intoxicating -.^uor, and he appeals. In behalf of appellant I invoke the Fourth Amendment and Fifth Amendment of the Constitution of the United States. In his behalf I invoke sections 23 and 26 of the Mississippi Constitution. In his behalf I invoke our own statute laws.

<p>Appeal from circuit court of Humphreys county.</p> <p>Hon. S. F. Davis, Judge.</p> <p>Proceeding in the circuit court for the disbarment of J. M. Cashin, a member of the bar of Humphreys county. Judgment of disbarment was rendered, and J. M. Cashin appeals.</p> <p>It is' respectfully submitted that the judgment herein is void for lack of jurisdiction of the person of the accused. The proceeding was instituted and the order that I be cited were not made or done by the court upon any information or proceeding of any kind pending in court, but the order was made by the judge in another county in the state, and at a time when the circuit court of Hum-phreys county was not in session. All this appears from the record.</p> <p>In proceedings for the suspension of disbarment of an attorney, the practice is for the court, not a judge, to issue a rule or order upon the attorney, reciting the substance of the information or charges against him, and requiring him. to show cause why he should not be suspended or disbarred. 4 Cyc. 913, and authorities cited in the notes on that page. By section 992, of the Code of 1906, judges in term time and vacation are authorized to issue or order the issuance of certain Avrits, but a writ, notice or citation to an attorney in a disbarment proceeding is not among those writs authorized to be issued by judges in vacation.</p> <p>The powers of judges at Chambers in term and vacation are matters of statutory regulatidn, or are regulated by rules of court. The general rule upon this subject is that' judicial business must be transacted in court, and any transaction of judicial business, out of court must be expressly authorized by Statute. 17 Am. & Eng. Enc. of LaAV (2 Ed.) p. 724.</p> <p>It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation except such as are expressly authorized by statute. Blair v. Reading, 99 Ill. 600.</p> <p>Judicial acts of a circuit judge at Chambers must be either acts done out of court in a cause pending in court, or acts which the judge is specially authorized by statute to perform out of court. Streeter v. Baton, 7 Mich. 341.</p> <p>Judge Davis' order to me ivas not in reference to a case then pending in court, and not an order he was authorized by the statute to issue and is therefore entirely void.' Strictly judicial powers can only be vested in certain courts named in the constitution. The circuit courts as courts have such powers, but judges out of court merely as judges cannot exercise them. Toledo, etc., R. R. Go. v. Dunlap, 47 Mich. 456; see also, 23 Cyc. 543.</p> <p>I again ask the attention of the court to the fact that when Judge Davis signed the order on July 15, 1921, there was no proceeding pending in the circuit court of Hum-phreys county, Miss., upon which said order could be based. It is true that the said order recites that said information had been filed in said court, but the record shows that it was not filed until the next day, July 16, 1921, where the conduct of disbarment proceedings is not regulated by the statute, the practice is as stated in the last paragraph on the first page of this brief. State v. Mosher, 103 N. W. 105. See, also, State v. Kirk, 95 Am. Sec. 314. In the case at bar Judge Davis not only issued a writ or order himself which he was not authorized by the statute to issue in any event merely as a judge, but issued that order in reference to a matter which was not then pending in any court.</p> <p>I submit that under the law I ivas not required to pay any attention to such an order. I did not do so. So far as any authority to bind me by such an order is concerned, he had as well have sent a message'by Mr. Jones to come into court and answer the information. I take it that there is no question but that according to law a defendant in any legal proceeding is entitled to the notice prescribed by law; that is to say the notice prescribed by laAV in that particular proceeding, before his rights can be prejudiced by the judgment of any court. Ex Parte Hey-fron, 7 How. 127; Harris v. Connor, 3 S. & M. 87; Sec. 3912, Code of 1906. See opinion of Justice Field in Ex Parte Wall, 107 U. S. 306; Re Sittion, 177 Pac. 555.</p> <p>In view of the fact which I think is clearly established by the authorities that the court below acquired no jurisdiction in this matter, I respectfully submit that the judgment should be reversed and the proceeding dismissed.</p> <p>In presenting this case to the court, it is probably Avell to remind the court of the essential nature of disbarment proceedings. This subject is discussed in 6 C. J., sec. 37, page 580. As to the common-law power of courts to disbar attorneys, 6 C. J., page, 582. In pursuance of its authority, the legislature of Mississippi has enacted a statute on this subject. This statute section 223, of the Mississippi Code of 1906, Avhich is as follow's: “If any attorney or counselor at laAV be in default of record, or otherwise guilty of any deceit, malpractice, or misbehavior, or shall Avilfully violate his duties, he shall be stricken from the roll and disbarred, and his license revoked by any court in Avhich he may practice; and such person shall never after-Avard be permitted to act as an attorney or counselor in any court in this state.”</p> <p>In this case Ave have a judgment of the circuit court, a court which had the right to hear the case, finding the respondent guilty of the conduct denounced in section 223, above quoted. Judgment itself recites all jurisdictional facts, and conclude by disbarring the respondent, which is the only judgment ^hat could be rendered by the court under the section as above quoted, and under the decision of the supreme court of Mississippi in the case of Barber v. State, 72 So. 472.</p> <p>Appellant relies for reversal of this cause on the ground that the information Avas presented to the circuit judge at a time AAdien the Humphreys county conrt was not in session, but while he Avas holding court in Greenville, Mississippi. See Acts and Legislature with reference to time of holding courts, and citation issued at the same time. His contention being that he has never had any legal notice, and for that reason the court did not acquire jurisdiction of his person and the judgment of disbarment is therefore a nullity. He cites in support of this contention, Blair v. Reading, 99 Ill. 600; Streeter v. Raton, 7 Mich. 341; Ry. Go. v. Dunlap, 47 Mich. 456. None of the above cases involve disbarment proceedings.</p> <p>In the Mosher case, 103 N. W. 105, nest cited by him, the court of its own motion on information received from the grand jury entered an order designating three members of the local bar to draw up and file charges against Mosher, and a part of the same order he was required to appear and answer on the first day of said term.</p> <p>The court will notice in this case that the information which permitted the action of the circuit judge was that derived from third parties and not something which happened in open court, which is the distinguishing feature. As in the latter instance, the circuit judge may of his own motion disbar, while in the former, the attorney in default must be notified and have his day in court.</p> <p>The next case cited by counsel is State v. Kirk (Fla.), 95 Am. Dec. 314. This case simply holds that: “Where it is intended to apply to the court to have an attorney disbarred, the proper course of proceeding is to present the evidence relied on to the court, and it will direct a rule to show cause to be entered if a case proper for the action of the court be presented. This mile is served and returned, and the court hears and determines’ the case according to law;” That is exactly what was done in the case at bar. #</p> <p>Courts have an inherent power to disbar attorneys and strike their names from the rolls independent of any statute on the subject. State ex rel. Johnson v. Gebhardt, 87 Mo. App. 572. For other cases to the same effect, see Decennial Edition of the Ann. Digest on Attprneys and Client, Key No. 36. (1)</p> <p>A proceeding to disbar an attorney is neither a civil nor criminal action, but is a proceeding sid generis, the object of Avhich is not the punishment of the offender but the protection of the court. In re Davis, 166 S. W. 341; State V. Reek, 88 Com. 447, L. K. A. 1915H. 663; Re Boicman, 7 Mo. 'App. 567; In re Durant (Conn.), 10 Ann. Cas. 542, citing Barr v. Taylor, 60 Conn. 11, and many other authorities.</p> <p>Appellant seeks in his brief to hold a proceeding of this kind to the same strictness required in criminal and civil cases. Although that is exactly what was done in this case, it is unnecessary. As wag well said in the case of Thacher v. United States, 212 Fed. 806: “Respondent’s error lies in supposing that he is entitled to invoke the strict rules governing indictments and proof in criminal cases. There is no such strictness. No formal charging papers filed in court, preliminary to a rule to show cause are necessary.” In re Brown, 2 Okla. 595; Weeks on Attorneys at Law, 143, and other authorities; Ebbs, 17 Am. Cases 596; Whipple, C. J. In re Mills, 120 Mich. 393; Em Parte Smith, 28 Ind. 47; Fletcher v. Danger-field, 20 Cal. 427; Matter of Ebbs, 17 Am. & Eng. Ann. Cas.; In Re Shepard (Mich.), 67 N. W. 971; Weeks, Attorneys at Law, page 179; Em parte ’Wall, 107 U. S. 265, 27 Law. Ed. 552; Randall v. Brigham, 7 Wall, 523; Ex parte Steinman, 95 Pa. St. 220; Re Woll, 36 Mich. 299; Whipple, In re Mills, 1 Mich. 396.</p> <p>From the above case, the court will readily see that the circuit judge not only had the authority to entertain the information and issue the citation, but it was his imperative duty to immediately do so that the public might be protected and the honor of the profession secured. State v. Ward, 9 Ohio 42; In re Thacher, 190 Fed. 976; Hess v. Conway, 92 Kan. 797, 2 Q. B. 440; Holmes v. Conway, 241 U. S. 630; In re Walhey, 26 Cal. 161.</p> <p>We especially call the court’s attention to the case of Ex parte Steinman and Hensel, reported in 95 Pa., pages 221-225, in its applicability to the case at bar in treating" on the conduct of the respondent as charged in the information in matters that transpired in the presence of the court, and we most respectfully submit that that of itself,. is sufficient authority for an affirmance of this case. In re Sitton, 177 Pac. 155.</p> <p>We submit that the section of the Code with reference to the taking of the testimony does not require the taking of testimony unless specially requested by parties in interest, and it is now too late for him to complain, but on the other hand, his silence in not answering the information creates a presumption of his guilt and removes the possibility of any presumption of his innocence.</p> <p>As was said by Judge Steele in the case of People ex rel. Colorado Bar Association v. Webster, in 6á Pac. 207, 208, as foliows: It was respondent’s duty to explain to the court the entire transaction and to account in detail for the money received from his client. In cases of this character there is no presumption that the respondent is innocent, and unless, the respondent fairly and in detail explains to the court his entire connection with the transaction wherein he is charged with improper conduct, it will be presumed that he is unable to do so.</p> <p>We most repectfully call the court’s attention to the case of, In re Hopkins, 54 Wash. 569, 130 Pac. 805; also 1 Mont. 49 and 52 Pac. 611, and 779; State Board v. Hart, 15 Ann. Cases, 119; Ex Parte Parks, 93 Fed. 415; Phillips v. Bal-langer, 37 App. D. C. 51; State v. Rohrig, 159 I. 736, 139 N. W. 912; United States v. Robinson, 19 Wall. 513, 22 U. S. —, U. S. Law. Ed. 205; In re Macy, 14 L. E. 848, 196 Pac. 1095; Nelson v. Com. of Ky., L. E. A. (N. S.) 16 P. 272, 109 S. W. 337; In.re Reed, L. E. A. (N. S.) 1916F. 394, Note. We see no error in the trial of the court below and request that the case be affirmed.</p>

