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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 of sufficient merit to require a discussion by the court.

Appellant, to support his position, cites 2 Wharton's Criminal Law (Kerr) § 830, Bradley v. State, Walk. 156, and Thompson v. Thompson, 218 U. S. 611, 31 Sup. Ct. 111, 54 L. Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921. It was held in the Bradley Case that at common law a husband had the right to chastise his wife corporally in moderation in case of great emergency. And Wharton, in the section cited, says:

"By the common law the husband possessed the power of chastising his wife, though the tendency of criminal courts in the present day is to regard the marital relation as no defense to a battery."

The Thompson Case involved a civil action by the wife against the husband for an assault and battery by the latter on the former. The case arose in the District of Columbia. The court held that the common law relation between husband and wife was not so far modified by D. C. Code § 1155, as to give the wife a right of action to recover damages from her husband for an assault and battery committed upon her by him. In discussing the question the court said, among other things:

objection. The court held that under the common law a wife was competent to testify against her husband in a prosecution for assault and battery upon her; that, the husband having violated the sanctity and peace of the household, it was deemed better that the wife should be permitted to testify than that she should run the risk of injury inflicted upon her by her husband in the privacy of domestic life, from which he had the power to exclude witnesses of his offense. The court used this language in part:

"The husband, therefore, who assaults his wife, commits an injury, not only upon her, but upon society, of which they are members. It is for the injury to the public, committed upon it through the person of the wife, that he is punished."

The crime of assault and battery in this state is a common-law and not a statutory offense. In view of that fact appellant takes the position that it may be conceded that the Bradley Case has been overruled and that it is therefore no longer the law of this state that the husband, for the purpose of correction, may inflict corporal punishment upon the wife in moderation, still there could be no conviction in this case because there is

no law left making an assault and battery by the husband on the wife a crime. In other 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.

The Attorney General says, however, that, granting it had been held in the Bradley Case that under the common law a husband had the right to use physical force in the chastisement of his wife, moderately or otherwise, that principle was overturned by Harris v. State, 71 Miss. 462, 14 South. 266, in which

thing to-day and another thing to-morrow.

Appellant's contention, if granted, would views with reference to what is the common mean that the courts could not change their law, that having once declared what it was there could never be any change except by constitutional or legislative enactment.

[2] We are of the opinion that under cerlatter case the court, in discussing the Brad- difficulty in solving this question. In Green tain well-established principles there is no ley Case, said:

"That this brutality found in the ancient common law, though strangely recognized in Bradley v. State, Walker (Miss.) 156, has never since received countenance, and it is superfluous to now say that the blind adherence shown in that case to revolting precedent has long been utterly repudiated in the administration of criminal law in our courts."

v. Weller, 32 Miss. 650, and Crane v. French, 38 Miss. 503, it was held that the principles of the common law unsuited to our condition or repugnant to the spirit of our government are not in force in this state. It was held in Vicksburg Railroad Co. v. Patton, 31 Miss. 156, 66 Am. Dec. 552, that all the rules of 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. 1917E, 880, 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.)

Jno. R. Anderson, of Tupelo, for appellee.

withstanding in such case the decision made 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 apand 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 and recognized in the Turner Case, there is no exception in favor of the husband as against the wife in the common-law offense of assault and battery. That rule has as much binding force on the courts as if there had never been any other rule. The common law on the subject stands as if the Bradley Case had never been decided or decided the converse of what it was.

Section 1525, Code of 1906 (Hemingway's Code, 1287), providing that offenses not covered by statutes shall be indictable as at common law, simply means that such offenses shall be indictable according to the common law as declared by the courts at the time.

Affirmed.

The facts upon which this decree was entered are undisputed, and are as follows: On December 20, 1922, W. M. B. Cox, president of the People's Bank of Baldwyn, Miss., presented to the cashier of the Bank of Tupelo for payment an instrument of writing, a copy of which is here set out in full, Cox stating at the time that he needed some money for the operation of his bank and want ed to get $500. The Bank of Tupelo honored the instrument, which is as follows:

"85-127. The Bank of Tupelo.

"Tupelo, Miss., Dec. 20, 1922. "At sight pay to the order of the Bank of Tupelo $500.00, five hundred and no/100 dollars, with exchange. "W. M. B. Cox, Pres. "To People's Bank, Baldwyn, Miss."

