Volume 97 — Mississippi Reports

Erom the circuit court of, first district, Hinds county. Hon. Wiley H. Potter, Judge. Held: that snch lateral service pipe was owned and must be kept in repair by the one who made the connection, and not by the city, and that the city was justified in severing such connection where the owner refused to pay the expenses of repairing a break in such a lateral service pipe in the street a short distance from the main pipe,…

From the circuit court of Adams county. Hon. Moyse H. Wilkinson, Judge. Aikman, appellee, was plaintiff in the court below; Adams county, appellant, was defendant there. From a decree in favor of the plaintiff the county appealed to the supreme court. The suit was begun in the court of a justice of the peace, was appealed to the circuit court and there tried de nevo. The opinion of the court sufficiently states the facts.

From the circuit court of Madison county. Hon. Wiley H. Potter, Judge. Develling, appellant, was tried and convicted before 'a justice of the peace of unlawfully selling cocaine, and appealed to the circuit court. From a judgment of the circuit court dismissing his appeal and awarding a writ of procedendo, he appealed to the supreme court.

From: the circuit court of Warren county. Hon. Henry C. Mounger, Judge. Howard, appellee, was plaintiff in the court below; Bratton, President of the Board of Trustees and Bishop of the Protestant Episcopal Oliurch of the diocese of Mississippi, appellant, was defendant there. From a judgment in plaintiff’s favor, defendant appealed to the supreme court. The opinion of tho court states the facts.

Prom the circuit court of Lauderdale county. Hon. John L. Buckley, Judge. Threefoot, and others, co-partners, doing business under the firm name' “Threefoot Brothers & Company,” appellees, were plaintiffs in the court below; the Malaga Packing Company and others, appellants, were defendants there. Prom a judgment in plaintiffs’ favor defendants appealed to the supreme court.

From the circuit court of Monroe county. Hon. Eugene O. Sykes, Judge. Boggan, appellee, was plaintiff in the court below; Eobinson, appellant, was defendant there. Erom a judgment in favor of plaintiff defendant appealed to the supreme court. The suit was an action of unlawful entry and detainer begun May 2, 1906. Boggan owned the east half of the southwest ■quarter of a‘section of land, and Eobinson owned the adjacent west half of the southeast quarter of the same section.

From the chancery court of, second district, Jones county. Hon. Samuel Whitman, Chancellor. Mrs. Fellows, appellee, was complainant in the court below; McKenzie, appellant, was defendant there. From the decree overruling a demurrer to the bill of complaint defendant appealed to the supreme court The facts are sufficiently stated in the opinion of the court.

From tbe chancery court of Hancock county. Hon. Thaddbus A. Wood, Chancellor. The state, bn the relation of R. Y. Fletcher, attorney-general, appellant, was complainant in the court below; the railroad company, appellee, was defendant there. From a decree sustaining defendant’s demurrer to the bill of complaint and dismissing the suit, the complainant appealed to the supreme court.

FroU the circuit court of, second district, Coahoma county. Hon. Samuel C. Cook, Judge. Adams, appellee, was plaintiff in the court below and the railroad company, appellant, was defendant there. From a judgment in favor of plaintiff the defendant appealed to the supreme court. The railroad company maintains a station, Claremont, a few miles south- of Clarksdale, on its line of railroad. It is a mere way-station, and is not within an incoipoorated village.

From tbe circuit court of, second district, Coaboma county. Hon. Samuel C. Cook, Judge. Ganong, appellee, was plaintiff in tbe court below; tbe town of Jonestown, appellant, was defendant there. From a judgment in plaintiff’s favor granting a writ of mandamus tbe defendant appealed to tbe supreme court. Tbe facts are stated in tbe opinion of tire court.

From the Circuit Court of Choctaw county. Hon. George A. McLean, Judge. Mrs. White, appellee, on the first appeal and appellant on the second, was plaintiff in the court below; the railroad company, appellant on the first appeal and appellee on the second, was defendant there. From a judgment in plaintiff’s favor defendant appealed (the first appeal) to the supreme court. The facts are stated in the opinions of the court.

From the circuit court of Lawrence county. Hon. [Robert L. Bullard, Judge. Dodson, appellant, was plaintiff in the court below; the telegraph company, appellee, was defendant there. From a judgment in defendant’s favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

Erom the chancery court of, second district, Coahoma county. Hon. Manuel E. Denton, Chancellor. Adams, state revenue agent, appellant, was complainant in the court below; Williams, former treasurer of the board of levee commissioners, and the Aetna Indemnity Company of Hartford, Connecticut, appellees, were defendants there.

From the circuit court of Adams county. Hon. AIoyse H. Wilkinson, Judge. The Globe, etc., Insurance Company, appellant, was plaintiff in the court below; The Firemen’s, etc., Insurance Company, six other insurance companies and divers individuals, appellees, were defendants there. From a judgment sustaining demurrers to the declaration and 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 Adams county. Hon. Moyse H. Wilkinson, Judge. The railroad company, appellee, was plaintiff in the court below; the guarantee, etc., company, appellant, was. defendant there. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The facts are stated in the opinion of the court. Whether or not the guarantee company was liable to. the railroad company in any sum, was purely a question of fact for-the jury.