<p>1. States. Where statute permits state or subdivision thereof to be brought into court as litigant, it is subject to all rules of procedure.</p> <p>Where the statute permits a state, or a subdivision thereof, to enter or to be brought into court as a litigant, it becomes subject, in the absence of a provision in the statute to the contrary, to all of the rules governing the procedure of the court in other cases.</p> <p>3. Venue. Plaintiff in civil action against county s entitled to change of venue for undue influence of defendant’s board of supervisors.</p> <p>The complainant in a civil action in which a county is the defendant is entitled to a change of venue under tire provisions of section 713, Code of 1906 (section 491, Hemingway’s Code), when it is made to appear that he cannot obtain a fair trial in the court wherein the cause is pending because of the undue influence of the president and members of the county’s board of supervisors.</p> <p>3. Appeal and Error. Where evidence is not in record, it will he presumed to sustain the petition on which change of venue was granted.</p> <p>Where the evidence on which a change of venue was granted is not made a part of the record, the supreme court will presume, on appeal that it sustained the allegations of the petition on which the change was granted.</p> <p>i. Counties. Intention of parties to contract must be gathered from zvords of an order entered in the minutes of the board of supervisors.</p> <p>The intention of the parties to a contract evidenced by an order on the minutes of the board of supervisors must be gathered from the words therein used.</p> <p>5. Counties. What legal services were for which a claim was allowed must be determined alone from the account filed and the order of the supervisors.</p> <p>Where a claim of an attorney for legal services against a county is. presented to and allowed by its board of supervisors, what the services were for which payment was allowed must be determined alone from the account filed with and the order made thereon by the board of supervisors.</p> <p>6. Action. Attorney’s claims under contracts to represent county in certain litigation and subsequently hi certain collection suits held separate and distinct causes of .action.</p> <p>Where the validity of a statute creating a new county is denied by a county, a part of whose original territory-was embraced in the new county, and several actions at law have been instituted for the purpose of having the validity of the statute adjudicated, an order made by the new county’s board of supervisors employing an attorney at law to represent the county in this litigation, and such other as might thereafter arise involving the validity of the said statute, and a subsequent order made by the same board of supervisors employing the same attorney to institute, such suits as might be necessary to collect from the old county the new county’s portion of the public fund due it by the old county under the act under which the new county was created, set forth separate and distinct contracts, and claims by the attorney for compensation for services rendered under each of the contfacts constitute separate and distinct causes of action.</p> <p>7. Evidence. Opinions of attorneys at law of reasonable value of services are not conclusive of value.</p> <p>In an action by an attorney to recover the reasonable value of legal services rendered by him, the opinions of attorneys at law of the reasonable value thereof is admissible in evidence, but is not con-elusive of the value of such services, that being a question which the jury should be permitted to decide from all of the evidence in the case relative thereto.</p> <p>8. Vunue. Provision ,that chancery court to which venue is changed shall try the issue by jury is mandatory.</p> <p>The provision of section 559, Code of 1906 (section 319, Hemingway’s Code), that “the chancery court to which the venue is changed shall try the issue by a jury,” is mandatory and deprived the chancery court to which the venue in the case has been changed of any discretion in granting or refusal of a trial by jury.</p>

Hon. R. S. Hall, Circuit Judge. Suit by Fred B. McCraney and others, by their next friend, Mrs. Mamie McCraney, against the New Orleans & Northeastern Railroad Company for damages for the wrongful… Held: we respectfully submit, that there has been such a trial and a judgment entered, as provided for by chapter 167, Laws of 1908, as amended by the Laws of 1914, chapter 214, being now section 501 of Hemingway’s Code?

Hon. R. L. Cobban, Judge. Luther Smith was convicted of assault and battery with intent to kill and murder, and he appeals. A reasonable doubt may arise from a want of evidence as Avell as from evidence.

Hon. S. F. Davis, Judge. Suit by the Indianola Lumber Company against John M. McLendon: Judgment for plaintiff, and the defendant appeals.

Hon. R. S. Hall, Judge. Charley Williams was convicted of forgery, and he appeals. We insist that instruction No. 1 given for the state was erroneously given. It certainly is not the law, does not follow the law, is evasive’ and ambiguous, and very misleading, and not warranted by the testimony.

<p>Appeal from circuit court of Holmes county.</p> <p>Hon. S. F. Davis, Judge.</p> <p>Sam Nalls was convicted 'of murder, and he appeals.</p>

Hon. G. Ed Williams, Chancellor. Action by the Tallahatchie Compress & Storage Company against the Home Insurance Company, in which the… Held: “Whatever may be the extent of the right of subrogation residing in an indemnitor, under such a state of facts as the present case exhibits, in the absence of any agreement upon the subject between the indemnitor and the indemnitee, we see no reason for denying the power of the parties to curtail, or even to destroy it, by mutual…

<p>On suggestion of error.</p>

<p>Appeal from circuit court of Scott county.</p> <p>Hon. E. L. Brien, Special Judge.</p> <p>Action by Louis Dennis against the Alabama & Vicksburg Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Hon. J. D. Fatheree, Judge. Suit by the American Blakeslee Manufacturing Company against Martin & Son. Judgment for defendants, and plaintiff appeals.

Hon. S. F. Davis, Judge. Suit by the state,-on the relation of Ross A. Collins, for mandamus against the Leland Southwestern Railroad Company and another. Judgment denying writ, and relator appeals.

Hon. G. Wood Magee, Special Judge. Action by Fannie Scipp against the J. J. Newman Lumber Company. Judgment for plaintiff, and defendant appeals. Held: independently of any statute, that the pendency of a suit by one of a class on behalf of himself and others may be pleaded in abatement of a subsequent suit by any one of that class who would be bound by the judgment rendered in the first. 1 Corpus Juris, p. 81, sec. 105.

