Volume 98 — Mississippi Reports

From the chancery court of Tate county. Hon. Isaac T. Blount, Chancellor. Ellis and others, appellees, some of them infants, suing hy their next friend, were complainants and cross-defendants in the court below; Garrett and others, appellants, were defendants and cross-complainants there. From a decree in favor of the complainants and cross-defendants the defendants and cross-complainants appealed to the supreme court.

Hon. W. H. Hardy, Judge. Suit by Frank Harvey against the Ingram-Day Lumber Company. From a judgment for plaintiff, defendant appeals. ' The facts are fully stated in the opinion of the court. The court below should have excluded the evidence and directed the jury to find for the appellant; and having failed in that, should have peremptorily instructed the jury to find for the appellant as requested in appellant’s first instruction upon the whole evidence.

Hon. W. H. Hakdy, Judge. Suit by Armstead McCaskell against the Louisville & Nashville Bailroad Company. Judgment for plaintiff ■and defendant appeals. The facts are fully stated in the opinion of the court. No brief of counsel for appellant found in the record. Counsel for appellant insist that no punitive damages •are properly allowable because they assume, first, that the wrongful conduct complained of occurred in the state of Alabama.

Hon; D. W. Heidlebukg, Special Judge. Suit by Geo. H. McFadden et al. against W. W. Buckley et al. From a judgment for defendant, plaintiff ap-. peals. Counsel on both sides filed elaborate briefs, but dealing only with the facts in the case.

Hon. J. H. Hicks, Chancellor. Suit hy R. J. Howie et al. against J. L. Moyse et al. From a decree for complainants, defendants appeal. The facts are stated in the opinion of the court. filed an elaborate brief quoting the following authorities: Alexander, Trustee., v. Searcy¡ 81 G-a. 536; ■ Stewart v. Eastern S Western Transportation Go. et al., 17 Minn. 399; Central Trust Co. v. Columbus, 'etc. B. R. Co., 87 Fed.

Hon. M. H. Wilkinson, Judge. Suit hy J. H. Woodruff against the Yazoo & Mississippi Yalley Eailroad Company. From a judgment for plaintiff, defendant appeals. Held: where the defendant fails to furnish proper and safe appliances in common use (as automatic couplers), it is negligence, per se. The maxim of “Volenti non fit injuria,” with its limitations, is clearly set forth in Troxler v. Railway Go., 124 N. C. 191, supra.

Hon. W. H. Cook, Judge. This is the second appearance of this case before this court, the same on its first appearance having been reversed and remanded by this court, and is reported in 48 Southern 609. In the court below Forbes Piano Company was plaintiff and L. Hennington was defendant. From a judgment in favor of defendant, plaintiff appeals.

Hon. H. C. Mounger, Judge. A. G. Russell and W. W. Moore were indicted for embezzlement. From a verdict for defendants the state appeals. A. G. Russell and W. W. Moore were agents for several insurance companies including the Palatine Insurance Company, and were both located in the city of Vicksburg, Mississippi. They were appointed by the said Palatine Insurance Company on May 1, 1907, and continued up to January 24, 1910, when the agency was taken from them by the company.

Hon. T. A. Wood, Chancellor. Bill by J. A. Ramey, sheriff, and tax collector, and J. R. Cole, treasurer of Wayne county, against John Green and others. From a decree for complainants, defendant, Green, appeals. The facts are fully stated in the opinion of the court. The real question raised in this case is not discussed in the brief for appellees, to any extent whatever.

Hon. J. B. Webb, Special Judge. J. C. Oakes was convicted of criminal libel and appeals. The propositions of the law for which we contend are these: 1st. The publication of a truth upon a lawful occasion can not be libelous. The undisputed facts in this case made the occasion a lawful one, and if the publication was in fact true, the defendant was not guilty.

Hon. W. H. Hardy, Judge. Petition by J. W. Corry for writ of error coram nobis to review a judgment' in favor of B. J. Buddendorff. Prom a judgment dismissing the petition, petitioner appeals. The facts are fully stated in the opinion of the court.

LIon. John L. Buckley, Judge. Suit by the Southern Bank against H. C. Metzger, from a judgment for plaintiff, defendant appeals. The record discloses the following facts: The Southern Bank, on account of its financial condition, suspended its hanking business during the month of March, 1908. At the time it closed its doors, and for some time prior thereto, one J. C. Bushing was the ■active cashier of said bank.