From the chancery court of Warren county. Hon. James Stowers Higks, Chancellor. Grant, the appellant, was complainant in the court below; the Independent Order, etc., and one Maggie Nicholson were defendants there. From a decree in favor of the defendant, Maggie Nicholson, the complainant appealed to the supreme court. [The briefs of counsel in this case were lost or withdrawn from the record, before it reached the reporter, hence synopses of them are not given.]

From the circuit court of, second district, Jones county. Hon. Bobert L. Bullard, Judge. Grisson and others, appellees, were plaintiffs in the court below ; Jones county, appellant, was defendant there. From a judgment in favor of the plaintiffs, awarding a writ of mandamus, the defendant appealed to the supreme court.

Erom the circuit court of Warreu county. Hon. John N. Bush, Judge. The waterworks company, appellant, was plaintiff in the court below; Ford, appellee, was defendant there. Erom a judgment in defendant’s favor plaintiff appealed to the supreme court.

From tbe circuit court of Warren county. Hon. John N. Bush, Judge. Groome, appellee, was plaintiff in tbe court below; tbe railway company, appellant, was defendant there. From a judgment in plaintiff’s favor tbe defendant appealed to tbe supreme court. The facts are stated in the opinion of tbe court. The first instruction given for plaintiff invoked the doctrine of res ipsa loquitur” and the case was made to depend materially on the applicability of that doctrine.

From the chancery court of Warren county. Hon. James Stowers Hicks, Chancellor. Mary Warren Woodson, appellant, was complainant in fhe court below;-the grand lodge, and Mary Webster Woodson, appellees, were defendants there. From a decree partly favorable and partly unfavorable to complainant she appealed to the supreme court, and Mary Webster Woodson, one of the defendants, prosecuted a cross-appeal. The facts are stated in the opinion of the court.

Erom the circuit court of Warren county. Hon. John N. Bush, Judge. Held: that the burden was on the appellee, Mary Davis, to show affirmatively the invalidity of the marriage between appellant’s intestate and I aeob Davis (which marriage was made the basis of the right of plaintiff to recover and which marriage the appellee was attaching, she having taken upon herself the position of a defendant in the…

From the circuit court of Newton county. Hon. James K,. Byrd, Judge. Mrs. Miller, appellee, was plaintiff in the court below; the telegraph company, appellant, was defendant there.. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The facts are stated in the opinion of the court.

From the chancery court of Simpson county. Hon. Samuel Whitman, Jr., Chancellor. The Walker-Durr Co., appellant, was complainant in the court below; Mrs. Mitchell and others, appellees, were defendants there. From a decree in defendants’ favor the complainants appealed to the supreme court.

From the chancery court of Winston county. IIon. James F. McOool, Chancellor. Carr, appellee, was complainant in the court below; the Oil, etc., company and others, appellants, were defendants there. From a decree in favor of complainant, defendants appealed to the supreme court. The facts are stated in the opinion of the court.

From the circuit court of, first district, Hinds county. Hon. Wiley H. Potter, Judge. Held: under Code 1906, § 1746, to be given tire authority to prevent the sale of a beverage free of intoxicating elements or qualities. Intoxicating Liquor cases, 37 Am. St. Bep. 284, 291.

From the circuit court of Lee county. ■Hon. Eugene O. Sykes, Judge. Steinberger, appellant, was plaintiff in the court below; the telegraph company, appellee, .was defendant there.. From a judgment in' favor of the defendant the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

From the circuit court of Pontotoc county. Hon. John H. 'Mitchell, Judge. The dry goods company, appellee, was plaintiff in the court below; the railway company, appellant, was defendant there. From a judgment in plaintiff’s favor defendant appealed to. the supreme court.

From the circuit court of Bolivar county. Hon. James If. Oasi-iin, Judge. Jones, appellant, was indicted and tried for and convicted of murder, and appealed to the supreme court. The facts are sufficiently stated in the opinion of the court. [The reporter was unable to find the briefs of counsel in this •case, hence synopses of them are not given.]

From the circuit court of De Soto county. Hon. William A. Koane, Judge. Middleton, appellant, was indicted and tried for and convicted of an assault and battery upon one Matthew Gardner, and appealed to the supreme court. The facts upon which the decision turned are stated in the opinion of the court. The record does not show that any one of the instructions requested by appellant was modified by the trial court.

<p>1. Ckiminal Law and Peocedube. Embezzlement. Statutory offense. Statutory construction.</p> <p>Embezzlement is a statutory and not a common-law crime, and a criminal statute in derogation of the common law must be strictly construed in favor of the accused.</p> <p>2. Same. Same. Double punishment. Two offenses.</p> <p>A criminal statute must be construed against the making of two separate and distinct offenses of the same act, so that double punishment would result, unless such double punishment is clearly within the language and intendment of the statute.</p> <p>3. Same. Same. Code 1906, § 1141.</p> <p>Code 1906, § 1141, making it an offense for any state or county officer to unlawfully convert to his own use any money coming to his hands by virtue of his office, or to fail, when lawfully required, to turn over money according to his legal obligations, creates but the one offense of unlawfully misappropriating funds, and such offense may be shown either by an unlawful conversion thereof, or by an unlawful failure to turn over the same when required by law so to do; and a tax collector, convicted of embezzlement for failing to pay over funds at the end of his term, as required by law, may not be prosecuted for converting such funds to his own use.</p>

From the circuit court, of, first district, Hinds county. Hon. Wiley H. Potter, Judge. The State, ex rel. City of Jackson, appellee, was plaintiff in the court below; Montgomery, treasurer of tbe City of Jackson, was .defendant there. From a judgment directing tbe issuance of a mandamus requiring defendant, tbe city treasurei’, to deposit tbe funds of tbe city in depositories provided for by an ordinance, tbe defendant appealed to tbe supreme court.

