well. Had it performed well it would not, of course, have set fire to the cotton. This then was a breach of the contract on the MATTHEWS v. STATE. (No. 23320.) (Supreme Court of Mississippi. March 31, Suggestion of Error Overruled (Syllabus by the Court.) Searches and seizures 3-Search warrant directed to any lawful officer and executed by sheriff held not void. Under section 2088, Hemingway's Code (Laws 1908, c. 115), providing that the search warrant herein provided for shall be directed to the sheriff or any constable, a warrant issued and directed "to any lawful officer of said county" is not void, where it is delivered by the justice of the peace to the sheriff to be Code 1906), it is provided that any process tion 2945, Hemingway's Code (section 3938, may be amended, and that failure of the officer issuing it to insert any matter in or on such process shall not make it void. part of the manufacturer. The contract, however, further provides that if the machinery does not operate well the buyer must notify the seller within 10 days of this fact. The bill alleges that soon after the gins were installed cotton was frequently set. on fire. It does not state whether this happened during the first 10 days of the operation of the gin; but, taking the allegations of the bill most strongly against the pleader, it is our duty to assume that these fires started within that time. Under this contract it therefore became the duty of the purchaser to at once inform the seller of this breach of the contract. The seller fail-executed and is executed by him. Under seced to do so, but operated the gins without complaint during the ginning seasons for over one year. Under this contract it be came the duty of the purchaser to notify the seller as soon as he could of this breach of the contract. By failing to do so the pur-2. Justices of the peace 80(2)-Law prochaser thereby breached his obligation under the contract. The contract further provides what is to be done by each party in case there is a failure of the warranty in connection with the machinery. In such case their rights and liabilities are measured by this contract. The contract further provides that failure to give this notice after 10 days' use shall be conclusive evidence of the fulfillment of the warranty. No such notice was given, and the purchaser by this contract is now estopped from claiming a breach of the warranty. Threshing Machine Co. v. McCoy, 111 Miss. 715, 72 South. 138. [1, 2] In case of a private contract of this kind where the duties and liabilities of the parties are both stipulated in the contract, there is no implied or other duty owed by either party, but all of these duties and liabilities are contained, measured, and gov erned by the contract. It is said that the suit is an action of tort. The relation, however, between these parties arises from the contract; it is a suit necessarily based upon the breach of a contract. The bill shows that there has been no breach of the contract, or rather that by the terms of the contract the plaintiff is estopped to claim a breach. There then can be no liability on the part of the defendant. The contract precludes any recovery. The case nearest in point cited by counsel is that of Birdsinger v. McCormick Harvester Mach. Co., 183 N. Y. 487, 76 N. E. 611, 3 L. R. A. (N. S.) 1047, 5 Ann. Cas. 586. In this case, however, it becomes unnecessary to discuss the question of whether or not the damages here sued for are proximate or remote. The decree of the lower court is affirmed. viding issuance under seal held not applicable to process issued by justice of the peace. Section 2919, Hemingway's Code (section 3912, Code 1906), providing that process shall be issued by the clerk and shall have the seal of the court impressed thereon, or its absence accounted for, except in cases otherwise provided for, has no application to process issued by a justice of the peace who is not required by law to have or use a seal. Process by a justice of the peace is otherwise provided for in the chapter on justices of the peace. 3. Searches and seizures 3-Affidavit for search warrant held sufficient as to descrip. tion of premises. A description in an affidavit for a search warrant under section 23 of the Constitution of 1890, describing the premises, as "on the premises occupied by L. A. Matthews, in district No. 5, about 14 miles northeast of Hazlehurst, in said county and state," is sufficient, where the caption shows the county and state where the premises are situated. Where the premises are described sufficiently to enable the officer to certainly locate the place to be searched and sufficiently specific and definite to enable the occupant of the premises to know, from the warrant, the place the officer is directed to search, it will be sufficient to comply with said section. It does not require the technical description of a deed of convey ance. Smith, C. J., and Sykes, J., dissenting. In Banc. Appeal from Circuit Court, Copiah County; D. M. Miller, Judge. L. A. Matthews was convicted of the un lawful manufacture of intoxicating liquors, J. F. Guynes, of Hazlehurst, for appellant. (100 So.) ETHRIDGE, J. The