Volume 129 — Mississippi Reports

Hon. R. L. Corean, Judge. Suit by Fred Lessing against the board of supervisors of Jefferson county. Judgment for plaintiff, and the defendant appeals.

<p>Appear from circuit court of Coahoma county.</p> <p>Hon. W. A. Alcorn, Judge.</p> <p>Action by William A. Temple against James C. Davis, Director General of Railroads, etc. Judgment for plaintiff, and defendant appeals.</p>

Abi'EAL from circuit court of Bolivar county. Hon. W. A. Alcorn, Jr., Judge. Held: in Low v. Railroad, 45 N. H. 375, that a corporation is liable at law upon an implied assumpsit, for services rendered before it came in esse, but which were necessary to perfect its organization, and which, after such organization ivas perfected, it accepted, and the benefits of which it enjoyed. 12 Am. ¡State Reports, pp. 20-30.

Hon. I). M. Graham, Judge. Action by Mrs. A. B. Coriander against the Louisville & Nashville Railroad Company. Judgment for plaintiff for nominal amount, and defendant appeals, and plaintiff cross-appeals. Assignment of error A. was to the effect that the agent was not at the time acting within the line and scope of his employment. Assignment of error 0. was to the effect that the defendant was under no duty to protect the plaintiff from insult at the time.

Hon. W. A. Boanb, Judge. Action by Leo Tendall against Jas. C. Davis, Agent, etc. Judgment for plaintiff, who appeals on the ground that the amount of recovery in inadequate. Held: hoAvever, that the excessive rate of,speed must be the proximate cause of the injury to entitle the injured person to recover. , Glisby v. Railroad Go., 78 Miss. 937; Billingsley v. Railroad Company, 100 Miss. 612, 56 So. 790.

Hon. A. J. McIntyke, Chancellor. Suit by Mattie Elam against Allen Elam for divorce, in which alimony was granted pendente lite, and the defendant was adjudged guilty of contempt and sentenced to imprisonment until he purged himself of such contempt, from which judgment he appeals.

Hon. S. F. Davis, Judge. Suit by Joe Lanham against the Greenwood Lumber Company and others. Judgment for the plaintiff, and the defendants appeal. Can Lanham Recover on án Indivisible Contract When It Did Not Stand Completed at the Time of the Filing of the Suit? The court will observe that Lanham’s contract with appellant, Hainan, ivas indivisible.

Hon. J. I). Fathekee, Judge. Suit by Elliott Cobb against W. J. Cole. Verdict and judgment' in favor of the defendant., and the plaintiff appeals. Appellant, Elliott Cobb, sued appellee, W. J. Cole, in the circuit, court of Lauderdale county, setting out his case in a declaration of two counts. Appellee pleaded the general issue to both counts, and gave notice thereunder of an offset.

Hon. E. N. Thomas, Chancellor. Bill by the Colonial United States Mortgage Company against A. A. Lyon and others. Decree for plaintiff, and the defendants appeal. Inasmuch as appellee Avas a volunteer, it is not entitled to the benefit of the equitable doctrine of subrogation. Volunteer Not Entitled to Subrogation. Morris v. Lake, 9 Smedes & Marshall, 524.

<p>1. Tktal. In action involving question as to what was the contract, the court’s amending the verdict toy inserting the amount shown clue by undisputed evidence' is not error.</p> <p>Where the issue between the plaintiff and the defendant is whether the contract on which plaintiff declared is the real contract or whether the real contract is one set up by the defendant, the contract not being in writing, and the jury accepts the plaintiff’s version of what the contract was. and where the plaintiffs evidence as to the grade and weight of the cotton involved in the contract is not disputed in the evidence, and -the jury finds for the plaintiff,' not specifying the amount in their finding, it is not error for the court to put the verdict in form by inserting the amount shown by the undisputed evidence to be due the plaintiff; his version of the contract being adopted by the jury in its finding as to the contract.</p> <p>2. Appeal and Ebeoe. Where there was no dispute as to grades and weights, instruction to find for plaintiff if the grades and weights did not come up to the contract was harmless.</p> <p>It is not reversible error in such case to instruct the jury “that if you believe from the preponderance of the evidence in the case that Weil Bros, bought the cotton involved in this suit from the defendants on the contract prices, the contract grades, and the contract weights as set out in plaintiff’s declaration, and that said cotton failed to come up to said contract either in grades or weights, or both, then you will find for the plaintiff’s and assess their damages the amount sued for,” there being no dispute as to the facts as to grades or weights as testified to by the plaintiff, the latter part of the instruction is harmless error.</p>

Hon. J. D. Fati-ieree, Judge. Suit by Mrs. J. L. Williams against the Meridian Light & Raihvay Company. Judgment for plaintiff, and the defendant appeals. The error in the admission by the court below of the details of an alleged controversy between the witnesses A. N. Williams and the conductor, is patent. It is clear that this controversy was wholly between said witness and conductor and in which the plaintiff had no part.

Hon. G. Wood Magee, Special Judge. Suit by Ed Rhodes against the New Orleans Great Northern Railroad Company. Judgment for the defendant, and the plaintiff appeals.

Aureal from chancery court of Panola county. Hon. J. G. McGowan, Chancellor. Proceeding for extension of Yocona Tallahatchie Drainage District No. 1. From a decree extending the boundaries of the district, A. G. McLemore and others appeal.

<p>I. Mines and Mineeax.s. Bill will lie to compel an accounting as to' mineral taken and for discovery, where rent dependent thereon.</p> <p>Where the rent or royalty reserved in the leasing of mineral property is dependent on the amount of mineral taken, a- hill in equity -will lie to compel an accounting hy the operator or lessee of the mines, and also for a discovery.</p> <p>2. Injunction. Refusal to dissolve temporary injunction to prevent • continuing ’breach of contract held proper.</p> <p>Upon a motion to dissolve a temporary injunction, wlien the allegation oí the bill, sustained by the testimony of the complainant, is to the effect that the leasee of a -mine has breached his contract and is continuing to remove from the mine sand and gravel and to use the complainant’s machinery and appliances therefor, all in violation of its contract, it was proper to overrule the motion and to continue the temporary injunction until a hearing upon the merits.</p>

Hon. T. L. Lamb, Judge. Action by G. C. Moby and others against the American Mailway Express Company. Judgment for plaintiffs, and defendant appeals.

Apbeal from chancery court of Tallahatchie county. Hon. (1. E. Williams, Chancellor. Suit by the Webb Sumner Oil Mill against the Southern Coal Company. From a decree dismissing the bill of complaint, the complainant appeals.

Hon. W. A. Roane, Judge. Action by the Porter Hardware Company against J. W. Peacock. Judgment in favor of the defendant, and the plaintiff appeals. That the judgment of the court in this case is contrary to the law and the evidence. The sole issue to -be tried in this case is the question of the right of possession of the property involved in this suit. 46 Miss. 245.

<p>1. Compromise and Settlement. Where a master had settled with an attorney claiming to represent the deceased’s relatives in an administrator’s suit, defendant need not offer to rescind the settlement, in order to recover from attorney.</p> <p>A bill, which alleges that, shortly after one of its employees was killed, complainant received a letter from an attorney alleging in substance that he represented the father of the deceased, and. his folks in presenting the claim for the death of deceased, and thereafter a settlement was made. with this attorney, one day after suit had been brought by the administrator; and special pleas were filed in the administrator’s suit setting up in full the settlement and calling attention of the court to the fact that the attorney claimed' to have an assignment of the cause of action, this was all that was necessary for the defendant to do in that suit. In his pleadings he relied upon the settlement made through the attorney. It was not necessary for defendant before the trial of the cause in the circuit court to offer to rescind the settlement with the attorney; neither was it necessary for it to notify the attorney of the pendency of this suit.</p> <p>2. Compromise and Settlement. Master, having paid attorney in settlement for servant’s death> may, after judgment hy servant’s administrator, maintain a hill in equity against the attorney.</p> <p>Where its special plea of release and also of accord and satisfaction were held for naught in the trial in the circuit court and a judgment rendered against it for damages for the death of deceased, it has a right to maintain a bill in equity against the attorney through whom the settlement was consummated for an accounting and for the return of money paid him under a mistake of fact, viz., the mistaken idea that the settlement made with him was a valid and binding settlement for the death of the deceased. A demurrer to such bill by the defendant’s attorney was properly overruled.</p>

Hon. J. G. McGowan, Chancellor. Suit by Mark Chapman and others against Ida McDonald and others for partitio/i. From a judgment in favor of plaintiffs, defendants appeal. Appellant cannot complain as to the holding of the court with regard to the three acre house site, by which their rights were limited to the one and a half acre in their actual occupancy, because the description of said three acres as contained in said will, was not certain and could not be made certain.

