Volume 208 — Mississippi Reports

<bold>1. Religious organizations — civil courts — jurisdiction of</bold> <bold>ecclesiastical controversies — none unless property involved.</bold> Unless some property rights of the complainant are involved, civil courts have no jurisdiction over an ecclesiastical controversy and no jurisdiction to decide who is or who ought to be the presiding bishop of a diocese. <bold>2. Equity — complainant may not complain of that which would</bold> <bold>show that he himself has no standing in court.</bold> A party is not in a position to complain in a court of equity that he was illegally removed from the office of bishop in a religious organization on the ground that his named successor was appointed at an annual convention of the organization illegally held, when the complainant himself had been appointed at an annual convention subject on parallel facts to the same charge of illegality; nor may he complain that he was not heard at the convention when, although present, he refused to take any part therein. <bold>3. Religious organizations — custom or usage.</bold> Where the senior bishop of a religious organization claimed the authority and exercised it for more than twenty years to determine, and to change the time and the place of holding its annual conventions all with the knowledge and acquiescence of the organization, its officers and members, his action established a usage and custom of the church confirmatory of his<page_number>Page 204</page_number> construction of his powers and authority in that regard; and when the church manual upon which complainant relies was adopted at a convention thus called he is without standing to question the legality of the conventions called by the said senior bishop. <bold>4. Religious organizations — theory that property is involved</bold> <bold>not sustained in the absence of factual proof.</bold> A deposed bishop of a diocese is not entitled to maintain a suit in a civil court on the theory that property is involved when his claim is for ten percent of all monies raised by the bishop who succeeded him, illegally as he avers, and when it was not shown that his successor raised any funds to which the complainant would have been entitled under the terms of the church manual. <bold>5. Religious organizations — officers of a church — who are, is</bold> <bold>solely an ecclesiastical question.</bold> Where no property or the possession of property is involved, civil courts have no jurisdiction to determine who is entitled to be bishop or deacon or any other officer in a church, this being an ecclesiastical question to be determined solely by the ecclesiastical tribunal. <bold>6. Constitutional law — reputation, injury to — action of</bold> <bold>ecclesiastical body not reviewable by courts.</bold> Constitutional provisions, state and federal, that a person is entitled to redress for an injury sustained to his reputation as well as from any action affecting his property rights do not require that the courts shall be open to hear ecclesiastical controversies even though the reputation of the litigant may be affected by the failure of a court to set aside the action of the ecclesiastical body. Headnotes as approved by McGehee, C.J.

<bold>1. Arrest — without warrant — misdemeanor committed in presence</bold> <bold>of officer.</bold> An officer may, without a warrant, arrest for a misdemeanor committed in his presence, and a misdemeanor is being committed in the presence of the officer when he then and there acquires knowledge thereof through one of his senses or inferences properly to be drawn from the testimony of the senses.<page_number>Page 265</page_number> <bold>2. Arrest — without warrant — misdemeanor committed in presence</bold> <bold>of officer — at what time knowledge thereof must be acquired.</bold> If the officer had no knowledge up to and at the time of making the arrest that a misdemeanor was being committed in his presence, the fact that a misdemeanor is being actually committed in his presence does not render the arrest without a warrant lawful when the officer's knowledge was obtained by or through the arrest itself and not by what he knew before or at the time of the arrest, a previous suspicion not being sufficient. <bold>3. Arrest — without warrant — for misdemeanor on suspicion, case</bold> <bold>in point.</bold> When a sheriff, having reason to suspect that whiskey was being kept at a particular spot, concealed himself near by, and when the accused not theretofore suspected came to the spot, disappeared down an embankment and soon reappeared with a bottle in his hand, the contents of which, if anything, was wholly unknown to the sheriff, whereupon the sheriff immediately arrested him without a warrant, the arrest was unlawful, and the testimony obtained thereby was inadmissible, although it was discovered after the arrest that the bottle actually contained whiskey. Headnotes as approved by Roberds, J.

<bold>1. Vendor and purchaser — warranty, breach of, vendee not</bold> <bold>precluded from recovery, when.</bold> A vendor conveyed a tract of land by a general warranty deed without any reservation of the minerals, when he owned only a half interest in the minerals. His vendee, having later discovered the defect in the title, excepted a half interest in the minerals in his deed to a purchaser from him. Held, that the first vendee was not precluded from maintaining an action against the first vendor for breach of warranty, the first vendee being the only person who did not receive all he bought. <bold>2. Vendor and purchaser — warranty, breach of — measure of</bold> <bold>damages.</bold> In an action for breach of warranty of a half interest in the minerals in a tract of land, an instruction was correct which stated that the measure of damages is the difference between the fair market value of the land with the entire mineral interest therein, and the fair market value of the land with only half of the mineral rights therein, each as of the date of the warranty deed; and the fact that no mention is made in the instruction as to sand and gravel did not render it misleading when all the attorneys, parties and witnesses knew that the oil and gas rights were the only features really at issue in the case. <bold>3. Vendor and purchaser — warranty, breach of — enhancement of</bold> <bold>value — does not inure to benefit of warrantor.</bold> The fact that the value of the land as conveyed had enhanced in value between the date of purchase and the date of its sale by the first vendee did not inure to the benefit of the first vendor in an action against him for a breach of warranty, the damages being fixed by law as of the date of the first conveyance wherein the breach of the warranty occurred.<page_number>Page 413</page_number> <bold>4. Appeal — new point not raised in trial court, not reviewable</bold> <bold>on appeal.</bold> Where the entire case is tried in the trial court on the assumption by all parties that a prior reservation in the vendor's chain of title of a half interest in the minerals was valid and that therefore there was a breach of the vendor's warranty in his conveyance of the entire interest, the question will not be permitted to be raised for the first time on appeal that the reservation in prior deed was invalid. Headnotes as approved by Smith, J.