From the circuit court of Lamar county. Hon. William H. Cook, Judge. The First National Bank of Lumberton, appellee, was plaintiff in the court below; Mrs. Hinton, appellant, was defendant there. -From a judgment in favor of plaintiff the defendant appealed to the supreme court.

From the circuit court of Rankin county. Hon. 0. L. Dobbs, Judge. The National Bank, appellant, was plaintiff in the court below; Murray, appellee, was defendant there. From a judgment in defendant’s favor plaintiff appealed to the supreme court. The facts as stated by Anderson, J., were as follows: Appellant, Cedar Rapids National Bank, sued the ap pellee, Berry Murray, in the circuit court on a. promissory note.

Prom the chancery court of Tate county. Hon. Isaac T. Blount, Chancellor. „ Still and others, appellees, were ■ complainants in the court helow; the International Harvester Company of America, appellant, was defendant there. Prom a decree overruling a demurrer to the bill of complaint and denying a motion to dissolve an injunction, the defendant appealed to the supreme court.

Hon. Sam Whitman, Jr., Chancellor. Bill hy Joseph A. James against the Cotton States Lumber Company. A demurrer to the bill was overruled, and defendant appeals. All that is left appellant is to claim that the provision of the deed is ambiguous and open to construetion. But in such case the rule is that construction most favorable to the grantee is to be adopted. 17 Am. and Eng. Ency. Law (2d Ed.), 14.

Hon. J. A. Mitchell, Judge. Jim Hill was indicted on the charge of violating the game laws. A peremptory instruction was given for the defendant and the state appeals. The facts are fully stated in the opinion of the court. The board of supervisors is given special authority by Code 1906, §§ 2305, 2306, 2307 and 2309, to regulate or prohibit hunting and fishing, and the board may do this so as to affect residents of the very county itself.

From the circuit court of Warreu county. Hon. Charges S. Thomes, Special Judge. Washington and another, sureties on the forfeited bail bond of one Samuel Washington, appellants, were defendants in the court below; the state, appellee, was plaintiff there. From a judgment in plaintiff’s favor the defendants appealed to the supreme court. ' The facts are fully stated in the opinion of the court.

From the chancery court of Holmes county. Hon. James F. MoCool, Chancellor. Phalen and others, appellees, were complainants in the court below; Pollard and others, appellants, were defendants there. From a decree overruling the defendants’ demurrer to the bill of complaint defendants appealed to the supreme court.

Hon. John L. Buckley, Judge. Tlie state of Mississippi, appellee, acting through. R. Y. Fletcher, Esq., attorney-general, and assisted by local attorneys, filed an information against the Cumberland Telephone & Telegraph Company, appellant, praying judgment of ouster against the company. From a judgment in favor of the state the company appealed to the supreme court. The opinion states the facts.

From the' judgment of Hon. Emmett H. Thomas, Chancellor, on habeas corpus in vacation, heard at the court house of Warren county. Wray, sheriff and jailer of Bolivar county, appellant, was plaintiff or petitioner and Kelly, sheriff and jailer of Warren county, appellee, was defendant. From a judgment in defendant’s favor, plaintiff appealed to the supreme court. The facts were, as stated by Anderson.

From the circuit court of Attala county. Hon. George A. McLean, Judge. Wilkes, appellee, was plaintiff in the court below; the Independent order of Sons and Daughters of Jacob, appellant, was defendant there. The suit was for damages because of the alleged wrongful expulsion of plaintiff from the order, From a judgment in plaintiff’s favor defendant appealed to the supreme court. The facts of the case are sufficiently stated in the opinion of the court.

Hon. H. C. Mounger, Judge. Suit by A. Gr. Eussell Company against C. J. Miller et al. From a judgment sustaining a demurrer to the declaration and dismissing the suit, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Henry, Judge. Lula Allen was convicted in the circuit court oh an appeal from a conviction in the police justice court of the city of Jackson for a violation of a city ordinance and appeals. The facts are fully stated in the opinion of the court.

From the circuit court of Nankin county. Hon. C. L. Dobbs, Judge. Willis, appellant, was plaintiff in the court below; Ellis, appellee, was defendant there. From a judgment in defendant’s favor, sustaining a demurrer to the declaration and dismissing the suit, plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

.From the.circuit court of Warren county. Hon. Charles S. Thames, Special Judge. Dutton, appellee, was plaintiff in the court below; the Vicksburg Waterworks Company, appellant, was defendant there. From a judgment in favor of plaintiff for five hundred dollars, the defendant appealed to the supreme court. The opinion of the court states the facts of the case.

