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of these instruction is the one principally, over his objection, as well as over her own argued, and is the only assignment of error objection. The court held that under the of sufficient merit to require a discussion by common law a wife was competent to testify the court.

against her husband in a prosecution for Appellant, to support his position, cites 2 assault and battery upon her; that, the husWharton's Criminal Law (Kerr) 8 830, Brad- band having violated the sanctity and peace ley V. State, Walk. 156, and Thompson v. of the household, it was deemed better that Thompson, 218 U. S. 611, 31 Sup. Ct. 111, 54 the wife should be permitted to testify than L. Ed. 1180, 30 L, R. A. (N. S.) 1153, 21 Ann. that she should run the risk of injury inflictCas. 921. It was held in the Bradley Case ed upon her by her husband in the privacy of that at common law a husband had the right domestic life, from which he had the power to chastise his wife corporally in moderation to exclude witnesses of his offense. The in case of great emergency. And Wharton, court used this language in part: in the section cited, says:

“The husband, therefore, who assaults his By the common law the husband possessed wife, commits an injury, not only upon her, but the power of chastising his wife, though the upon society, of which they are members. It tendency of criminal courts in the present day is for the injury to the public, committed upon is to regard the marital relation as no defense it through the person of the wife, that he is to a battery."

punished.”

The crime of assault and battery in this The Thompson Case involved a civil action state is a common-law and not a statutory by the wife against the husband for an as

offense. In view of that fact appellant takes sault and battery by the latter on the for the position that it may be conceded that

The case arose in the District of Co- the Bradley Case has been overruled and lumbia. The court held that the common law that it is therefore no longer the law of this relation between husband and wife was not state that the husband, for the purpose of so far modified by D. C. Code § 1155, as to

correction, may inflict corporal punishment give the wife a right of action to recover damages from her husband for an assault upon the wife in moderation, still there could

be no conviction in this case because there is and battery committed upon her by him. In

no law left making an assault and battery by discussing the question the court said, among the husband on the wife a crime. In other other things:

words, that the court is without authority “Nor is the wife left without remedy for to hold in one decision that a given act consuch wrongs.

She may resort to the criminal stitutes a crime under the common law, and courts, which, it is to be presumed, will in- in a later decision to hold exactly the conflict punishment commensurate with the of- verse; that the common law cannot be one fense committed.

thing to-day and another thing to-morrow. The Attorney General says, however, that,

Appellant's contention, if granted, would granting it had been held in the Bradley Case views with reference to what is the common

mean that the courts could not change their that under the common law a husband had law, that having once declared what it was the right to use physical force in the chastise- there could never be any change except by ment of his wife, moderately or otherwise,

constitutional or legislative enactment. that principle was overturned by Harris v.

[2] We are of the opinion that under cer. State, 71 Miss. 462, 14 South. 266, in which latter case the court, in discussing the Brad- tain well-established principles there is no

difficulty in solving this question. In Green ley Case, said:

v. Weller, 32 Miss. 650, and Crane v. French, "That this brutality found in the ancient com- 38 Miss. 503, it was held that the principles mon law, though strangely recognized in Brad- of the common law unsuited to our condition ley v. State, Walker (Miss.) 156, has never

or repugnant to the spirit of our government since received countenance, and it is superfluous to now say that the blind adherence shown in are not in force in this state. It was held that case to revolting precedent has long been in Vicksburg Railroad Co. v. Patton, 31 Miss. utterly repudiated in the administration of 156, 66 Am. Dec. 552, that all the rules of criminal law in our courts."

common law were not in force in this state,

but only such as were adapted to our insti. [1] The Attorney General does not refer tutions and circumstances and not repealed to Turner v. State, 60 Miss. 351, 45 Am. Rep. by the Legislature or varied by usages which 412, which bears out the idea that, if it ever superseded them. And in Y. & M, V, Railwas the common law that a husband had the road Co. v. Scott, 108 Miss. 871, 67 South. 491, right to inflict corporal punishment upon his L. R. A, 1915E, 239, Ann. Cas. 19175, 8SO, the wife within the bounds of moderation, the court, in illustrating what constituted the principle has long since become obsolete. In common law, said that if a case was presentthat case the husband was indicted and con- ed not covered by any law written or unwritvicted of an assault and battery upon his ten, the power of the court is adequate, and wife, from which judgment he appealed to it is the duty of the court to adopt such a the Supreme Court. The state introduced rule of decision as right and justice in the the defendant's wife as a witness against him particular case seemed to demand, that, not