<p>1. Schools and School Districts. Failure of- second consolidation order to describe the entire district held not 10 affect validity.</p> <p>The order and resolutions of a county board of education organizing four rural school districts into a consolidated school district are not void because such organization was the. result of two separate orders by such board made at different times, the first of which organized three of said rural school districts into a consolidated district, properly describing the territory of said consolidated district; and the other, the later order, added another rural school district, properly describing the territory therein, and recited that it should become a part of the consolidated district theretofore established under a certain name; the better plan, however (although not indispensable), is that the last order describe the entire territory in the consolidated district.</p> <p>3. Appeal and Error. Chancellor’s finding of fact on conflicting evidence not disturbed.</p> <p>On the issue whether or not a consolidated school district was improvidently organized in that it deprived a large number of the school children of the district of public school facilities, where the evidence is conflicting and the chancellor finds against that contention, such finding of fact will not be disturbed on appeal. .</p> <p>3. Schools and School Districts. Order for and report of bond election held insufficient to show compliance with statute as to place.</p> <p>Under chapter 194, Laws of 1916, section 4004, Hemingway’s Code, which provides that bond issue elections for consolidated school districts shall be held at the schoolhouse of said district, or, if there be none, shall be held at a convenient place designated by the trustees of the school, where the minutes of the board of supervisors provided that the election should “be held in said district on the 38th day of August, 1920, for ratification or rejection,” and the report of the election commissioners approved by the board recited that the election was held “at Rose Hill consolidated school district August 28, 1920,” this wa's insufficient tp show that .the statute had been complied with, because it cannot be reasonably inferred therefrom whether the election in question was held at the schoolhouse in the district or at any other place authorized by law.</p> <p>4. Schools and Schood Districts. Statute providing for place of bond election held jurisdictional; compliance with statute as to pbace of election must affirmatively appear on minutes of supervisors.</p> <p>Chapter 104, Laws of 1916, section 4004, Hemingway’s Code, providing where an election shall be held in a consolidated school district to determine the question of the issuance of the bonds of such district, is fundamental and jurisdictional, and a failure to comply with the statute is fatal to the bond issue, and the court will not inquire into the question whether such violation of the statute misled the voters or otherwise resulted in harm; and such jurisdictional fact must affirmatively appear on the minutes of the board of supervisors; it cannot rest in parol; such board cannot speak, except through its minutes so far as the essentials of jurisdiction are concerned, and no presumption will be indulged in favor of such jurisdiction.</p> <p>6. Schools and Schoox, Districts. Statutory requirement for maintenance tax levy held jurisdictional; compliance with statute as to maintenance tax levy must affirmatively appear on minutes of board of education and board of supervisors.</p> <p>The maintenance tax authorized for a consolidated school by chapter 170, Daws of 1920, Hemingway’s Supplement, section 4002, which provides for its levy on the petition of a majority of the qualified electors of the district upon the approval of the board of education, cannot be levied unless the statute has been complied with, and the requirement that the majority of the qualified electors shall petition for the levy of such tax and that such levy shall have the approval of the board of education before the board of supervisors shall make the same are jurisdictional. And the tax levied without compliance with the statute is Void, and such compliance with the statute must'appear affirmatively on the minutes of the board of education and board of supervisors. It cannot be shown by parol.</p>

Hon. S. F. Davis, Judge. Action by the Itzig Company against the First National Bank of Broadway, Va., and others. Judgment for defendants, and plaintiff appeals. We submit that the title to tbe property was in appellee until, delivery was made.

Appeal in chancery court of Hinds county. Hon. V. J. Stricter, Chancellor. Bill by Brit I-Iart and others against W. A. Scott, Mayor of the City of Jackson, and others. From a decree in favor of the plaintiffs, the city appeals.

Hon. Y. J. Steickeb, Chancellor. Snit by the state, on the relation of Prank Eoberson, attorney-general, against Martha 0. Held: by the supreme court of Illinois in People v. Sholem, 244 Ill. 502, 91 N. E. 704: “The people have a right to compel the filing in the county court of the inventories required to be filed by the executor, and by surveying parties, to aid in determining the extent and value of the estate for inheritance tax purposes, and while said…

Hon. W. A. Alcorn, Jr., Judge. Suit by C. R. Morgan, trustee, against Alf King. Judgment for defendant, and plaintiff appeals. At the conclusion of the evidence of this witness these exhibits having been introduced, the defendant moved the court to exclude the evidence and direct a verdict for the defendant for three reasons (shown at bottom of page 78 of the record) to-wit: First, that the accounts were not itemized.

Action by Molly Ash, for herself and children, against the Illinois Central Eailroad Company, for damages for the negligent killing of her husband. From a judgment for plaintiff, the defendant appeals. The Eefusal of the Peremptory Instruction Eequested by Appellant.

Hon. S. F. Davis, Judge. Suit by W. 0. Stout against W. M. Garrard & Go. Verdict and judgment for the defendants. Motion for new trial overruled, and the plaintiff appeals.

<p>1. Justices op the Peace. Plaintiff appealing from justice’s court need not give bond in double the value where defendant is in possession.</p> <p>Under chapter 303, Laws of 1913 (section 63, Hemingway’s Code), if the defendant in a replevin suit has given bond for the property and is in possession thereof, the plaintiff is not required to give a bond in double the value of the property involved in order to perfect an appeal from the judgment of a justice of the peace awarding to the defendant the possession of the property and damages for the wrongful suing out of the writ.</p> <p>3. Justices op the Peace. Where justice refused to approve bond, but offered to receive it and investigate, but it was not left with him or presented in due time, the appeal was properly dismissed.</p> <p>Where a party against whom a judgment has been rendered by a justice of the peace presented an appeal bond within the time prescribed by chapter 203, Laws of 1912 (section 63, Hemingway’s Code), and the justice of the peace refused to approve the bond on account of a mistaken belief that the penalty of the bond was insufficient, but offered to receive’the bond and investigate the sufficiency of the penalty thereof, and the party tendering the bond refused to leave it with the justice of the peace and it was not again tendered, and was not filed or approved, until after the expiration of the time allowed for perfecting the appeal, a motion to dismiss the appeal was properly sustained by the circuit court.</p> <p>3. Justices oe the Peace. Failure to filé appeal bond within statutory time is not excused because justice was absent from home during last three days of period.</p> <p>Under chapter 203, Laws of 1912 (section 63, Hemingway’s Code), providing that an appeal from the judgment of a justice of the peace to the circuit court must be prosecuted within ten days after the rendition of the judgment, a failure to file an appeal bond with the justice of the peace within that time is not excused by the fact that the justice of the peace was absent from home during the last three days of the period allowed for perfecting an-appeal.</p>

Hon. E. D. Dinkins, Judge. P. W. Darby was charged with murder and convicted of manslaughter, and, from a judgment sentencing him to the penitentiary, he appeals. We contend that the gravest and most palpable error of the lower court wag in refusing to grant a new trial on account of the juror, Tom Rhodes, being clearly an incompetent juror.

Hon. V. J. Stricker, Chancellor. Bill by Dorsey Williams against Laura Green. A demurrer to the bill was sustained, and the plaintiff appeals. Held: that the only persons entitled to share in the distribution were such of his children as might be living at the time appointed for distribution, which was on the termination of the prior estate in the widow, and the heirs of such of the children as may have died in the meantime.

Hoñ. E. L. Brien, Judge. Action by W. 0. Menger against Marie Thompson. Judgment for the defendant, and the plaintiff appeals. We submit that the bare facts that goods are sold to a prostitute, and that she uses the goods in a house of prostitution does not bar the seller from collecting the purchase price of the goods or any part thereof from the purchaser even tho she 'be a prostitute. Something more must be shown in order to bar an action by the seller.

<p>Indictment and Information. Indictment charging manufacture of spirituous, vinous, malted, fermented, and intoxicating liquors, is not duplicitous.</p> <p>Under section 18, chapter 189, Laws of 1918 (section 2163t, Hemingway’s Supplement), an indictment, charging the felonious manufacture of spirituous, vinous, malted, fermented and intoxicating liquors, is not demurrable on the ground of duplicity.</p>

Hon. W. A. Roane, Judge. Action in replevin by Marvin Gresham, trustee, against W. P. Kennedy, begun before a justice of the peace and appealed to the circuit court, which rendered a judgment for defendant, and plaintiff appealed. On motion to dismiss the appeal.

<p>1. Taxation. Record of proceedings leading up to tax sale and filing tax deed constitute constructive notice to pwchaser during redemption period.</p> <p>Under the statutes of this state governing tax sales and tax titles to lands, especially section 4303, Code 1906 (section 6937, Hemingway’s Code), section 4255, Code 1906 (section 6886, Hemingway’s Code), section 4333, Code 1906 (section 6967, Hemingway’s Code), sections 4331 and 4332, Code 1906 (sections 6965 and 6966, Hemingway’s Code), section 4338, Code 1906 (section 6972 Hemingway’s Code), and section 2788, Code 1906 (section 2292, Hemingway’s Code), providing for the filing of deeds for record, during the two-year period of redemption of land from tax sale, the record of the proceedings leading up to such sale and the filing of the tax deed with the clerk, as well as the list of the lands sold, constitute constructive notice of the rights of the purchaser at such sale to those acquiring any interest in such land during such period of redemption.</p> <p>2. Taxation. Tax sale purchaser’s title after redemption period prevails over that of bona fide purchaser from owner.</p> <p>The title of the purchaser of land at a tax sale where the two-year period for redemption has expired without redemption having been made will prevail over the title of a bona-fide' purchaser from the owner of the land for value without actual notice of such tax sale which purchase was made during the two-year period of redemption.</p>

Hon. V. J. Stricker, Chancellor. Hon. C. J. Stricker, Chancellor. Proceeding by A. C. Hawie against George Hawie fpr a writ of lunacy to test the sanity of the defendant. The chancery clerk declined to issue the writ, and his action was approved by the court, and the plaintiff appeals.