Hon. J. F. McCool, Ghancellor. Application by Clara Beal Stanfield, a minor, by E. D. Stanfield and others, next of. kin, for removal of disabilities of minority. From a decree in term time vacating a decree of partial removal made in vacation, appellant appeals. The facts are fully stated in the opinion of the court. While there are a number of assignments of error in the record to the action of the court below, the substance of the whole may be stated briefly.

From the chancery court of Attala county. Hon. Jams F. McCool, Chancellor. Mrs. Shelton and others, appellants, were complainants in the court below; Mrs. Thompson and others, appellees, were defendants there. From a decree in defendant’s favor, sustaining a demurrer to the bill of complaint, and dismissing the suit, the complainants appealed to the supreme court. The object of the suit was to cancel defendant’s title to lands.

From the circuit court of Lauderdale county. Hon. John L. Buckley, Judge. Lyon, engaged'in business under the name of A. J. Lyon & Company, appellee, was plaintiff in the court below, and the Fresno Home Packing Company, a corporation, and another, appellees, 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 the chancery court of Lee county. Hon. John Quitman Bobbins, Chancellor. Held: certified, etc., which was also done, and complying with the requirement that a majority should vote for the issuance of bonds and the additional requirement that a certain form of ballot should be used, which was carried out to the letter. What jurisdictional fact is lacking?

From the circuit court of Lauderdale county. Hon. John L. Buckley, Judge. Betbeze, appellee, was plaintiff in the court below; the insurance 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.

Motion in supreme court by W. L. Ganong for a rule upon E. M. Wise et al., officers of the town of Jones-town, to show cause why an attachment for contempt should not issue against them. A full statement of facts will be found in the opinion of the court. No brief of either counsel is found in the record.

From the chancery court of Lauderdale county. Hon. Samuel Whitman, Chancellor. Williams and another, appellants, were complainants in the court below. Neville and another, appellees, were defendants there. From a decree in defendant’s favor the complainants appealed to the supreme court.

From the circuit court of Lauderdale county. Hon. John L. Buckley, Judge. Ilunnicutt, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in favor of plaintiff for $3,500, the defendant appealed to the supreme court.

From tbe circuit court of first district, Hinds county. Hon. William A. Henry, Judge. Nelson, appellee, was plaintiff in the court below; the railroad company, appellee, was defendant there. From a judgment in favor of defendant the plaintiff appealed to the supreme court. The opinion of the court states the facts of the case.

From the circuit court of Holmes county. Hon. James M. Oashin, Judge. Boach, appellee, was plaintiff in the court below. The Barr-Boach Lumber Company was defendant there. The suit was an attachment and the property in controversy was levied upon under the attachment writ, and was claimed by White, appellant. From a judgment in plaintiff’s favor against, not only the defendant in attachment, but the claimant as well, the claimant appealed to the supreme court.

From the chancery court of Lauderdale county. Hon. Samuel Whitman, Jr., Chancellor. Held: “A voluntary partition by tenants in common will not prevail against the lien of a judgment against one of such co-tenants rendered prior to such partition. ’ ’

From the circuit court of Attala county. Hon. George A. McLean, Judge. Chenault, appellant, a defendant in execution, demanded a recovery upon a pretended indemnifying bond, given by the Machine Company, appellee, plaintiff in ■execution, to the sheriff. Prom a judgment denying a recovery on the bond, Chenault appealed to the supreme ■court. The facts are fully stated in the opinión of the court.

Hon. J. M. Oashin, Judge. Proceeding by the state to seize and destroy intoxicating liquors in -which John Livelar & Company were claimants. From a judgment for the state,' claimants appeal. The facts are fully stated in the opinion of the court. The first error assigned is the overruling of the demurrer of appellants to the affidavit on which the search warrant was issued.

From the chancery court of Forrest county. Hon. Thaddeus A. Wood, Chancellor. Turner and others, resident citizens and tax payers-of the municipality, appellants, were complainants in the court below; the city of Hattiesburg, appellee, was defendant there. The objéct of the suit was to enjoin the issuance of municipal bonds. From a decree sustaining a demurrer to the bill of complaint and dismissing the suit complainants appealed to the supreme court.

Hon. M. E. Denton, Chancellor. Bill in chancery hy John A. Reed against Robert Reed, to cancel a tax deed as a clond upon his title. From a decree in favor of complainant, defendant appeals. The facts are fully stated in the opinion of the court. It is an undoubted rule of law that a deed of real estate, to he effective as a conveyance, must designate a grantee; otherwise, no title passes.