Hon. G. Wood Magee, Special Judge.' Suit by Newsom Bros, against the Great Southern Lumber Company. Judgment for plaintiffs, and defendant appeals. Interpreting the meaning of this deed, and in seeking a definition of the word “timber” as therein used, resort may be had to general authorities. The authorities are very numerous but Ave do not find much conflict in them. Timber is defined to be trees useful for building and construction purposes.

I-Ion. G-. C. Tann, Chancellor. Suit by W. 'T. Sandifer against I. B. Rowell & Co. and others. From the decree rendered, defendants appeal. The officer had no authority to levy on the personal property involved in this suit without first an affidavit being made and bond given as required by law. It is the contention of appellants that this case is based on the same state of facts, as the case of Advance Lumber Oo. v. Laurel National Bank, 86 Miss. 418, 38 So. 313.

Hon. R. S. Hall, Judge. Earl Manning was convicted of receiving stolen goods, and sentenced to pay a fine and to confinement in jail, and he appeals. The indictment charges the defendant with receiving stolen goods the property of Gulf & Ship Island E. E. Co., the evidence shows that the railroad did not own the goods in question. If defendant was guilty of anything it was stealing.

<p>Appeal from circuit court, Panola county.</p> <p>I-Ion. Greek L. Bice, Judge.</p> <p>S. L. Joslin was convicted of rape, and he appeals.</p>

Hon. S. F. Davis, Judge. Gerrard White was convicted of murder, and he appeals. A confession to be admissible in evidence must be free, voluntary and made without hone of reward or fear of punishment. Simons v. State, 37 Miss. 288.

Hon. S. F. Davis, Judge. • Ben Pickens ivas convicted of murder, and sentenced to death, and he appeals. It is not permissible to introduce in evidence, as against a conspirator, the acts or declarations of conspirators which were done or made after the conspiracy had come to an end, either through accomplishment of its object or by reason of an abandonment. 16 C. J. 656, sec. 1309; Ósborne v. State, 99 Miss. 419.

<p>1. Bukglaky. Evidence as to identity of goods found in defendant’s possession held sufficient to present a jury question.</p> <p>A mercantile store was burglarized at night, and six pairs of W. L. Douglas shoes stolen therefrom, one pair of which was W. L. Douglas russet shoes size No. 7. The defendant later was found in possession of a pair of W. L. Douglas russet shoes No. 7, and otherwise corresponding to the stolen pair referred to. Defendant testified that he came into possession of the shoes on the night of the burglary and a few hours thereafter by purchase from another person, but before the trial, when found in possession of the shoes by the officers the defendant made an entirely different statement explaining such possession; and the evidence showed that the merchants whose store was burglarized were the only merchants in that community handling W. L. Douglas shoes. Held, the evidence sufficiently identified the shoes .found in possession of the defendant as being one of the pairs of shoes stolen, so that it was a question for the jury.</p> <p>2. Bukglaky. Criminal law. Instruction on defendant’s possession of stolen goods erroneous for not requiring it to he recent, Tout harmless in view of defendant’s testimony.</p> <p>In a case where defendant is charged with burglary and larceny' and admitted as a witness in his own behalf that he acquired possession of the stolen goods in question 'only a few hours after the crime was committed, and the court instructed the jury for the state that mere possession of such stolen goods by the defendant, unexplained, was prima facie evidence of defendant’s guilt, without the qualification that such possession must have been recent after the crime, held, said instruction, although erroneous, .was harmless because of defendant’s said admission that his possession was recent after the commission of said crime.</p> <p>S. Criminal Law. Refusing correct instruction where subject-matter was amply covered by others is not error.</p> <p>It was not error for the court to refuse an instruction although correct, where the subject-matter of such instruction was amply covered by other instructions given in the case.</p>

Hon. A. J. McIntyre, Chancellor. Bill by S. G. Salter against the Aviation Salváge Company. Judgment of dismissal, and plaintiff appeals. While the books are reluctant in giving an exact definition of fraud, they all agree that for fraud to exist there must be four elements present to induce fraud.

Hon. W. H. Hughes, Judge. Charles Hinton was convicted of assault and battery with intent to kill' and murder, and he appeals.

<p>Appeal from chancery court of Calhoun county.</p> <p>Hon. J. G. McGowan, Chancellor.</p> <p>Suit by Claude M. Seal against B. J. Lush and others. Decree for plaintiff, and defendants appeal.</p>

Hon. E. N. Thomas, Chancellor. Suits by Willis McAllum and by Pearl McAllum and others against L. P. Spinks and others. The suits were consolidated. Decree dismissing both bills, and the complainants appeal. Let us see what is the effect of. the formal and ceremonial marriage entered into by and between William Mc-Allum and Pearl McAllum.

Hon. W. H. Hughes, Judge. Suit by the Firm Lumber Company against James C. Davis, Agent of the United States. Held: a variance without failure of proof.” 21 E. C.' L. p. 60S. “The expression ‘on or about’ a certain date is held to be just as consistent Avith a day or two after the date as before.” Payne v. State Land Office, Gom’r., —- Mich. 244, 248, 33 N. .W. 491, Words & Phrases, vol. 6, p. 4966. “There is no fatal variance betAveen an…

Hon. J. R. East, Special Judge. Action by T. T. Kilpatrick against the New Deemer Manufacturing Company. From a judgment in favor of plaintiff, defendant appeals.

Hon. S. F. Davis, Judge. Replevin suit by Mrs. I. N. Young against Robert Terry. Demurrer to declaration sustained, and plaintiff suggests error. This case started off wrong by the improper incorporation into a simple declaration in replevin the averment of matters by way of recital attempting not so much to show the title of the plaintiff as in explanation of ho’w the property got into the hands of the defendant.

IT ON. J. D. Fatheree, Judge. A. A. Nelson was convicted of murder and sentenced to life imprisonment, and be appeals. The second error complained of is the conduct of the trial judge. In the case of Green v. State, 58 So. 415, 97 Miss. 834, our court held it to be a matter of common knowledge that jurors as well as officers of the court are yery susceptible to the influence of the judge.

<p>Appeal from chancery court of Jefferson county.</p> <p>Hon. R. W. Cutrer, Chancellor.</p> <p>Bill by F. Krauss & Sons against C. E. Robertson and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from circuit court, Warren county.</p> <p>Hon. E. L. Bpjen, Judge.</p> <p>Suit by J. C. Ware against the Alabama & Vicksburg Railway Company. Judgment -for plaintiff, and the defendant appeals.</p>

IIon. D. M. Graham, Judge. Three suits by Stokes V.sRobertson, State Revenue Agent, against the Gulfport & Mississippi Coast Traction Company to recover privilege taxes and from a judgment therein the defendant appeals, and the plaintiff brings cross-appeal. Is Appellant Liable For Double Taxes As a Penalty?

<p>Appeal from circuit court of Hinds county.</p> <p>Hon. W. H. Potter, Judge.</p> <p>Henry Thomas was convicted of murder, and he appeals.</p>

Hon. Jas. G. McGowen, Chancellor. Suit by It. C. Carter and others against Duke M. Kim--brough and others, and from the decree therein the defendants appeal and the complainants cross-appeal.

Hon. V. A. Griffith, Chancellor. Suit by S. R. Ratliff against the Lyon Company and others. Decree for plaintiff, and defendants appeal. Held: “Exceptions to this rule are, where the first action was not competent, where the plaintiff has mistaken his character, or where the judgment is given for faults in the declaration and pleadings.” The last part of the quotation is underscored in the brief of opposing counsel, and they seem to take some comfort therefrom.