<p>Appeal from circuit court of Adams county.</p> <p>Hon. B. L. Corban, Judge.</p> <p>Suit by Jesse Sims against the National Box Company for damages for personal injuries. Verdict and judgment for plaintiff, and the defendant appeals.</p> <p>The sole question here is whether or not the appellant and his co-employees belong to that class of employees protected by the provisions of chapter 194, of the Laws of 1908, the first section of which is set out above, abolishing the fellow-servant rule as to certain classes of employees.</p> <p>If the work the appellant was engaged in brought him under the protection of section 1, chapter 194, of the Laws of 1908, he would have been entitled to recover for the injuries he sustained if his evidence was believed by the jury. The court, however, instructed the jury, as the above quoted instruction shows, that if the appellant were injured by the negligence of one of his fellow-servants he could not recover. Therefore, if appellant comes under the provisions of section 1, chapter 194 of the Laws of 1908, and belonged to a class of servants protected by the provisions of that act, then the giving of the instruction to the effect that appellant could not recover if he was injured by the negligence of a fellow-servant was error, and it was also error if such was the case to refuse to grant instructions requested by the appellant to the effect that he ay as injured by the negligence of his fellow-servants in the employment he was then engaged in he could recover. Then, the questipn is whether or not the appellant was then and there using engines, locomotives or cars of any kind or description Avhatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever poAver, and running on tracks. In order to determine this question it is Avell to set out here a description of the apparatus then being used by the appellant.</p> <p>The plant of the National Box Company at Natchez is built near the Mississippi River. The logs to be saAved are floated doAvn the river to the plant, and running doAvn to the river on an inclined plane is a track. On this track a truck or car is pulled up the incline from the river by a cable attached to the truck. On this car or truck running on the track on the incline and propelled by steam, the logs are hauled from the river up the incline and placed on what Avas knoAvn as the log deck. From there they were rolled down on what Avas called the carriage deck, and from the carriage deck they were placed on the carriage and carried to the saw. It Avas the appellant’s job to roll the logs from AAThat was called the carriage deck on to the carriage and to keep the track clean according to his evidence. It was, therefore, on continuous operation from bringing logs from the river to the saw. In other words, when that part of the machinery was in motion, all was in motion.</p> <p>It is our contention in the first place that the log carriage itself was a car, as is shown by the uncontradicted evidence, running on a track and propelled by steam, and that for that reason the appellant came under the protection of chapter 194 of the Laws of 1908. And secondly, that even if the court would not hold the carriage itself an instrumentality covered by the statute, that at any rate the car conveying the logs from the river .up the inclined plane to the carriage deck was such an instrumentality covered by the statute, and that the hauling of the logs from the river and the sawing of same Avas one continuous operation. In other words, all the employees in and about the establishment, when it was going, Avere engaged, among other things, in moving the logs from the river to the Saw. It Avill be noted that it was the specific duty of this servant to work on the carriage deck and on the carriage track. But the log in question Avas rolled directly from the log deck down on the running carriage, and the accident was caused by the negligence of the appellant’s felloAv-servant who Avas Avorking on the log deck, that is the man whose duty it Avas to shock the logs when they were brought up on the little car from the river. In other words, it Avas the duty of the servant whose negligence caused the accident to unload the little car that ran up from the river hauling the logs up the incline.</p> <p>In the case of 'Newman Lumber Company v. Irving, 118 Miss. 62, this court speaking through Judge Sykes held that a skidcler, an arrangement worked with levers and cables, and upon Avhich the log Avas attached to tongs, Avas a railroad Avithin the meaning of the statute under consideration. Ilunter v. Ingram Day Lumber Co., 110 Miss. 745, 70 So. 901; Railroad Co. v. Pontius, 157 U. S. 209; 15 Sup. Ct. 585, 39 L. Ed. 675.</p> <p>In the above-quoted opinion it will be noted that the skidder mentioned and declared to be a car under the facts in that case was an arrangement very much like the one here in question, except that the one here more nearly resembled an actual railroad. In that case the skidder merely pulled logs in ivith tongs, but the arrangement in this case was a real car on a real track, a permanent track. The skidder arrangement was a mere device which could be moved from place to place.</p> <p>The true test of the statute is that contained in the last paragraph of Judge Sykes’ opinion, and that is to the effect that the statute was intended to protect all employees subject to the peculiar hazards incident to the operation of railroads. This small railroad running up the incline was as much a railroad as any other railroad and the cars were propelled by steam and were used for transportation services.</p> <p>The statute is as broad as language can malee it intending to protect all sorts of railroad employees. The statute protects every employee of a railroad corporation, and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline, or lever power, and running on tracks. The car in question was simply a cable car, nothing more, nothing less. The employee in this case who caused the injury to the appellant had charge of shocking the logs right from this small railroad, and it was this servant’s negligence that cause this injury.</p> <p>In the case of Ellis v. Bear Creek Mill Company, "8 So. 706, 117 Miss. 742, our court speaking through Judge Holden, held that a tonger, of a lumber mill company, who while loading logging cars on its logging railway, was injured by the negligence of a fellow servant, employed by the mill company in handling- logs to the train from the Avoods, could recover for such injuries, since he was engaged in and about the operation of the logging railway Avhen injured, and although the employment of the felloAV-servant may have been in another department of labor, still it was one of the duties incidental to the operation of the railroad.</p> <p>According to the evidence of appellant in this case he was working with the servant of the appellee whose duty it was to shock the logs as they came to the log deck from the car that ran on the inclined plane from the river. This was a common enterprise and all were engaged about the same work. They were all working in and about this railroad on the inclined plane. This railroad had all the hazards incident to a commercial railroad, and it was the intention of the statute that servants engaged in and about the operation of cars of any sort should be protected by the statute.</p> <p>The question presented on this appeal is whether or not appellant was under the allegations in the declaration or the proof in this case, entitled to the benefit of the protection afforded by section 6684, Hemingway’s Code of Mississippi.</p> <p>The declaration charges that appellant’s employment was in and about the operation of a sawmill; that likewise all others whose acts contributed in whole or part, to the injuries received by appellant, were employed in and about this small saAvmill, these allegations as to the employment of appellant and others are supported by the proof; that is to say, appellant was employed only about the sawmill; the sawyer was only employed in the operation of this sawmill; and the employee on the log platform likewise engaged in the operation of the sawmill he being charged with having rolled a log off of the platform onto the skidway, as was his duty to do, preparatory to getting the log onto the saw carriage, which work was a necessary part of the operation of the sawmill, just the same as that of appellant, who rolled them from the skidway to the saw carriage. So that it is perfectly manifest, that if appellant was or is entitled to the protection of the statute above quoted, it is because this carriage, a necessary and essential part of the machinery of the sawmill, is a car run upon a track and propelled by the dangerous agency of steam or lever power, and being such falls within the scope and meaning of the above section. In other words under the allegations in the declaration, this court is called upon by this appeal to hold that a saw carriage, a necessary and essential part of the machinery of every small sawmill, without which it could not be operated and run, is a car upon a track propelled by the powerful and dangerous agency of steam or lever power. We respectfully submit that to argue this proposition is akin to arguing that an elephant is not a rhinocerous; “it just ain’t.” Being an essential and necessary part of the machinery of a sawmill, it is embraced in the general term, sawmill; it is not equipped with any steam propelling power or any other such power as is mentioned in the statute; it is pulled by a cable, and has no separate use other than as a part of the necessary and essential machinery and equipment of a sawmill. In no sense of the word, is that carriage a car; it is peculiarly equipped with sawblocks, tongs to hold the log in place thereon, a lever to regulate the manner of cutting the log into lumber, insomuch so that by virtue of its very equipment and construction it cannot be defined other than, a necessary part of the machinery and equipment of a sawmill, commonly called a saw carriage. The term sawmill includes all the machinery and fixtures necessary to make it a sawmill in all its parts. While it is true that the term “car” may have a variety of meanings, yet we submit that as used in the statute due regard must be had to the other words with which it is associated, and the subject-matter in relation to which it is used, and when this is done, we respectfully submit that as related to the subject-matter of said statute, the term “car” as used therein can in no acceptable sense or meaning be held to apply and define an essential and necessary part of the machinery or equipment of a saw-mill. The particular ear-riage herein sought to be included, within the fair meaning of car as used in the statute, has no other use than as an essential and necessary part of the equipment and machinery of a sawmill; being then an essential and necessary part of a sawmill, to hold that it also may be defined to be a car, is tantamount to holding that the term “car” may be defined to be, a necessary and essential part of the machinery and equipment of a sawmill, which is contrary to reason a'nd common knowledge. We therefore, submit that under the allegations and proof in this case, appellant was not engaged in such employment as brought him within the protection of said section 6684.</p> <p>But it is further argued by appellant, that appellee had another car and another track used and operated by it in bringing logs from the river bank up to the log-deck, Avhere they are unloaded and placed on a platform to be sawed into lumber by the sawmill and that the car propelled on this track was propelled by the dangerous agency of steam, and that appellant being engaged in sawing the logs or helping to operate the sawmill that sawed these logs so placed on the platform by means of this truck and track, into lumber, was, therefore, entitled to the benefit and protection of saicl section 6684. We respectfully submit that there was no allegation or proof that appellant was engaged in the operation of this truck on this track, and that furthermore, that this truck was not such car as brought or would bring appellant, within the protection of said statute.</p> <p>We submit therefore, that the instructions asked by the appellant and refused by the lower court, were properly refused. We submit that upon this record and under the facts in this case, unless the court should hold that by virtue of his employment appellant Avas entitled to the protection of section 6684, the verdict in this case rendered by the jury is the only correct verdict that could have been rendered by them. Appellee Avas not shoAAm to have been guilty of any negligence Avhatever; it was paying appellant good wages to properly perform his duties; had he blocked the skidway, as his duty required him to do, the accident would never have happened; had the employee on the log platform not rolled the log down, it would not have happened; but we cannot say that had the sawyer not moved the saw carriage to catch the log, that plaintiff or appellant would not have been injured; on the contrary the whole log' might have fallen on him. In any light in which the facts may be viewed however, there is not any evidence that appellee Avas guilty of any negligence AA’hatever. The instructions given to both parties fairly stated the law, and the only verdict that could have been returned was returned by the jury, unless this court holds that appellant Avas entitled to the benefit and protection of section 6684, by virtue of his employment; and this holding we respectfully submit is not Avarranted by the facts in this case.</p> <p>It is therefore submitted that this cause should be by this court affirmed.</p>