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.)

(Supreme Court of Mississippi, Division B. May 12, 1924.)

(Syllabus by the Court.)

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[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.

The following instrument of writing held to be a cashier's check: "At sight pay to the order of the Bank of Tupelo, $500.00 with exchange. To People's Bank, Baldwyn, Miss. [Signed] W. M. B. Cox, Prest."-when Cox, as a matter of fact, was the president of the People's Bank of Baldwyn.

3. Banks and banking 15-Cashier's check guaranteed.

Under section 3596, Hemingway's Code, a cashier's check is guaranteed.

Appeal from Chancery Court, Lee County; A. J. McIntyre, Chancellor.

Action by the Bank of Tupelo against E. F. Anderson, State Bank Examiner. Judgment for plaintiff, and defendant appeals. Athrmed.

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J. A. Cunningham, of Booneville, and Flowers & Brown and C. L. Hester, all of Jackson, for appellant.

essarily mean that he was president of the People's Bank of Baldwyn, and that it cannot be said that this instrument was drawn on this bank by one of its agents, but rather is an order to the Tupelo Bank by a third party, presumably a depositor, drawn on the People's Bank of Baldwyn. It is also suggested by the appellant that a cashier's check is usually issued on a form gotten out by the bank issuing it, whereas this instrument is written on a form of the Tupelo Bank.

[1, 2] A cashier's check is merely a bill of exchange, drawn by a bank upon itself, and accepted by the act of issuance. 5 R. C. L. p. 483; Drinkall v. Bank, 11 N. D. 10, 88 N. W. 724, 57 L. R. A. 341, 95 Am. St. Rep. 693. The instrument in question comes within his definition of a cashier's check. It is drawn on the Baldwyn Bank by the president of that bank. It was unnecessary in this case for the word "president" to be followed by "People's Bank, Baldwyn, Miss."

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

It was known to the officers of the Tupelo Bank, and generally known, that Cox was president of this Baldwyn Bank. His signing the cashier's check as president could not have meant anything except that he was president of the bank upon which the paper was drawn.

The decree of the court below is affirmed.

YOUNG v. CLARK et al. (No. 24178.) (Supreme Court of Mississippi, Division B. May 26, 1924.)

(Syllabus by the Court.)

Principal and agent 189(1)-Essentials of bill for specific performance of contract made by undisclosed agent stated.

Where a bill is filed to enforce by specific' performance a contract made by one person in his own name, as the contract made by an undisclosed agency, the bill must aver the facts of the agency, and specifically state that the agent was authorized by the undisclosed principal to make the contract, and that the contract was made for the benefit or on the account of the principal, or state facts showing ratification or receipt of the fruits of the contract. The averments should be specific and certain, and such as show the relation of principal and agent to exist.

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ETHRIDGE, J. The appellant, Young, filed a bill in chancery court, alleging that he was the owner of certain land therein described, “and deraigns his title as follows: A contract of sale from Mrs. J. H. Scruggs through Capt. George C. Paine, undisclosed agent for Mrs. Scruggs, her agent, a copy of which title bond is hereto attached as an exhibit marked A, and asked to be taken as a part of this bill." The contract, Exhibit A, reads as follows:

"This contract this day entered into by and between George C. Paine and Wiley Young.

"In consideration of $850 to be paid as hereafter set out I obligate and bind myself, my heirs and executors to make Wiley Young a deed to the following described property: "The W. % of the S. E. 4 of section 15, Tp. 12, R. 7 East, Monroe county, Mississippi, 80 acres, and 20 acres off the west fractional half of the N. E. 4 of Sec. 15, Tp. 12, R. 7 East, known as the Lusby estate land.