appellant was indicted, tried, and convicted of manufacturing intoxicating liquors, and sentenced to the penitentiary for three years; from which judgment he appeals, The evidence introduced against the appellant was procured by a search of the premises of the appellant under an affidavit and search warrant alleged to be found by the defendant. The affidavit for the search warrant reads as follows: "State of Mississippi, County of Copiah. The search warrant was addressed "To Any Lawful Officer of Copiah County," and recites the making of the affidavit, and commands the officer "with such aid as shall be needful you do proceed in day or night to enter by breaking, if necessary, and diligently search the residence, premises, automobiles, and all outhouses for said liquors, and any such vessels and appliances, making known to the occupant thereof, if any, your authority for so doing," etc. The evidence was objected to on the trial and exceptions taken to its admission, and the only evidence was the evidence of the officers obtained by means of search made under the search and affidavit; and the evidence was found, part in an outhouse near the residence, and part in the different rooms in the dwelling, and part in the possession of the defendant. [1] It is contended that the search warrant is void because it is not addressed to the sheriff or constable as required by section 2088, Hemingway's Code (chapter 115, Laws of 1908). This section, after providing for the affidavit, provides: "It shall be the duty of any justice of the peace to issue a search warrant, directed to the sheriff or any constable of the county, or if in a municipality, to the sheriff, or any constable or marshal, or policeman therein," etc. "If any matter required to be inserted in or indorsed on any process be omitted, such process shall not on that account be void, but it may be set aside as irregular, or amended on such terms as the court shall deem proper; and the amendment may be made upon an application to set aside or quash the writ." There seems to have been no specific motion made to quash the warrant for this defect, but, if there had been, it may have been amended and would not have voided the writ. [2] It is also urged that the warrant did not have the seal thereon, nor was the ab- Section 2919, Hemingway's Code (section 3912, Code of 1906), is not applicable to a proceeding before a justice of the peace, because the process before a justice of the peace is 'otherwise provided for, and a justice of the peace is not required to have or keep a seal, and, in fact, but few justices of the peace keep a seal at all. [3] It is next contended that the affidavit in insufficient to comply with section 23 of the Constitution, because the place is not sufficiently described. The language of the Constitution is: "No warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized." In Loeb v. State (Miss.) 98 South. 449, we held that the Constitution did not require such a description as would be sufficient in a deed of conveyance, but that any description that will clearly and certainly enable the officer to locate the place to be searched was sufficient. In the present case the description in the affidavit is "on the premises occupied by L. A. Matthews in district No. 5, about 14 miles northeast of Hazlehurst, in said county and state." This description very probably would be sufficient if contained in a contract to convey the premises to warrant the court, with the aid of oral evidence, to compel a conveyance. It is not only described as the premises of L. A. Matthews, but "the premises occupied by L. A. Matthews, in district No. 5, about 14 miles northeast of Hazlehurst," in said county. In the case of Rignall v. State (Miss.) 98 South. 444, the warrant only used the term "searched the premises of Joe Rignall," without further words of description. The court said: The warrant here is addressed "To Any Lawful Officer," but was delivered to the sheriff for execution. We do not think that addressing the warrant "To Any Lawful Of"The command of the warrant in the case at ficer" vitiates it. It was delivered to and executed by the sheriff, to whom section bar is to search 'the premises' of the appel2088, Hemingway's Code, authorized it to be lant, without describing such premises in any delivered to be served. Under the statute he way or designating the county in which they are located. The word 'premises' has varying has full authority to execute the warrant. meanings, usually determined by the context, Section 2945, Hemingway's Code (section and when used with respect to property means 3938, Code of 1906), provides: land, tenements, and appurtenances, and we think a warrant merely to search the 'prem- [ ises' of a person, without other description, and without any words of limitation as to occupancy or use, or otherwise, and without any designation of the county in which such premises are located, is entirely too broad and indefinite to meet the constitutional and statutory requirement of a specific designation of the place to be searched." The premises here, in the opinion of the majority of the court, are sufficiently described