Hon. W. A. Roane, Judge. Action by B. N. Powell against S. B. Tomlinson. Judgment for the defendant in the justice court, and the plaintiff appealed to the circuit court, where judgment was again rendered in favor of defendant and plaintiff appeals.

Hon. W. H. Hughes, Judge. Shelby McLaurin was convicted of rape, and he appeals. With reference to the first assignment of. error we desire to say that the three instructions Nos. 6, 7 and 8, which were asked for by the defendant and which were refused by the court, are of the same general tenor and purport.

Hon. D. T. Currie, Special Chancellor. Bill by Stokes V. Robertson, State Revenue Agent, against'the Ingram Day Lumber Company. Decree for the plaintiff, and the defendant appeals. The facts are that the board of supervisors first caused a fifteen years lease of this land to be sold and it was bought in by G. W. Walker, all .parties believing that the purchaser was buying the timber; and the purchaser intending to buy, and the seller intending to sell the timber.

Hox. G. Wood Magee, Special Judge. Napoleon Langston was convicted of a violation of the Prohibitory Liquor Law, and he' appeals. It will be noted that the defendant exhausted every peremptory challenge the law allowed him. Mr. O. J. Foxworth stated on the witness stand on the trial of this case that his evidence was then about the same as it was in the cases of Ervin and Herbert Buckley, See page 49, of the transcript.

Hon. R. S. Hall, Judge. Tom Cleveland was convicted for cursing in a public highway in the presence of two or more persons, and he appeals.

Hon. Y. J. Strigker, Chancellor. Suit by Cornelia Johnson against William Mims, Decree for complainant, and defendant appeals. It will be seen from the foregoing statement of fact that there was very little evidence introduced on the part of the complainant which tended to establish the sanity of Mahalia Keith at the time of her death.

Hon. E. N. Thomas, Chancellor. Action by 1). L. Brown and others against R. L. Coker and others. From a decree dismissing the suit, plaintiffs appeal. Failure of deed to legally convey that part of tract which constituted material inducement for purchase by vendee, even though not intentionally, and though vendee had placed false estimate on the value of such a thing, makes sale rescindable.

Hon. D. M. Russell, Chancellor. Suit by the Celtic Land & Improvement Company against Mrs. C. M. Camp and others. Decree for complainant, and the defendants appeal. Our friends undertake to cite a number of authorities on the proposition that our recording statutes are not mandatory.

<p>Appeal from circuit court of Bolivar county.</p> <p>HoN. W. A. AloorN, Judge.</p> <p>Action by San Serio against W. JEL Barlow and others. From default judgment for plaintiff, defendants appeal. On motion to strike out part of record.,</p>

Hon. V. J. Steickeb, Chancellor. Suit between E. J. Hughes and others and the Kaw Investment Company, and from a decree therein the former appeals.

Hon. G. C. Tann, Chancellor. Bill by the Alabama &. Vicksburg Railway Company against the Jackson & Eastern Railway Company to enjoin eminent domain proceedings by the defendant against the plaintiff, in which the court dissolved an injunction, and the plaintiff was granted an appeal, but denied a supersedeas. On motion for supersedeas.

Hon. Clayton D. Potter, Specia] Chancellor. Bill by the state of Mississippi, on the relation of Prank Roberson, attorney-general, against R. R. Perkins, and others. Decree for plaintiffs, and defendants appeal.

Hon. D. M. G-raham, Judge. Johnnie Mitchell was convicted of selling intoxicating liquor, and he appeals. The defendant asked the usual instruction, that before they could convict him, the jury must believe from the evidence that the liquor was intoxicating, yet the court peremptorily told the jury that “Shinny” was intoxicating liquor, and thus destroyed all the effect of the instruction asked on behalf of the defendant.

HoN. W. H. Hughes, Judge. Lee Hill was convicted of manufacturing intoxicating liquor, and he appeals. On the second proposition we can do no better than refer the court to the well-considered case of Tucker v. State, 90 So. .845, decided March 6, 1922, by Division A. Justice Andebson being the organ of the court.

Hon.-C. P. Long, Judge. Leek Walker was convicted of having intoxicating liquor in his possession, and he appeals. Tlie record shows that the only witness that could testify anything in behalf of the appellant was his wife.

HoN. V. A. (xriepith, Chancellor. • Proceeding by Stokes Y. Robertson, State Revenue Agent, against the Southern Bitulithie Company and others. Prom an interlocutory decree the state revenue agent appeals. On appellant’s motion to punish court stenographer for refusal to make transcript of evidence.

<p>Appeal from circuit court of Jones county.-</p> <p>HoN. E. S. Hall, Judge.</p> <p>Val Jones was convicted of murder, and he appeals.</p> <p>We say that the court erred in refusing the two instructions asked for by the defendant, appellant here, on the question of manslaughter or in refusing any and all instructions on the question of manslaughter. The court in refusing these instructions stated to counsel for the defendant that, the evidence would not warrant any instruction shown on pages 15 and 16 of the record. We say the court erred, for we think there is ample evidence in the record to warrant the jury in finding that the appellant fired the shot in the heat of passion and not because of any premeditated design to kill tire deceased, and if there is a conflict in the testimony, then the question should have been submitted to the jury.</p> <p>Mr. Chief Justice Siiaw in discussing the question of manslaughter says: “Manslaughter is the unlawful killing of another, without malice, and may be either voluntary, as when the act is committed with a real design and purpose to kill, but through the violence' of sudden passion, occasioned hy some great provocation, which in tenderness for the frailty of human nature, the law considers sufficient to palliate the offense.” 13 R. C. L., section 88.</p> <p>Again in discussing passion as an element of manslaughter Ruling Case Law uses the following language: “Nor is this passion limited to rage, anger, or resentment: It may be the emotion expressed by the terms fear, terror, and according to some decisions excitement or nervousness.” 13 R. C. L., sec. 91, page 786.</p> <p>Again in the same section: “The existence and sufficiency of passion, whether it arose from adequate provocation, ánd whether it rendered the slayer’s mind incapable of cool reflection, and whether it furnished the incentive to his action, are all questions for the jury in a case in which they arise.”</p> <p>So we say that if there is any evidence that would tend to show that the killing was done in a heat of passion, then it should be submitted to the jury under proper instructions on the question of manslaughter.</p> <p>Again Ruling Case Law, section 92, page 787 says: “In determining whether the act which caused death was impelled by heat of passion or by malice, the surrounding circumstafices and conditions are to be taken into consideration. The time elapsing between the provocation and the killing, the- manner of killing, the character of the instrument or weapon, whether deadly or otherwise, a repetition of blows, and all of the attendant facts and circumstances are to be considered. Nor is the slayer’s mental state to be determined solely by what takes placo at the time of the killing. Reference is to be had to the previous relations of the parties, indignities and insults given on other occasions, circum-. stances pointing to preparation, and the like.”</p> <p>In other words the above seems to convey the idea that a man who had been repeatedly insulted and suffered repeated indignities at the hands of another would not be as hard to insult and his excited passion so hard to arouse as it would be ‘at the hands of one who had never insulted him or heaped indignities upon him, and that a man who had been repeatedly threatened and put in fear by another would not be as hard to put in fear by this same person as he would if the party had never threatened him or put him in fear. Hence, the law is that all the surrounding circumstances are to be considered in determining whether there are any elements of passion shown in the testimony.</p> <p>Now here is a man who had been informed that another man had attacked his wife on three different occasions, tried to force her tp have improper relations with' him, and when she refused, he threatened to kill her and her husband. On numerous occasions he had heard this man threaten to take his life, and one time this man had drawn his knife on him and threatened to cut his throat. As he left the house on the night of the shooting he heard this man say that he would kill him when he returned, and heard another man making preparations to secure a gun to use on him. When he returned and entered the room where he, this man and a number of others had been gambling, he found them all scattered. Instantly this man appeared in front of him with a pistol in his hand and applied a vile epithet to him; he heard a gun snap in an adjoining room. If such a condition and such surroundings are not enough to excite a man of’ordinary intelligence, and to place his mind in such a state of excitement and fear as to cause him in the excitement to do violence io his apparent antagonist, then pray tell me what it would fake to excite a man to such an extent that Ills actions could be said to have been done “in a heat of passion'?” Why it occurs to us that this is enough •to completely dethrone judgment and reason and to drive a man for the moment into utter insanity, let alone drive him to such a state of mind as might be construed as “in a heat of passion.”’</p> <p>Hence, we say that from a careful consideration of the evidence and the instructions asked for by the appellant as set out in the record on pages 15 and 16, that these instructions properly and correctly propounded the law in this particular case and that the court erred in refusing to grant them.</p> <p>Appellant complains of the refusal of two instructions on the question of manslaughter, as shown on pages 15 and 16 of the record. These instructions were on the threats and the insults of his wife. The court will note that notwithstanding all these occurrences they were in this game apparently on friendly terms — at least there was an armistice between them; no attempt to carry out any threats. These instructions might have helped the state in showing malice on the part of the defendant in that he was prepared to resent the insults of his wife and to defend himself in ease the accused attempted to put the threats into execution, but he never armed himself until the quarrel at the card game. He had no right according to the ethics of the “skinning profession,” to return to the game. If he had been peaceably inclined he should have stayed away from the house, but he went hack with a gun, stood it where he could reach it. His whole plan disclosed premeditation, and the willingness of entering into a combat when he could have stayed out of it. He left the crowd of negroes under the impression that when he came hack trouble would begin. .It was probable that if the deceased liad killed the accused, that lie would not have been convicted even though he shot him as he stepped inside of the door.</p> <p>Instruction No. 10 presents the theory of self-defense. Instruction No. 6 tells the jury the law in the case he was preparing to defend himself against the threats. A reading of the instructions will disclose that the case of the defendant was well submitted to the jury. There cannot be any question of manslaughter when a man deliberately returns to a place armed, after making threats himself. He is not guilty of manslaughter. He is guilty of murder or nothing. If his story is believed, and the jury seems to have rejected it, it was a clear case of self-defense. If the state’s witnesses are to believed, it is a clear case' of murder. It is unnecessary to cite authority in this further than to call the attention of the court to the Rester case.</p>