"Wiley Young is to have 5 years within which to pay for this land, provided he pays 6% interest on the amount of $850 from this day and pays the interest annually and part of the the event he fails to do either, then this conprincipal annually and all the annual taxes. In tract is void and terminated at the option of held as rent. George C. Paine and any money paid shall be 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 commissioner's sale in a partition proceeding styled "Mrs. M. A. Perryman et al. v. V. O. Lusby," No. 5674; that the papers in said cause had been mislaid, and could not be found after diligent search; and that the parties to the partition suit were the children and only heirs of John W. Lusby, deceased, who, it is averred, died seized and possessed of the locus in quo. It is alleged that in 1894 John W. Lusby and wife executed and delivered to B. T. Clark & Co. a warranty deed to the land in question with other lands, and that John Clark and C. B. Hood, partners, executed on January 26, 1899, a deed to B. T. Clark, conveying their interest in these lands, and that, after these deeds had vested. the title in B. T. Clark, Clark made Lusby a deed of gift to the land in question, and delivered, or, verbally, in the execution of the gift, put John W. Lusby in the possession of the same; that Lusby paid the taxes on the land, cut the timber, collected the rents, and claimed adverse ownership up to the time of his death, a period of about ten years; that after his death his children went into possession under claim of adverse ownership, and remained in possession until after the

sale in the partition suit to Mrs. J. H. Mrs. J. H. Scruggs, through her agent, went Scruggs; that upon her purchase of this land into possession of this land under claim of ownership, and in October, 1919, sold it to C. L. Hood and W. M. Owings by warranty deed; that Hood and Owings afterwards conveyed the land back to Mrs. Scruggs, and the complainant avers on information and belief that Mrs. Scruggs and her immediate vendors were in the possession of the land up to and at the time Mrs. Scruggs sold the land to the complainant, and that complainant has been in the possession since; that B. T. Clark had record notice of this land being the land which he had carved out for and given to Lusby, and had knowledge of the adverse possession; that on May 4, 1923, Mrs. J. H. Scruggs executed a voluntary deed to B. T. Clark, conveying this land to him on a recital in the deed that it was done in order to correct a mistake; that the complainants are informed and believe that the mistake claimed to have been made consists in the chancery commissioners' deed which recites that the land in question was

(100 So.)

purports to be a contract of George C. Paine, individually. He obligates to bind himself, his heirs, and executors to make the deed. There is nothing in the deed to suggest that he was acting for Mrs. Scruggs in making the contract, and the deed nowhere shows any fact from which such inference could be drawn. If as a matter of fact Paine was the agent of Mrs. Scruggs, and had authority to make the contract, these matters should be specifically set forth so as to show the agency or to show knowledge and ratification if Paine was not authorized in advance to make the contract.

known as the J. W. Lusby estate land; that contract for her. The contract on its face the partition proceedings should have dealt with the S. 1⁄2 of the N. E. 4 of the N. E. 4, and the S. E. 4 of the N. E. 4, and the N. E. 4 of the S. E. 4 of Section 15, Tp. 12, R. 7, because that was the J. W. Lusby estate land, when this land was not owned by J. W. Lusby and wife, and was not conveyed to Clark & Co. by Lusby, while the locus in quo was, and was specifically described and partited by the chancery decree in suit No. 5674; and avers that, there being no mistake to correct, this deed 'from Mrs. J. H. Scruggs to B. T. Clark conveyed no title, and is a cluod on the title of complainant. It is further alleged that Mrs. Scruggs died in September, 1923, leaving a last will and testament, by which she made Tom Fite Paine her executor, and devised to Capt. Geo. C. Paine all of her lands, which vests the legal title in the locus in quo in Capt. Geo. C. Paine. It is further alleged that the complainant on November 21, 1922, borrowed from Capt. Geo. C. Paine $1,000, of which moneys $170 was 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 lands in this suit and certain other lands, and offers to pay the amount due and comply with the terms of the contract made between the complainant and Geo. C. Paine. It is further alleged that the complainant went to a good deal of expense, buying live stock and wagons and clearing said lands, and made certain contracts for sale of certain timber,

and was busily engaged in carrying out said contracts when B. T. Clark caused him to be arrested in certain criminal proceedings by which he was compelled to stop, and lost the contract and crops, etc., and that in addition to actual damage B. T. Clark was liable to punitive damages for malicious prosecution and false imprisonment, and prays for personal process for B. T, Clark, etc.