From the circuit court of Harrison county. Hon. T. H. Barrett, Judge. Joe Martino, appellant, was tried for unlawful retailing, was convicted and appealed to the supreme court. He sought a reversal of the conviction, principally because of the alleged error of the court in permitting a witness for the state to testify over his objection that the witness had made a statement to the justice of the peace, the same in substance as his statement to the jury.

Hon. E. N. Thomas, Chancellor. Suit by Osamus Winn against the Belzoni Drainage Commission. From a judgment overruling a demurrer to the hill' defendant appeals. The facts in the case are sufficiently stated in the-opinion of the court. The act does not violate section 90, paragraph (q). It does not relate to water courses within the purview of that' paragraph. Water courses are not mentioned in the Act.

From the circuit court of Holmes county. Hon. J. M. Casein, Judge. This was an action to recover damages for personal injury, brought by appellee against appellant. The injury complained of was the severe mashing of appellee’s little finger on the left hand, which incapacitated him from using it, or attending to his business for some three months. The jury awarded plaintiff one thousand dollars by their verdict, and from this judgment appellant prosecutes this appeal.

From tbe- chancery court of Lauderdale county. Hon. Samuel Whitman, Chancellor. This was a suit by S. A. Brown and others against A. L. Tinnin and J. B. Tinnin. Held: that, “where the question at issue is as to the actual delivery of the deed, and no rights of third persons growing out of the registry laws are involved, the validity or invalidity of the acknowledgment is immaterial. See 72 Miss., page 471, the syllabus at top of said page.

Hon. J. H. Mitchell, Judge. The appellant, Moscow Sadler, was indicted and tried upon a charge of murder and at the February, 1910, term of the circuit court of Lee county was convicted of manslaughter and sentenced to twenty years in the penitentiary. The appellant was unable to give bond and during the progress of the trial was in the custody of the sheriff and confined in jail when his presence was not demanded in the court room.

Prom the circuit court, Harrison county. Hon. T. H. Barrett, Judge. William Stansbury, appellant, was tried, and convicted of keeping liquor for sale, before a justice of the peace, and appealed to the circuit court of the county, where the case was tried de novo, and was there convicted, and sentenced tó pay a fine of one hundred dollars and serve thirty days in jail, from which judgment and sentence he appealed to the supreme court.

Hon. A. E. Weathersby, Judge. The facts are fully stated in the opinion of the court. Held: in the case of State v. Beacon, 77 Miss. 366, where it has shown that the bailiff was in the grand jury room part of the time during the deliberations of the grand jury, and that an intruder applied for admission several times and that he was finally admitted and testified that he knew nothing of his own knowledge, and that he sought…

of Union county. Hon. W. A. Roane, Judge. Appellant, D. H. Hall, had a piece of machinery shipped to him at New Albany, Mississippi,' through the Southern Express Company, appellee, as carrier from Memphis, Tennessee. The machinery arrived at New Albany in due time, but was not delivered to Hall although he called for it several times..

Hon. Samuel Whitman, Chancellor. Mrs. Slaughter, appellee, was complainant in the court below; the Meridian Light & Bailway Company, appellant, was defendant there. Held: that as the railroad company would not acquire title by its unlawful taking, the value of the laud was not the true measure of the damages. We have patiently waded through this line of decisions to show how unsupportive they are of appellant’s contention.

Hon. D. M. Miller, Judge. Appellant, Townes Howell, was tried for murder and convicted of manslaughter and sentenced to ten years in the staté penitentiary, and from said judgment appeals to this court. The court erred in giving to the state instructions marked numbers three, five and six, which are as follows, to-wit: ‘ ‘ Three.

Hon. J. M. Casein, Judge. Suit by Lee Latiker, appellee, against the Illinois Central Bailroad Company, appellant. From a judgment for plaintiff, defendant appeals. Held: the utmost care and vigilance for his own protection while on the track.

From the circuit court of first district, Tallahatchie county. Hon. N. A. Taylor, Judge. Barnes, appellant was indicted for petit larceny, was; convicted of criminal trespass less than larceny, under Code 1906, § 1264, was sentenced to imprisonment in the county jail and to payment of a fine, and appealed to the supreme court. The opinion states the facts.