Hon. T. B. Carroll, Judge. Suit by Ira L. Gaston, administrator of the estate of Ira T. Gaston, deceased, against Mrs. E. N. Hutchinson. Judgment for plaintiff, and defendant appeals.

Hon. E. L. Brien, Special Judge. W. W. White and others, resident freeholders of a partial stock law district, petitioned the board of supervisors of Scott county to be annexed to a full stock law district contiguous and adjoining thereto. The board denied the relief asked, and upon appeal to the circuit court from sucn order judgment was rendered sustaining the board, and the petitioners appeal.

Hon. G. E. Williams, Chancellor. Suit by Israel Jones against T. E. Salmon and others. From decree of dismissal plaintiff appeals. There was no authority to appoint a substituted trustee under the terms of the deed of trust in the event the trustee named therein should die. The supreme court of Mississippi, in Sharp ley v. Plant, 79 Miss. 190; Perry on Trusts, sec. 288; Learned v. Matthews, 40 Miss. 220; Brame & A. Dig. 820, 18 Am. & Eng. Ene.

<p>1. Homicide. Question by deceased as to why defendant shot him, and deceased’s statement that he never harmed any one, held admissible as part of dying declaration.</p> <p>While making a dying declaration the deceased, who was killed by the defendant on trial for homicide, asked the person to whom the declaration was being made why the defendant shot him, and stated that he never harmed the defendant, never harmed any one; this question and statement are not the expression of a mere opinion by the deceased, but are, in effect, a statement of fact that the defendant shot the deceased for nothing, and are admissible in evidence as a part of the dying declaration.</p> <p>2. Homicide. Deceased’s statement several months before his death, that he expected to get well, held not admissible to impeach his subsequent dying declaration.</p> <p>A statement by the deceased on a trial for homicide, made while in the hospital and several months before his death, that he expected to get well and return home, is not admissible in evidence to impeach the credibility of a dying declaration, made by the deceased some months thereafter.</p> <p>3. Homicide. Where evidence conflicts as to who ivas aggressor, deceased’s uncommunicated threat against defendant is admissible.</p> <p>Where the evidence on a trial for homicide as to whether the deceased or the defendant was the aggressor is conflicting, a threat by the deceased to use personal violence against, though not communicated to, the defendant, is admissible in evidence.</p> <p>4. Criminal Law. Circumstances under which deceased threatened defendant are competent to explain threat.</p> <p>In a prosecution for homicide, the circumstances under which a threat admissible in evidence was made are competent to explain its meaning and significance.</p> <p>Anderson and Ethridge, JJ., dissenting.</p>

I-Ton. G. C. Tann, Chancellor. Suit by Hunt’s Garage, Incorporated, against J. A. McKenzie and others, in which the Citizens’ Savings & Investment Company intervened. Bill dismissed as to the defendant Lillian McKenzie, and judgment rendered against the defendant J. A. McKinzie for the amount due the complainant, and also for the amount due the intervener, and declaring a lien in favor of complainant to be paramount to the intervener’s lien, and the intervener appeals.

Hon. W. A. Roane, Judge. Proceedings to create districts. From the judgment of the circuit court affirming an order of the board of supervisors of Lafayette county creating district and appointing road commissioners therefor, W. J. Hays and others appeal. Certainly, the board was compelled to take action first upon the Sanders petition, which was prior and pending, and failing that, no action could be taken, legally upon the Gallegly, or subsequent petition.

