Volume 223 — Mississippi Reports

<bold>1. Damages — pollution of stream — suit by commercial fisherman</bold> <bold>— whether effluent from defendant's plant caused damage — jury</bold> <bold>question.</bold> In suit by commercial fisherman against owner of wood processing plant, to recover damages for death of minnows in fish trap, evidence was sufficient to make issue for jury on question whether effluent from defendant's plant caused or partially caused plaintiff's damage. <bold>2. Damages — pollution of stream — evidence — certificate of</bold> <bold>compliance — by State Game and Fish Commission — not</bold> <bold>conclusive.</bold> Fact that wood processor in 1946 had been issued certificate by Game and Fish Commission attesting to its compliance on that date with rules and regulations pertaining to construction and utilization of settling ponds for effluent from processing plant, and had agreed to release effluent therefrom only in times of<page_number>Page 9</page_number> high water, was not conclusive evidence as to question whether processor had polluted streams subsequent to issuance of certificate. Chap. 381 Sec. 1, et seq., Laws 1935. <bold>3. Damages — pollution of stream — where different parties</bold> <bold>contributed to.</bold> Where under facts of case it appeared that different parties contributed to pollution of stream causing damages to plaintiff's minnows, defendant would only be responsible for its proportionate part of the damages inflicted. <bold>4. Damages — same — same — instructions — submitting issue —</bold> <bold>without limitation — error.</bold> In such case, where issue on amount of damages was submitted, without limitation under erroneous instruction that defendant would be liable for such damages from the evidence as jury believes plaintiff to have suffered loss, even though others had contributed to pollution, cause would be reversed and remanded for retrial on issue of damages alone. <center> ON MOTION TO RETAX COSTS</center> March 16, 1955 78 So.2d 579 <bold>5. Appeal — costs — transcript of argument of counsel — taxed</bold> <bold>against party requesting same.</bold> Where appellant had requested court reporter to take down and transcribe arguments of counsel, court reporter's fees for such matter would be taxed against appellant who prevailed on appeal. <bold>6. Appeal — costs — clerk's fees for parts of record —</bold> <bold>disallowed.</bold> On motion to retax costs, clerk's fees for copying into record motions and orders for subpoenas duces tecum, subpoenas duces tecum, subpoenas for witnesses, jury list, and bill from cafe for meals for jury would be disallowed, since such items should not have been copied in record. Rule 2, Rules of Supreme Court. Headnotes as approved by Hall, J.

<bold>1. Municipalities — charge for use of city sewerage system —</bold> <bold>users outside corporate limits — injunction denied.</bold> In suit to enjoin city from enforcing ordinance imposing charge on all persons outside corporate limits for use of city sewer system and from interfering with complainants' use of city system, where it appeared that sewer system had been constructed by city and paid for by direct revenue taxation upon property owners of city, and users outside city limits had paid no part of cost thereof, such users were not entitled to share in use thereof without compensation to city, and could not by injunctive relief, prevent city from disconnecting its line from their line at city limits to enforce charge levied for use of city sewerage system. Chap. 491 Secs. 112, 116, 129, and Chap. 494 Sec. 28, Laws 1950. Headnote as approved by Hall, J.

<bold>1. Forgery — elements of.</bold> The elements necessary to constitute crime of forgery are that there must be a false making or other alteration of some instrument in writing, fraudulent intent, and the instrument must be apparently capable of effecting a fraud. Sec. 2173, Code 1942. <bold>2. Forgery — indictment sufficient.</bold> An indictment for forgery of a written order for four sacks of rye to read eight sacks of rye and alleging that the order was capable of effecting a fraud and was altered with a fraudulent intent was sufficient as against demurrer on ground that the writing was not susceptible for forgery. Secs. 2172-3, Code 1942. <bold>3. Forgery — proof — sufficient.</bold> In prosecution for forgery of an order for four sacks of rye, which was altered by defendant with a fraudulent intent to procure eight sacks of rye where State's proof established every material allegation of the indictment and that a hundred pound sack of rye at the time was of value of $8.50, evidence of defendant's guilt was sufficient for the jury. Secs. 2172-3, Code 1942. Headnotes as approved by Lee, J.

<bold>1. Wills — contest — juries — mental incapacities — as bearing</bold> <bold>on undue influence.</bold> In will contest, although Chancellor instructed jury that testator had mental capacity to execute will, jury could consider testator's mental and physical condition as bearing upon his susceptibility to undue influence. <bold>2. Wills — contest — undue influence.</bold> In determining whether undue influence was exerted upon testator, what happened at the time of execution of will is not controlling, as the status of undue influence, by its very nature, usually is the result of accumulating forces, and it can often only be shown by circumstantial evidence.<page_number>Page 787</page_number> <bold>3. Wills — contest — undue influence — finding of — supported by</bold> <bold>evidence.</bold> In will contest, evidence that testator, who was eighty-five years of age, had moved from his home farm in Franklin County to a small shack behind residence of sole beneficiary in Jefferson County, and made instruments divesting himself of title to a valuable estate, and investing title in sole beneficiary, rendering himself helpless, and executed warranty deed to 808 acres of land to sole beneficiary to satisfy a fictitious debt and then made will, all within a short period of time, together with other evidence in record, was sufficient to support finding that such undue influence was exercised upon testator that he could not make his own will. <bold>4. Witnesses — will contest — sole beneficiary — incompetent</bold> <bold>witness.</bold> Court properly refused to permit sole beneficiary under will to testify on issue of undue influence in making of will, and fact that contestant did not waive answer under oath, did not make sole beneficiary a competent witness. Secs. 1294, 1690, Code 1942. <bold>5. Wills — probate — fixed place of residence — temporary</bold> <bold>removal.</bold> Under statute providing that will shall be proved in Chancery Court of county in which testator had a fixed place of residence, testator's fixed residence is not lost by temporary removal. Sec. 495, Code 1942. <bold>6. Wills — evidence — no change in testator's fixed residence.</bold> On motion to remove the administration and will contest proceedings from Jefferson County to Franklin County, evidence was sufficient to support Chancellor's finding that there had been no change in testator's fixed residence. Sec. 495, Code 1942. Headnotes as approved by Roberds, P.J.