Hon. Jno. H. Mitchell, Judge. Suit by Annie Bell Brandon against the Mobile and Ohio Eailroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Because the court below refused to grant the second charge asked for by the defendant in the court below, the appellant is clearly entitled to have this case reversed.

From the circuit court, Alcorn county. Hon. John H. Mitchell, Judge. Held: “But a ‘boss’ or director of an entire department of an extensive factory, employing and discharging the hands who work under him, and who receives a monthly salary payable at the end of every two weeks, and who is not required to do manual labor, but is expected, from his skill and intellectual fitness, to direct the work of the…

<p>Supreme Court Practice. Reinstatement of appeal.</p> <p>Where an appeal in the supreme court is dismissed for want of prosecution it will not be reinstated on motion accompanied by affidavit stating that an assignment of error and brief were mailed to the clerk of the supreme court long prior to the calling of the district from which the case came, but that the assignment of error and brief had miscarried and were therefore not received by the clerk. No assignment of error or brief being filed with such motion and no excuse being given for the failure to do so.</p>

Hon. T. H. Barrett, Judge. Marvin Spikes and Mrs. B. B. Evans were convicted of unlawful cohabitation under section 10291, of Code 1906. . The facts are stated in the opinion of the court. “This is a proceeding under section 1029 of the Code of 1906, and the intercourse must be habitual. Granbery v. State, 61 Miss. 440; Brown v. State, 8 South. Reporter 257.

Hqn. M. E. Denton, Chancellor. Suit by J. B. Barlow against R. P. Hays. Prom a decree overruling a motion to dissolve a temporary injunction and dismiss the bill, defendant appeals. J. B. Barlow, being indebted to one Ostrander in the sum of three hundred and fifty dollars, executed a note for said amount, secured by deed of trust covering a number of oxen and two log wagons.

Hon. J. Q. Robins, Chancellor. - Suit by M. D. Landau against E. 0. Skyes as receiver of the Aberdeen Oil and Ice Company. Judgment for defendant and complainant appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Roane, Judge. This was a suit in replevin by Mrs. A. J. Jones and others against R. L. Clemmer & Son. From a judgment in defendant’s favor plaintiffs appeal. The facts are fully stated in the opinion of the court. . There are two questions raised by the assignment of error and as shown by the record. First.

. Hon. Gr. A. McLain, Judge. J. N. Wall was indicted for neg’lect of duty as a road contractor. From a judgment of acquittal the state-appeals. The facts are fully stated in the opinion of the court..

Hon. J. F. McCool, Chancellor. Suit by the state, on the relation of the attorney-general against the Grenada Lumber Company et al. Prom a decree overruling a demurrer to the hill, defendant appeals. The facts are fully stated in the. opinion of the court. Briefs of counsel on both, sides have been lost from the record.

Hon. E. N. Thomas, chancellor. This was a bill of interpleader by R. M. Kelly, sheriff, against Alena Howard et al. E'rom a judgment dismissing the bill the sheriff and others appeal. Held: and have declared. that such money is subject to garnishment as if in the hands of a private person. Burleson v. Milan, 56 Miss. 399.

From the circuit court of Copiah county. Hon. D. M. Miller, Judge. Eugene Waldrop, the appellant, was indicted and tried for manslaughter, for the killing of one Lee Crawford, was convicted and sentenced to the penitentiary for a term of five years, and appeals to the supreme court. 'The opinion sufficiently states the facts ‘in'the case.

Hon. John L. Buckley, Judge. Appellant, Tollie May, was indicted, tried and convicted of murder and appeals. The facts are fully stated in the opinion of the court.

Hon. H. CL Mounger, Judge. John Murry moved some cotton, upon which there was a landlord’s lien, from his home county, Claiborne, to Copiah county, and sold same without informing the purchaser thereof of such a lien; he was indicted under section 1168> Code 1906, in the circuit court of Claiborne county for the crime of false pretenses, was convicted ■and sentenced, and appeals to the supreme court. A full statement of the facts is given in the opinion of “the court.

Hon. Sam Whitman, Jr., Chancellor. This was a bill in the chancery court brought by Alice Lee Myer, administratrix of estate of J. B. Myer, deceased, and D. F. Taylor, trustee, against C. J. Wood and wife to reform and foreclose a deed of trust. Defendants filed an answer and cross bill, to which complainants demurred. The chancellor sustained the demurrer, and granted appellees the relief' prayed for. From which judgment appellants appeals.