Hon. W. H. Potter, Judge. Action by L. L. Mayes and another against W. E. Thompson. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from circuit court of Jones county.</p> <p>Hon. R. S. Hall, Judge.</p> <p>Yernon Brady was convicted of robbery, and be appeals.</p> <p>We submit that the indictment attempts to charge both forms of robbery and charges them both in the same count. In furtherance of the same error that we now complain of, when the proof was in, the court gave an instruction to the state, marked number one, telling the jury substantially, that if they believed beyond a reasonable doubt that the robbery consisted of either one or the other form, they' should find the defendant guilty. It was error for the court to grant this instruction in the light, of the testimony in the indictment, upon which the prosecution rested. State of Mississippi v. James Presley, 91 Miss. 377, 44 So. 827.</p> <p>The court erred in refusing to appellant, instruction marked refused number two, which reads as follows: “The court instructs the jury that, if there are two reasonable theories arising out of the evidence of this case, one favorable to the state and the other favorable to the defendant, it is the duty of the jury to accept the one favorable to the defendant, although the one favorable to the state is the more reasonable and supported by the stronger evidence.”</p> <p>Until this court expressly overrules the case of Thompson v. State, 83 Miss. 287, holding that it was error for the court to refuse this instruction, the bar will continue to invoke the rule there laid down. We are urging this point Avith Runnels v. State, 50 So. 499; Roux v. City of Gulf-port, 52 So. 485, and Saucier v. State, 59 So. 858, befoi’e us, but xve submit that no one of these cases expi’essly overrules the Thompson case. In Runnels’ case, the coxxrt held that the Thompson case Avas properly decided, “independent of Avhat view the court may have taken of this particular instruction.”</p> <p>In the Roux case, this court through commissioner Mc-Lain said in- speaking of this instruction: “This instruction in substance is the same charge that was condemned by this court in the case of Runnels v. The State.” But a reading of the Runnels case clearly shows it was not condemned. In the Saucier case supra, Judge Reed in one short paragraph of his opinion stated that the court did not err in refusing this instruction, referring to the Thompson case, but did not overrule it.</p> <p>The reason given in the Runnels case, namely, that the defendant had the benefit of several instructions that gave him the benefit of every reasonable doubt, and was therefore not entitled to the principle of law invoked by the instruction as to the presumption of innocence, is in conflict’ we respectfully submit, with Gentry v. State. 66 So. 982, citing Jones’ Blue Book on Evidence, section 12B arid quoting from Lord Gillis in McKinley’s case, 38 Hoav. State Trials.</p> <p>If I read these decisions aright, the Runnels case meant to hold that because defendant received ample instructions on the reasonable doubt theory, he was therefore not entitled, or at least it would not be reversible error to refuse an instruction on the presumption of innocence, whereas, the Gentry case holds that although the defendant has the benefit of the reasonable doubt theory announced to the jury, he is still entitled to an instruction as to the presumption of innocence, and that it will be reversible error to refuse it. We therefore respectfully submit that the Thompéon case, supra, should be followed and if not followed it should be overruled.</p> <p>Wherefore, because of the reasons set .forth herein, we earnestly insist that this case should be reversed and remanded for a new trial.</p> <p>The indictment is bad for duplicity. The statute, section 1361, Code 1906, Hemingway’s Code, section 1907, defines the offense of robbery as folloAvs:</p> <p>“Every person who shall feloniously take the personal propei'ty of another in his presence, or from his person, and against his will, by violence, to his person, or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery. The indictment charges: ‘That Vernon Brady ... in and upon one Wesley Hopkins feloniously, did make an assault and him, the said Wesley Hopkins, did then and there feloniously put in bodily fear of immediate injury to his person, and ten dollars and forty cents ... of the property of the said Wesley Hopkins, and one pocketknife of the value of one dollar and fifty cents, of the property of the said Wesley I-Iopkins, from the person and against the will of the said Wesley Hopkins, then and there feloniously and violently did take, steal and carry away, against the peace,’ etc. The offense of robbery in this statute is a statutory crime, and the language of the statute should be strictly pursued.” Smith v. State, 82 Miss. 793.</p> <p>The statute is in the disjunctive: 1st. In the presence of the person robbed; or 2nd. From his person; in either case against his will by violence to his person; or 3rd. By putting him in fear of some immediate injury to his person.</p> <p>The indictment in this case attempts to charge two of the three different forms of robbery in a single count. Citing State v. Braderich, 59 Mo. 318; State v. Stinson, 124 Mo. 447; Croimaell v. State, 149 Mo. 391, 50 S. W. 893; Smith v. State, 82 Miss. 793; Webb v. State, 99 Miss. 545.</p> <p>2nd. There was no proof of the venue as laid in the indictment, The proof of the venue must be proved, as laid in the indictment. Cagle v. State, 106 Miss. 370, 63 So. 672; Quillen v. State, 106 Miss. 831, 64 So. 831.</p> <p>There are two judicial districts in Jones county7 the indictment lays-the crime as having been committed in the second district. The only proof of venue attempted by the state is shown at page 4 of the record. We adopt the argument of our associate as our own and the authorities cited by them. Pollard 'Y. State, 53 Miss. 410.</p> <p>The defendant is never required in any phase of a criminal trial to prove his defense to the satisfaction of the jury. It is sufficiently established, if, upon a consideration of all the evidence, there should be engendered a reasonable doubt of the guilt of the accused. Dawson v. State, 62 Miss. 241, citing numerous authorities.</p> <p>Wherefore, for the manifest errors set out, as well as the peculiar and exceptional circumstances surrounding this case, the tremendous consequence to the appellant involved, we most respectfully submit that your honors will reverse the case and grant appellant a new trial, in which he may have the benefit of all his legal rights, and of such evidence as he ivas unable to command upon his trial in the first instance.</p> <p>The first complaint of the appellant is that venue was not proven by the state in 'this case. Appellant admits that the crime was proven to have been committed in Jones county, and in the state of Mississippi. But he says it was not proved that the crime was committed in the second judicial district of Jones county, but in the second district of Mississippi. He says there ai‘e a great many second districts, of Mississippi, and that what they are in reference to any particular subject, depends upon the subject.</p> <p>Now, when we consider the subject inquired about by the district attorney when he interrogated Mr. Hopkins in reference to the place the crime was committed, it is clear to my mind that venue was proven. It is is true the district attorney does not say second judicial district, but that is clearly understood when the subject-matter is considered. It is inescapable that the district inquired about was the second judicial district of Jones county and it is inescapable that by the questions and answers the venue was proven.</p> <p>Appellant next contends that the lower court erred in overruling his demurrer to the indictment. He contends that the indictment was demurrable because it charges Tne taking of the property from the person of Mr. Hopkins, to have been done by violence to his person and by putting him in fear of some immediate injury to his person. As I understand it, he contends that one count should have charged the taking to have been done by violence to his person, and that another count should have charged the taking to have been done by putting Mr. Hopkins in fear of some immediate injury to his person.</p> <p>The indictment in this case charges a felonious taking of the personal property of Wesley Hopkins from his person,. and against his will, by violence to his person and by putting him in fear of some immediate injury to his person, and it is the contention of opposing counsel that the taking cannot be charged to have been done both by violence to his person and by putting him in fear of immediate injury to his person, in one count.</p> <p>Opposing counsel contends that one count should have charged the taking to be by violence to the person, and that another count should have charged the taking to be by putting the person in fear of some immediate injury to his person; that the taking by both means cannot be charged in one count. But if it is robbery to take the property by eithe’r of the above means, it is certainly robbery to take it by both of said means; and if it was taken by both of said means it was proper to so charge in one count, and not in two counts; for if in two counts, the state would fall down on its proof, neither count charging sufficient in itself to convict.</p> <p>The case cited by opposing counsel of State v. Pressley 91 Miss. 377, was one on a demurrer to an indictment wherein it was contended that the indictment failed to charge that the taking was done by both of the aforesaid means. In other words, the attorney for Pressley was contending that the indictment in that case should have been drawn as the indictment in the case at bar, contending that it took both means to constitute robbery, to wliich contention this court in that case replied in the language quoted therefrom by opposing counsel in bis brief, that: “Taking the property from and by violence, 7o the person, is one thing under the statute, and putting the person in fear of injury is another.”</p> <p>In other words, what this court meant to say thereby iras that proof of the use of either means Avould constitute robbery, and that an indictment Avas good that only charged the use of one of the means, a fortiori, Avould. an indictment be good that charged the taking by the use of both of said means. And if the property was taken by the use of both means it should be so charged in one count. State v. Montgomery, 109 Mo. 645, 19 S. W. 221; 32 Am. St. Bep. 684; State v. Murphy, 47 Mo. 274; State Y. Fan-chor, 71 Mo. 460; State y. Pittman, 75 Mo. 56; State v. Bregaré, 76 Mo. 322; State y. Fitzsimmons, 30 Mo. 235 ; Kelly’s Criminal Law and Practice, sec. 186; 10 Am. & Eng. Eney of Luay, 599b, 599c, 599d.</p> <p>The next complaint of appellant is that the lower court erred in refusing the appellant the instruction requested by him, Avhich is shoAvn at the bottom of page 13, of the record, and commonly called the “turn theory instruction.” This instruction ay as approved in the case of Thompson Y. State, 83 Miss. 287, AAThich is the case relied upon by the appellant.</p> <p>The next mention by this court of that instruction correctly announced the laAV. Its refusal does not constitute reversible error, for the reason that the court charged the jury over and over again, in several instructions, to give the defendant the benefit of every reasonable doubt, and that they could not find him guilty unless his guilt Avas proved beyond all reasonable doubt. The defendant was therefore given the full benefit of this principle of laAV. This instruction seems to have been approved, along Avith several others, in the case of Thompson v. State, 83 Miss. 287, 35 So. 689. That case was properly decided,'independent of what view the court may have taken of this particular instruction.</p> <p>It rarely happens on the trial of a criminal case that tAvo reasonable theories, one favorable to the state and the other favorable to the defendant, do not arise out of and to some extent find support in the evidence. If acted upon literally by juries, this instruction in most cases would amount to a peremptory instruction to find the defendant not guilty. The court below, therefore, not only committed no reversible error in refusing this instruction, but committed no error at all.</p> <p>The next mention we find of this instruction by this court, is in the case of Roux v. Oity of Gulfport, 97 Miss. 559, wherein .this court, speaking through Commissioner McLain, said: “This instruction, in substance, is the same charge that ivas condemned by this court in the case of Runnels v. State, 96 Miss. 92, 50 So. 499.”</p> <p>The next mention we find of the Thompson case by this court is in the case of Saucier v. State, 102 Miss. 647, at page 659, wherein this court, speaking through Judge Reed said: “It is. claimed in the briefs of counsel for appellant that the court erred in refusing to give two instructions offered whereby the jury were told that if there were two hypotheses of the case in the minds of the jury, one that the defendant is innocent, and the other of his guilt, the jury should adopt the one of innocence, even though the other is supported by the greater evidence. Counsel cite the case of Thompson v. State, 88 Miss. 389, 35 So. 689, to sustain their contention. The court did not err in refusing to give these instructions. See Runnels v. State, 96 Miss. 92, 50 So. 499; Roux v. Oity of Gulfport, 97 Miss. 559, 52 So. 485. I think it may be safely said that the Thompson case has been overruled.</p> <p>So I say, if it was not error to refuse the instruction in the Runnels case, it was not error to refuse it in this case, conceding, for the sake of argument, that it ivas a proper instruction in the Thompson case.</p> <p>The case of Gentry v. State, 108 Miss. 505, 66 So. 982, is not in point here. That case is not on the two-theory instruction, but merely decides that an instruction as to reasonable doubt will not supply the place of an instruction as to presumption of innocence, ivhen the latter is requested. It will be noted that by instruction No. 6 granted the appellant, the jury was charged that the appellant was presumed to be innocent, and that this presumption started at the beginning of the trial and folloAved him throughout the entire trial, until overcome by testimony sufficient to remove all reasonable doubt of his guilt. If instruction No. G granted the appellant had been refused, the Gentry case would have been in point on the error of such refusal.</p> <p>I, therefore, respectfully submit that the case should be affirmed.</p>

Hon. E. N. Thomas, Chancellor. Petition by George W. Smith for removal of W. T. Hemphill as guardian of the person and estate of Sollie Overby. Petition granted, and Hemphill appeals. There is but one question in this case. What is “sufficient cause,” and was that cause sustained by the proof?