HoN. W. A. RoaNe, Judge. George Lyon was convicted of murder, and he appeals. We earnestly contend that the evidence did not support the verdict and that the peremptory instruction should have been in defendant’s favor. The evidence for the prosecution fails to show that he was guilty. The evidence for both the state and the defendant shows that .he was not guilty.

IioN. GReeic L. Rice, Judge. Moody Williams was convicted of manufacturing intoxicating liquors, and he appeals. The corpus delicti is not established in this case by evidence offered by the state; by evidence aliunde the confession alleged to have been made, or by all the evidence taken as a whole as shown by the record.

Host. V. A. Geieeiti-i, Chancellor. Bill by E. J. Jane against F. H. Lewis, Mayor, and others. Judgment for plaintiff, and defendants appeal. Held: to be a valid ordinance, and still and now in full force and- effect.

HoN. R. S. Hall, Judge. Houston Haney was convicted of murder, and lie appeals. Held: “That it was error to admit a dying declaration, without full inquiry into all of the circumstances under which they were made and with an examination of all witnesses able to throw light on the matter.” There was no such inquiry oi investigation made by the court or the district attorney in the present case.

Hon. W. H. Potter, Judge. Action by 0. B. Fore against the United States- Fir© Insurance Company. From judgment t for defendant, plaintiff appeals. In the Western Insurance Co. v. Ashby (Ind. Held: that not only notice of the other insurance, prior or subseqeunt, must be given, but also that it must be indorsed upon the policy when so provided therein.

Hon. T. P. Guyton, Chancellor. The Municipality of Noxapater was declared a separate school district hy the Board of Mayor and Aldermen, and certain territory was added and petitions and order of annexation made and proceedings had for issuance of bonds for agricultural high school district, and W. S. Liddell and others filed their protest against the confirmation and validation of such bonds. Prom a decree validating the bonds the protestants appeal.

Hon. S. F. Davis, Judge. Action by J. L. Haley, Jr., against the Fireman’s Fund Insurance Company. Held: further, that the employee having, while employed, sustained an injury whereby he recovered a judgment therefor against the employer for the sum of two thousand two hundred and eighty-five dollars and two cents the insurance company was liable therefor upon an action against it, without the employer having first paid the judgment.

HoN. G. E. Williams, Chancellor. Suit by S. 0. Taylor against W. L. Eoss and another. Decree for defendants, and plaintiff .appeals. There can be no doubt on earth then, but that our adversaries thought they had a right to bring up, under the demurrer, their claim that the indorsers were not liable, because of the lack of protest and notice.

Hon. E. S. Hall, Judge. ■ Action by Susie B. Smith, as admininstratrix of the estate of her deceased husband, J. B. Smith, against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Hon. (t. C. Tank, Chancellor. Bill by Mrs. Annie B. Price, against P. W. Mitts. Decree for plaintiff, and defendant appeals. The court erred in overruling the demurrer for the appellant to original bill filed by appellee. This demurrer should have been sustained for several reason, chief among which' are as MIoavs: (a) It is apparent from the face of the bill that the appellee’s rights, if any, were barred by the statute of limitations.

Hon. J. G. McGowan, Chancellor. Suit by the state of Mississippi, on the relation of Frank Roberson, attorney-general, against the Columbus & Greenville Railroad Company and A. T. Stovall, receiver. From a judgment in favor of the defendants, the relator appeals.

<p>Homicidb. Conclusion of murder cause reversed on ground that accused was guilty of no higher crime than manslaughter, and remanded for trial de novo.</p> <p>Where a conviction of murder is reversed on the ground that, under the evidence in the record, the defendant is not guilty of a higher crime than manslaughter, the case will be remanded for trial de novo.</p>

Hon. W. H. Potter, Judge. George Leavell was convicted, of murder, and be appeals.

IIon. 0. 1\ Long, Judge. Elmer Springer wag convicted of manslaughter, and lie appeals. The court erred in giving a manslaughter charge as by the state’s evidence by which they were supposed to convict, shows that it was ,a clear case of unjustifiable murder, willful and cold blooded, committed at a time when the deceased was doing absolutely nothing to the defendant and a manslaughter charge was certainly improper.

Hon. A. J. McIntyre, Chancellor. Bill by D. T. Moss against J. 0. Jourdan. From decree giving insufficient relief, the complainant appeals, and the defendant cross-appeals. Held: as a matter of lav,. to carry n ifh it the perfect right to do whatever may be reasonably necessary for taking possession of and utilizing the mineral.

Hok. G-. C. Tank, Chancellor. Action by Lee Kropp, against the Alabama & Vicksburg Railway Company. Verdict for plaintiff, and the defendant appeals.

Hon. AV. A. Koane, Judge. Joe Murphy was convicted of murder, and he appeals. AVe ask the court to consider their ruling in Spiyht v. State, 83 So. 81, 120 Miss. 752, in which the court- declares that it will not to any extent usurp the function of the jury if the'testimony offered is such that a jury is reasonably warranted in believing it and acting upon it.

Hon. A. J. McIntyre, Chancellor. Suit by Carothers & Co. against the Corinth to Gulf Highway and others, in which there was a consent decree. Subsequently a petition was filed in supplementary proceedings to compel the county to pay a balance of the retained percentages on theory that board had breached its contract embodied in its decree, and consequently plaintiff was entitled to all retained percentages. Decree for .plaintiffs, and defendants appeal.

Hon. T. P. G-uyton, Chancellor. Action between J. E. Phillips and W. A. Canon, and from a judgment or order therein the former appeals. On motion to strike from transcript the stenographer’s notes of the testimony.

<p>Appeal and Error. Pacts necessary to support judgment taken as true where proved or inferable from facts proved.</p> <p>In determining the correctness of a judgment of a trial court, all facts necessary to support such judgment either proven directly or reasonably inferable from the proven facts are to be taken as true. On suggestion of error. Suggestion of error overruled. - For former opinion, see 92 South. 226, 129 Miss. 354.</p>

Hon. C. P. Long, Judge. Action by C. C. Atkins against the Tishomingo Gravel Company, revived against Thad B. Lampton, receiver. Prom judgment for plaintiff, defendant appeals. To the court’s first inquiry as to the application to the case at bar or the decision in Hope v. Natchez, etc., Railroad Company, et al., 98 Miss. 823; s. c., 54 So. 369, we answer, the decision is, we feel assured, controlling, if it is not to be reversed.

