Volume 88 — Mississippi Reports

From the chancery court of Adams county. Hon. William P. S. Ventress, Chancellor. Thornton and wife, citizens of the state of North Carolina, and others, being non-residents of Mississippi, were the complainants in the court below; the city of Natchez was the defendant there. From a decree sustaining defendant’s demurrer to the bill of complaint and dismissing the suit, the complainants appealed to' the supreme court.

From the circuit court of, first district, Hinds county. Hon. David M. Miller, Judge. Garter, the appellee, was plaintiff in the court below, and Henry, auditor of public accounts, was defendant there. The suit was a mandamus proceeding. The judgment of the court below awarded the writ, and Henry, auditor, appealed to the supreme court. A previous suit of the same nature between the same parties was heretofore in the supreme court and is reported.

From tbe circuit court of Leflore county. Hon. A. McO. Kimbrougi-i, Judge. Allen, tbe appellant, ivas plaintiff in tbe court below; tbe' railroad company, tbe appellee, was defendant there. From a final judgment for tbe defendant, sustaining a demurrer to an amended declaration and dismissing tbe suit, tbe plaintiff appealed to the supreme court. Tbe opinion of tbe court states the case.

From the chancery court of AVarreu county. Hon William P. S. Ventress, Chancellor. Miss Borodofski, the appellant, was complainant or petitioner in the court below; Feld, administrator of the estate of Joseph Emmons, deceased, the appellee, was defendant there. From a decree in defendant’s favor the complainant or petitioner appealed to the supreme court.

From the circuit court of Union county. IIon. James B. Boothe, Judge. Rogers, the ajDpellant, was fined $200 by the court below for his contempt in refusing to answer a question propounded to him as a witness by the grand jury, touching the identity of a woman from whom he had received stolen property, and from 'the judgment imposing the fine he appealed to the supreme court. The facts are stated in the opinion of the court.

From tbe circuit court of Marshall county. ILon. Lames B. Boothe, Luclge. Rivers, the appellee, sheriff of'the county, who sued for the use of the St. Louis & San Francisco Railroad. Company, was the plaintiff in the court below; the county of Marshall, the appellant, was defendant there. From a judgment for the plaintiff in' the sum of $40 and costs the defendant appealed to the supreme court.

From the circuit court of, first district, Carroll county. Hon. J. T. Dunn, Judge. Dodd, the appellant, was indicted for the murder of one John Scott, tried and convicted of manslaughter, and appealed to the supreme court. The opinion of the court contains a statement of all the facts pertinent to the point decided.

From the circuit court of Grenada county. IIon. I. T. Dunn, Judge. Ganong and others, copartners under the firm name of Ganong & Ohenoweth, the appellees, were the plaintiffs in the court below. Brown, tbe appellee, was defendant there. From a judgment in favor of defendants tbe plaintiffs appealed to tbe supreme court.

Prom the chancery court of Lowndes county. Hon. James P. McOoon, Chancellor. Mrs. Perkins, the appellee, was complainant in the court below; Watson and others, appellants, were defendants there. Prom a decree in complainant’s favor the defendants appealed to the supreme court. In 1891 Mrs. Perkins, the appellee, was the owner of lands in Lowndes county.

From the circuit court of Yazoo county. Hon. David M. Miller, Judge. Minot, the appellee, was plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. The plaintiff took passage on a regular passenger train of the defendant at its usual stopping place at the station in Yazoo City.

<p>From the chancery court of Scott county.</p> <p>IIon. James L. MoCaskill, Chancellor.</p> <p>McOrorv and wife, appellees, were complainants in the court below; McKinzie and wife, appellants, were defendants there. From a decree overruling a preliminary motion to dissolve an injunction, the defendants appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.</p> <p>Equity will never interfere in apprehended trespasses except in extreme cases where the injury would be irreparable and the title to the land is unquestioned. This is the well settled rule. Nevitt v. Gillaspie, 1 ITow. (Miss.), 108; Skipwith v. Dodds, 24 Miss., 487; Eskridge v. Eskridge, 51 Miss., 522; Coleman v. Hudspeth, 49 Miss., 562; 2 High on Injunctions, sec. 1513. There is only this exception, that where an appropriate action is pending to try the title, equity may restrain a trespass that will result in irreparable injury pending the trial of the title to preserve the property pending the litigation. Woods v. Riley, 72 Miss., 73 (s.o., 18 South. Hep., 384) ; Alcorn v. Alcorn, 76 Miss., 907 (s.c., 25 South. Hep., 877); Gulfcoast Go. v. Bowers, 80 Miss., 571 (s.c., 32 South. Hep., 113).</p> <p>There is no action here to try the title. The alleged apprehended injury is trilling, and the respondents are solvent.</p> <p>But the land is clearly shown to belong to McKenzie, and he was rightfully in possession of it.</p> <p>In the brief of counsel for appellants the rule is announced, “Equity will not interfere in apprehended trespasses, except in extreme eases where the injury would be irreparable, and the title to the land in question unquestioned.” He says this is the settled rule and that there should be pending in a court of law a suit to try the title if it is denied.</p> <p>This may have been, but is not now, the rule, since equity jurisdiction has been enlarged even to the extent of trying title to land, decreeing possession, etc. Constitution 1890, sec. 160; § 500, Code 1892, and annotations. If a court of equity first acquires jurisdiction it may proceed to final and complete relief, though the title and rights involved are of a legal as. distinguished from an equitable character. Woods v. Riley, 72 Miss., 77 (s.c.j 18 South. Rep., 384).</p> <p>Even if this court reaches the conclusion the case ought,, but for the constitution to be reversed on account of jurisdiction, sec. 147 thereof directs it to be affirmed. •</p>

From the chancery court of Jefferson county. Hon. William P. S. Ventrbss, Chancellor. Held: in considering the facts of the particular case then before the court, that there is no such thing in Mississippi as a stale case where the suit is brought within the time limited in the statute of limitations.

