1. Administrator held authorized in term time to revive suit to can-
cel deed without notice of motion.
Where a complainant filed a suit in the chancery court to cancel
a deed and after service of process on the defendant died, the
administrator was authorized, under section 724, Code 1906
(section 507, Hemingway's Code), to revive the suit in his name
for the benefit of the heirs without serving notice of his motion
to revive on the defendant where said revivor was made in term
time of said court. Criscoe v. Adams, 37.
2. Executors and administrators.
Judgment. Administrator may
revive suit to set aside deed; may in certain cases sell land to
pay debts. Decree will not be reviewed on collateral attack after
two years if court had jurisdiction.
Under the laws of this state, the administrator has the right in
certain cases to sell land to pay debts, and he may revive and
prosecute to judgment a suit to set aside a deed to land for
condition broken in certain cases. And the court will not on
collateral attack review the rightfulness of the decree sought
to be collaterally attacked after two years, nor will it look to the
evidence to see whether the decree was proper, when the court
had jurisdiction of the subject-matter and the parties, on collat-
eral attack. Ib.
Affidavit held to require plaintiff to prove disputed item.
An affidavit that a particular item of a sworn account, filed with
the plaintiff's declaration, is incorrect, and that defendant does
not owe said sum, or any part thereof, is a sufficient compliance
with the provisions of section 1978, Code of 1906 (section 1638,
Hemingway's Code), to place upon plaintiff the burden of prov-
ing the correctness of the disputed item. Goshen Shirt Mfg. Co.
v. Tonkel, 659.
ACTIONS, RIGHT AND CAUSE.
1. Corporations. Stockholder's bill against officers and directors, al-
leging negligence and fraud, held to state a cause of action.
ACTIONS, RIGHT AND CAUSE.
ACTIONS, RIGHT AND CAUSE Continued.
A bill in chancery by stockholders of a corporation against the
officers and directors of such corporation, alleging that the
officers and directors squandered the funds and assets of such
corporation by speculating in futures and by making ultra vires
contracts, and that the corporation lost large sums in a given
period through gross negligence and inattention of the directors
to the business of the corporation, and that the books do not
show the disposition of certain assets which the corporation was
shown to have had by the books shortly preceding a bankruptcy
preceeding, and that the schedule in bankruptcy showed less
assets than the books showed shortly before such proceeding in
bankruptcy, and alleging a composition with creditors at twenty
per cent. in such proceeding, and that money was borrowed by
fraudulent collusion between the officers and the lender, for the
fraudulent purpose of acquiring the assets, and that, if recovery
is allowed, more than enough will be allowed to pay such mort-
gage, and that the directors and officers have refused an in-
spection and audit of the books of the corporation, states a cause
of action. Hawkins v. Clay County Cotton Oil Co., et al., 471.
2. Limitation of actions.
erned by lex fori.
Breach of contract in another state gov-
Where parties residing in another state make a contract to be
performed there, and such contract is breached in such state, and
none of said parties have ever lived in Mississippi, the right of
action for damages for such breach is barred by the Mississippi
statute of limitations, where the suit is brought in the courts of
this state. Fisher v. Burk, et. al., 781.
3. Limitation of actions.
Attachment on foreign action does not
make cause of action accrue in Mississippi.
The fact that an attachment is sought under the law of this state
to establish a lien upon property situated in this state to enforce
the payment of a debt or right of action accruing in another
state, does not make the cause of action accrue in this state.
Trotter v. Erwin, 27 Miss. 772, cited. Ib.
4. Limitation of actions. Statute of Mississippi applies to right of
action arising in another state and sued on in Mississippi.
Where a right of action arises in another state and suit is brought
on such right in this state, when the defendant has never re-
sided in this state, the Mississippi statute of limitations applies.
Ib.
ALIMONY-APPEAL AND ERROR.
ACTIONS, RIGHT AND CAUSE Continued.
5. Pleading. Demurrer to plea relates back to declaration if that is
demurrable.
Where a declaration is filed that does not state a cause of action,
and a plea is filed thereto by the defendant, and where such plea
is demurred to by the plaintiffs, such demurrer will relate back
to the declaration and challenge its validity, and should be sus-
tained as relating to the declaration. Mississippi Centennial Ex-
position Co. v. Luderbach et al., 825.
Divorce. Supreme court may allow alimony pendente lite on appeal.
The supreme court has power to grant alimony pendente lite and
attorney's fee on appeal to the wife in a suit for divorce and ali-
mony, notwithstanding the appeal was granted by the lower
court with supersedeas. Brown v. Brown, 125.
1. "Dipping" in tick eradication statute, defined.
Under chapter 38, Laws 1917, imposing liability on a county for
loss or permanent injury to animals in the process of dipping
for the eradication of cattle fever ticks, the word "dipping"
means "to immerse for a short time in any liquid; to place in
fluid and withdraw again; the act of dipping or immersing;
a plunge; a brief bath, as the dip of the oars; a dip in the sea."
Standard Dictionary, “dip." Covington County v. Pickering,
20.
2. County not liable for injury by sponging with poisonous fluid in
lieu of dipping.
A county is not liable for the injury to a mare caused by sponging
and rubbing with a poisonous fluid in lieu of dipping under the
Tick Eradication Law (Laws 1917, chapter 38), and a peremptory
instruction should have been given for the county. Ib.
1. Chancellor's findings of fact, conclusive.
The supreme court will not reverse the chancellor's decree on dis-
puted facts, unless such decree is manifestly wrong. City of
Jackson v. Mims, 78.
2. Credit for part of judgment collected against appellant pending
appeal must be allowed in court below on remand.
APPEAL AND ERROR-Continued.
Where a judgment appealed from without supersedeas is collect-
ed in part by execution pending the appeal, the appellant, who
was the defendant in the court below, is not entitled to a
credit in the supreme court on the affirmance of the judgment
of the court below for the money collected from him on the
execution, but the credit for which he may be thereby entitled
must be allowed in the court below when the judgment is re-
manded to it for execution. Boyd et al. v. Applewhite et al., 185.
3. Transcript of evidence not stricken because stenographer has re-
signed.
The stenographer's transcript of the evidence would not be
stricken from the record on motion on the ground that he
resigned his office before he filed the transcript, and that con-
sequently a certificate thereto was without official sanction, as
under Code 1906, section 4795 (Hemingway's Code, section
3148) a stenographer's resignation is ineffective as to any off-
cial business begun but not finished. Ward v. Ward, 217.
4. Criminal law. Error, not substantially injuring accused, will not
cause a reversal.
Error which has resulted in no substantial injury to the accused
on trial will not cause a reversal. Marshall v. State, 227.
5. Question which should have been presented on first appeal can-
not be considered on subsequent appeal.
When a question arises on the record on a first appeal, and could
be used to prevent a judgment rendered on such appeal, but was
not so used, it cannot be considered on a subsequent appeal; and
all questions which might have been presented on the first appeal
will be considered adjudicated and settled. Payne v. McNeeley,
248.
6. On reversal where record presents nothing for jury, judgment will
be rendered for appellant.
Where the court below should have directed a verdict for appellant,
judgment will be reversed because of its failure to do so; and,
where the record presents no question of fact to be ascertained
by jury, final judgment will be rendered for appellant in the
supreme court, under Code 1906, section 4919 (Hemingway's
Code, section 3195). Hines, Director-General of Railroads, et al.
v. Cole, 254.
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