to enable the officer to locate the place to be searched, and also sufficiently specific and definite to enable the occupant of the premises to know the place the officer was direct ed to search, so that both the officer and the citizen could tell from the papers whether the officer was at the right place and had the legal authority to make the search. In our opinion, this is what the Constitution intended the affidavit and the warrant to contain. There is some difference in the authorities in other states about the particularity of the description required under the same or similar constitutional provisions. Some of the states hold that the premises must be described with the same particularity of the description required in a conveyance, while other states hold merely that there must be such description as will enable the officer by inquiry and search to find the place. The various holdings of the different states will be found in the notes upon the subject in 3 A. L. R. 1518 et seq., 13 A. L. R. 1318 et seq., and 27 A. L. R. 751 et seq. The constitutional provisions against searches and seizures is to be construed favorably to the rights of the citizens, and we would not abridge or restrict his constitutional rights, but in the very nature of things we do not think that the Constitution makers intended to have more particularity than such as would give the information above indicated to the officer and to the persons whose premises are to be searched. The court below held in accordance with these views, and the judgment will be affirmed. Affirmed. SYKES, J., dissents. I am also of the opinion, however, that the evidence is admissible, nothwithstanding the defects in the warrant, for the reasons set forth in my dissenting opinion in Owen v. State, 98 South. 233, but until Tucker v. State, 128 Miss. 211, 90 South. 845, 24 A. L. R. 1377, shall be overruled, I must of course adhere to its ruling that evidence obtained by a search without a lawful warrant therefor is inadmissible. GARNER v. TOWNES. (No. 23817.) April 14, 1924. Suggestion of Error (Syllabus by the Court.) I. Witnesses 128-Claimant of life insurance policy by assignment and delivery from deceased father, whose estate not interested, held competent; "claim against estate of deceased person." life insurance policy by assignment and delivComplainant, who claimed ownership of a ery by his father, since deceased, against defendant, who claimed title thereto also by assignment as a gift from the same source, the estate of said decedent not being a party to the suit, and not affected directly or indirectly, was not incompetent as a witness to establish his claim to such insurance policy under section 1917, Code of 1906 (Hemingway's Code, to testify as witness to establish his own 1577), which renders incompetent a person "claim against the estate of a deceased person," which originated in the lifetime of such decedent. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Claim against Estate.] 2. Insurance 222-Statute held not to prohibit proof that assignment of life policy, absolute in form, intended as collateral security; "property." Section 4783, Code 1906 (Hemingway's Code, § 3127), providing that a writing absolute on its face, where the maker parts with the "property" conveyed, shall not be proved by parol to be a mortgage, unless procured by fraud, applies alone to tangible property, and has no application to intangible property, and therefore said statute is not violated by proof that the assignment of a life insurance policy absolute in form was in fact intended as col lateral security for an indebtedness due by the assignor to the assignee. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Property.] SMITH, C. J. (dissenting). I am of the opinion that the search warrant here in question is void for want of a sufficient description of the place to be searched. The description of the premises to be searched is not only too indefinite to meet the constitutional requirement, but the only statute under which the warrant could have been issued is section 1749, Code of 1906 (Hemingway's Code, § 2088), which provides only for the issuance of a warrant for the search of a Where the title to a life insurance policy "room or building designated in the affi- is in the defendant by virtue of a written assignment thereof, an action to have such as davit." 3. Limitation of actions 39(7)-Action to cancel assignment of insurance policy must be brought within 10 years after action accrues. (100 So.)' signment canceled and the title divested out of the defendant and invested in the complainant is an action of exclusive equitable cognizance, and is governed by that provision of section 3125, Code 1906 (Hemingway's Code, § 2489), which provides that bills for relief not elsewhere specifically provided for shall be brought within 10 years after the cause of action accrued. On Suggestion of Error. 