Hon. A. E. Weather,sby, Judge. Suit by Floyd. McCalip against the Morrimac Veneer Company. Judgment in favor of the plaintiff, and the defendant appeals. We do not contend that tbe suit at bar was wrongfully brought in the circuit court of Lawrence county. The statute of 1918, chapter 149, authorized its institution in that court. That court had jurisdiction of the subject-matter of the suit and of the parties to it.

<p>Appeal from circuit court of Holmes county.</p> <p>Hon. S. F. Davis, Judge.</p> <p>Fannie Walden was convicted of murder, and she appeals.</p>

<p>Appeal from chancery court of Hinds county.</p> <p>Hon. Y. J. Sxeicker, Chancellor.</p> <p>Suit by J. L. Ross against the Morrimac Veneer Company. From a decree dismissing the bill, plaintiff appeals.</p> <p>The first question to be considered in this case is, whether or not the contract between the Morrimac Veneer Company and the Henry Maley Lumber Company was assignable. The general rule laid down by the United States supreme court, the court of last resort in this country, Legal Treaties, as J. O. J. and R. C. L. Pomeroy, Equity and Text writers; as Story and Lawson seems to be that executory contracts are assignable unless it involves personal confidence, personal service, or the assignment is forbidden or unauthorized by statute or where the parties expressly make it non-assignable by the terms of the instrument.</p> <p>This precise question seems never to have been presented to this court. We have assignments and partial assignments but no assignment of executory contracts. • We will therefore have to go outside of our state court for precedents. It is a question that seems to be too well settled to admit of dispute, but in case there is any doubt we submit the following authorities: The test of assignability is whether or not it would survive and pass to the personal representative of a decedent. If it would so survive, it may be assigned, so as to pass an interest to the as-signee, 5 0. J. 850. See note Am. and Eng. Case, 1 Am. case, 854, which is an exhaustive note on the subject of assignability of executory contracts. Contracts silent on the subject are generally assignable. Standard Sewing-Machine, Go. v. Smith, 152, page 38, 51 Mont. 245; Smith v. Craig, 105 N. E. 798, 211 N. Y. 456.</p> <p>The rule settled by the decisions of the supreme court is that a contract by which one party became obligated to the other is assignable by the latter unless there is something in the terms or nature of the contract which evidences an intention of the parties that it shall not be assignable. (American Bond & Trust Go. v. Q. S. W. P. Go., 124 Fed. 866, 60 O. C. A. 52; Horst v. Bolhms, 84 Fed. 566, 44 L. Ed. 953. In other words, the law is too well settled to admit of dispute that an executory contract is assignable. Find v. Henderson, 74 Miss. 8, 19 So. 892.</p> <p>Assignability of this Contract. The legal proposition of executory contract being' assignable, having been established, Ave then consider Avhether or not the contract we have here under consideration is assignable or' Avhether or not it falls Avithin any one of the exceptions, and to ascertain this we must look to the contract itself.</p> <p>The terms of the contract do not prohibit a transfer or assignment of the Avhole or a part of the contract. The assignment is not prohibited by statute. The contract is not one calling for personal skill, etc., as employment of a physician, musician, actor; the contract is with a corporation and necessarily could not be personal. Pulaski Stave Go. v. Miller Greek Lumber Go., 138 Ky. 374, Bonding & Trust Go. v. Baltimore and O. S. By. .Go., 124 Fed. 866, 60 O. 0. A. 52; Arkansas case, 135 S. "Vyi 334, Rob-órts Cotton Oil Company v. F. F. Morse and Go.</p> <p>The best reasoned case that I have found dealing with assignment of executory contracts is to be found in 15 Ann. Cases, 363, in a case styled:li Atlantic and N. G. R.Ii. G Go. v. Atlantic and N. G. Company, 147 N. C. 368; Adams v. Wadhams, 40 Barb. (N. Y.) 225; Comstock v. Hitt, 37 Ill. 542; Biggers v. Matthewes, 147 N. C. 299, 61 S. E. 53.</p> <p>Partial or Equitable Assignments. We think that we have fully demonstrated that this contract was simply a commercial contract, one that could be assigned. This brings us to the proposition that if this contract was assignable in Avhole that it Avas assignable in part. The state of Mississippi has recognized partial assignments in the ease of O. IV. Hutchinson, Gdn., v. L. Simon et al., 57 Miss. 628; Moody v. Kyle, 34 Miss. 506; Fitch v. Stamps, 6 How. 487; 2 Story Eq. Jur., 1044; Lanigan v. Bradley, 50 N. J. Eq. 210, 24 Atl. 502.</p> <p>Indiana holds that a part interest in a written contract is assignable in equity. TFoocZ v. Wallace, 24 Ind. 226; Graves T. Ruby, 24 Ind. 418. Partial assignments are upheld by the authorities cited in R. C. L., sec. 27, of assignments 2 R. C. L., page —, the rule being stated.</p> <p>A partial assignment of a chose in action is enforceable in equity, although the debtor has not given his assent, provided that all of the parties in interest are before the court, so that the rights of each in the fund may be determined in one suit and settled by. one decree; An equitable assignment of a part of a debt either actually or potentially in existence is valid and vests an equitable interest in the assignee so that, after notice to the debtor he is bound to apply the funds according to the terms of the assignment, regardless of the assent or wishes of the debtor. The note in Ann. Cas. 1912A, page 673, shows the stand of the different courts on the question of partial assignments. Palmer v. Palmer, 91 Atl. 281; Exchange Bank v. McLoon, 73 Me. 498, 40 Ann. Rep. 388.</p> <p>The writer knew nothing of this case until he read the record after it had been filed in this court. The first thought that came to his mind after reading Exhibit “A” to the bill was that the pretended contract was and is without legal effect and is non-enforcible because it is wholly unilateral. While the cancellation of the previous contract between the parties mentioned in the writing may have been a consideration for its execution it can in no other way aid or support the writing as a contract. If the writing be valid at all it is effectual only as a cancellation of the old contract. It will be observed that the Lumber Company did not bind itself in any way; it did not assume any obligation to deliver logs to the Veneer Company and it could not have been compelled to deliver logs to the Veneer Company nor would it have been liable under the alleged contract for damages because of a total or partial failure to deliver them. In this respect the so called contract was wholly unilateral. Kolb v. Bennett Land Co T4 Miss. 567; Taylor v. Barbour, 90 Miss. 888.</p> <p>If by any sort of reasoning the complainant can be held to have been, as he claims, an assignee of a part of the contract, Exhibit “A,” he can have no greater right under the unilateral contract than his alleged assignor, the Lumber Company had. If the contract was unenforcible by the Lumber Company, of course, it cannot be enforced by the complainant. If complainant were an assignee he was under no more duty to furnish logs to the Veneer Company than was the Lumber Company under such duty by the alleged contract, Exhibit “A.”</p> <p>If anything passed to complainant from the Lumber Company by the use of the word “sells” it was nothing more than the right to deliver logs to the Veneer Company in order to perform in part the assumed obligations of the Lumber Company to the Veneer Company; there was no sale, in whole or in part, of the original contract, Exhibit “A” to the bill of complaint, or of anything due or to become due under it.</p> <p>The Veneer Company was not a party to the contract (Exhibit “B” to the bill of complaint) and is not bound by its terms, whatever they mean; its terms do not purport to bind our client. The obligations assumed by the complainant in and by said contract (Exhibit “B”) do not bind him in any way to the Veneer Company; the complainant’s obligations therein assumed were alone to the Lumber Company. Whitney v. Gotean, 55 Miss. 626.</p> <p>The complainant does not claim that the contract, Exhibit “B” was a perfect assignment by the. Lumber Company to him of the contract between the Lumber Company ■ and the Veneer Company. His erroneous claim is that it was an assignment of a part of that contract,'and he fur-, ther erroneously claims as we think that such an assignment is valid and enforcible in equity as against both the assignor and the debtor.</p> <p>We do not understand that even in equity a partial assignment -is valid against the debtor or obligor of the contract so assigned who has fully paid the debt or performed his obligation to his original creditor, or persons to whom he bound himself, unless he has acknowledged the assignment and promised to pay or perform his obligation to the assignee.</p> <p>Answer to Appellant’s Brief. The arguments we have already made in the preceding pages of this brief very largely answer the brief filed by the solicitors for the appellant. However, we will make some further observation in the way of a reply. The appellant tells us in his brief that the main question involved in this case is whether the alleged contract, Exhibit “A” to the bill of complaint, is an assignable one. This is to beg the question involved in the case, because, so far as the question of an assignment is concerned the real question is, was the alleged contract Exhibit “A” to the bill of complainant assigned? We say not.</p> <p>We do not deny the general proposition that the alleged contract, Exhibit “A” to the bill of complaint, was assignable. It certainly was assignable by the consent of the Veneer Company, but a very different proposition is presented when it is claimed that said alleged contract could be assigned in part without the consent of the Veneer Company. An assignment in part by such consent would have been equivalent to a separation of the contract, a modification of it, reducing the number of feet of logs to be delivered, if any were to be delivered by the Lumber Company, and the making of a new contract between the Veneer Company and the complainant for the delivery of a number of feet of logs which might be agreed between the parties, less the whole amount of the logs specified in Exhibit £A.” The quotation in appellant’s brief from Pomeroy on Equity Jurisprudence, 1280, found on page 25 of appellant’s brief, is adverse'to his contentions.</p> <p>There is a privity of a contract between the landlord and the assignee of a lease, but none between the landlord and a sub-lessee. If- there be any analogy a sub-letting of a part of a contract is shown by the law of landlord and tenant not to be an assignment of the lessee.</p> <p>A good deal is said in the brief of the'appellant the object of Avhich is to base thereon a claim that the Veneer Company ratified an alleged assignment of a part of the contract, Exhibit “A.” To this contention there are two perfect answers: first, there ivas no assignment of any part of the contract to be ratified; and second, nothing was done or said by the Veneer Company, or any representative of it, which is not entirely consistent with the fact that the contract had not been assigned, in whole or in part, and that the complainant in delivering logs to the Veneer Company was acting as sub-contractor or agent of the Lumber Company.</p> <p>The brief of opposing counsel assumes that there was an assignment of a one-third interest in the contract, Exhibit “A,” by the Lumber Company to the complainant. This court will not find any warrant in this record, either in the pleadings or proof, to maintain this position taken by the appellant.</p>