From the circuit court of Tazoo county. Hon. Wiley H. Potter, Judge. Hill, appellant, was indicted and tried for the murder of one Samuel Green, was convicted of manslaughter on his first trial and sentenced to the penitentiary. He appealed from the conviction to the supreme court and the judgment was reversed and a new trial granted him. See Hill v. State, 94 Miss. 391, 49 South. 145.

Erom the chancery court of Covington county. Hon. Thaddeus A. Wood, Chancellor. The bank, appellant, was complainant in the court below. Oaston, appellee, was defendant there. The suit whs to foreclose a mortgage securing the note mentioned in the opinion of the court. Erom a decree in complainant’s favor, but denying it a recovery of interest on the idea that the note was usurious, the complainant appealed, to the supreme court.

Erom the chancery court of Franklin county. Hon. James Stowers Hicks, Chancellor. Henry C. Prather and others, appellees, were complainants or petitioners in the court below; John C. Prather and others, appellants, were defendants there. From a decree overruling a demurrer to a petition for the probation of an alleged will, the defendants appealed to the supreme court.

From the chancery court of Tunica county. Hon. Manuel E. Denton, Chancellor. James and others, appellants, were complainants in the court below; the drainage commission and others, its members and officers, appellees, were defendants there. The object of the suit was to enjoin the drainage commission from issuing bonds. From a decree dissolving a preliminary injunction and sustaining a demurrer to the bill of complaint the complainants appealed to the supreme court.

From the circuit court of Pearl River county. ■Hon. William H. Cook, Judge., Nimocks, appellant, was plaintiff in the court below; McGehee, a constable, appellee, was defendant there. From a judgment in defendant’s favor plaintiff appealed to the supreme court.

From the circuit court of Lauderdale county. Hon. John L. Buckley, Judge. Brahan, appellant, was plaintiff in the court below; the telephone company, appellee, was defendant there. From a judgment for defendant, predicated of a peremptory instruction,-the plaintiff appealed to the supreme court. The facts are sufficiently apparent from the opinion of the court.

Prom the circuit court of, second district, Jones county. Hon. Robert L. Buldard, Judge. Bonner, guardian, appellee, was plaintiff in the court below; Herndon’ and wife, appellants, were defendants there. Prom a judgment in plaintiff’s favor, defendants appealed to the supreme court.

Prom the chancery court of Lamar county. Hon. Thaddeus A. Wood, Chancellor. George, appellant, was complainant or petitioner in the court below; Pigford and another, receivers, appellees, were defendants there. Prom a decree denying the prayer of the petition, the petitioner appealed to the supreme court.

From the circuit court of Forrest county. Hon. William H. Cook, Judge. . Hood, appellee, was plaintiff in the court below, the Claude L. Nabors Lumber Company was defendant there; the proceeding was by attachment and the Hattiesburg Trust & Banking Company, appellant, was garnished. The suit was begun in the court of a justice of the peace and judgment was there rendered in plaintiff’s favor against the defendant and the garnishee.

From the circuit court of Forrest county. Hon. William H. Cook, Judge. Sutherland, appellant, was plaintiff in the court below; the insurance company, appellee, was defendant there. From a judgment in defendant’s favor plaintiff appealed to the supreme court.

Erom the circuit court of Noxubee county. Hon. John L. Buckley, Judge. Brewer, appellant, was plaintiff in the court below; Mullins, appellee, became defendant there by intervention. Erom a judg1-. ment in defendant’s favor plaintiff appealed to the supreme court. The facts as stated by Anderson, J., are as follows:— “This is a replevin suit for a mule, brought by the appellant, B. Brewer, Sr., against Cunningham Bros., who disclaimed any title. The appellee, AV.

From the chancery court of Harrison county. Hon. Thaddbus1 A. Wood, Chancellor. Held: through Justice Handy, that an agreement for the sale of growing trees “to be cut by the vendee and removed” is a contract for the sale of lands, tenements and hereditaments, and, therefore, within the statute of frauds.

From the circuit court of Alcorn county. Hon. John H. Mitoiiell, Judge. Hurley, and others, appellants, were plaintiffs in the court below; the city of Corinth, appellee, was defendant there. From, a judgment in defendant’s favor plaintiffs appealed to the supreme court.

From the circuit court of Hancock county. Hon. William II. Hardy, Judge. Rosetto, appellant, was tried and convicted in the municipal court of Bay St. Louis, presided over by a mayor pro tempore, of violating an ordinance of the citymaking'it an offense to keep a gambling house; he appealed to the circuit court, was there tried de novo, again convicted and appealed to the supreme court. The facts are stated in the opinion of the court.