<bold>1. Trial — instruction — peremptory charge.</bold> All of the evidence, and all the reasonable inferences that may be drawn therefrom, must be taken as true in favor of the party against whom a peremptory instruction is asked. <bold>2. Master and servant — inexperienced servant — dangerous</bold> <bold>machinery — warning and instruction.</bold> The master is under duty to adequately warn and instruct a youthful and inexperienced servant employed as a helper in the operation of a dangerous machine, in this case a ripsaw driven by an electric motor, and especially so when the master sees that the servant is doing his work in a dangerous manner.<page_number>Page 507</page_number> <bold>3. Trial — conflicting evidence — jury must decide.</bold> When there is a substantial conflict in the evidence whether a youthful and inexperienced servant, injured by a dangerous machine, was in fact warned and instructed by the master as to the proper method of its use and operation for the avoidance of danger, the disputed issue must be submitted to the jury. Headnotes as approved by Lee, J.

<bold>1. Interstate commerce — carriers — estoppel on account mistake</bold> <bold>in tariff charges, none.</bold> Under the Interstate Commerce Act, the carrier is not estopped to collect the full and correct amount of freight charges on an interstate shipment although at the time of shipment a mistake was made in the tariff charges or the rates misquoted. 49 U.S.C.A., Sec. 6 (7). <bold>2. Interstate commerce — carriers — demurrage — order-notify</bold> <bold>bill of lading.</bold> An interstate shipment under an order-notify form does not lawfully allow a stop-over for partial unloading, and the carrier does not waive demurrage charges when the delay is caused by the failure of the carrier to obtain final instructions from consignee who at the point of final destination had taken up an order-notify bill of lading only on understanding that car would be taken to another point for unloading of part of shipment, that point being stipulated in the original bill of lading. 49 U.S.C.A., Sec. 6 (7). <bold>3. Interstate commerce — carriers — interstate shipment — duty</bold> <bold>of carrier as to freight and demurrage charges.</bold> Regardless of any understanding or misunderstanding the ultimate responsibility rests upon the carrier to charge and the consignee to pay the charges for freight and allied service, an obligation which rests not alone on contract but is imposed by law and is compounded of the bill of lading, tariffs, schedules and regulations of the Interstate Commerce Commission; and the carrier is subject to a penalty for a failure to collect the prescribed freight and demurrage charges. <bold>4. Interstate commerce — carriers — interstate shipment —</bold> <bold>order-notify bill of lading — stop-over for partial</bold> <bold>unloading.</bold> An interstate shipment under an order-notify bill of lading with Amory in this state as final destination provided also that<page_number>Page 676</page_number> the car was to be stopped en route at Canton in this state for partial unloading, an invalid stipulation in that character of shipment, the car proceeded to its final destination without stopping en route and the consignee at final destination took up the bill with the understanding that the car was thence to be sent to Canton for final unloading without additional charge: Held that such an understanding did not prevent collection of freight charges and demurrage incurred in the additional and incidental service in shipping from Amory to Canton. Headnotes as approved by Alexander, J.

<bold>1. Judgment — insufficient process — motion to set aside —</bold> <bold>general appearance.</bold> A party who appears after judgment and moves to discharge the judgment, on the ground of insufficient process or notice, thereby submits himself to the general jurisdiction of the court and in discharging the judgment previously taken, the court should render the proper judgment against him. <bold>2. Divorce — bill of review — decree in personam rendered on</bold> <bold>process by publication.</bold> Where a bill of review has been filed by the defendant in a divorce case on the ground of error apparent in that on process by publication a personal decree beyond a divorce was granted, the court in entertaining the bill of review should exercise its general jurisdiction to grant on the merits of the case all the relief which it could have granted had the defendant personally appeared on the original hearing. Headnotes as approved by Hall, J.

<bold>1. Appearance — appeal from justice of the peace court.</bold> Where the defendant personally appeared in the justice court and defended on the merits of the case there pending against him, he may not on appeal to the circuit court challenge the jurisdiction of the justice of the peace over his person because of any defect in the summons. <bold>2. Trial — writ of inquiry — action for breach of warranty ex</bold> <bold>contractu for specific purchase price paid.</bold> In an action for breach of warranty in sale of personal property where the amount demanded is the total purchase price paid and that price is definitely stated, it is not necessary to order a writ of inquiry on the default of the defendant to plead, or defend, the statute on that subject having application only where the sum demanded does not appear or where the action sounds in damages, and not to a case arising ex contractu where the amount of the damages is definitely stated and fixed. Headnotes as approved by Hall, J.

<bold>1. Taxation — privilege taxes — statutes imposing privilege</bold> <bold>taxes, construction of.</bold> Laws imposing privilege taxes are liberally construed in favor of the taxpayer and strictly against the State or any of its political subdivisions, so that before one is liable for taxes he must come within the express provisions of the taxing statute.<page_number>Page 882</page_number> <bold>2. Statutes — words having reference to business, trade or</bold> <bold>profession — construction.</bold> When the words of a statute have reference to a business, trade or profession they should be given the particular meaning as understood by that business or trade, although as so understood the meaning may differ from the common or ordinary meaning of the words. <bold>3. Taxation — privilege taxes — coaxial telephone cable —</bold> <bold>telephone conduit.</bold> As understood in the telephone business there is a real difference between a coaxial telephone cable and a telephone conduit, and a privilege tax levied on each mile of pole line, the term "pole line" as defined by the statute to "include any line of poles or conduit carrying one or more wire circuits" does not include a coaxial cable buried in the ground but not installed within a conduit. Headnotes as approved by Hall, J.