Hon. E. N. Ti-iomas, Chancellor. Suit by Marie Reddoch and another, minors, by their next friend, against H. K. Williams and others. Held: “So it was early held that where a testator devised all his real and personal estate to his wife for life, and after her death to his son and his heirs forever, and in case of the death of the son without any heir fhen over to the plaintiff in fee, the devise over to the plaintiff was void, and the son took an absolute estate in fee:…

Hon. W. H. Potter, Judge. Action by Ike Smith against the Grand Lodge, Brotherhood of Eailroad Trainmen. From a judgment for plaintiff, defendant appeals, and plaintiff brings a cross-appeal. We come now to the main point in this case, that is to say whether the plaintiff (appellee) is bound by the plain provisions of section 68, and whether section 70 shall be held to mean exactly what it says.

Hon. V. A. Griffith, Chancellor. Bill by T. B. Brown and others against Icham Beeves and others. From a decree dismissing the bill, the plaintiffs appeal.

<p>1. Weapons. Sufficient defense to charge of carrying deadly weapon to show apprehension of attack by one making threats.</p> <p>A defendant, charged with carrying a deadly weapon, concealed, can, under section 1105 (a), Code 1906 (section 831 [a], Hemingway’s Code), show as a defense that he was threatened, and had good reason to and did apprehend an attack, and in such case it is not necessary for defendant to prove, either that he himself heard, or that the party who informed him heard, the other party make the threats. The only thing necessary is that the party indicted was informed, and so believed, that he had been threatened, and that he had good and sufficient reason to apprehend a serious attack from the party making the threats, and that he did so apprehend.</p> <p>2. Weapons. One charged with carrying deadly weapons has burden to establish defense of threats and apprehension of attack.</p> <p>The burden of proving this defense is upon the accused, as is expressly provided by the amendment to this act by Laws 1912, chapter 210 (section 831, Hemingway’s Code).</p>

Apeal from circuit court of De Soto county. Hon. Greek L. Rice., Judge. Will Miller and another were convicted of unlawfully manufacturing intoxicating liquor, and they appeal. •The court should have sustained motion for appellant to exclude the testimony of state and discharge defendants. All the testimony was based on knowledge acquired in searching the premises without a search warrant and such evidence is not admissible.

Hon. Greek L. Rice, Judge. Will Butler was convicted of knowingly transporting intoxicating liquors, and he appeals. Sections 23, and 26, Constitution, violated.

IIon. Y. A. Griffith, Chancellor. Suit by W. H. Goff against E. C. Avent and others. Held: “Where the original declaration alleged an indebtedness, for the balance of rent due for the first year of a three-year lease and taxes which the lessee had agreed to pay, an amendment alleging an indebtedness for the difference between the amount of the rent fixed by the lease and the amount for Avhich the property was rented for…

<p>1. Removal of Causes. Action for more than three thousand dollars, brought in stale ichere both parties nonresidents, not removable to federal District Court.</p> <p>Under the provisions of .section 24, 28, and 51 of the Federal Judicial Code (U. S. Comp. St., sections 991, 1010, 1033), a cause involving more than three thousand dollars between citizens of different states, brought in the court of a state of which both parties are nonresidents, is not removable to the federal district court for the district in which such state court is located.</p> <p>2. Railroads. Negligence as to person killed on track held for jury.</p> <p>Where deceased for whose death suit is brought was run down and killed by defendant’s locomotive within the corporate limits of a municipality while such locomotive was exceeding the speed limit prescribed by statute, it was not error in the trial court to refuse to direct a verdict for the defendant, although it was impossible to stop the train before striking the deceased when his danger appeared, where the evidence tended to show that the locomotive when it struck deceased was running at from fifteen to twenty-five miles an hour, and deceased when struck was not between the rails but on the outside near the ends of the cross-ties, and was struck by the pilot beam or cylinder of the engine, because such facts might reasonably authorize the jury to infer that if the speed limit had not been exceeded the blow would have been less violent and not have caused the death of deceased.</p> <p>3. Death. Charge on measure of damages held erroneous.</p> <p>In a suit for damages in a death case it is error for the court to instruct the jury for the plaintiffs that if they should return a verdict in their favor the measure of their damages is the present value of the life expectancy of the deceased, because the present value of the life expectancy of the deceased is the discount value of sucli life expectancy at six per cent, per annum, the prevailing noncontract rate of interest, on such life expectancy for the period it has to run, not taking into account the living expenses of deceased, which should be deducted.</p> <p>4. Appeal and Error. Charge as to measure of damages for wrongful death, where deceased contributed largely to cause, held prejudicial error.</p> <p>In a ease wlievo the evidence shows that a very much larger part of the wrong which caused the death of the deceased was attributable lo him and not to the railroad company, and under the other evidence in the case that the verdict returned by the jury is large, the giving of such an instruction is harmful and denied the defendant a substantial right, and is reversible error.</p> <p>Holder, J., dissenting.</p>