Prom the chancery court of Lauderdale county. IIon. James L. McCaskill, Chancellor. Mrs. Poole, the ajipellee, was complainant in the court below; the city of Meridian, the appellant, was defendant there. Prom a decree in complainant’s favor the defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

From the circuit court of Pike county. Iíon. Moyse H. Wilkinson, Judge. Mrs. Bethea and others, the appellees, the widow and children of J. W. Bethea, deceased, were plaintiffs in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff s’ favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

<p>Prom the chancery court of, first district, Hinds county.</p> <p>Hon. Robert B. Mayes, Chancellor.</p> <p>Ligón and others, the appellants, were complainants in the court below; Barton, the appellee, was defendant there. Prom a decree in defendants’ favor the complainants appealed to the supreme court. The facts axe fully stated in the opinion of the court.</p> <p>If the deed from Ligón to his wife, granting merely a power to sell the land for a particular purpose, had been properly acknowledged and ready for delivery, keeping it in his own room among his private papers ivas not of itself such negligence or disregard of the interest of others as to make an estoppel against his heirs, even if the deed had been taken from its place of keeping by his wife during his lifetime and placed on record. He had a right to trust his wife and to rely upon her dealing honestly with him, and it is probable that he regarded the tin box, where the deed was kept, as the safest place fox its keeping. Clearly, this would be the view of any man of ordinary prudence in dealing with members of his household.</p> <p>In a California case where the dealing was with a stranger and at arms’ length, a grantor who had a deed ready .for delivery and was to deliver it upon the grantee’s executing a mortgage to secure the purchase money, allowed the grantee to take it from the room and be absent with it for a half hour, during which time he conveyed to an innocent purchaser for value, it was held: “That the act of the grantor in allowing the deed to be removed from the. room, before the execution of the mortgage, even con- . ceding it to be negligence on his part, was not such a degree of negligence as to create an estoppel against him in favor of the purchaser without notice, to prevent a plea of non-delivery of the deed to the grantee.” Qould v. Wise, 97 Cal., 532.</p> <p>Where a husband and Avife made a deed to the Avife’s daughter, in order to place the title to land in such a condition that the surviving spouse could hold and transfer the property without reference to the minor children, and the deed Avas not delivered, but placed by the husband in a drawer of an organ where he kept his private papers. The grantee Avas a member of the family, and took the deed, without permission, had it recorded, and sold the property, it was held: “That the husband was not negligent in keeping the deed as he did, so as to estop him as against his step-daughter and her grantee from suing for its cancellation.” Garner y. Risinger, 81 S. W. Rep., 343.</p> <p>The deed of Ligón contained a defective acknowledgment and was not subject to recording, and not being fully executed there could be no estoppel in this case. Tosher v. Beckwith, 30 Wis., 55.</p> <p>There is no case in the books where the doctrine of estoppel has been successfully invoked under similar facts to the case at bar, and where more than ordinary care is required in handling an undelivered deed. The doctrine in this state rather opposes the idea that title can be acquired to land by mere estoppel.</p> <p>“In the absence of fraud, misrepresentation, culpable silence, or the equivalent, a party cannot by estoppel be divested of title to real estate.” Thomas v. Romana, 82 Miss., 256 (s.c., 33 South. Rep., 969) ; Sulphine v. Dunbar, 55 Miss., 255 ; Staton v. Bryant, 55 Miss., 261; Davis v. Bowmar, 55 Miss., 780; Murphy v. Jackson, 69 Miss., 403 (s.c., 13 South. Rep., 738) ; Hill v. Nash, 73 Miss., 849 (s.c., 19 South. Rep., 707); Demourelle v. Piazza, 77 Miss., 433 (s.c., 27 South. Rep., 623).</p> <p>There can be no estoppel in this case, unless it arise from the mere fact that a man died with an undelivered deed in his possession. "Whether he kept it with caution or neglect is immaterial, since the fact remains that while he lived it remained safely in his possession, and if the deed had been kept with the utmost caution, it of necessity went into the hands of his family at his death. To make an estoppel by conduct: “1. There must have been a representation or concealment of material facts. 2. The representation must have been made with the knowledge of the facts. 3. The party to whom it was made must have been igno•rant of the truth of the matter. 4. It must have been made with the intention that the other party should act upon it. 5. Tlie other party must have been induced to act upon it.” Bigelow on Estoppel, p. 544; Turnipseed v. Hudson, 50 Miss., 436.</p> <p>“The rule is well settled that unless the representation of the' party to be estopped has been really acted upon, the other party acting differently, that is to say, from the way he would otherwise have acted, no estoppel arises.” Bigelow on Estoppel, p. 620; Sulphine v. Dunbar, 55 Miss., 255; Staten v. Bryant, 55 Miss., 261; Davis v. Bomar, 55 Miss., 781; Love v. Stone, 56 Miss., 449.</p> <p>“An equitable estoppel can be predicated on conduct only where the party sought to be estopped, acts with full knowledge of the facts, unless he asserts to be true that which he does not know to be true, and his adversary relies upon the statement, and thereby suffers injury.” Thomas v. Romano, 82 Miss.*, 256 (s.o., 33 South. Bep., 969).</p> <p>In view of the fact that Mr. Barton did not rely upon this deed, and did not know of its existence, and appellants made no representation to him, it is difficult to 'understand how he can successfully set up the deed as having misled him to his injury, or how appellants are estopped to assert title. The unauthorized act of the clerk in copying Mr. Ligón’s deed into the record books was void, and Mrs. Ligón did a vain thing in taking it to him to be recorded, and more particularly so since no one pretends that they were misled by its being on the record books. Buntyn v. Compress Co., 63 Miss., 194.</p> <p>If the deed from Mr. Ligón to his wife had been acknowledged, delivered and placed on record, Mr. Barton would have acquired no title to the undivided interest of appellants in the land, because Mrs. Ligón inherited from her husband, and owned in fee simple an undivided one-ninth interest in the land involved in this suit, and Mr. Ligon’s deed only gave a power of sale for a particular purpose, and in her deed to Mr. Barton there is no reference to the power or to the deed from Mr. Ligón to her. Tates v. Ciarle, 56 Miss., 216; Hay v. Mayer, 34 Am. Dec., 453; Holder v. Am. Inv. & Loan Go., 94 Ga., 640; New Png. Mtg. Go. v. Buice, 98 Ga., 795; Bell v. Twilight, 22 N. IT., 500; Howies v. Fisher, 77 N. C., 437; Ridgely v. Gross, 83 McL, 161; Daniel v. Spelt, 100 Fed. Rep., 727 ; 2 Wash. Real Prop., sec. 1717, p. 628; Sugden on Powers (vol. 1), p. 453; 4 Kent’s Com. (13th ed.), p. 335; 2 Perry on Trusts, sec. 511 (c).</p> <p>The general doctrine is that a purchase by one tenant in common of an outstanding title or incumbrance, inures to the benefit of all, and the universal rule, which has never been departed from as far as our information goes, is that a tenant in common can never so acquire title hostile to his co-tenants, where he, himself, is personally liable and bound to meet a part of the outstanding incumbrance. Smith v. McWhorther, 74 Miss., 400 (s.c., 20 South Rep., 870); Wyatt v. Wyatt, 81 Miss., 219 (s.c., 32 South. Rep., 317) ; Turner v. Sawyer, 150 IT. S., 578 ; Ingles v. Webb, 117 Ala., 387; Brittain v. Hardy, 20 Ark., 381; Olney v. Sawyer, 54 Cal., 379 ; Montegue v. Selb, 106 111., 49 ; McPheelers v. Wright, 124 Ind., 560; Leach v. Hall, 95 Iowa, 611; Hinters v. Hinters, 114 Mo., 26; Oarson v. Broody, 56 Neb., 648; Xnalls v. Barnhart, 71 N. Y., 474; Touney v. Touney, 159 Pa., 277; Farrar v. Farrar, 29 Gratt (Va.), 135 ; Gilchrist v. Beswick, 33 W. Va., 168; Roundtree v. Denson, 59 Wis., 522.</p> <p>Alexander &■ Alexander, and George B. Power, for appellee.</p> <p>1. The heirs of B. T. Ligón are estopped to deny the delivery of the instrument, or to vacate the conveyance made in execution of the power contained in it.</p> <p>2. If the heirs of B. T. Ligón are estopped, yet he treated the deed as having been delivered, and it will be so treated in a court of equity.</p> <p>3. S. P. Barton had the right to buy at the sale under trust deed to the mortgage company, and as the sale was fair, it will now be confirmed.</p> <p>4. If the deed from Ligón to his wife was never delivered and the heirs of Ligón are not estopped and the foreclosure sale was void, yet Alexander and the estate of E. M. Parker advanced the money to discharge the mortgage company’s debt and took a mortgage from Barton, they are innocent purchasers, and as such are entitled to enforce their mortgage, and also to subrogation to the mortgage of the mortgage company.</p> <p>5. B. T. Ligón, being the natural head of his family and pro.vider therefor, and the debt of the mortgage company being primarily his debt, his land will be first subjected. 9 Am. & Eng. Ency. Law (2d ed.), 155; Gage v. Gage, 36 Mich., 233.</p> <p>In Burton v. Huntington, 21 Mich., 416, which was the case of delivery of a note, the court draws the distinction very clearly between the theft of a note and negligence or misplaced confidence on the part of the maker by which the payee got possession. The doctrine is clearly recognized that if a third person is injured through the negligence or carelessness of the maker, he will be estopped to deny delivery.</p> <p>In Garner v. Bisinger, 81 S. W. Bep., 343, the question turned on the intent of the grantor, and he was still living and testified as to his intent. The deed was not placed in any receptacle to which the grantee, the stepdaughter, had access, and the court excludes all idea of negligence by stating that there was nothing in the testimony to indicate that he had any reason to suplióse that she would attempt, without permission, to obtain possession of the deed, and, therefore, the court held that the evidence did not show that he was guilty of negligence. The opinion is a clear recognition that the grantor might be estopped. Tisher v. Beckwith, 30 Wis., 55; Harkreader v. Clayton, 56 Miss., 383; Lobdell v. Mason, 11 Miss., 931 (s.o., 15 South. Bep., 44) ; Code 1892, § 191; Hughes v. Wilkinson, 31 Miss., 482; 9 'Am. & Eng. Ency. Law (2d ed.), 154; Newton v. JBealer, 41 Iowa, 334 (16 Cyc., 774).</p>