(100 So.) withstanding in such case the decision made Jno. R. Anderson, of Tupelo, for appellee. the law and not the law the decision, “this is the way the common law itself was made, SYKES, P, J. This cause presents an ap and the process is still going on," and fur- peal from a decree of the chancery court of ther that the common law was not unchange-Lee county ordering the appellants, as agents able, and was not adopted to remain per of the banking department of the state of petual and unaltered and unalterable, “not Mississippi, to issue appellee a certificate of to be tempered to our habits, wants, and cus- indebtedness on its guaranty fund for the toms."

sum of $500 with interest. Under the rule declared in the Harris Case

The facts upon which this decree was enand recognized in the Turner Case, there is tered are undisputed, and are as follows: no exception in favor of the husband as On December 20, 1922, W. M. B. Cox, presiagainst the wife in the common-law offense of dent of the People's Bank of Baldwyn, Miss., assault and battery. That rule has as much presented to the cashier of the Bank of Tubinding force on the courts as if there had pelo for payment an instrument of writing, never been any other rule. The common law

a copy of which is here set out in full, Cox on the subject stands as if the Bradley Case stating at the time that he needed some monhad never been decided or decided the con- ey for the operation of his bank and want. Ferse of what it was,

ed to get $500. The Bank of Tupelo honored Section 1525, Code of 1906 (Hemingway's the instrument, which is as follows: Code, § 1287), providing that offenses not corered by statutes shall be indictable as at

"85–127. The Bank of Tupelo. common law, simply means that such of

“Tupelo, Miss., Dec. 20, 1922. fenses shall be indictable according to the

“At sight pay to the order of the Bank of common law as declared by the courts at the Tupelo $500.00, five hundred and no/100 doltime.

lars, with exchange.

"W. M. B. Cox, Pres. Affirmed.

"To People's Bank, Baldwyn, Miss."

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It seems that Cox at this time was on

his way to parts unknown after having ANDERSON, State Bank Examiner, v. BANK wrecked the People's Bank of Baldwyn. OF TUPELO. (NO. 24022.)

13] The first part of section 3596, Hem(Supreme Court of Mississippi, Division B. ingway's Code, reads as follows: May 12, 1924.)

"All deposits not otherwise secured and all (Syllabus by the Court.)

cashier's checks, certified checks or sight ex

change issued by banks operating under this law I, Banks and banking · 189 "Cashier's check" defined.

shall be guaranteed by this act.” A "cashier's check" is a bill of exchange The narrow question here presented is drawn by a bank upon itself, and accepted by whether or not under this law this instruthe act of issuance.

ment is a cashier's check. It is contended [Ed. Note.--For other definitions, see Words by the appellant that it is not, but is a and Phrases, Cashier's Check.]

draft drawn on the Bank of Baldwyn by 2. Banks and banking @ 189—Instrument held Cox; that the word “president” does not neccashier's check.

essarily mean that he was president of the The following instrument of writing held to People's Bank of Baldwyn, and that it canbe a cashier's check: "At sight pay to the or- not be said that this instrument was drawn der of the Bank of Tupelo, $500.00 with ex on this bank by one of its agents, but rather change. To People's Bank, Baldwyn, Miss. is an order to the Tupelo Bank by a third (Signed] W. M. B. Cox, Prest.”—when Cox, as party, presumably a depositor, drawn on the a matter of fact, was the president of the Peo- People's Bank of Baldwyn. It is also sugple's Bank of Baldwyn.

gested by the appellant that a cashier's check 3. Banks and banking am 15--Cashier's check is usually issued on a form gotten out by guaranteed.

the bank issuing it, whereas this instrument Under section 3596, Hemingway's Code, a is written on a form of the Tupelo Bank. cashier's check is guaranteed.

[1, 2] A cashier's check is merely a bill Appeal from Chancery Court, Lee County; of exchange, drawn by a bank upon itsell, 4. J. McIntyre, Chancellor.

5 R. and accepted by the act of issuance.

O. L. p. 483; Drinkall v. Bank, 11 N. D. 10, Action by the Bank of Tupelo against E. 89 N. W. 724, 57 L. R. A. 341, 95 Am. St. *. Anderson, State Bank Examiner. Judg- Rep. 693. The instrument in question comes ment for plaintiff, and defendant appeals. within his definition of a cashier's check.

It is drawn on the Baldwyn Bank by the d. A. Cunningham, of Booneville, and president of that bank. It was unnecessary Flowers & Brown and C. L. Hester, all of in this case for the word “president” to be Jackson, for appellant.

followed by “People's Bank, Baldwyn, Miss." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Atfrmed.