<p>Appeal from circuit court of Tishomingo county.</p> <p>I-Ion. C. P. Long, Judge.</p> <p>Action by A. N. Nix against the Allen Gravel Company. From a judgment for plaintiff, defendant appeals.</p> <p>It is fundamental in the law of principal and agent that “the power of every agent to bind bis principal rests upon the authority conferred upon him by the principal. . . . Every person therefore who undertakes to deal with an alleged agent is put upon inquiry, and must discover at his peril that such pretended agent has authority, that it is in its nature and extent sufficient to permit him to do the proposed act, and that its source can be traced to the will of the alleged principal. No third person can hold the principal if the agent acted without authority, or outside the scope of the authority really or apparently possessed by such agent.” See 31 Cyc., pages 3322-1323; Busby v. Yazoo, etc., R. R. Go:, 80 Miss. 13, 43 So. 1; Dozier v. Freeman, 47 Miss 647; Brown v. Johnson, 12 S. & M-. 398.</p> <p>If the third person makes no inquiry, but chooses to rely on the agent’s statement he is charged with knowledge of the agent’s authority. Rova Beotia Bank v. Richards, 33 N. Erunsw. 412, 31 Cyc. 3323 (Note). In the case at bar the appellee was dealing with the principal, and with the agent of the principal, for the first time, and the ap-pellee knew the character of the business of appellant, knew, or should have known, that this business was not conducted or operated continuously, due to its ability to secure cars for shipment of gravel, weather conditions, and the further facts as to not operating during the winter months and he was therefore charged rvith the duty of ascertaining the real or actual authority vested in agent Poshee. See 31 Cyc. 3333-1332-1333; Potter v. Spring-field Milling Go., 75 Miss. 532, 23 So. 250; Planter’s Bank v. Cameron, 3 S. & M. 600.</p> <p>Third persons are charged with the duty of inquiring and ascertaining the authority possessed by the agent, and when implied authority is relied upon, this implied authority is limited to the purposes for which the agency Avas created and to the acts and duties ordinarily intrusted to such agent, and also limited by the usual course of dealing in the business in which the agent is employed.. And as to an agent acting within the apparent scope of his authority, recourse must be had to the nature and character of the business, the method and course of dealing of the principal in all of its ramifications, and no fixed rule can be laid down to determine this, each business resting largely upon peculiarities and characteristics in a determination of these questions of implied authority, course of business dealings and apparent scope of authority. See 31 Cyc, 1335-1336-1337.</p> <p>We most earnestly submit that the motion of the appellant to exclude the testimony and direct the jury to find for the defendant, the appellant here, should have been sustained.</p> <p>We respectfully submit that it would certainly be a great injustice to allow the general manager and vice-president of this company to enveigle a laborer into a contráct, and then to avoid it on such proof as this record discloses. It is passing strange that all this lack of authority to employ this man showed up just at the time there was a general falling off of business and that all contracts became undesirable because of the sudden slump. The court below could not stand for it, with his conception of the law and his conception of justice, and we respectfully submit that this court should confirm this finding of the lower court.</p>

Hon. W. H. Hughes, Judge. Kobert Norwood was convicted of feloniously making and distilling intoxicating liquors, and he appeals. There is no evidence in the record of this case even tending to show that appellant made liquor in Simpson county or in the state of Mississippi. When the district attorney asked the witness Ducksworth, what county was this in?

Hon. Greek L. Bice, Judge. Herman Taylor was convicted of unlawfully Laving in bis possession intoxicating liquor, and he appeals.

Hon. C. P. Long, Judge. Attachment suit by W. G. Peugh against W. L. Perkins and another, in which the First National Bank of Aberdeen interposed a claim to the attached property. From a judgment for plaintiff in attachment, the claimant appeals. Did the delivery in the case 'measure up to the standard of a legal delivery?

<p>1. CARRIERS. Measure of damages for negligence of agent in advising passenger to take icrong route held to he the actual additional cash fare paid.</p> <p>In a suit for damages against a railroad company for the negligence of a ticket agent in informing plaintiff that his ticket entitled him to transportation over a certain route, which was the wrong route, thereby causing plaintiff to expend for cash fare the sum of two ■dollars and eight cents, and also somewhat annoying and worrying him because of misdirection, the actual damages recoverable by plaintiff is the amount paid out for cash fare, namely two dollars and eight cents.</p> <p>2. Damages. Menial anguish or ■worry disconnected from physical suffering not elements of actual damages.</p> <p>Mere annoyance, mental anguish or worry, disconnected from physical suffering, do not constitute elements of actual damages.</p>

Hon. R. S. Hall, Judge. -Á. E. Kolb was convicted for violating the Age of Consent Law, and he appeals. Held: that it is necessary to allege and prove that the injured female was of previously chaste character. An examination of the Hollins case discloses the fact that the case of Horton v. State, was not called to the attention of the court.

Hon. W. A. Roane, Judge. Lodie Woodall was convicted of the unlawful sale of intoxicating liquor, and he appeals. The learned assistant attorney-general attempts to construe a statute of the state and make a sale and a barter synonymous, and to justify a conviction of a sale when a barter is proved.

Hon. S. P. Davis, Judge. Tliomas Harwell and others were convicted of the manufacture of intoxicating liqtíors, and they appeal. Now as to the second assignment of error, to-wit that the district attorney’s comments upon the failure of Payne to take the stand, and testify, there can be no doubt that this was highly prejudicial to Payne and Harwell and in our opinion was the sole and only cause of the verdict of the jury.

<p>Appear from circuit court of Pontotoc county.</p> <p>Hon. C. P. Long, Judge.</p> <p>Dan Moorman Avas convicted of deserting his wife and children, and refusing to provide for their support, and he appeals.</p> <p>We most earnestly insist that on cross-examination appellant’s counsel should have been allowed to ask the witness, Mrs. Minta Moorman, questions in regard to money paid her under a voluntary agreement by appellant before this indictment Avas gotten at the September, 1920, term of court, as tending to sIioav whether he had Avilfully and Avithout just cause failed and refused to provide for wife and children. We submit further that the testimony of the state shows that the wife and children Avere in the home of a man, Guy Ellis, hostile to the appellant, and that he had Avarned the appellant, even before this separation, not to come to his home, Avhich questions were refused by the court and excepted to by the appellant. We further insist that the state has failed by its testimony to sustain the allegations of said indictment; that they have Avholly failed to prove that the prosecuting Avitness, Mrs. Minta Moorman, and children were in destitute or necessitous circumstances as the testimony uncontradicted, is that the Avife owned forty acres of land, clear of incum-brance, Avhen separation took place; further, that soon after separation defendant divided equally Avith wife and children, all the cattle, including milch coats, that they owned, and that defendant told his Avife to send to their home and get everything that she wanted. Proof further shoAVS that by Avrit of habeas corpus the mother took the child aAvay from the father Avhen hé wanted to keep it and proAÚde for it.</p> <p>Our courts *have held in the case of G-mvbrell v. State, 92 Miss. 728', Avhere there is any doubt as to the admissibility of evidence, the doubt should be resolved in favor of the accused. And v/e insist that this testimony is certainly competent under this indictment as going to show that defendant did not wilfully desert his wife and children, hut that he Avas attempting to provide for the Avife and children and his offers refused by the wife.</p> <p>The proof fails to show that the children were not taken care of as well, under the circumstances, as the defendant could have done, and there is no proof to show that the children suffered for the lack of anything. I insist that this is a prosecution and not a conscionable prosecution, when testimony admitted and offered by the appellant shows that the chancery court had taken full and complete jurisdiction of all matters touching the domestic relations of appellant, wife and children, and had rendered a final decree setting for all time the matter Of support, maintenance, etc., of appellant’s wife and children, and giving the wife a divorce from appellant, but refusing her alimony.</p> <p>On the evidence submitted, the jury found against the appellant. It is unquestioned that there is a time when he deserted them and failed to support them, and while he may have offered at some time to give them some money, there is no indication of a desire on his part to support them regularly and in the way in which a father should, nor that he was willing to return to them. Therefore, the defendant was not injured by the refusal of the court to permit him to cross-examine the witnesses as to points in question. If that is error, then it would be permissible in prosecution for larceny, to show that defendant is willing to return the stolen property. As to the constitutional questions raised, beg to submit that the same objections would apply to the payment of alimony, laws concerning which are under the control of the court and have been held to be constitutional.</p> <p>Section 31 of our constitution providing for the right of trial by jury, does not extend to questions in the trials for which a jury is not necessary by the ancient principles of the common law. Lewis v. Garrett, 5 How. 434, Isom y. Miss. Railroad Go., 36’.Miss. 300; Aldridge v. Bouge Falia Drainage District, 126 Miss. —, 64 So. 377.</p> <p>The desertion of tlie wife and children by the husband was not a common-law offense, consequently jury laws do not apply. It is a- well-known fact that the court will not consider constitutional questions except where they are absolutely necessary to a decision. Native Lumber Go. y. Barrigón County, 89 Miss. 171, 43 So. 665.</p>

Hon. E. L. Brien, Judge. Petition by H. II. Austin and others for allowance of statutory reward for the capture of a fleeing homicide. Petition disallowed, and petitioners appeal. Appellee has based the defense of this case upon two points which, to use his own words, may be stated as follows : “First: Carter was not fleeing or attempting to flee; he was merely concealing himself.