There was a demurrer by B. T. Clark to the bill which was sustained, and the complainant declined to plea further against B. T. Clark, and final judgment was entered dismissing the bill as to B. T. Clark, from which judgment this appeal is prosecuted. It is insisted by the appellant that the bill states a good cause of action against B. T. Clark, and that under the averments of the bill a contract signed by Geo. C. Paine above set out was the contract of Mrs. Scruggs on the theory that Paine was the undisclosed agent of Mrs. Scruggs in making said contract. The bill does not pray for a reformation of this contract, and we think does not contain sufficient averments to constitute George C. Paine an undisclosed agent of Mrs. Scruggs. It is not alleged that Mrs. Scruggs received the money paid to Paine as part of the purchase money for this land,

nor that the contract was for her benefit, nor that she had authorized Paine to make such

This being true, and the bill being insufficient, it is not necessary to now decide whether an agent can bind his principal by making a contract in his own name without disclosing his agency, and without having anything in the contract showing it was the contract of his principal.

The judgment will therefore be affirmed.
Affirmed.

KENDRICK et al. v. KENDRICK.
(No. 23818.)

(Supreme Court of Mississippi. May 19, 1924.)
(Syllabus by the Court.)

Wills 695 (3)-Equity will not exercise jurisdiction merely to Interpret will, without request for further relief.

strue wills is an incident to its general jurisdiction over trusts, and will never be exercised in a suit brought solely for the purpose of interpreting the provisions of a will, without any further relief.

The jurisdiction of a court of equity to con

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W. J. Lamb, of Corinth, and H. P. Wood,
of Selmer, Tenn., for appellants.
W. C. Sweat and E. S. Candler, both of
Corinth, for appellee.

SMITH, C. J. C. Kendrick, a citizen of the state of Mississippi, died, leaving a last will and testament which reads as follows:

"Knowing the uncertainty of life and the certainty of death, I hereby make and declare this, my last will and testament. I desire my wife, Mary W. Kendrick, to serve as executrix, and have full power to act in all matters pertaining to my estate without bond. It is my will and desire that everything I possess, personal property of all kinds, all debts due me, all money on hand or on deposit or loaned, all real estate in Mississippi, Texas, and Tennessee-

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

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SON. (No. 23913.)

Court of Mississippi, Division B.
May 26, 1924.)

lee herein, and several nephews and nieces, G. A. SODEN & CO. v. T. J. WILKINSON but no children. He owned at the time of his death property situated in Mississippi, Tennessee, and Texas. The widow claims (Supreme that the will devises all of the testator's property to her except the house and lot in Louisville, Ky., and brought this suit against the testator's nephews and nieces, the sole purpose of which, according to the prayer of the bill, is:

"That this court will construe the will of the said testator by suitable decree so as to determine just what the said will, and each and every part thereof, means, and just what property this petitioner takes under the will, and what property, if any, the defendants take thereunder."

The answer to this bill alleges that the only property devised by the will is that situated in Louisville, Ky., but admits that the appellee will inherit all of the decedent's property situated in the state of Mississippi under the laws of descent and distribution thereof, and joins in the prayer of the bill for a construction of the will.

I. Sales

(Syllabus by the Court.)

4 (2) -"Contract of sale or return" defined.

A "contract of sale or return" is an agreement by which goods are delivered by a wholesale dealer to a retailer, to be paid for at a certain rate if sold again by the latter, and if not sold to be returned.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Contract of Sale.]

2. Sales 4 (2)-Transaction held to constitute contract of sale and return.

The facts in this case examined, and held to constitute a contract of sale and return.

Appeal from Chancery Court, Franklin County; R. W. Cutrer, Chancellor.

Suit by T. J. Wilkinson & Son against G. A. Soden & Co. Decree of dismissal, and

The appellee's construction of the will complainant appeals. Reversed and rendprevailed in the court below.

ered.

Reed, Brandon & Brandon, of Natchez, for appellant.

L. A. Whittington, of Natchez, for appellee.

SYKES, P. J. This suit was instituted in

It will be observed from the foregoing statement of the case that the sole question presented for decision is whether or not the decedent devised all of his property except the house and lot owned by him in Louisville, Ky., to his widow, the appellee herein, 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. the contention of the appellees that the goods were shipped to them on consignment, and that they were the property of the appellant at the time of the fire, consequently appellees are not liable for their loss.

"The special equitable jurisdiction to construe wills is simply an incident of the general jurisdiction over trusts;" and will never be exercised in "a suit brought solely for the purpose of interpreting the provisions of a will without any further relief." 3 Pomeroy's Equity Jurisprudence (3d Ed.) 8 1156.

The single question therefore presented in this record is whether or not there was a contract of sale or return of the goods, or whether the goods were merely shipped on

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