From the circuit court of Calhoun county. Hon. J. T. Dunn, Judge. James M. Bowling, the appellant, was plaintiff in the court below; Mrs. Harriett Bowling, the appellee, was defendant there. From a judgment in defendant’s favor the plaintiff appealed to the supreme court. The action was an.unlawful •detainer for the possession of land. The facts are stated in the opinion of the court.

From tbe chancery court of Adams county. IIon. William; P. S. Ventress, Chancellor. Gertrude F. Watkins, executrix, and others, the appellees, were complainants in the court below; Alexander F. Watkins, guardian of Eloise Watkins, was defendant there. The purpose of the suit was to obtain a construction of the will of Benjamin D. Watkins, deceased. Erom a decree in complainants’ favor the defendant appealed to the supreme court.

From the circuit court of, first district, Garroll county. Hon. J. T. Dunn, Judge. Allen and another, the appellants, were jointly indicted for the murder of Ann Coker, the wife of appellant, Jefferson Coker, were tried together and convicted, Allen of murder and Coker of manslaughter, and both appealed to the supreme court. The facts are sufficiently stated ixi the opinion of the court.

From the circuit court of, first district, Carroll county. Hon. J. T. Dunn, Judge. Brown, the appellant, was indicted for tbe murder of Murdee Williams, by the grand jury of Montgomery county, where tbe homicide took place. lie was tried in that county, convicted, and sentenced to suffer death, from which he appealed to the supreme court — the first appeal, where the conviction ivas reversed and a new trial granted. Brown v. State, 83 Miss., 645 (s.o., 36 South.. Rep., 73).

From the circuit court of Winston county. Hon. Bobert F. Cochran, Judge. Suttle, the appellant, was indicted for the murder of one Dock Smith, was tried and convicted of manslaughter and sentenced to the penitentiary for a term of five years, from which conviction and sentence he appealed to the supreme court.