Prom the circuit court of Montgomery county. Hon. George'A. McLean, Judge. Mrs. Pittman and others, appellees, were plaintiffs in the court below; the railway company, appellant, was defendant there. Prom a judgment in plaintiff’s favor the defendant appealed to the supreme court. The suit was for the alleged wrongful death of Jesse Pittman, husband of one of the plaintiffs and father of the others. The facts are sufficiently stated in the-opinion of the court.

From the circuit court of Madison county. Hon. Wiley H. Potter, Judge. Lewis M. Wilson and others, appellants, were plaintiffs in the court below; John W. Wilson and others, appellees, were defendants there. The suit was an action of ejectment for the “N. E. %” of Section 26, Township 9, Range 1 East, situated in Madison county, Mississippi.

Prom the circuit court of Lauderdale county. Hon. John L. Buckley, Judge. Packard, appellee, was plaintiff in the court below; Rothenberg, appellant, was defendant there. Prom a judgment in plaintiff’s favor, predicated of a peremptory instruction, the defendant appealed to the supreme court. The plaintiff was the manager of a company of actors and actresses; the defendant owned a playhouse or theater building in Meridian.

Prom the circuit court of Yazoo county. PIon. Wiley H. Potter, Judge. Held: and not carried forward within twenty-four hours thereafter, said railroad company shall be liable to said shipper for the payment of $1.00 per car for each day, or fraction of a day that said car or cars are thus detained or held. “ ‘Likewise, where cars are detained in transit by being switched to some track between point of…

Erom the circuit court of, first district,'Bolivar county. Hon. James M. Cashin, Judge. Metcalf, executor of the will of Conly, deceased, appellant, was plaintiff in the court below, and the railroad company, appellee; was defendant there. The suit was instituted by Conly in his lifetime, he died before the trial, and the suit was revived in the name of his executor.

From the circuit court of Bolivar county. IIon. James M. Casi-iin, Judge. Pease, appellee, was plaintiff in the court below; Furst, appellant, was defendant there. From a judgment for the plaintiff the defendant appealed to the supreme court. The facts, as stated by Anderson, J., are as follows: — ■ “The appellee sued the appellant in replevin before a justice of the peace of Bolivar county for a soda fountain and apparatus.

From tbe circuit court of Harrison county. Hon. Thomas IT. Barrett, Judge. . Terry, appellant, was indicted and tried for and convicted of seduction and appealed to tbe supreme court. Tbe case is sufficiently stated in tbe opinion of tbe court. ■ Tbe court erred'in overruling appellant’s demurrer to tbe indictment.

From the circuit court of Harrison county. Hon. Thomas H. Barrett, Judge. Bond, appellant, was indicted and tried and convicted of rape and appealed to the supreme court. The conviction was affirmed, without any written opinion being delivered. After-wards, appellant’s attorneys presented a vigorous suggestion of ■error.

Prom the circuit court of Harrison county. Hon. Thomas H. Barrett, Judge. Price, appellant, was conyicted in tbe municipal court of Gulf-port of keeping intoxicating liquors, with intent unlawfully to sell them, in. violation of an ordinance of the city. He appealed to the circuit court, was there tried de novo, was again convicted and appealed to the supreme court. The ordinance was the same as Laws 1908, eh. 114, sec. 1797.

From the circuit court of Washington county. Hon. James M. OAsiiin, Judge.. Held: even under the authorities cited by appellants’ counsel, that the railway company was bound to expect that a child two and a half years old would be on its track at this place merely because its parents lived in a cabin near the track and could only depart from it by crossing the track.

From the circuit court of Attala county. Hon. George A. McLean, Judge. Chenault, appellant, was plaintiff in the court below; the Machine Company, appellee, was defendant there. From a judgment in defendant’s favor plaintiff appealed to the supreme court. The appellee moved the court to strike from the record the stenographer’s report or notes of the evidence.

From the circuit of Lauderdale county. EEon. John L. Buckley, Judge. White, appellant, and another, were defendants in the court below; Lee, appellee, was plaintiff there. From a judgment in plaintiff’s favor defendant White appealed to -the supreme-court. The facts are stated in the opinion of the court. An agent authorized to sell real estate, that is, to enter into-.a contract of sale, has no authority to collect the purchase money. 1 Am. & Eng.

Prom the circuit court of Jones county. Hon. Bobert L. Bullard, Judge. Bishop, appellant, was prosecuted and convicted before a justice of the peace of being a delinquent road hand; the prosecution was based on. an ordinary affidavit charging the offense, .a violation of Code 1906, § 4424, making it a misdemeanor for any person legally summoned to work on a public highway to fail to attend and perform the services required.

Prom tke circuit court of Yazoo county. Hon. Wiley H. Potter, Judge. Proceedings by tke People’s Warekouse Company, appellant,, against Yazoo City, appellee, to review an assessment for municipal taxes. Prom a judgment affirming tke assessment, tkewarekouse company appealed to tke supreme court.