Hon. W. H. Cook, Judge. Suit by H. M. Hanna against the Mississippi Central Railroad Comany. Judgment for plaintiff and defendant appeals. The facts are sufficiently stated in the opinion of the court. The only instruction asked by the defendant in thé court below, presenting its theory of the facts, was modified by the court, and having been modified was declined by the defendant and not read to the jury.

Hon. Sam C. Cook, Judge. Suit by C. W. and W. T. Clogston against the Illinois Contrail Railroad Company; judgment for plaintiff and defendant appeals. The facts are fully stated in the opinion of the court. The pourt was in error in refusing to give the peremptory instruction for defendant below.

' Hon. J. F. McCool, Chancellor. Application of D. D. Richards as guardian of Mrs. S. B. Hardy, a non compos mentis, to renounce the will of her husband. Held: otherwise in Michigan, and perhaps elsewhere, but we submit that those states that deny' the right are more nearly in harmony with our own courts as decided in Ex parte Delilah Moore, 7 Howard Miss. 667.

Hon. Chas. S. Thomas, Special Judge. Suit by Charles Littlejohn against Charles Opperman et al. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The sole and simple question of law involved in this case is: To whom, the landlord or the tenant, does an unharvested crop belong after the expiration of a fixed and definite lease term? We answer, the landlord, and so beyond question answers the law.

Hon. Sam Whitman, Chancellor. Bill for temporary injunction filed by W. W. Holifield against W. J. Smith. From a decree for complainant, defendant appeals. The facts are fully stated in the opinion of the court. I fail to see how, on the proof in this case the chancellor was warranted in finding that the injunction- was rightfully sued out, or that this was a case for injunctive relief at all.

Hon. M. E. Denton, Chancellor. Bill'by Gulf Compress Company against Wooten Cotton Company et al. to restrain the prosecution of several actions at law. Held: and it did hold, that it did not have jurisdiction.

Hon. M. B. Denton, Chancellor. Bill by D- E. Mitchell against the Bank of Indianola et al.. From a decree sustaining a demurrer and dismissing the bill, complainant appeals. The facts are fully stated in the opinion of the court. Counsel for the appellee are pleased to take one part of complainant’s bill and to assert that the part they select is that, by virtue of -which the Bank of Indianola is sought to be held liable.

EEon. R, L. Bullard, Judge. Suit in replevin by appellant, Sistrunk, against appellee, Brinson, for two mules. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

Appear from the circuit court of Quitman county. Hon. Sam C. Cook, Judge. Arthur Martin was convicted of murder and appeals. The facts are sufficiently stated in the opinion of the court. Held: that the formation or expression of an opinion antagonistic to the defendant on trial on such a charge, and will not take issue with counsel for defendant on this point. The Jeffries and Sheppric cases, and similar cases, have settled the law on that point.

Hon. D. M. Miller, Judge. Lucy Evans was convicted of unlawful retaining and appeals. The facts are fully stated in the opinion of the court. ■ The next error of the trial court was his refusal to stop the .district attorney when he argued before the jury that the appellant ought to be convicted because she was afraid of the proposed jurors who lived near Maxwell’s home and were his neighbors.

Hon. Jno. H. Mitchell, Judge. J. F. Goolsby was convicted of enticing prosecutor’s servant and appeals. The facts are fully stated in the opinion of the court. Section 1146 being highly penal and being a statute about the constitutionality of which there is considera,blé doubt, and one which smacks very much of imprisonment for debt, or an approach to a modified form of slavery. Our court has been very zealous in confining it to cases which come clearly within its terms.

Hon. M. E. Denton, Chancellor.. Bill by Leo Lesser against Baifield Shorter for partition. From a decree ordering the sale of the land for partition, defendant appeals. The facts are fully stated in the opinion of the court. The question is, has this appellant, or' not, the right to have his interest in the land set aside to him in kind when it manifestly can be done under the statute.

Hon. M. H. Wilkinson, Judge. Suit by Fred J. Arbour against the Yazoo So Mississippi Valley Railroad Company. From a judgment for defendant, plaintiff appeals. . Held: is not appealable. See also Doss v. Waggoner, 3 Tex. 515; Hodges v. Ward, 1 Tex. 244. In the case of Backer v. Eble, 144 Ind. 287, 43 N. E. Rep. 233, it is held that where a judgment is void because rendered in vacation, no appeal lies therefrom. In the case of Staab v. Atl. B. B. Co., 3 N. M 349, 9 Pac.