From the circuit court of Washington county. Hon. A. Mc’C. Kimbrough, Judge. The Blum Company, a corporation, the appellee, was plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff’s favor the ■defendant appealed to the supreme court.

Prom the circuit court of Madison county. ITon. David M. Miller, Judge. Parker, the'appellee, was plaintiff in the court below; the railroad company, the appellant,, was defendant there. Prom a judgment in plaintiff’s favor defendant appealed to the supreme court.

<p>Carriers. Ejection of passenger. False imprisonment. Lotos 1904, ch. 99, p. 140. Separation of races. Jim Grow law. Evidence.</p> <p>In an action against a street railway company for ejecting a passenger and causing him to be arrested for a violation of Laws 1904, ch. 99, p. 140, relating to the division of cars into separate compartments for white and colored passengers:</p> <p>(a) Evidence is admissible to establish a custom of the company permitting passengers of both races to occupy the back platform of its cars, where the only evidence of a division of the inside of its cars between the two races consisted of testimony of a custom; and</p> <p>(5) To justify-the company in causing the arrest and ejection from its ears of a passenger for violating the statute it must have itself complied with the provisions of the law; and</p> <p>(c) The posting of a sign, neither a partition nor an adjustable screen, in a street car indicating that part of the ear was to be occupied by white and another part by colored persons, especially if the sign be too small to be seen from all parts of the car, is not a compliance with the statute.</p>

From the circuit court of Warren county. Hon. Oliver W. Catchings, Judge. Miles, the appellee, was plaintiff in the court below; the railway company, the appellant, was defendant there. Held: “That evidence of the defective condition of the road at a point half a mile distant from the place' of the accident, and that new ties subsequently Avere put down at the place of the accident, was inadmissible.

Erom the circuit court of Warren county. Hon. Oliver W. Catci-iings, Judge. Rodge, the appellant, was plaintiff in the court below; Kelly, fax collector, and others, the appellees, were defendants there. From a judgment in defendants’ favor the plaintiff appealed to the supreme court. The facts are sufficiently stated in the opinion of the court. 1.

From the circuit court of Harrison county. Hon. William T. McDonald, Judge. Duly, the appellee, was plaintiff in the court below; Mellini, the appellant, was defendant there. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The appellant, Mellini, and appellee, Duly, entered into a contract whereby the appellant agreed to sell to the appellee a schooner for the sum of $150, the agreement being that appellant was to make certain repairs on her.

From the circuit court of Madison county. Hon. David M. Miller, Judge. • Thompson, the appellant, was indicted for an assault and battery with intent to kill and murder one John Moore, Jr.; was tried and convicted, and appealed therefrom to the supreme court. The facts upon which the case turned are fully stated in the opinion of the court. The verdict last rendered was not the verdict of the jury, but of the court, and hence cannot stand.

From: the circuit court of Tate county. LIon. James B. Boothe, Judge. Avant, the appellant, was indicted, tried and convicted of the murder of one Jackson Simmons and was sentenced to be hanged, from which judgment and sentence he appealed to the supreme court. The facts pertinent to the only question decided are stated in the opinion of the court.

From the chancery court of Claiborne county. Hon. William; P. S. Ventress, Chancellor. Kelley and others, partners under the trade name of Kelley, Simmons & Co:, the appellees, were the complainants in the court below; Mrs. Searles and others, the appellants, were defendants there. From a decree in complainants favor, overruling a demurrer to the bill of complaint, defendants appealed to the supreme court. The opinion fully states the case.

From the chancery court of Banldn county. Hon. Henry O. Conn, Chancellor. Mrs. Louisa Allen died during the summer of 1899, and on the 11th day of October in that year her will was probated. By item 1 thereof she devised to the appellee, Laura V. Bonner, an undivided one-half interest in certain lands in Bankin county, Miss.

Erom tbe circuit court of Kemper county. Hon. Robert E. Cochran, Judge. Hampton, tbe appellant, was indicted, tried, and convicted of tbe murder of one Henry Welch, and sentenced to tbe penitentiary for life, from wbicb conviction and sentence be appealed to tbe supreme court. Tbe facts upon wbicb tbe case turned in tbe supreme court, are fully stated in tbe opinion of tbe court.

From the circuit court of Warren county. IIon. Oliver W. Catchings, Judge. Searles, the appellant, was plaintiff in the court below; the assurance company, the appellee, was defendant there. From a judgment in defendant’s favor the plaintiff appealed to the supreme court. The facts are stated in the opinion. In no view of this record can it be said under the authorities that a peremptory instruction should have been given for the defendant.

From the circuit court of Clay county. Non. J. T. Dunn, Judge. Gibbs and another, the appellees, were plaintiffs in the court below; Mrs. Paden and another, the appellants, were defendants there. From a judgment in plaintiffs’ favor the defendants appealed to the supreme court. The action was unlawful entry and detainer. The facts upon which the decision turned are stated in the opinion of the court.

From the circuit court of Clay county. Hon. J. T. Dunn, Judge. Dodenhoff, the appellant, and another were indicted for obtaining $2,400 in^ money from J. J. Stevens and others by false pretenses. The appellant demurred to the indictment, was sustained in the court below, and he was discharged. The state appealed to the supreme court. The- facts are stated in the opinion of the court.

From the chancery court of Noxubee county. ITon. James F. McCool, Chancellor. Yates and another, the appellees, were complainants in the court below; Peeples and another, the appellants, were defendants tli ere. From a decree in complainants’ favor the defend- ants appealed to the supreme court. The facts are fully stated in the opinion of the court.

From the circuit court of J ackson county. LIon. William T. McDonald, Judge. George, the appellant, was plaintiff in the court below,; the railroad company, the appellee, was defendant there. From a judgment for defendant plaintiff appealed to the supreme court.

From the circuit court of, first district, Hinds county. Hon. David M. Miller, Judge. Held: however, to be constructing a railroad, then they are engaged in the same work with those who dig down the hills, fill up the hollows and lay down the erossties and iron rails.