Prom the circuit court of Monroe county. Hon. John H. Mitchell, Judge. Cologero, appellee, was plaintiff in the court below; Wilburn, appellant, was defendant there. Prom a judgment in plaintiff’s favor taken by default without writ of inquiry defendant appealed to the supreme court. The action was replevin for a mule. The writ was served upon the defendant and the mule seized thereunder and valued by the officer at $45.

From the chancery court of Lincoln county. Hon. G. Garland Lyell, Chancellor. Mrs. Anglin, appellant, was complainant in the court below; Mrs. Broadnax and others, appellees, were defendants there. The suit was a proceeding for the partition of lands. From a decree in defendants’ favor complainant appealed to the supreme court. The land in suit belonged to one Lewis Dunn, deceased, at the time of his death.

From the circuit court of Amite county. Hon. Moyse H. Wilkinson, Judge. Frith, appellant, was indicted for resisting an officer, was tried, convicted and sentenced and appealed to the supreme court.

From the circuit court of Amite county. Hon. Moyse H. Wilkinson, Judge. Knox, appellant, was indicted and tried for the murder of' one Thompson, was convicted of manslaughter, sentenced to the penitentiary for five years, and appealed to the supreme-court. The opinion of the court states the facts. Appellant was indicted for murder on Saturday, and was-forced to trial by the court below on the following Monday.

From the circuit court of Alcorn county. Hon. John H. Mitchell, Judge. Hughes, appellant) was convicted of unlawfully selling intoxicating liquors, and sentenced therefor. The indictment was based upon a local statute, Laws 1884, ch. 182, and the sentence was in accordance with its provisions. The facts are stated in the opinion of the court.

From the circuit court of, first district, Carroll county. •Hon. George A. McLean, Judge. Whitehead, appellant, was indicted and tried for burglary, convicted and sentenced to the penitentiary and appealed to the supreme court. The facts are stated in the opinion of the court.

From the circuit court of Simpson county. Hon. Robert L. Bullard, Judge. Birdsong, appellant, was plaintiff in tbe court below; tbe town of Mendenhall, appellee, was defendant there. From a judgment predicated of a peremptory instruction in favor of defendant tbe plaintiff appealed to tbe supreme court.

From the circuit court of Lamar county. Hon. William H. Cook, Judge. Durham, appellant, was convicted of being in contempt of court and appealed to the supreme court. The facts are stated ^in the opinion of the court.

From th© circuit court of Simpson county. If on. Robert L. Bullard, Judge. Mrs. Boone, appellant, was plaintiff in the court below; the lumber company, appellee, was defendant there. From a judgement in defendant’s favor,- predicated of a peremptory instruc-. tion, plaintiff appealed to the supreme court. The suit was an action of replevin for a steam engine.

From the circuit court of Pike county. Hon. Moyse H. Wilkinson, Judge. McCearley, appellant, was indicted and tried for and convicted of burglary and appealed to the supreme court.

Prom the circuit court of Harrison co-unty. IHon. Thomas H. Barrett, Judge. Roux, appellant, was convicted in the municipal court of Gulfport for the violation of an ordinance of the city making it an offense against the municipality to commit an assault and battery within its limits. He appealed from the judgment of the municipal court to the circuit court, was there tried de novo and was again convicted and appealed to the supreme court.

From the circuit court of Harrison county. IIon. William IT. Hardy, Judge. Hoyle, appellee, was plaintiff in the court below; Kornosky, appellant, a ship carpenter, was defendant there. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The facts, as> stated by Anderson, J., are as follows: “This is a replevin suit, in the circuit court of Harrison county, for a gasoline launch, by the appellee, Hoyle, against the appellant, Kornosky.

Erom decision, on habeas corpus, rendered at the court house of Sharkey county. Hon. James Stowers Hicks, Chancellor. Martin, appellant, was denied bail and appealed to the supreme court. The facts are stated in the opinion of the court. In Moore v. State, 36 Miss.

From tbe chancery court of Issaquena county. Hon. Emmett N. Thomas, Chancellor. The State, ex rel. James L. Gillespie, Land Commissioner, was complainant in the court below; the lumber company, appellant, was defendant there. From a decree overruling a demurrer to the bill of complaint, defendant appealed to the supreme court. The facts are stated in the opinion of the court. I. The patents, as issued, were, at most, voidable, '• and not void.

From the circuit court of Marion county. .Hon. A. Edward Weati-iersby, Judge. The state, ex rel. Held: conducted and returned in the same manner as general elections.” • Section 4142 placed upon the election commissioners the duty of sending out the poll boohs with no names thereon except those qualified to vote, and managers of election have a right to rely upon the integrity of the poll books, examined, supervised and delivered to…

From the circuit court of Lamar county. Hon. William H. Cook, Judge. The Pufffer Manufacturing Company, appellant, was plaintiff in the court below; Dearman, appellee, was defendant there. From a judgment in defendant’s favor, plaintiff appealed to the supreme court.

Prom the chancery court of Jackson county. Hon. Thaddbus A. Wood, Chancellor. The railway, etc., company, appellee, was complainant in .the court below; Herrick, tax collector, appellant, was defend.ant there. Prom a decree overruling a motion to dissolve a preliminary injunction the defendant appealed to the supreme ■ court.