Hon. D. M. Miller, Judge.' ' Eugene Jenldns was convicted of carrying a concealed weapon and appeals. The facts are fully stated in the opinion of the court. Counsel for the state admit that the action of the court in excluding the testimony as to threats, violence and abuse, and the subsequent exclusion of the confessions made under such circumstances, was correct.

Hon. Jno. H. Mitchell, Judge. Arch Bolden was convicted of arson and appeals. The facts are fully stated in.the opinion of the court. The fourth assignment of error is as follows: “The court erred in admitting the confession of defendant, testified to by the witness Bunk Ruff, because the corpus delicti had not previously been proven.” Let iis first determine what constitutes the corpus delicti in a case of arson.

■ Appeal from the circuit court of Coahoma county. Hon. Sam C. Cook, Judge. Suit by Eosa Bruce et al. against the Yazoo & Mississippi Valley Eailroad Company. Prom a judgment for plaintiff, defendant appeals. The facts are sufficiently stated in the opinion of the court.

Hon. Patjl B. Johnson, Judge. Suit by R'. L. Evans against J. M. Ham; from a judgment for' defendant, plaintiff appeals. Motion in supreme court to strike out the stenographer’s notes.

<p>Appeal from the circuit court of Covington county.</p> <p>Hon. W. H. Hughes, Judge.</p> <p>Suit by Mineral Lumber Company against Mrs. Minerva King. Judgment for defendant and plaintiff appeals.</p> <p>Motion to strike out stenographer’s notes.</p>

<p>1. Criminal Law. Code 1906, section 1923. Witnesses. Interest.</p> <p>Under Code 1906, § 1923, authorizing the examination of any witness touching his interest, etc., where a husband and wife are introduced as witnesses for accused, the state may prove, to show the interest of the witnesses, that the husband had been jointly charged before the committing magistrate with the crime for which the accused is being tried and had been discharged.</p> <p>2. Same.</p> <p>That clause of Code 1906, § 1923, providing that a witness may be examined touching his interest, etc., is simply declaratory of the common law.</p> <p>3. Harmless Error. Evidence.</p> <p>Where an undisputed fact had already been proven by a competent witness, the fact that an incompetent witness testifies to the same fact is harmless error.</p>

Hon. John N. Bush, Judge. Suit by P. C. Downs against the Grand Court of Colanthe. From a judgment for plaintiff, defendant appeals. Motion by plaintiff to strike out the bill of exceptions and for an affirmance.

Hon. A. E. Weathersby, Judge. Suit by J. J. Dodson against the Western Union Telegraph Company. Judgment for plaintiff for fifteen hundred dollars and defendant appeals. This is an appeal from a judgment for fifteen hundred dollars damages for the failure of the appellant to deliver-to'appellee a telegram announcing the serious illness of his brother.

<p>Appeal from the circuit court of Madison county.</p> <p>Hon. W. A. Henry, Judge.</p> <p>Action by A. H. Cauthen against'’Garner Smith. From a judgment for plaintiff, defendant appeals.</p>

Aupeat, from the circuit court of Covington county. Hon. R L. Bullard, Judge. Suit by Ernest E. Parker against the W. C. Wood Lumbér Company. Judgment for defendant and plaintiff appeals. The record shows that, it was part of plaintiff’s duty to place pieces of timber on the rollers' to be carried to a saw for cutting. Where timbers were large, implements known as “cant hooks”’ were used by laborers with which to place such timbers.

Hon. G. G. Lyell, Chancellor. Petition by Isidore Dreyfus, trustee, in bankruptcy against Carroll Barton, administrator of the estate of S. K. Barton, deceased. Decree for defendant, complainant appeals and defendant takes cross appeal.

Hon. W. H. Hughes, Judge. Petition for habeas corpus by D. C. McInnis. Prom a judgment denying same he appeals. The facts are stated in the opinion of the court. On this record we do not deem it necessary to enter upon an extended discussion of the. facts since there is no dispute about the facts and to all intents and purposes the question is before the court as though a demurrer had been sustained to the petition.

Hon. John H. Mitchell, Judge. Albert Brown being convicted of manslaughter appeals. The facts are fully stated in the opinion of the court. The sixteenth assignment of error refers to the action of the court in permitting counsel for the state to comment on the failure of the defendant to produce his brother and father as witnesses in his behalf. The attention of the court was called at the time the argument was being made, and a special bill of exceptions taken at that time.

Appeal' from the circuit court of Chickasaw county. Hon. Jno. H. Mitchell, Judge. Ollie Owens was convicted of robbery in the lower court and appeals. Motion in supreme court for continuance.

