Volume 210 — Mississippi Reports

1. <bold>Wills — testamentary capacity — when proof sufficient.</bold> The testimony of the person who drafted the will together with the testimony of one of the subscribing witnesses, both of whom had known the testator for more than ten years, and who testified that on the day of its execution he was in his usual good sense, was sufficient to sustain a finding by the trial court that the testator possessed testamentary capacity at the time of the execution of the will. 2. <bold>Wills — duplicate wills.</bold> When the testator has executed duplicate wills either of the duplicates may be probated as possessing the elements of a valid will. 3. <bold>Wills — intentional destruction of duplicate — presumption</bold> <bold>and rebuttal thereof.</bold> When a testator has executed his will in duplicate, the intentional destruction or mutilation by him of one of the duplicates raises the presumption that he intended thereby to revoke the will, and the presumption is stronger when he has in his possession only the duplicate destroyed, but weaker when he possesses both duplicates; and in either event the so-called presumption is an inference of fact, not a conclusion of law, and is therefore rebuttable, and is rebutted when it is shown that after the destruction of one of the duplicates the testator exhibited the other duplicate, declared it to be his will and thereupon restored it to his box where it remained until his death. Headnotes as approved by Arrington, C.

1. <bold>Arrest — fugitive from justice.</bold> Under our statute a fugitive from justice may be arrested without a warrant. Sec. 2472 Code 1942. 2. <bold>Arrest — fugitive from another state — detention for</bold> <bold>reasonable time for extradition.</bold> Under the general rule, a person charged with felony or other crime in one state, who has fled to another state, may, before demand for his extradition is made, be arrested in the state in which he is found and detained in custody a reasonable time in order to give opportunity for the issuance of a requisition for his extradition. 3. <bold>Arrest — fugitive from justice — telegram.</bold> A fugitive from justice may be arrested on a telegram from the authorities of the state from which he has fled and detained for a reasonably sufficient time for and pending the obtaining of requisition papers.<page_number>Page 403</page_number> 4. <bold>Extradition — what laws govern.</bold> Extradition procedures are controlled primarily by federal statutes and the statutes of the state are not applicable except to the extent that they may be in aid of, and not inconsistent with the Constitution and laws of the United States on the question. Secs. 2472, 2815-2840, 3981-3984 Code 1942; Secs. 3181-3195, 18 U.S.C.A.; Art. 4, Sec. 2, Cl. 2, U.S. Const. 5. <bold>Extradition — demanding papers.</bold> Either the indictment or judgment of conviction, properly authenticated, should be a part of the demanding papers in extradition proceedings and should be in the possession of the governor of the asylum state prior to the issuance of the extradition warrant and one of them should preferably be attached to the extradition warrant. 6. <bold>Extradition — recitals of warrant.</bold> The extradition warrant should bear on its face a recital that it was duly issued and should set forth or recite the indictment, affidavit or judgment on which it is founded; but it need not contain a formal statement of all the facts on which it was issued. 7. <bold>Extradition — finding by governor of asylum state — prima</bold> <bold>facie effect of warrant.</bold> The governor of the asylum state before issuing his extradition warrant must find that there is substantial evidence of a crime and that accused is a fugitive from justice of the demanding state; and an extradition warrant is prima facie evidence that the governor was in possession of those facts serving as a basis for his action. 8. <bold>Extradition — warrant, when sufficient.</bold> An extradition warrant is sufficient which recites that the accused, naming him, stands charged with having committed the crime of rape and that he is a fugitive from the demanding state, naming it, especially where the fugitive admits the stated facts or does not deny them. 9. <bold>Extradition — habeas corpus — omission to include in</bold> <bold>extradition papers the indictment, or affidavit or judgment of</bold> <bold>conviction — when cured.</bold> The failure to include a copy of the indictment, or affidavit or judgment of conviction in the papers sent by the governor of the demanding state is not available to the fugitive in habeas corpus when he admits the indictment and conviction and does not show affirmatively that he has been pardoned or paroled.<page_number>Page 404</page_number> 10. <bold>Habeas corpus — extradiction — convict of another state —</bold> <bold>merits of conviction.</bold> When a convict of another state has escaped and fled into this state, and has been here arrested and detained, he may not, in a habeas corpus proceeding here, procure an inquiry into the merits of his conviction. Headnotes as approved by Ethridge, C.