From the chancery court of Simpson county. Hon. Robert E. Sheehy, Chancellor. The bank, appellee, was complainant in the court below; the lumber company and others, appellants, were defendants there. From a decree in complainant’s favor defendants appealed to the supreme court.

Trom: the circuit court of Clarke county. Hon. John L. Buoicley, Judge. Anderson, appellant, was indicted and tried for the murder of Staten Calvert, was convicted of manslaughter, and appealed to the supreme court. The opinion of the court sufficiently states the facts. This is a close case on the facts. A strong showing of self-defense was made by appellant. Had the appellant’s eleventh instruction been granted by the trial court, the' result would have been different.

Prom the chancery court of Por rest county. Hon. Tjeaddeus A. Wood, Chancellor. The steam laundry, appellant, was complainant in the court below; the lumber company, appellee, was defendant there. Prom a decree in defendant’s favor the complainant appealed to the supreme court.

Erom tbe circuit court of Olaiborne county. Hon. John N. Bush, Judge. Goodwin, appellee, was plaintiff in the court below; Whit-taker, appellant, was defendant there.

From the circuit court of, first district, Hinds county. Hon. Wiley H. Potter, Judge. Shumaker, appellee, was plaintiff in the court below; and Hines and the Lamar Life Insurance Company, appellants, were ■ defendants there. From a judgment in favor of the plaintiff ■ the defendants appealed to the supreme court. The opinion of the court states the facts of the case.

From tbe chancery court of Claiborne county. Hon. James Stowers Hicks, Chancellor. Mrs., Arm Murdoch, appellee, was complainant in the court below; John Murdoch and others, appellees, were defendants there. The complainant sued in her individual right and as well as executrix of the last will and testament of her deceased husband, W. B. Murdoch, and she sought by her suit a construction of the will. From a decree in her favor the defendants appealed to the supreme court.

•From the chancery court of Lee county. Hon. John Quitman Robbins, Chancellor. J. Murphy Thomas, executor of the will of Mary E. Thomas,, deceased, and others, appellees, were complainants and cross-defendants in the court below; Richard L. Thomas, appellant, w.as defendant and cross-complainant there. From a decree in favor of the complainants, dismissing the cross-bill, the defendant appealed to the supreme court.

From the chancery court of Lowndes county. Hon. James F. Mo Cool, Chancellor. Lincoln, trustee in bankruptcy of the bankrupt Columbus Chair Company, appellee, was complainant in the court below; and the First State Bank of Columbus, a domestic banking corporation, appellant, was defendant there. The suit was for recovery of a preference. From a decree in favor of complainant the defendant appealed to the supreme court. The opinion of the court states the facts of the case.

From the chancery court of Harrison county. Hon. Thaddeus A. Wood, Chancellor. Culpepper, appellee, was complainant ip the court below;. North, appellant, was defendant there. From a decree overruling his demurrer to the bill of complaint, the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

From tbe circuit court of, second district, Tallahatchie county. Hon. Samuel O. Cook, Judge. Reed, appellant, was plaintiff in the court below; Heard, appellee, was defendant there. From a judgment in favor of the defendant the plaintiff appealed to the supreme court. The opinion of the court states the facts of the case.

From the chancery court of Franklin county. Hon. James Stowers Hicks, Chancellor. Held: “A stranger who voluntarily pays the debt of another may take an assignment of it, from the creditor and enforce the debt against the debtor, and, if, at the time the payment is made, the creditor agrees to assign him the debt, though no assignment in writing is made, the stranger will be regarded in equity as the equitable assignee…

From the circuit court of Forrest county. Hon. William H. Cook, Judge. Dacus, appellee, was plaintiff in tbe court below; the railroad company, appellant, -was defendant there. From a judgment for $500 in favor of plaintiff, defendant appealed to the supreme court.

From the circuit court of, first district, Tallahatchie county. Hon. Samuel O. Cook, Judge. The dry goods company, appellant, was plaintiff in the court below; Howe and another, were defendants there, and one Jones claimed the property seized under the attachment writ sued out by the plaintiff against the defendants'. From a judgment against the plaintiff in favor of the claimant, the plaintiff appealed to the supreme court.

From the circuit court of Wilkinson county. ITon. Moyse H. Wilkinson, Judge. Bolling, appellant, was plaintiff in the court below; the sauce company, appellee, was defendant there. From a judgment, predicated of a peremptory instruction, in defendant’s favor, plaintiff appealed to the supreme court. The case had previously been in the supreme court and a judgment in plaintiff’s ■ favor was reversed pn the first appeal, prosecuted by defendant.

From the circuit court of Hnion county. Hon. ‘William A. Boane, Judge. Henry, appellant, was indicted for an assault and battery upon one Mittleburg West. He pleaded a former conviction, and supported his plea by the record of a prosecution for the same offense before a justice of the peace wherein he was convicted and fined.

From the chancery court of Yazoo county. Hon. G. Garland Ltell, Chancellor. Oates, appellee, was complainant in the court below; Bell, administrator, appellant, was defendant there. From a decree in complainant’s favor defendant appealed to the supreme court.