From the circuit 'court of, first district, Hinds county. IIon. David M. Miller, Judge. Held: in effect, that although the plaintiff had nothing to do with the construction of the plant and could not control the board and compel it to issue the bonds and carry out the contract on its part, and although he had done work requiring skill and large expenditure of time and money, he could not recover for the same, if the board,…

From tbe chancery court of Warren county. IIon. William P. S. Venteess, Chancellor. Griffith and twenty-eight other persons, the appellants, were complainants in the court below; the Vicksburg Waterworks Company, the appellee, was defendant there. From a decree dissolving an injunction the complainants appealed to the supreme court.

From the circuit court of Wilkinson county. Hon. Moyse H. Wilkinson, Judge. Stern, the appellee, was plaintiff in the court below; the Pullman Company, appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. Plaintiff was en route from Lyman, Colo., to Memphis, Tenn., having through railroad transportation and a berth check evidencing his right to occupy the through Pullman sleeping car, Meath, while on his journey.

From the circuit court of Warren county. Hon. Oliver W. Oatci-iings, Judge. ■ Mrs. Rand and others, the appellees, were plaintiffs in the eourt below; Warren county was defendant there. From a judgment in plaintiffs’ favor the defendant appealed to the supreme court. Appellees owned certain lots in the suburbs of the city of Yicksburg, abutting on Baldwin Ferry highway.

From the chancery court of Adams county. IIon. William P. S. Ventress, Chancellor. Whittington, the appellee, was complainant in the court below; Miss Marsh, the appellant, was defendant there. From a decree annulling the pretended marriage between the parties the defendant appealed to the supreme court.

From the circuit court of Wilkinson county. Hon. Theodore McIInigiit, Special Judge. Mrs. Stuart, the appellee, was indicted for administering poison to her husband, with intent to kill and murder him. Upon the trial the state offered to introduce evidence showing that she had administered the poison by means of an enema.

From the circuit court of Pearl River county. Hon. William H. Hardy, Judge. The appellee, Shanks, was indicted for profanely swearing in a public place, under Code 1892, § 1219, but the indictment did not specify or designate any particular place at which it was averred he swore or cursed. Shanks demurred to the indictment, the trial court sustained the demurrer and dismissed the prosecution, and the state appealed to the supreme court.

From the circuit court of Warren county. IIon. Oliver W. Catchings, Judge. Miss Cameron, the appellee, was plaintiff in the court below; the railway company, the appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. Plaintiff sued to recover damages for injuries alleged to have been caused by the negligent operation of the cars of the defendant by its employes.

From the circuit court of Madison’county. ' Hon. David M. Miller, Judge. Gill, the appellee, was plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. Suit for the loss of an eye, alleged to have been caused by creosote from timbers handled hy the plaintiff in the service of the defendant railroad company.

From the circuit court of Lee county. Hon. Eugene O. Syices, Judge. Loyd, the appellant, was plaintiff in the court below; the railroad company, the appellee, was defendant there. From a judgment in defendant’s favor the plaintiff appealed to the' supreme court. The facts are stated in the opinion of the court.

From the circuit court of DeSoto county. Hon. James B. Boothe, Judge. Mrs. Gartrell, the appellee, was plaintiff in the court below; Bedford, the appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. Action to recover rent for a tract of land due by one Garter to the plaintiff.

Erom the circuit court of Lincoln county. Hon. Moyse II. Wilkinson, Judge. Held: “In a prosecution for murder, instructions that the evidence is insufficient to convict if it can be reconciled with a theory that some other person than the defendant may have done the killing, but not requiring such theory to be-based on the evidence, are erroneous.” Here is where the difference between the civil and criminal law…

From the chancery court of Lauderdale county. ILon. James L. McCasktll, Chancellor. The railway company, the appellant, was complainant in the court below; the Cumberland Telephone & Telegraph Company, a foreign corporation, was the only original defendant there, but the Mississippi Telegraph Company, a domestic corporation, w^as made defendant by a supplemental bill. From a decree dissolving an injunction as to both defendants the complainants appealed to the supreme court.

From the circuit court of Olay county. Hon. J. T. Dunn, Judge. Young, the appellant, was plaintiff in the court below; the railroad company, the appellee, was defendant there. From a judgment in defendant’s favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court. The facts are sufficiently stated in the opinion of the court. There is no controversy as to the fact of the killing of appellant’s mule by tbe train of appellee.

From the chancery court of Harrison county. Hon. Txiaddeus A. Wood, Chancellor. O’Neal, the appellee, was complainant in the court below; Breland, the appellant, was defendant there. From a decree in complainant’s favor the defendant appealed to the supreme court. Suit by O’Neal to remove cloud from the title to certain land claimed by Breland under quit-claim deeds which he had obtained from the heirs at law of one Catherine Taylor, deceased.

From the circuit court of Warren county. Hon. George Anderson, Judge. Held: “To ‘damage’ property, within the meaning of the constitution, there must be some physical interference with property, or physical interference with a right or use appurtenant to property ; and therefore a railway company is not liable to the owner of real property for diminution in the market value thereof, resulting from the making…

From tbe chancery court of Covington county. Hon. Thaddeus A. Wood, Chancellor. Conner and others, appellants, were complainants in the court below; Gray and others, appellees, were defendants there. From a decree dissolving a preliminary injunction the complainants appealed to the supreme court.

From tbe chancery court of Leflore county. Hon. Percy Bell, Chancellor. Stein, the appellee, was complainant in the court below; the insurance association, the appellant, was defendant there. From a decree in complainant’s favor, reforming the policy by writing a vacancy permit into it and enforcing it as reformed, the defendant appealed to the supreme court. Appellee was a stockholder in the appellant association, the same being an incorporated company.

From the circuit court of, first district, Flinds county. Hon. David M. Miller, Judge. The city of Jackson, the aj>pellee, was the plaintiff in the court below; Millsaps and others, the appellants, were defendants there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. Appellants, Millsaps, Carter and Simpson, were trustees of the estate of one Tribette, deceased.

From tlie chancery court of Lauderdale coruity. Hon. James L. IVIcOaskill, Chancellor. Jackson, the appellee, was complainant in the court below;Sturges, the appellant, was defendant there. From a decree overruling a demurrer to the bill of complaint the defendant appealed to the supreme court.