4. Appeal and error 1236-When judgment for damages in action for possession of life policy will be rendered on appeal stated. Under section 4926, Code 1906 (section 3202, Hemingway's Code), on the affirmance of a judgment for the possession of a life insurance policy, the Supreme Court will render a judgment against the appellant for damages at the rate of 5 per centum on the value of the policy, if the value thereof can be ascertained from the record. If the value of the policy cannot be ascertained from the record, the cause will be remanded to the trial court for the ascertainment thereof. Section 4927, Code 1906 (section 3203, Hemingway's Code). Appeal from Chancery Court, Tallahatchie County; C. L. Lomax, Chancellor. Suit by J. K. Townes against Elizabeth Garner, a minor. From a decree for plaintiff, defendant appeals. Suggestion of error sustained in part and cause remanded. Hays, Stingily & Whitten, of Sumner, and May, Sanders & McLaurin, of Jackson, for appellant. Gardner & Gardner, of Greenwood, for appellee. ANDERSON, J. Appellee, J. K. Townes, filed his bill in the chancery court of Tallahatchie county against appellant, Elizabeth Garner, a minor, and the Equitable Life Assurance Society, by which he sought to cancel an assignment of a $5,000 life insurance policy on his life in said insurance company made by his father, James A. Townes, deceased, in his lifetime to appellant, and to have said insurance policy in the hands of appellant surrendered up and delivered to appellee. The appellant answered, denying the material allegation of appellee's bill. The Equitable Life Assurance Society answered as called upon by the bill, giving a history of the insurance policy in question as shown by the records of its office, and disclaiming any interest in the subject-matter of the litigation. The cause was heard on bill, answers, and proofs, and a decree rendered granting the prayer of the appellee's bill, from which appellant prosecutes this appeal. Appellee made by his bill, and his evidence tended to establish, the following case: James A. Townes, deceased, the father of appellee and the grandfather of appellant, was a large cotton planter in the Delta sec tion of this state, living on his plantation. During the year 1892 appellee took out a $5,000 life insurance policy on his life in the Equitable Life Assurance Society. His father had in his residence a safe, where he as well as appellee kept their valuable papers. When this insurance policy was obtained by appellee in 1892 he placed it in said safe in his father's home, where it remained until March, 1913, when his father assigned the same to appellant, his granddaughter; such assignment evidencing a gift from the grandfather to the granddaughter. The policy matured during the year 1912. Prior thereto, and on December 16, 1909, appellee borrowed from his father the sum of $3,500 with which to rebuild his home which had been destroyed by fire, and to secure the loan assigned, and transferred to his father the policy of insurance involved. This assignment was in writing, and was absolute in form, and was signed and acknowledged by appellee. Appellee testified, however, and his testimony was corroborated by other evidence that, although the assignment of said policy was absolute in form, it was only intended as security for said debt to his father. In January, 1913, appellee had a settlement with his father by which his en tire indebtedness to his father including said loan of $3,500, was paid, and the life insurance policy in question was thereupon surrendered to appellee by his father, and at the request of appellee was returned to his father's safe, where it had been kept since its issuance in 1892, with the understanding that his father would at once prepare or have prepared in writing a reassignment of said policy to appellee, and sign and acknowledge the same. In a day or two afterwards appellee's father undertaking to carry out this agreement, together with Mr. Farquhrason, who was his nurse and attendant, and who, when called upon, assisted him about his business affairs, went to Minter City to the office of a justice of the peace, taking this policy along; his purpose being to execute a reassignment of said policy to appellee, but found the office of the justice of the peace closed. Shortly afterwards James A. Townes went to Battle Creek, Mich., for his health, and remained awhile, and came back and soon died. The settlement claimed by appellee to have been had with his father which resulted in the reassignment and delivery of said policy back to appellee was witnessed and testified to by appellee, the said Mr. Farquhrason, appellee's wife, and appellee's daughter, Mrs. Parker. The assignment of the policy by James A. Townes to appellant, his granddaughter, took place on the 26th of March, 1913, less than three months after said settlement and surrender and delivery of said policy to appellee. Substantially all of the material facts attending the settlement be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tween appellee and his father, including the surrender and delivery up of said policy to appellee, were testified to, not only by appellee, but by the other witnesses named above. At the time of the assignment of said policy to appellant, and for some time prior thereto, James A. Townes had in his safe in his home, in addition to the policy here involved and other