From the circuit court of Tate county. 'Non. William A. Roane, Judge. Massey, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in favor of plaintiff the defendant appealed to the supreme court. The opinion of the court states the facts of the ease. In the light of the testimony, construing it most favorably for appellee, a peremptory instruction should have been given for appellant.

From the circuit court of Holmes county. Hon. J. M. Oashin, Judge. Clark, appellee, was indicted, under Code 1906, § 1331, for mingling poison with, whiskey with intent to kill or injure Mary Jane Clark. The appellee demurred to tbe indictment, and from a judgment sustaining the demurrer the state appealed to the supreme court.

From the circuit court of Harrison county. Hon. William H. Hardy, Judge. Menge & Sons, a mercantile corporation, appellant, Was plaintiff in the court below; the railroad company, appellee,, was defendant, there. From too small a judgment in plaintiffs favor against defendant, plaintiff appealed to the supreme court.

(From the circuit court of Harrison county. James H. Neville, Special Judge. Wesley, appellant, was plaintiff in the court below; the lumber company and another, appellees, were defendants there. (From a judgment sustaining the defendant’s demurrer to the declaration and dismissing the suit, the plaintiff appealed to the supreme court. Appellant, Wesley, sued the appellees, Native Lumber Company, a corporation under the laws of this state, and its manager, Thos.

From the circuit court of Harrison county. Hon. H. M. Graham, Special Judge. Harkness, appellee, was defendant in the court below. From a judgment sustaining a demurrer to the amended affidavit seeking to charge defendant with a misdemeanor and discharging the defendant, the state appealed to the supreme court.

<p>From the circuit court of Forrest county.</p> <p>Hon. William H. Cook, Judge.</p> <p>The bank, appellant, was plaintiff in the court below; Merkel and another, appellees, were defendants there. From a judgment in defendant Merkel’s favor, but against Holmes in plaintiff’s favor, plaintiff apppealed to the supreme court. The opinion of the court states the facts of the ease</p> <p>There are three distinct defenses set up by the appellee, Merkel, to appellant’s cause of action. Merkel contends, first, that because he did not receive the exact contract of insurance as applied for, there is a failure of consideration for the note sued on. He contends, secondly, that the insurance agent, Holmes, secured the note through fraud and as a result of such fraud appellant did not receive the contract of insurance applied for, and that he, appellant, delivered a note for which he received nothing in return, so far as value was concerned. He contends thirdly, that the note was materially altered after delivery. The last of these defenses can be dismissed from consideration upon the hearing of this appeal with the statement that a direct issue of fact was raised and presented to the jury as to whether the note had in fact been altered, and therefore, aside from the question as to whether Merkel is not estopped from pleading an alteration as discussed below, it is impossible to determine upon which defense the jury based their verdict. The point was raised in the lower court that inasmuch as Merkel, according to his own testimony, executed and delivered a note upon a blank form used by the bank, with a blank space left in the printed form for the insertion of the time from which the note was to draw interest, that is, whether from date or from maturity, and did.noi erase or mark out these blanks, he placed it within the power of any holder of the note or any one else simply to complete the filling in of these blanks and cause an innocent purchaser or endorsee of the note to buy the same with the understanding that the contract was not only an interest bearing one, but a binding legal obligation against the maker. It is the uncontradicted testimony that appellant purchased the note after the rate of interest had been inserted; that appellant had no notice whatever that there had been an alteration of the note. Holmes inserted the interest rate and the words “after date” with the same pen and ink he used in writing the other parts of the note, and there was nothing upon the face of the note to arouse suspicion. The contract as delivered and printed, according to Merkel’s own testimony, would have drawn the legal rate of six per centum; and instead of blotting out all provisions for interest, appellant allowed the note to bear interest at the rate of six per centum. We respectfully contend that appellant, upon the issue of alteration was entitled to a peremptory instruction upon the equitable theory that Merkel was guilty of negligence in delivering the note as he says he did and by his own negligence entrapping an innocent purchaser into paying for a note which Merkel now contends can be defeated by a plea of material alteration.</p> <p>Although the appellee, Merkel, attempted to raise an issue of fraud by his pleadings, yet no fraud whatever was properly pleaded or proved. The written plea setting up- fraud was in fact subject to demurrer; it detailed no facts or circumstances showing any fraud in the procurement of the signature of Merkel to the application for 'insurance or the signing of the note, and upon trial the execution of these writings was admitted. The only shadow of any basis for fraud lies in the verbal statements or representations alleged by Merkel to have been made by Holmes at the very time and place the application for the insurance was signed and delivered. The parties elected to embody in two written applications the usual queries and answers for in applications for life insurance, and a full and detailed description of the kind of life insurance desired. These writings were made exhibits to appellant’s replication and were introduced in evidence. Cj'an they be contradicted, or their express terms varied by parol ? In the absence of evidence showing that Merkel’s signature was obtained to these documents by fraud, it is an elementary proposition that these applications can not be varied by parol and the action of the lower court in permitting Merkel to^ detail what Holmes said or represented, was palpable error. The plea of appellee, Merkel, alleged fraud only in general terms, and the court below conceived the idea that such a gen-' eral plea licensed appellee to offer any oral testimony as h> what was said or done at the time the writings were signed. Appellee admits the signing of the application, and endeavors to excuse himself on the grounds that he did not read, and therefore did not understand the nature of the application. Manifestly the applications for insurance were simply the negotiations of the parties reduced to writing, and hence it was error for the lower court to admit evidence to show any verbal representations affecting a matter which the writing covered fully.</p> <p>We of course concede the proposition that if there is no consideration for the note, then appellant could not recover, unless there existed an estoppel against the pleadings by Merkel of such failure, growing out of the execution and delivery by him of the written waiver of off-sets. Inasmuch as Merkel executed and delivered a separate and distinct writing, from the note, addressed to “whomsoever it concerns” generally asserting that he had no claim or off-set against the note and thereby induced a third party innocently to purchase the note, then Merkel is es-topped afterwards to plead a failure of consideration, which plea is within the plain language of the word “claims” against the note, employed in such written waiver. A different rule would doubtles apply if the maker of the note had attempted to waive the benefits of our anti-commercial statute (Code 1906 § 3503) upon the face of the note or even by separate writing attached to and forming a part of the note itself. But in the instant case, the maker published over his signature a statement to- the business world that his note was genuine, and there were no offsets or other claims against it. The word “claims,” as employed by appellant, Merkel, is sufficiently general to embrace within its plain meaning a claim of want of valuable consideration. Appellant was therefore entitled to the peremptory instruction asked for and refused, insofar as the plea of failure of consideration is concerned.</p> <p>If the written rate of interest and the Words “after date” were inserted in the note after execution and delivery by the appellee, Merkel, and without his knowledge or consent, then this was a material alteration of the note, and the appellant bank cannot recover upon the note, no matter how innocent it may have been in the purchase of the note, notwithstanding the fact that Merkel delivered to Holmes a written statement stating that there were no off-sets at the time of the signing and delivery of the note. If the note did not originally provide for interest, then the fact that Holmes might have altered the note before selling it to the First National Bank of Commerce, does not place the bank in any better attitude than Holmes himself if he were plaintiff instead of the bank. Opposing counsel concede that if there was no consideration for the note, then appellant could not collect unless there existed an estoppel against Merkel’s pleading such failure growing out of the execution and delivery by him of the written waiver of off-set.</p> <p>We submit that if Merkel did nQt receive the policy of insurance as sold to him by the insurance agent, there was a failure of consideration, and Merkel had a right to refuse the policy and decline to pay the note even though at maturity it was in the hands of the bank, as a legal holder thereof.</p> <p>There is a vast difference between waiving off-sets and waiving failure of consideration. The bank must have known, when it purchased a note made payable to order, that it was buying a piece of paper which was subject to all statutory defenses.</p>