From the chancery court of, first district, Yallabusha county. Hon. Julian O. AVilson, Chancellor. Mrs. Stevens, the appellant, was complainant in the court below; Mrs. Wilbourn, the appellee, was defendant there. From a decree in favor of defendant, complainant appealed to the supreme court. One James M. Wilbourn died, leaving him surviving as his-heirs his widow, Mrs. Ella J. Wilbourn, the' appellee, and two children, Mrs. Claudia Stevens, the appellant, and Willis E'.

From the circuit court of Yazoo county. Hon. David M. Miller, Judge. Antram and others, the appellees, were the plaintiffs in the court below; the insurance company, the appellant, was defendant there. From a.judgment in plaintiffs’ favor the defendant appealed to the supreme court. The case was once before in the supreme court, on the first appeal, and is reported, American, etc., Insurance Go. v. Antram, 86 Miss., 224 (s.c., 38 South. Eep., 626).

From the circuit court of, second district, Coahoma county. Hon. Samuel O. Cook, Judge. Crawley, the appellee, was plaintiff in the court below; the express company, the appellant, was defendant there. From a judgment in plaintiff’s favor for a less sum than he demanded, the defendant appealed to the supreme court and the plaintiff prosecuted a cross-appeal. The suit was for an unlawful discrimination in freight rates.

From the chancery court of Simpson county. IIon. James L. MoOaskill, Chancellor. Mrs. Hilton, the appellee, was the complainant in the court below; Hilton, the appellant, was defendant there. From a decree awarding complainant alimony the defendant appealed to the supreme court.

From the circuit court of Adams county. Hon. Moyse IT. Wilkinson, Judge. The Parry Manufacturing Company, an Indiana corporation, the appellant, was plaintiff in the court below; Lowenberg and others, partners doing business under the firm name of I. Lowenberg & Co., the appellees, were defendants there. The action was replevin for a large number of carriages, buggies and other wheeled vehicles. The facts are stated in the opinion of the court.

Erom the chancery court of Lincoln county. Hon. Robert B. Mayes, Chancellor; Weathersby, the appellant, was complainant in the court below; the lumber company, the appellee, was defendant there. Erom a decree of the court below, sustaining a plea of res adjudicada and dismissing his bill, the complainant appealed to the supreme court. The facts are stated in the opinion of the court.

Erom the circuit court of Lawrence county. TIon. John R. Enochs, Judge. . Morris, the appellant, was plaintiff in the court below; the railroad company, the appellee, was defendant there. Erom a judgment sustaining a demurrer to plaintiff’s amended declaration and leave to further amend not being asked, dismissing the suit, the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

From the circuit court of Lowndes county. Hon.’ Eugene O. Syices,’ Judge. Hyatt and others, appellants, were plaintiffs in the court below; the railway company, the appellee, was defendant there. From a judgment sustaining a demurrer to the declaration and dismissing the suit, no application to amend being made, the plaintiffs appealed to the supreme court.

From the circuit court of Yazoo county. Hon. David M. Miller, Judge. Russell, the appellee, was plaintiff in the court below; Powell, the appellant, was defendant there. • From a judgment in plaintiff’s favor the defendant appealed to the supreme court.

From tbe chancery court of Harrison, county. Hon. Tiiaddeus A. Wood, Chancellor. Mrs. Effie Elmer Dulion and others were the comjdainants in the court below; Mrs. Barber, the appellee, and. Mrs. Austin, the appellant, were defendants there.

From the circuit court of Lincoln county. Hon. Moyse II. Wilkinson, Judge. Mrs. Boyd, the appellant, was plaintiff in the court below; the insurance company, appellee, was defendant there. The action was upon a life insurance policy, payable to plaintiff, issued by defendant on the life of William II. Boyd, the plaintiff’s deceased husband.

From the circuit court of Warren county. How. John N. Bush, Judge. Sharp, the appellee, was plaintiff in the court below; Hyland, the sheriff of the county, appellant, was defendant there. Defendant, believing that the statute was valid, exacted from plaintiff a privilege tax under Laws 1904, ch. 76, sec. 57, p. 58, which, following the first section levying the tax, is in these words, viz.: “Sec. 57.

From the circuit court of Harrison county. Hon. William H. Hardy, Judge. Held: however, that under statutes allowing amendments in criminal proceedings and process, where a person has been arrested under a complaint and warrant giving a wrong name, they may be amended so as to give his name correctly. 12 Cyc., 300, title, “O-Name and Description of Accused,” and note 35, title “Amendment” and “Idem Sonans.” And…

From the circuit court of Pike couuty. Hon. Moyse H. Wilkinson, Judge. Mrs. Runt, appellant, was plaintiff in one of the suits, and Holden, administrator, was plaintiff in the other; the railroad company, appellee, was defendant in both suits. Both were for the alleged wrongful killing by the railroad company of one Haley Williams, deceased, an eighteen-year-old lad, a bastard son of the appellant, Mrs. Bunt, and of whose estate, appellant Holden was administrator.

From the circuit court of LaFayette county. LIon. James B. Booti-ie, Judge. Beño and three others, appellants, were convicted jointly of gambling. The indictment charged that they played and bet upon a certain game of cards together, and the instructions of the court below charged the jury that, unless they believed all four of the accused played in and bet upon the same game together, they should acquit.