1. <bold>Master and servant — safe place to work.</bold> The rule of reasonable care which extends to preventing the premises upon which the servant is required to work from<page_number>Page 423</page_number> containing dangerous pitfalls, holes, obstructions, or other mantraps in which the servant is liable unguardedly to fall while his mind is absorbed in the duties of his employment is applicable to a case where the servant had been ordered to climb upon a stack pile of powdered sulphur which had been undermined by two missing sacks from the third layer from the top as a result of which when the servant reached the apparently level top the pile caved in or careened and he was thrown to the concrete floor fifteen feet below. Headnote as approved by Kyle, J.

1. <bold>Negligence — initial inquiry in negligence cases.</bold> The initial inquiry in every negligence case is not whether the plaintiff was negligent but whether the defendant was. 2. <bold>Negligence — duty of reasonable care — when violation</bold> <bold>actionable.</bold> When the negligence charged against the defendant was a violation of the duty to use reasonable care, the violation to be actionable must cause injury to one to whom the duty was owed.<page_number>Page 798</page_number> 3. <bold>Negligence — defendant acting on assurance of plaintiff that</bold> <bold>factor which would cause danger did not exist.</bold> When the party to whom the duty of care would otherwise be owed and who was chiefly interested and in a position to know, assured the party sought to be charged that the factor which was the cause of the subsequent consequential damage did not exist, — a damage which could not have occurred had the assurance been true, — the party charged was not required to investigate the truth of the assurance and the assurer could not maintain an action for such damages against the party who, having no independent knowledge, acted in the light of that assurance. 4. <bold>Negligence — removal of butane gas tank on the assurance that</bold> <bold>it was empty.</bold> A sawmill company desired to remove a butane gas tank from its mill premises to a new location and requested the services of the local butane company who in turn secured the aid of a motor company with its wrecker truck. The mill company assured the latter companies that the butane gas tank was empty and the assured parties made no further inquiry, but when it was being moved from the beams upon which it had rested, a protruding tank valve was sheared from its position near the lowest point, and because the tank was in fact nearly full instead of being empty, a large quantity of butane gas spewed out which being wafted towards the mill caught fire and the mill was destroyed: Held that the parties undertaking to move the tank were not liable for the destruction of the mill. 5. <bold>Instructions — use of word "accident".</bold> The connotation in law of the word "accident" is technical beyond the popular comprehension and should not be used in instructions for the defendant in negligence cases, but when it is used with the added and saving qualification "and without negligence", the instruction will not be held erroneous. Headnotes as approved by Alexander, J.

1. <bold>Criminal procedure — trial — evidence — witnesses —</bold> <bold>contradiction upon irrelevant matter.</bold> In the trial of accused as a principal for complicity in the murder of a child, proof that the person who shot the child also<page_number>Page 818</page_number> shot the child's father was not relevant to the issue on trial and it was not competent to contradict the testimony of a witness on the irrelevant issue by proof that he had elsewhere made statements contradictory of his testimony on that issue. 2. <bold>Trial — evidence — witnesses — contradiction of witnesses on</bold> <bold>irrelevant matter.</bold> While the unsworn statement out of court may be used to contradict the sworn statement in court, whether on direct or on cross-examination, in either case the statement in court must be one embodying a fact substantive in its nature and relevant to the issues made in the case. Headnotes as approved by Hall, J.

1. <bold>Fraud — vendor and purchaser — cancellation.</bold> Where it is shown that a landowner over eighty years of age who could not read and whose hearing was impaired had executed a mineral deed to a considerable acreage of land on the representations of the vendee, who prepared the deed, and believed and relied on by the grantor that he was signing an oil and gas lease, the deed will be cancelled in a suit for that purpose promptly instituted upon discovery of the fraud. 2. <bold>Fraud — vendor and purchaser — principal and agent.</bold> When an agent has procured by fraud a deed in his own name and subsequently conveyed the same property to his principal, the conveyance to the principal was permeated by the fraud perpetrated by the agent, and the principal was chargeable therewith. 3. <bold>Joint adventure — vendor and purchaser — principal and agent</bold> <bold>— mineral interests.</bold> Where there was an advance agreement between two parties acting through their authorized agents that one of them will participate in the purchases by the other of mineral interests in certain counties, such purchases partook of the nature of a joint adventure and the participating party was chargeable with the fraud perpetrated by the purchasing party in making the purchases, and therefore could not occupy the position of an innocent purchaser for value without notice. 4. <bold>Vendor and purchaser — affirmative defense of bona fide</bold> <bold>purchaser — burden of proof.</bold> A plea by a party defendant that he was an innocent purchaser for value without notice is an affirmative defense and it was incumbent upon him to sustain it by proof. Headnotes as approved by Kyle, J.