valuable papers belonging to appellee, two policies of insurance of $5,000 each on the life of the appellee in the Des Moines Life Insurance Company, which had been taken out some years before by appellee, and by him assigned to his father, who had paid the premiums on the same. The bill charges that James A. Townes, in assigning the policy here involved to appellant on the 26th of March, 1913, intended and thought he was assigning one of these policies in the Des Moines Life Insurance Company. However, there was no direct evidence to sustain this charge in the bill; there were only inferences from proven facts and circumstances. Three questions involved in this case we think of sufficient seriousness to call for a discussion. They are: (1) Whether appellee, under section 1917, Code of 1906 (Hemingway's Code, § 1577), was a competent witness in his own behalf? (2) Whether, under section 4783, Code of 1906 (Hemingway's Code, § 3127), evidence was admissible to prove that the assignment of said policy of insurance in absolute form was only intended by the parties as collateral security for appellee's indebtedness to James A. Townes? (3) Whether the cause of action was barred by the statutes of limitation? of the policy to appellant by her grandfather was a gift; no consideration passed. She was therefore a mere volunteer. There is no conflict in the evidence as to the fact that at his death James A. Townes owned no interest in the policy. Therefore we have a case where the evidence shows, and undoubtedly competent evidence, that this policy of insurance at the time of the death of James A. Townes constituted no part of his estate. If appellee succeed in this case, he will not be establishing his claim against the estate of his father. The estate of James A. Townes, deceased, is neither directly nor indirectly involved in this cause. To put it differently: If appellee succeed, the estate of his father will not be diminished one particle either in this suit or any other suit which may result therefrom. If appellant lose the policy in question, she cannot call upon her grandfather's estate to make the loss good, because she paid nothing for it; she was a mere volunteer. We are of opinion that the following decisions of this court settle the proposition that a party to a cause so situated is a competent witness under said statute. Love v. Stone, 56 Miss. 449; Faler v. Jordan, 44 Miss. 283; Combs v. Black, 62 Miss. 831; Cole v. Gardner, 67 Miss. 670, 7 South. 500; Fennell v. McGowan, 58 Miss. 261; Gordon v. McEachin, 57 Miss. 834; Jones v. Bank, 71 Miss. 1023, 16 South. 344; Jackson v. Smith, 68 Miss. 53, 8 South. 258; Wood v. Stafford, 50 Miss. 370. The cases relied on by appellant, Griffin v. Lower, 37 Miss. 458; Lamar v. Williams, We will discuss these questions in the 39 Miss. 342; Jacks v. Bridewell, 51 Miss. order stated. 881; Whitehead v. Kirk, 104 Miss. 776, 61 187, Ann. Cas. 1916A, 1051, are not in conflict with the views here expressed. They were all cases in which the estate of a deceased person was involved. (1) Section 1917, Code of 1906 (Heming-South. 737, 62 South. 432, 51 L. R. A. (N. S.) way's Code, § 1577), renders incompetent a person to testify as a witness to establish his own claim or defense against the estate of a deceased person which originated in the lifetime of such deceased person. [2] 2. Appellant contends that, under secAppellant contends that appellee was in- tion 4783, Code of 1906 (Hemingway's Code, competent as a witness under this statute; | § 3127), providing that a writing absolute on that the effect of his evidence was to es- its face, where the maker parts with the tablish his own claim against the estate or a deceased person, that of his father. property conveyed, shall not be proved by parol by either party to be a mortgage, un[1] In considering this question the fol- less fraud in its procurement is the issue to lowing facts which we deem controlling be tried, parol evidence was not admissible should be kept in mind. The estate of James to show that the assignment of the policy A. Townes, deceased, is not a party to this by appellee to his father absolute in form suit. Before his death James A. Townes, was only intended to be as collateral seby assignment to appellant, taking appel-curity. Armstrong v. Owens, 83 Miss. 10, lant's evidence to be true, divested himself 35 South. 320, determines this question of all right, title, or interest in the policy. against appellant's contention. It was held He therefore had divested himself of any interest in this policy either by reassignment and delivery to appellee or by assignment and delivery to appellant. He had done one or the other or both. Taking the evidence of the respective parties to be true he had done both. But, as a matter of law, one or the other of those assignments must in that case that this statute applied only to tangible property, and did not embrace a life insurance policy. [3] 3. In considering what statute of limitations applies to this cause of action it is necessary to determine whether it is a cause cognizable alone in a court of equity. The gravamen of the bill is to cancel the assign |