From the circuit court of Pike county. Hon. Moyse H. Wilkinson, Judge. Porter and others, the appellees, were plaintiffs in the court below; Mrs. Alexander, the appellant, was defendant there. From a formal judgment in plaintiffs’ favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Prom tbe circuit court of, second district, Tallahatchie county. Hon. Samuel O. Cook, Judge. Pitts, tbe appellee, was plaintiff in tbe court below; tbe insurance company, tbe appellant, was defendant there. Prom a judgment in plaintiff’s favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

<p>From the circuit court of Washington county.</p> <p>IIon. A. McC. Kimbrough, Judge.</p> <p>Walker, the appellee, was indicted for receiving money on deposit in his bank, the Merchants & Planters Bank of Green-ville, lie being tbe president thereof, knowing the bank to be insolvent, without disclosing its financial condition to the depositor, in violation of Code 1892, § 1089. Appellant’s demurrer to the indictment was sustained by the court below. From a judgment discharging the defendant, the indictment being held insufficient, the state appealed to the supreme court! The facts are stated in the opinion of the court.</p> <p>The authorities cited by the defendant in reference to the practice condemned by this court, of joining separate and independent felonies in separate and distinct counts in the same indictment, have no sort of application here for the reason that each count charges the same identical single offense.</p> <p>The only requisite of a good indictment for any offense is provided by sec. 26 of the constitution. This requires that it shall “inform the accused of the nature and the cause of the accusation against him.” When the indictment complies with this requisite, so that it informs the accused of the nature and cause of the accusation-against him, it is sufficient so far as its structure is concerned.</p> <p>The object of this constitutional requirement is that the defendant shall be informed of all the essential elements necessary to constitute the crime charged against him in order that he may prepare his defense, and in order that he may plead his acquittal or conviction to a second charge for the same offense.</p> <p>Those are the reasons why he is required by the constitution to be informed of the nature and cause of the accusation against him. Noonan v. State, 1 Smed. & 1VL, 562; Murphy v. Stale, 24 Miss., 590; Gerrard v. State, 25 Miss., 469 ; Biggs v. State, 26 Miss., 51; Norris v. State, 33 Miss., 313 ; Newcomb v. Stale, 11 Miss., 383; Williams v. State, 42 Miss., 328; Biley v. State, 43 Miss., 391; Thompson v. State, 51 Miss., 353.</p> <p>To determine whether this indictment complies with the constitutional requirements, let us analyze the statute defining the crime charged. The person charged must be an officer (of the character named) of the bank. The bank must have been engaged systematically in conducting a “business” of receiving money, etc., on deposit.</p> <p>It must not be a single act of receiving one deposit, but the bank must be conducting a business of receiving deposits. It will be noted that this essential element required by the statute to be charged makes this a continuing or cumulative crime. Such officer must receive the deposits into a bank that is insolvent. The officer must know that it is insolvent or have good reason to believe it to be insolvent. The deposits must be received, without informing the depositor of the insolvent condition of the bank.</p> <p>These are the five essential elements necessary to be charged in order that the accused may be informed of the nature and cause of the accusation against him. t</p> <p>The statute imposes a penalty against receiving any deposit. The receiving of every deposit is a separate offense; the statute does not pronounce a penalty against keeping a bank open, or continuing to receive deposits, and does not provide for continuous offenses, but makes the receipt of every deposit an offense, and that the offense is not such as is chargeable with a continuando as is used in these counts. A continuando is used only where offenses are continuous, as in the case of a continuous bigamous marriage, a continuous nuisance, keeping a bawdy house, keeping a dramshop without license, doing a business without license, and many other cases of like character. These counts are drawn as if this offense was a continuous one, and counsel for the state so contend. In Wharton’s Crom. Plead. & Prac., sec. 125, it is said:</p> <p>“In cases which it is necessary that a continuando should be averred (that is, in cases of continuous bigamy or continuous nuisance), the period between which the offense charged to continue should be specified. In such cases it is enough to say that the offense was committed on a day named and on certain other days between two days named, or when the statute requires that the offense continued between two named days. And it has been ruled that the offense must be proved to have been committed within the period specified. Nor is a continuando necessary unless for an essentially continuous offense.”</p> <p>Receiving deposits under this statute is not such offense as those described in Wharton, for each deposit is a distinct offense —that is, the receiving of each deposit — whereas a bigamous marriage, or a continuous nuisance, or keeping a dramshop without license, is a continuous offense, for there is neyer a cessation. The pleader in drawing this indictment seemed to proceed upon the theory that the offense contained in the statute was a continuous offense.</p>

Erom the circuit court of Lincoln county. Hon. 'Moyse II. Wilkinson, Judge. Mrs. Emmerson, the appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. Erorn a judgment in plaintiff’s favor 'the defendant appealed to the supreme court. Emmerson was a conductor on a work train of the Illinois Central Railroad Company engaged in the maintenance of the road.

From the circuit court of Attalla county. Hon. J. T. Dunn, Judge. Comfort, the appellant, was convicted of violating the ordinance of the city of Kosciusko, set out in the opinion of the court, which sought to prohibit the keeping of hogs within the city limits. The prosecution was begun in the municipal court, the case was, upon conviction there, appealed by Comfort to the circuit court of the county; and from a conviction therein, Comfort appealed to the supreme court.

Erom the circuit court of Warren county. Hon. Oliver W. Catchings, Judge. Mrs. O’Neal, the appellant, was plaintiff in the court below; the oil company, the appellee, was defendant there. The suit was for the alleged wrongful death of plaintiff’s husband. Erom a judgment in defendant’s favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court. The deceased was in the employ of the appellee as stationary engineer.

Erom the chancery court of, first district, Hinds county. Hon. Gr. Garland Lyell, Chancellor. Barksdale and others, the appellants, were complainants in the court below; the Capital City Realty Company and others, the appellees, were defendants there. The suit sought to have construed the will of complainants’ grandmother, a Mrs. Wright. Erom a decree favorable to defendants the complainants appealed to the supreme court.

Prom the chaucery court of Covington county. Hon. James L. McOaskill, Chancellor. McDonald and his wife, Louella, appellants, were complainants in the court below; Mrs. Sanford, the appellee, was defend- and. ..there. From a decree sustaining defendant’s demurrer to the bill of complaint the complainants appealed to the supreme court.

From the chancery court of Franklin county. Hon. William P. S. Ventress, Chancellor. Held: namely: an undivided one-third interest. The bill in that case, succinctly stated, was a bill to remove cloud from title to an undivided oneThird interest in the lands alleged to be owned by tbe complainant, and for partition, and for a writ of possession. Foster v. Jones, 17 South.

From the chancery court of Yazoo county. Hon. Robert B. Mates, Chancellor. Held: until she gave it to Hartman. It is well settled by this court that a sale of land not subject to taxation is absolutely void, and that even three years’ actual occupancy by the purchaser under sec. 2735, Oode 1892, gives him no right. Hoskins v. Railroad Co., 78 Miss., 768 (s.c., 29 South. Rep., 518).