Hon. T. A. Wood, Chancellor. Suit by J. H. Weston against Hancock county. From a decree dismissing the bill, complainant appeals.

Hon. Jno. L. Buckley, Judge. Warren Barnett was indicted for obtaining money under false pretenses. The court below sustained a motion to quash the indictment and the state appeals. The proof taken upon the motion to quash shows that Barnett had sold some gold mining stock to Gr.

Hon. C. L. Dobbs, Judge. Ras Neely was convicted of contempt of court and appeals. The facts are fully stated in the opinion of the court. Before a person can be found guilty of contempt not committed in the presence of the court, he must have due and reasonable notice of the proceeding. The rule to show cause should inform the defendant of the nature of the contempt alleged. 9 Cyc. Law and Proc., pp. 39, 41; Shattuch v. State, 33 L. R. A. (N. S.), 51 Miss. 50, 24 Am.

Hon.'Sam Whitman, Jr., Chancellor. . Bill by J. H. Caldwell et al. against A. H. George to enjoin an obstruction of a sidewalk. Defendant enjoined from continuing the obstruction and appeals. The facts are stated in the opinion of the court. • No brief of counsel on either side found in the record.

Hon. M. H. Wilkinson, Judge. Suit by Lee Hope against the Natchez, Columbia & Mobile Railroad Company et al. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. A peremptory instruction having been given by the court, the evidence introduced by the plaintiff for the purposes of this hearing, must be taken as true.

Hon. M. E. Denton, Chancellor. Suit by Caleb Haines et al. against Henry Haines et al. From an adverse decree defendants appeal. The facts are stated in the opinion of the court. There are only two questions contained in the record in this cause on the present appeal, viz.: 1st. The amended bill setting up the new and independent title to the land in controversy should not have been allowed to be'filed in the cause, and the plea to it should have been sustained. 2nd.

Hon. M. E. Denton, Chancellor. Suit by the state of Tennessee on the relation of N. E. Leggett against J. W. Cutrer et al. Prom a decree overruling a demurrer to the bill, defendant appeals. The facts are fully stated in the opinion of the court. 1.

Hon. T. A. Wood, Chancellor. Suit by H. B. Moore against T. M. Evans et al. From an order sustaining a demurrer to his bill complainant appeals. The facts are fully stated in the opinion of the court.

Hon. J. R. Bye»,. Special Judge. Suit hy S. D. Russell against L. L. Denson. From a decree dismissing complainant’s bill he appeals. But whether the demurrer ought to have been ovérruled or not, it was palpable error to refuse complainant leave to amend his bill, or to dismiss.it without prejudice.

Hon. Paul B. Johnson, Judge. Suit by C. EL Ramsey against Cbas Youngblood with Gulf & Ship Island Railroad garnishee. From a judgment against the garnishee it appeals. The appellant makes two assignments of error. The first being that it was error for the circuit judge to refuse appellant the right to file its answer in the circuit court for the first time upon the' showing made.

Hon. D. M. Miller, Judge. Suit by David Meyer against the Geo. F. Dittman Boot & Shoe Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. I submit that the construction placed upon the contract by the court below does violence to its plain and positive terms. Meyer’s compensation was fixed at five per cent commission upon goods to be sold and paid for.

Hon. H. C. Mounger, Judge. Petition by Kuhn Brothers for reduction of an assessment. Held: and correctly, that section 3799 of the Code of 1892, which is precisely section 4312 of the Code of 1906, applied as well to personal property as to real property. This was a correct construction of the statute, but all doubt is set at rest by the fact that the statute as thus construed by this court was re-enacted in the year 1906.

Hon. Paul B. Johnson, Judge. . Action by Mrs. Clara Feazell.v. B. F. Staltzfus, judgment for defendant and plaintiff appeals. The facts are fully stated in the opinion of the court. We submit in the outset that the plaintiff is entitled to a reversal of this cause and to the entry of a final judgment here, because: First.

Hon. G. G. Lyell, Chancellor. Suit between W. 8. Gordon, guardian, and others and W. W. .Perry, guardian of Eula James. From a judgment against him W. S. Gordon, guardian, appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Roane, Judge. Andrew Jones was convicted of murder and appeals. The facts are fully stated in the opinion of the courl. The third written charge granted at the request of the district attorney is erroneous because it assumes, and in granting it the court assumed that the only possible verdict was that of murder.