Hon. S. E. Davis, Judge. Suit bv Mrs. Eulalie Wright against the American Railway Express Company. Judgment for the plaintiff, and the defendant appeals. The first question that naturally presents itself, is as to the authority of the agent to bind the company as bailee or otherwise for the care of the furs.

Hon. V. A. Griffith, Chancellor. Proceedings ,by the United States Fidelity & Guaranty Company for allowance of a claim against the estate of W. E. Herrin, deceased, contested by the Bank of Hatties-burg, executor. From decree disallowing the claim,, the claimant appeals.

<p>Appeal from chancery court of Alcorn county.</p> <p>Hon. A. J. McIntyre, Chancellor.</p> <p>Suit by C. S. Davis and others against P. J. Chambers and others. Decree for plaintiffs and defendants appeal.</p>

Hon. Y. J. Stricker, Chancellor. Action by T. B. Doxey and others against the city of Jackson. From decree overruling a demurrer to the bill, the defendant appeals. In the first place, the city of Jackson never did adopt a method for the assessing of special improvements.

Hon. J. Gr. McGowan, Chancellor. Proceeding by the Yocona Drainage District No. 2 for assessment of land of the Illinois Central Eailroad Company. Prom decree making a special assessment against the railroad, the railroad appeals. On motion to dismiss appeal. We are not contesting the validity of the district. We have not prosecuted any appeal from any order establishing the district. Our appeal is from excessive • assessment.

Hon. Jno. W. Ktle, Judge. Arrie Hall was convicted of manslaughter, and he appeals. We insist that the defendant could not have been convicted of any crime on this testimony of the state, but admitting that a verdict of some sort would stand on this testimony, then we have the emphatic and undisputed testimony of the real eye-witnesses to the shooting. There is nothing in the record to contradict it in any sort of way.

Hon. W. M. Denny, Special Chancellor. Action by H. L. Hewes and others against Joseph W. Havens, Tax Collector.

Hon. D. M. Russell, Chancellor. Bill by O. C. McRaney against J. H. Riley and others. Decree of dismissal, and plaintiff appeals.

Hon. G. E. Williams, Chancellor. Proceedings for the creation of the Pompey Lake Drainage District, opposed by the Green Eiver Lumber Company and others. Prom order providing for the creation of the district, the Green Eiver Lumber Company and others appeal.

Hon. V. A. Griffith, Chancellor. Application by W. R. Broadus and others for appointment as administrators of the estate of Rufus Broadus, deceased, and by U. B. Parker for probate of will and appointment as executor. From judgment appointing W. R. Broadus and others administrators, and denying the application of U. B. Parker for probate of will and for appointment as executor, U. P. Parker appeals.

Hon. G. Wood Magee, Special Judge. Suit by G. 0. Nicholas against the Foye Tie & Timber Company. Judgment for plaintiff, and defendant appeals.

Hon. A. J. McLaukin, Judge. Mack Ealy ivas convicted of murder, and he appeals. We submit that the evidence in this case does not warrant a conviction for a greater offense than that of manslaughter, and that the court erred in not instructing the jury as to manslaughter. May v. State, 89 Miss. 291, 42 So. 164.

Hon. Thos. B. Carroll, Judge. John Hardaway was convicted of murder, and he appeals. These instructions haye been given and passed on from time immemorial and are well grounded in the criminal law. See Mask v. State, 36 Miss. 77; 2 Morris State Cases, pages 1101-1120, where same is reported. From the above it is evident the court mistook the law and erred most egregiously and incorrectly.

Hon. A. J. McLatjrin,, Judge. Action by A. B. Wilson against the Town of Newton. Judgment for plaintiff, and defendant appeals. The court erred in granting instruction No. 1, at the request of the plaintiff.

<p>Appeal from circuit court of Lowndes county.</p> <p>Hon. Thos. B. Carroll, Judge.</p> <p>Suit by J. E. Thomas against F. P. Phillips. Judgment for plaintiff, and defendant appeals.</p> <p>The case at bar is a much stronger case against the landlord than the case of Seavey y. Godbolcl, to which we call the court’s attention, 54 So. 838, 99 Miss. 113. In that case Godbold, the landlord, permitted the Keenes, tenants, to take the samples of the cotton to several merchants and they finally sold it to the appellant Seavey. Appellants paid Luther Keene for two bales and at the instance of Joe Keene, one of the tenants, they paid appellee one hundred dollars for the rent. At the time of the settlement, appellant made no demand for the cotton sold by Luther Keene, nor did he assert any claim to it because of any lien. Godbold had advanced certain supplies and demanded settlement for same out of Luther Keene, failing to get which he sued appellant. It was the contention of appellants that Godbold had waived his lien by permitting the tenant to market the cotton and receive payment therefor without objection. Godbold said: “If consenting for him to try the market that day and find a sale for it waives it, I waive it. Q. Then you did not waive it? A. No, sir, I did not.”</p> <p>The case at bar is much stronger in favor of Phillips than that case was in favor of Seavey. In that case the court said: “What Godbold did, amounted to a virtual appointment of the Keenes as his agents to make a sale of the cotton on Avhich he had a landlord’s lien, and if they failed to carry out the trust thus reposed in them, and make due return of the proceeds, innocent parties cannot be made to suffer on that account. Seavey & Sons, v. Godbold, 54 So. 838.</p> <p>It was decided in the case of Cohn v. Smith, 2 So. 245, G4 Miss. 816, that the right to bring an action in the case on such statute is waived where the landlord consents to the sale of cotton by the lessee although the purchaser may have no kno wledge of such consent and it is without consideration. See, also, 16 B. O. L. 999; 5 K. O. L. 458, 11 C. J. 674; McCormick v. Blum, 21 So. 707.</p> <p>It is not right, either legally or morally for a landlord to give his consent for the tenant to dispose of his own cotton and because the tenant fails in the trust reposed in him to return and account fpr the proceeds, then to proceed against an innocent purchaser. The case should be reversed and judgment given for the appellant by the supreme court, and this we respectfully ask.</p> <p>It will be noted in the cases cited by counsel for appellant, and the cases hereinafter cited by counsel for ap-pellee, the court uses the word consent instead of the word permit in rendering the opinion, as there is quite a difference and distinction in the two; however, counsel fop-appellee desires to say that the facts in the cases ci+°d 1>y counsel for appellant are not parallel with the ¡'acts in the case under discussion.</p> <p>In Newman et al. V. Banl- of Greenville et al.} 5 So. 753, Cooper, J., in rendering (:}my able opinion of the court, recites fully the origin and purpose of the lien extended to the landlord in Mississippi beginning with the Acts of the legislature of !86Tj p. 569; and the Acts of 1876, p. 109, when the subject was received by the legislature and by subsequent' acts of the legislature, the lien of the landlord has been broadened and strengthened. See Miss. Code 1906. section 2332 — “Every lessor of land shall have a lien on the agricultural products of the leased premises, how-e\er, and by whomever produced, to secure the payment <;f the rent and of money advanced to the tenant, and the fair market value of all advances made by him to his tenant for supplies for the tenant and others for whom he may ''Contract, and for his business carried on upon the leased 'premises; and this lien shall be paramount to all other liens, claims or demands upon such products; and the claim of the lessor for supplies furnished may be enforced in the same manner and under the same circumstances as his claim for rent may be, etc.”</p> <p>The lien thus given to the landlord embraces money advanced to the tenant, as well as provisions, feed, stock, etc., to make the crop with. See Trimble v. Durham, 70 Miss. 295, 12 So. 207, and the removal of the agricultural products from the leased premises by the tenant does not affect the landlord’s lien. See Henry v. Davis, 60 Miss. 212, and the lien may be enforced after its termination. Fitzgerald v. Fowlkes, 60 Miss. 270, and the landlord’s lien provides against a bona-fide purchaser for value. Newman v. Bank, 66 Miss. 323-337, 5 So. 753, and the landlord may assert his lien against the products or the purchaser of same, with or without notice of such product. Ball v. Sledge, 82 Miss. 749, 35 So. 447. Ignorance as to the tenancy by a purchaser nor false statement by the tenant as to his right to sell the agricultural products grown in the leased premises, will defeat the landlord’s claim. Warren y. Jones, 70 Miss. 202, 14 So. 25.</p> <p>In Bason et .gl. v. Johnson, 69 Miss. 371, 12 So. 446, the court held that the “right of the landlord to recover from one to whom the agricultural'products grown on the demised premises have been sold by, the tenant, is not affected by the want of knowledge by the purchaser of the fact that the rent is due and unpaid. 'The lien exists by virtue of a positive law, and the rule of caveat emptor applies to all who purchase from the tenant, in d ¡flier words according to Blacks Law Dictionary: “Let a purchaser beware, who ought not to be ignorant that he is purchasing the rights of another.” \</p> <p>Is the landlord bound to pursue the statutory remtedy as provided to enforce his lien? No, the lien is mijich broader. Henry v. Davis, 60 Miss. 212; Fitzgerald Vv. Fowlkes, 60 Miss. 270; Cohn v. Smith, 64 Miss. 816; Newman v. Bank, 66 Miss. 323, 5 So. 753. N</p> <p>Chalmers, J., in rendering a dissenting opinion in the case of Wooten v. Gwin, 56 Miss. —, says, “It may be ascertained as a general proposition, that whenever a clear legal right has been violated, and damages sustained by the wrongful act of another, and the peculiar circumstances of the case preclude the bringing of any other form of action, an action on the case will always lie.”</p> <p>Counsel for appellee thinks the court ruled correctly in overruling appellant’s motion asking for a peremptory instruction on pages 29-32 and 34 of said transcript, as amendments to pleadings may be made at any time before verdict rendered, so as to bring the merits of the'controversy between the parties fairly to trial. See Mississippi Code 1906, section 775 and 776.</p> <p>Counsel for appellee thinks that the law involved in this cause is fully set forth in Charge No. I, Tr., page —, presented by counsel for appellee to the court and given by the court to the jury; and that their verdict was a just and righteous one. Counsel for appellee can see little merit in either one of the three errors assigned by counsel for appellant; however, he has endeavored to answer each and every one fully and completely. Counsel for appellee confidently ask that this case be affirmed and that judgment be rendered by this court for appellee, J. E. Thomas, against the appellant, F. P. Phillips, for the full amount sued for thirty-three dollars and ninety-three cents with legal interest from the time same was due appellee by the appellant, and all court cost incurred.</p>