Hon. W. A. Alcorn, Jr., Judge. Replevin to secure property seized by distress warrant by Sam Serio against W. H. Barlow and others, in Avhich action defendants filed an avowry. From a judgment by default in favor of plaintiff, defendants appeal. The first assignment of error is that this judgment-was not warranted, by the state of the pleadings. As a matter of fact, from the standpoint of pleadings, the defendants were not in default.

<p>1. Appeal and Euros. Attorney General may appeal decree in suit to collect and sell property of' railroad; too late to question right of appeal after decision on merits.</p> <p>Where the Attorney General flies suit in equity to collect and to sell property of a railroad company running through many counties and municipalities, making necessary allegations to show Ms right to bring suit and the jurisdiction of equity to maintain such suit, he may prosecute an appeal from such decree. It is too late to question his right so to do after a decision on the merits on the appeal.</p> <p>2. Municipal Corporations. Penalty of ten per cent, collectible, where suit or distress is resorted to in collecting taxes.</p> <p>Under section 3424, Code 1906 (Hemingway’s Code, section 5983), it is made the duty of the tax collector of a municipality to collect municipal taxes during the time and in the manner and under the penalties as state and county taxes are collected, and pay the same into the municipal treasury. Under this statute, where taxes due a municipality are delinquent, and suit is brought in equity to enforce a lien and sell the property to satisfy the taxes due, the ten per cent, damages are collectible, and should be allowed, when prayed for in such suit. The ten per cent, damages is a penalty for delinquency, where suit or distress is resorted to -for the purpose of collecting taxes.</p>

<p>Appeal from circuit court of Lee county.</p> <p>Hon. C. P. Long, Judge.</p> <p>Walter Morris was convicted in the city court of Tupelo for the unlawful sale of intoxicating liquors, and appealed to the circuit court, where his appeal was dismissed. Prom an order overruling his motion to set aside the dismissal, defendant appeals.</p> <p>I ask in all fairness what harm could have come ta the city of Tupelo by granting this defendant a trial upon the merits at just as early a time as the case would have been tried on its merits bad defendant been present in the courtroom when his case Avas first called? It is common knowledge that the court concludes the sounding of the docket before taking up the trial of any case, and as the sounding of the docket had not been concluded AAdien defendant appeared in the courtroom, it cannot be successfully" contended that his absence delayed the court in the least.</p> <p>In the case of Durden v. State, 59 So. 844, relied upon by counsel for the city in the court beloAV, and AA'hich I suppose will be relied upon here, Avhen the defendant in that case Avas called in the circuit court, he made no answer either in person or by attorney. In the instant case, appellant appeared by attorney and announced ready for trial. In the Durden case, defendant simply filed an affidavit stating that he Avas ignorant of the law relative to his attendance upon court. In the instant case, we shoAV conclusively every effort upon the part of appellant to be present Avhen his case Avas called. In the Durden case this court says:</p> <p>“There is no fixed rule governing the matter of re-instating a case, Avhere dismissal has been ordered because of the failure of appellant to appear and ansAver the charge against him, as required in his appeal bond. Each case arising must be addressed to the sound judgment of the trial judge in the exercise of his discretion.”</p> <p>In the case of Walters v. State, 90 So. 7G, advance sheets of January 14, 1922, Walters did not appear in court when his case was called, but he was represented by counsel who filed an application for a continuance or a postponement of the case until a later day. The court beloAV overruled the application for a postponement and tried the defendant in ■ his absence. He was convicted and thereupon Walters filed a motion for a new trial on the ground that it was impossible for him to appear in court the day his case Avas tried. Testimony Avas taken on the hearing of this motion, but the proper notice was not given to the stenographer to transcribe and file his notes and therefore the stenographer’s notes Avere not contained in the record. This court in passing upon the proposition simply said that in the absence of the stenographer’s notes, that is, in the absence of any testimony in the record tending to substantiate the motion, it must be presumed that the facts justified the lower court in its action. In the instant case, we have a full and complete copy of all the evidence taken on the hearing of the motion to reinstate and there can be no question but that the facts contended for by appellant are absolutely true. It will also be noticed that in the Walters case, Avhere he was represented by counsel, the appeal in that case was not arbitrarily dismissed, but the court tried him in his absence, which it had a perfect right to do so far as the record in that case is concerned.</p> <p>When we stop and realize that it should be and is the purpose of the law to grant to every man charged ivith crime a fair and impartial hearing upon the merits of his case, and that it is the duty of the court to exercise his discretion in a manner that is calculated to protect the rights of both the state and the defendant, I feel sure that this court, after a careful perusal of the record in this case, will necessarily be driven to the conclusion that the court below unAvittingly acted arbitrarily in the matter and that he abused his discretion in denying the motion to reinstate this case. If this defendant is guilty, there will be no trouble in securing his conviction before a jury and, under the facts of this record, he is certainly entitled to have his fate decided by a jury.</p> <p>I therefore respectfully submit that the case should be reversed and the loAver court ordered to reinstate these cases on the docket.</p> <p>As we understand the laAV, appellant Avas required to stay in the courtroom until his case was called. This is true AA'hether the case is called on the first day of court or any other day of the term. This is true although he might be incommnienced by having to remain in the place where court is held from day to day, and not be allowed to go to his home at night. The court is not concerned with this.</p> <p>In this case appellant attended court on Monday the first day of court and under the law he was required to be present in court each day. He left for home at his own risk. This has been the rule announced by our court for so long a time that it seems unnecessary to cite authorities. As far back as 6 Southern- Reports in the case of Bush y. State, 6 So. 647, this court held that it was not error to dismiss appeal on failure of the defendant to appear when called. It was held in that case that proper procedure was to dismiss the case with procedendo to the lower court.</p> <p>In the case of Henderson v. State, 8 So. 649, the court followed its former holding and affirmed the judgment of the circuit court in dismissing an appeal from justice court, on failure of the defendant to answer when his case was called. The same rule is laid down in the cases of Tihomas v. State, 68 Miss. 91, and Henning v. Greenville, 69 Miss. 214, and Durden v. State, 59 So. 844.</p> <p>In the light of these authorities it seems useless to argue the facts in this case, but it is well for the court to understand that according to the appellant’s own testimony his delay Avas not sufficient to excuse his failure to appear at court. We submit that appellant cannot complain at the action of the court in dismissing his appeal. Of course, he cannot appeal to this court from the action of the trial court in taking forfeiture on the bond until that matter is made final. The judgment in that respect is not final. This court can only review the action of the trial court in dismissing appeal with procedendo.</p> <p>We fail to see Iioav counsel for appellant can get any consolation out of the case of Watts v. State, 90 So. 76, recently decided by this court. In that case the lower court simply exercised the discretion vested in it and permitted a trial in the absence of accused. That was purely discretionary and the court could have dismissed the appeal with just as much safety. The whole matter is left to the sound discretion of the trial court. In the Walters case the defendant had answered and his. case was set for a day certain for trial and this court refused to reverse the judgment of the trial court in dismissing the appeal. Instead of being authority for appellant’s contention this case strengthens our position in the case at bar. We wish to adopt that part of the opinion Avith reference to “moonshine” which is also especially applicable to the case at bar. We submit that the trial court did not abuse the discretion vested in it in this cause.</p>

Hon. E. L. Breen, Judge. Suit by Thos. W. Selby and others against the Thos. McFarland Lumber Company and others. Judgment for plaintiffs, and defendant named appeals. Held: that wherever there was a new consideration, distinct from that which supported the original debtor’s lability, and moving between the parties to the guaranty, the defendant’s, promise ivas saved from the statute.