It was known to the officers of the Tupelo “Wiley Young is to have 5 years within which Bank, and generally known, that Cox was to pay for this land, provided he pays 6% inpresident of this Baldwyn Bank. His signing terest on the amount of $850 from this day the cashier's check as president could not and pays the interest annually and part of the have meant anything except that he was the event he fails to do either, then this con

principal annually and all the annual taxes. In president of the bank upon which the paper tract is void and terminated at the option of was drawn.

George C. Paine and any money paid shall be The decree of the court below is affirmed. held as rent. The deed to be executed as a

quitclaim deed. This contract is not assignable by Wiley Young."

The bill further alleged that Mrs. Scruggs

bought this land at a chancery commissionYOUNG V. CLARK et al. (No. 24178.)

er's sale in a partition proceeding styled (Supreme Court of Mississippi, Division B. “Mrs. M. A. Perryman et al. v. V. O. Lusby," May 26, 1924.)

No. 5674; that the papers in said cause

had been mislaid, and could not be found (Syllabus by the Court.)

after diligent search; and that the parties Principal and agent om 189(1)-Essentials of to the partition suit were the children and

bill for specific performance of contract made only heirs of John W. Lusby, deceased, who, by undisclosed agent stated.

it is a verred, died seized and possessed of Where a bill is filed to enforce by specific' the locus in quo. It is alleged that in 1894 performance a contract made by one person, John W. Lusby and wife executed and dein his own name, as the contract made by an livered to B. T. Clark & Co. a warranty deed undisclosed agency, the bill must aver the facts to the land in question with other lands, and of the agency, and specifically state that the that John Clark and C. B. Hood, partners, agent was authorized by the undisclosed principal to make the contract, and that the con- executed on January 26, 1899, a deed to B. T. tract was made for the benefit or on the ac. Clark, conveying their interest in these lands, count of the principal, or state facts showing and that, after these deeds had vested. the ratification or receipt of the fruits of the title in B. T. Clark, Clark made Lusby a deed contract. The averments should be specific of gift to the land in question, and delivered, and certain, and such as show the relation of or, verbally, in the execution of the gift, principal and agent to exist.

put John W. Lusby in the possession of the

same; that Lusby paid the taxes on the land, Appeal from Chancery Court, Monroe cut the timber, collected the rents, and claimCounty; A. J. McIntyre, Chancellor,

ed adverse ownership up to the time of his Bill by Wiley Young against B. T. Clark death, a period of about ten years; that and others. Judgment of dismissal, and com- after his death his children went into posplainant appeals. Affirmed.

session under claim of adverse ownership,

and remained in possession until after the Wiley H. Clifton, Aberdeen, for appel

sale in the partition suit to Mrs. J. H. lant. Leftwich & Tubb, of Aberdeen, and John Mrs. J. H. Scruggs, through her agent, went

Scruggs; that upon her purchase of this land R. Anderson, of Tupelo, for appellees.

into possession of this land under claim of

ownership, and in October, 1919, sold it to ETHRIDGE, J. The appellant, Young, C. L. Hood and W. M. Owings by warranty filed a bill in chancery court, alleging that deed; that Hood and Owings afterwards conhe was the owner of certain land therein veyed the land back to Mrs. Scruggs, and described, “and deraigns his title as follows: the complainant avers on information and A contract of sale from Mrs. J. H. Scruggs belief that Mrs. Scruggs and her immediate through Capt. George C. Paine, undisclosed vendors were in the possession of the land agent for Mrs. Scruggs, her agent, a copy of up to and at the time Mrs. Scruggs sold the which title bond is hereto attached as an land to the complainant, and that complainexhibit marked A, and asked to be taken as

ant has been in the possession since; that B. a part of this bill.” The contract, Exhibit A, T. Clark had record notice of this land being reads as follows:

the land which he had carved out for and "This contract this day entered into by and given to Lusby, and had knowledge of the between George C. Paine and Wiley Young. adverse possession; that on May 4, 1923,

"In consideration of $850 to be paid as here- Mrs. J. H. Scruggs executed a voluntary after set out I obligate and bind myself, my deed to B. T. Clark, conveying this land to heirs and executors to make Wiley Young a him on a recital in the deed that it was deed to the following described property:

"The W. 1 of the s. E. 44 of section 15, done in order to correct a mistake; that the Tp. 12, R. 7 East, Monroe county, Mississippi, complainants are informed and believe that 80 acres, and 20 acres off the west fractional the mistake claimed to have been made conhalf of the N. E. 44 of Sec. 15, Tp. 12, R. sists in the chancery commissioners' deed 7 East, known as the Lusby estate land. which recites that the land in question was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(100 So.) known as the J. W. Lusby estate land; that contract for her. The contract on its face the partition proceedings should have dealt purports to be a contract of George C. Paine, with the S. 9 of the N. E. 14 of the N. E. 44, individually. He obligates to bind himself, and the S. E. 14 of the N. E. 14, and the N. his heirs, and executors to make the deed. E. 14 of the S. E. 14 of Section 15, Tp. 12, R. There is nothing in the deed to suggest that 7, because that was the J. W. Lusby estate he was acting for Mrs. Scruggs in making the land, when this land was not owned by J. contract, and the deed nowhere shows any W. Lusby and wife, and was not conveyed fact from which such inference could be to Clark & Co. by Lusby, while the locus in drawn. If as a matter of fact Paine was the quo was, and was specifically described and agent of Mrs. Scruggs, and had authority partited by the chancery decree in suit No. to make the contract, these matters should 5674; and avers that, there being no mistake be specifically set forth so as to show the to correct, this deed 'from Mrs. J. H. Scruggs agency or to show knowledge and ratification to B. T. Clark conveyed no title, and is a cluod if Paine was not authorized in advance to on the title of complainant. It is further make the contract. alleged that Mrs. Scruggs died in September, This being true, and the bill being insuffi. 1923, leaving a last will and testament, by cient, it is not necessary to now decide whethwhich she made Tom Fite Paine her execu- er an agent can bind his principal by making tor, and devised to Capt. Geo. C. Paine all a contract in his own name without disclos. of her lands, which vests the legal title in ing his agency, and without having anything the locus in quo in Capt. Geo. C. Paine. It in the contract showing it was the contract is further alleged that the complainant on of his principal, November 21, 1922, borrowed from Capt. Geo. The judgment will therefore be affirmed. C. Paine $1,000, of which moneys $170 was

Affirmed. applied as a credit on the purchase money of the land in suit, and to secure this loan complainant executed a deed of trust on the

KENDRICK et al. v. KENDRICK. lands in this suit and certain other lands, and

(No. 23818.) offers to pay the amount due and comply with the terms of the contract made between (Supreme Court of Mississippi. May 19, 1924.) the complainant and Geo. C. Paine. It is

(Syllabus by the Court.) further alleged that the complainant went to a good deal of expense, buying live stock and Wills em699(3)-Equity will not exercise ju

risdiction merely to interpret will, without rewagons and clearing said lands, and made

quest for further relief. certain contracts for sale of certain timber, and was busily engaged in carrying out said strue wills is an incident to its general jurisdic.

The jurisdiction of a court of equity to concontracts when B. T. Clark caused him to be tion over trusts, and will never be exercised arrested in certain criminal proceedings by in a suit brought solely for the purpose of inwhich he was compelled to stop, and lost terpreting the provisions of a will, without any the contract and crops, etc., and that in addi- further relief. tion to actual damage B. T. Clark was liable to punitive damages for malicious prosecu- In Banc. tion and false imprisonment, and prays for Appeal from Chancery Court, Alcorn personal process for B. T. Clark, etc. County; A. J. McIntyre, Chancellor. There was a demurrer by B. T. Clark to

Suit by Mary Kendrick against R. M. the bill which was sustained, and the com- Kendrick and others. Judgment for plaintiff, plainant declined to plea further against B. and defendants appeal. Reversed, and bill T. Clark, and final judgment was entered

dismissed. dismissing the bill as to B. T. Clark, from which judgment this appeal is prosecuted.

W. J. Lamb, of Corinth, and H. P. Wood, It is insisted by the appellant that the of Selmer, Tenn., for appellants, bill states a good cause of action against B.

W. C. Sweat and E. S. Candler, both of T. Clark, and that under the averments of Corinth, for appellee. the bill a contract signed by Geo. C. Paine above set out was the contract of Mrs.