1-Ion. C. P. Long, Judge. Suit by Guy Me Party, trustee, and others, against J. W. Ashmore. Judgment of dismissal, and plaintiffs appeal. (1) Appellant Hawkins is not a mere lien-holder he is the absolute owner of the property, and condition haying-been broken, he can maintain any action which any other oivner of property may maintain.

Aiteal from chancery court of Oktibbeha county. 1-Ion. A. J. McIntyre, Chancellor. Snit by J. W. Sanders against the city of Starkville. From decree dissolving temporary injunction and awarding damages, plaintiff appeals.

Hon. E. N. Thomas, Chancellor. Bill by Humphreys County against W. E. Campbell. From a decree sustaining a demurrer to and dismissing the bill, plaintiff appeals. As held in Learned v. Matthews, 40 Miss. 210, the principle is of general application that at law every naked power must be strictly pursued and all prescribed formalities duly observed.

Hon. A. J. McIntyre, Chancellor. Suit by C. C. Day against Bettie M. Nichols and others. From a decree overruling a demurrer to the original bill, the defendants appeal.

Hon. C. P. Long, Judge. Suit by the Broadway Motor Company against C. C. Harrison. Judgment for plaintiff, and defendant appeals.

Hon. Greek L. Rice, Judge. Action by J. R. Hodnett against Yalobusha County. Prom judgment sustaining demurrer to declaration, plaintiff appeals.

Appeal' from circuit court of Forrest county. Hon. R. S. Hall] Judge. Action by Will Murray against the Saenger Amusement Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from circuit court of Greene county.</p> <p>Hon. J. D. Fathekee, Judge.</p> <p>Henry A. Bond was convicted of murder, and he appeals.</p>

Hon. S. F. Davis, Judge. Mandamus by John H. Shurlds and others against Holmes County and others. Judgment of dismissal, and plaintiffs appeal. Held: be limited by contract with individuals, and the exercise involves judgments and discretion as regards the demands of public interest..

Hon. Y. A. Griffith, Chancellor. Suit by the Bank of McCool, Branch of Grenada Bank, against the United States Fidelity & Guaranty… Held: ' “Under this scheme it is perfectly manifest that the board is vested, and wisely so, with a discretion in this matter, and that the first and primary question to be considered by the board, having in view the safety of said funds, is the solvency of the banks bidding for this depository, and the second consideration is the best bid…

Hon. R. S. Hall, Judge. Suit in replevin by J. M. F. Byrd against W. E. Welch, Sheriff of Jones County, for possession of ten head of oxen. Judgment for defendant, and plaintiff appeals.

<p>1. Vendor and Purchaser. Timber upon land at time of sale is 'part of realty, and subject to vendor’s lien.</p> <p>Timber growing upon the land at the time of sale is a part of the realty, and a vendor's lien, reserved in the deed to secure the balance of purchase money, is upon the growing timber as well as the land.</p> <p>2. Evidence. Parol evidence inadmissible to show agreement contradicting recital of vendor’s lien in deed.</p> <p>Where a vendor’s lien is reserved in a deed, evidence is inadmissible to show a parol, previous, or contemporaneous agreement between the parties to contradict the recital of the vendor’s lien.</p> <p>3. Estoppel. Operates only in favor of one relying upon the act, representation, or silence of another.</p> <p>Estoppel operates only in favor of one who, in reliance upon the act, representation, or silence of another, so changes his situation as that injury would result if the truth were shown.</p> <p>4. Vendor and Purchaser. Third party purchasing timber held charged, with notice of vendor’s lien.</p> <p>Where a deed is of record in which a vendor’s lien is reserved upon growing timber to secure a balance of purchase money, and the vendee subsequently sells the growing timber to a third party, this party is charged with notice of the vendor’s lien.</p> <p>5. Estoppel. Vendor held not estopped from asserting vendor’s Hen.</p> <p>Where a holder of a vendor’s lien on timber understands that the vendee expects to sell the timber to another party so that the other party can cut and remove it, and after the purchase of the timber by this party he tells him he is glad to know he has bought the timber, and later on asks him about the details of his purchase, and does nothing to assert his vendor’s lien ■until default has been made in the payment of one of the notes, and the deed is of record when the timber is purchased, the holder of this lien is not estopped by these acts from asserting his vendor’s lien.</p>

Hon. J. D: Fathered, Judge. Suit by Mrs. Mamie Coleman against.the Knights of the Maccabeees of the World to recover on a fraternal benefit policy. Judgment for plaintiff] and the defendant appeals. The issue raised ivas as to. whether or not the reinstate-ments were valid; that is, whether or not the applications for reinstatement were true or whether or not Arthur Coleman violated the warranties of his applications for rein-statements.

Hon. J. D. Fatheree, Judge. Action by James Catlett against Mrs. A. L. Harris. Judgment was rendered for plaintiff, who caused execution to issue thereon. An automobile levied on under the execution was claimed by the Beeson-Moore Motor Company and another. Judgment for plaintiff on the claimant’s issue by the justice of the peace was affirmed by the circuit court, and named claimant appeals.

Hon. J. R. East, Judge. Petition by owners of land in the Neshoba Drainage District to the board of supervisors of the district for removal of J. N. Richardson and others as drainage commissioners of the district. Order of board of supervisors granting the petition was affirmed by the circuit court, and the commissioners appeal.

<p>1. CakRiebs. Express company which failed to make delivery or return shipment within reasonable time liable for depreciation in value caused by its negligence.</p> <p>Where a shipper delivered an express company two bales of hides with shipping tag to return in five days unless delivered, and fails to make delivery or to return shipment for an unreasonable time, and by reason of its negligence the shipment becomes practically valueless, it is liable to the shipper for the depreciation in value caused by its negligence.</p> <p>2. Carriers. Carrier, having elected to keep goods until opening of market for such goods, liable to shipper for value of shipment.</p> <p>In such, case, where, owing to the delay, the market has closed for the season, and in view of such fact the express company elects to keep the goods until the market opens again for such commodity, it becomes liable for the value of the shipment and cannot thereafter force the shipper to accept and dispose of the shipment as a condition of recovering from the carrier.</p>

Hon. G. Wood Magee, Special Judge. Petition for mandamus by the Lacey Lumber Company against Pearl River County. Judgment directing issuance of writ, and defendant appeals. Held: squarely, that a judicial proceeding is not necessary. We cannot see, therefore, why it Aras necessary for appellee to sue the county, Avhen it has already been held that a judicial proceeding Aras not necessary.

Hon. S. F. Davis, Judge. Action by W. S. Smith against W. L. Shelton. Judgment for defendant, and plaintiff appeals.