From the circiut court of Wilkinson county. Eon.-Moyse E. Wilkinson, Judge. Stansberry, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The facts of the case are stated in the opinion of the court.

-From the circuit court of Adams county. IIon. Moyse H. Wilkinson, Judge. Green, appellant, was indicted and tried for the murder of Mary Green, was convicted, sentenced to' be hanged and appealed, to the supreme court. Anderson, J., stated the facts thus: The appellant was tried before a jury composed of eight of the regular venire for the week and four talesmen.

From the Circuit court of Covington, county. Hon. Bo bert L. Bullard, Judge. Buchanan, appellant, was indicted and tried for and convicted of murder and appealed to the supreme court.

Prom the circuit court of Amite county. L. H. McGei-iee, Esq., Special Judge. Pearson, appellant, was indicted and tried for rape, charged to have been committed upon his own daughter, was convicted and sentenced to the penitentiary for -life and appealed to the supreme court. Tbe facts of the case, so far ás essential to be known, are clearly inferable from the opinion of the court.

From the chancery court of Oalhouu county. Hon. Isaac T. Blount, chancellor. Scrivener, appellant, was complainant in the court below; Lamar, clerk of the board of supervisors of Calhoun county and the members of said board, appellees, were defendants there. From, a decree in favor of the defendants the complainant appealed to the supreme court. The opinion of the court states-the facts of the case.

From the circuit court of Winston county. Hon. James R. Byrd, Judge: Abernathy and others, appellants, were plaintiffs in the court below; the railroad company, appellee, was defendant there. From a judgment in favor of defendant, predicated of a peremptory instruction, the plaintiffs appealed to the supreme court.

¡From the circuit court of, first district, Carroll county. Hon. George A. McLean, Judge. Stanley, appellant, was indicted and tried for the murder of ■one Henry Hill, was convicted of manslaughter, sentenced to the penitentiary for ten years, and appealed ot the supreme court. The opinion of the court states the facts of the case.

From the circuit court of Attala county. Hon. George A. McLean, Judge. Mrs. Dodds, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a •judgment in plaintiff’s favor the defendant appealed to the supreme court. The facts are fully stated in the opinion of the court. The principle and the purpose of punitive damages are proper and salutary in cases warranting their application.

From the circuit court of Attala county. Eon. George A. McLean, Judge. Comfort, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. The facts are fully stated in the- opinion of the court.

From tbe circuit court of, first district, Hinds county. Hon. William A. Henry, Judge. Held: the question was reached which we are now considering, as to the effect on the statute of the existence of the unconstitutional feature in it.