SMITH, C. J. C. Kendrick, a citizen of Scruggs on the theory that Paine was the the state of Mississippi, died, leaving a last undisclosed agent of Mrs. Scruggs in making will and testament which reads as follows: said contract. The bill does not pray for "Knowing the uncertainty of life and the cera reformation of this contract, and we think tainty of death, I hereby make and declare this, does not contain sufficient averments to con- my last will and testament. I desire my wife, stitute George C. Paine an undisclosed agent Mary W. Kendrick, to serve as executrix, and of Mrs. Scruggs. It is not alleged that Mrs. have full power to act in all matters pertainScruggs received the money paid to Paine and desire that everything I possess, personal

ing to my estate without bond. It is my will as part of the purchase money for this land, property of all kinds, all debts due me, all monnor that the contract was for her benefit, nor

ey on hand or on deposit or loaned, all real that she had authorized Paine to make such ) estate in Mississippi, Texas, and Tennessee

For other cases see same topic and KEY-NUMBER in all Kay-Numvered Digests and Indexes

everything I possess except my house and lot on It follows from the foregoing views that
the corner of Jefferson & Preston Sts. in Louis- the court below should not have construed
ville, Ky. This property I desire to go to and the will, but should have dismissed the bill
be divided among my heirs per stirpes as soon of its own motion.
as the lease expires which may be in force at

Reversed, and bill dismissed.
the time of my death-- All rent or lease money
to go to my wife until the lease expires which
may be in force at the time of my death."

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He left surviving him a widow, the appellee herein, and several nephews and nieces, G. A. SODEN & Co. v. T. J. WILKINSON & but no children. He owned at the time of

SON. (No. 23913.) his death property situated in Mississippi, Tennessee, and Texas. The widow claims (Supreme Court of Mississippi, Division B. that the will devises all of the testator's

May 26, 1924.) property to her except the house and lot in

(Syllabus by the Court.) Louisville, Ky., and brought this suit against 1. Sales Em4(2)—"Contract of sale or rethe testator's nephews and nieces, the sole

turn" defined. purpose of which, according to the prayer of

A “contract of sale or return" is an agree. the bill, is:

ment by which goods are delivered by a whole"That this court will construe the will of the sale dealer to a retailer, to be paid for at a said testator by suitable decree so as to de- certain rate if sold again by the latter, and if termine just what the said will, and each and not sold to be returned. every part thereof, means, and just what prop (Ed. Note.-For other definitions, see Words erty this petitioner takes under the will, and and Phrases, First and Second Series, Contract what property, if any, the defendants take of Sale.] thereunder."

2. Sales Om 4(2)-Transaction held to consti.

tute contract of sale and return. The answer to this bill alleges that the only property devised by the will is that sit

The facts in this case examined, and held uated in Louisville, Ky., but admits that the to constitute a contract of sale and return. appellee will inherit all of the decedent's property situated in the state of Mississippi Appeal from Chancery Court, Franklin under the laws of descent and distribution County; R. W. Cutrer, Chancellor. thereof, and joins in the prayer of the bill Suit by T. J. Wilkinson & Son against G. for a construction of the will.

A. Soden & Co. Decree of dismissal, and The appellee's construction of the will complainant appeals. Reversed and rendprevailed in the court below.

ered. It will be observed from the foregoing

Reed, Brandon & Brandon, of Natchez, for statement of the case that the sole question

appellant. presented for decision is whether or not the decedent devised all of his property except

L. A. Whittington, of Natchez, for appellee. the house and lot owned by him in Louisville, Ky., to his widow, the appellee herein,

SYKES, P. J. This suit was instituted in or died intestate as to all of his property the chancery court by the appellant, a corexcept the house and lot aforesaid. In ei- poration engaged in the wholesale jewelry ther event all of the decedent's property in business, to recover from the appellees an alMississippi, and subject to the jurisdiction leged balance due upon an account for the of the courts thereof, will go to the appel- sale of jewelry by appellant to appellees. lee; consequently the appellee's right to The amount sued for is $998.08, with intersuch property can in no way be affected by est from October 1921. If the appellees are a decision of the question presented. The liable, the amount is not questioned. The construction of the will is therefore unnec- theory of the bill is that the jewelry was essary, and, moreover, as will be observed sold by complainant to defendants under from the prayer of the bill, this suit is what is called a contract of sale or return, brought, not for the purpose of obtaining any and that title to these goods was in the aprelief, but solely for the purpose of obtain pellees at the time they were destroyed by ing an interpretation of the provisions of fire while in possession of appellees. It is the will.

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the contention of the appellees that the goods “The special equitable jurisdiction to con were shipped to them on consignment, and strue wills is simply an incident of the gen- that they were the property of the appellant eral jurisdiction over trusts;" and will at the time of the fire, consequently appelnever be exercised in "a suit brought solely | lees are not liable for their loss. for the purpose of interpreting the provisions The single question therefore presented in of a will without any further relief.” 3 this record is whether or not there was a Pomeroy's Equity Jurisprudence (3d Ed.) 8 | contract of sale or return of the goods, or 1156.

whether the goods were merely shipped on For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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