From the chancery court of Monroe county. Hon. Baxter McFarland, Special Chancellor. Brazil, the appellee, was complainant in the court below; Commander, the appellant, was defendant there. From a decree in complsiinRnt^fayornhe. defendant appealed to the supreme court.

From the circuit court of Webster county. Hon. Joseph T. Dunn, Judge. Hartley, the appellee, was plaintiff in the court below; the railway company, the appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court.

From the chancery court of Harrison county. Hon. Ti-iaddeus A. Wood, Chancellor. Henry T. Graves, the appellant, was complainant in the court below; his wife, Susan IT. Graves, the appellee, was defendant there. The object of the suit was to obtain a divorce because of the “willful, continued and obstinate desertion, for the space of two years,” of complainant by defendant. From a decree in defendant’s favor the complainant appealed to the supreme court.

From the circuit court of Warren county. Hon. John N. Bush, Judge. Harz, the appellee, was plaintiff in the court below; tbe railway company and IVIoncure Dabney, appellants, were defendants there. Tbe action was trespass for an assault and battery committed by Dabney, who was the chief clerk of tbe railway company’s superintendent, upon plaintiff. From a judgment for $1,000 in plaintiff’s favor against both defendants they appealed to tbe supreme court.

From the circuit court of Wilkinson county. - Hon. Moyse H.. Wilkinson, Judge. Brown, the appellant, was plaintiff in the court below; the railroad company, the appellee, was defendant there. From a judgment in defendant’s favor the plaintiff appealed to; (the supreme court. The facts are sufficiently apparent from the opinion of the court.

Erom tbe chancery court of Warren county. Hon. William P. S. Ventress, Chancellor. . Mulverhill, the appellant, was complainant in the court below; the railway, etc., company and others, the appellees, were defendants there. Erom a decree in defendants’ favor the complainant appealed to the supreme court.

From tbe chancery court of Covington county. Hon. James L. McCaskill, chancellor. McIntosh and others, doing business under the firm name of McIntosh Brothers, the appellants, were complainants in the court below; Rutland, administrator, the appellee, was defendant there. From a decree in defendant’s favor the complainants appealed to the supreme court.

From the judgment of IIon. Moyse H. Wilkinson, circuit judge of the sixth district, sitting in vacation for the hearing of a writ of habeas corpus at Woodville, Wilkinson county. Mr. McLeod, the appellee, was plaintiff in the court below; Mrs. McLeod, the appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court.

Prom the circuit court of, second district, Perry county. Hon. William T. McDonald, Judge. Hardy, the appellee, was plaintiff in the court below; the railroad company was defendant there. Prom a judgment in plaintiff’s favor the defendant appealed to the supreme court. The suit was for personal injuries sustained by appellee by reason of the derailment of appellant’s locomotive on which appellee was working as a fireman at the time of the injury.

From the chancery court of Harrison county. Hon. J. O. S. Sanders, Special Chancellor. Held: that the city had not bought nor agreed to buy, and was not liable for the price. McCoiter v. Oily of New York, 35 Barb., 609. An option of a contract for the sale of oil without consideration paid, may be withdrawn at any time before acceptance. Bosshardi & Wilson Co. v. Crescent Oil Co., 1 Pa. St., 109. See also 32 Ala., 1120.

Erom the chancery court of, second district, Perry county. Hon. Thaddeus A. Wood, Chancellor. Held: and the person elected had qualified and entered the duties of the office.

From the chancery court of Harrison, county. Hon. Thaddeus A. Wood, Chancellor. The Barataría Canning Company, the appellant, was complainant in the court below; Ott and others, the appellees, were defendants there. From a decree overruling the complainants demurrer to the amended cross-bill of defendants the complainant appealed to the supreme court. The case was once before in the supreme court and is reported Barataría Canning Company v. Ott, 84 Miss., 737 (s.c., 37 South.

From the chancery court of Madison county. I-Ion. Robert B. Mayes, Chancellor. Frederick Jones, the appellee, was complainant in the court below; Andrew Jones, the appellant, was defendant there. From a decree in complainant’s favor the defendant appealed to the supreme court.

From the chancery court of Coahoma county. Hon. Percy Bell, Chancellor. Mrs. Rector and others, appellants, daughters of-the late Governor Janies L. Alcorn, were complainants in the court below; the defendants were Mrs. Amelia W. Alcorn, widow of Governor Alcorn and mother of complainants, Mrs. May Yates Alcorn, widow and executrix of James Alcorn, a deceased son of Governor Alcorn, and James L. Alcorn, a son of said deceased James and grandson of.Governor Alcorn.

Erom the chancery court of Lauderdale county. Hon. James L. McOaskill, Chancellor. Held: owned or possessed, an estate for life or any greater estate of freehold.” Tbe inquiry is as to tbe legal rights of tbe owner of property purchased with reference to a public survey, tbe streets of wbicb wbereon his property abuts, never having been opened, or though once opened have been closed, abandoned or discontinued by the…

From the circuit court of Lauderdale comity. ILon. Robert F. Cochran, Judge. ' The Maurepas Milling Company, the appellee, was plaintiff in the court below; Perkins, the appellant, trading under the assumed trade name of “Grand Rapids Gas Engine & Yacht Company,” was defendant there.

Prom the chancery court of, second district, Perry county. I-Ion, Thaddeus A. Wood, Chancellor. Kamper, the appellee, was complainant in the court below; the railroad company, the appellant, was defendant there. Prom a decree overruling a demurrer to the bill of complaint the defendant appealed to the supreme court.

From the circuit court of Tishomingo county. Hon. Thomas J. O’Neal, Special Judge. Wiley, the appellee, was plaintiff in the court below; the railway company, the appellant, was defendant there. Held: that he was not a ‘workman’ as defined by sec. 10 of the Employers’ and Workmen Act, 18 Y5, and was not therefore a person to whom the provisions of the truck acts applied.” Hunt v. G. N. B. B. Go., I., Q. B., 601.