lawful manufacture. Evidence that a person was at a still being then operated, and moving around the still with something in his hand, coupled with a confession, voluntarily made, that he was in the employ of the owner of the still, working for wages at the time, is sufficient to authorize a conviction of the manufacture of intoxicating liquor. 2. Infants 69—Accused, under 16 years old when felony committed, may be sent to county jail, instead of penitentiary. Under section 1513, Code of 1906 (section 1271, Hemingway's Code), providing that, when the court shall be satisfied that a person, who has been found guilty of a felony not capital, is not more than 16 years of age, the punishment imposed may, in the discretion of the judge. be imprisonment in the county jail not exceeding one year, instead of imprisonment in the penitentiary, a person under the age of 16 years when the felony was committed may be, in the discretion of the trial judge, sent to the county jail, instead of to the peni tentiary. The boy was carried to Meridian, and was asked by the prohibition officer what he was doing making whisky, that he was mighty young to be engaged in that business, and that the boy said to him that the still was not his, but belonged to Mr. Turnage, and that all he was getting out of it was $1 a day. This confession was testified to by two prohibition officers. The boy testified that he had nothing to do with the still; that he was not engaged in the business, and was not in the employment of Mr. Turnage, but that he worked for another man by the name of Turnage on a farm nearby. The boy's mother testified that she hired him to the other Mr. Turnage, and that he did not work for the Turnage who ran the still. Turnage, the owner of the still, prior to this trial had been convicted of distilling and sentenced to the penitentiary, and testified in this case in behalf of the defendant, stating that the boy had nothing to do with the still and was not employed by him. The defendant was convicted and sentenced to the county jail, instead of the penitentiary. [1] It was insisted, first, that the evidence was insufficient to sustain the conviction. We think the evidence is ample to establish the corpus delicti, that the boy was present, and to establish his confession as to his participation in the manufacture, and that the conviction must be upheld, and when the Appeal from Circuit Court, Lauderdale corpus delicti was established, the confesCounty; C. C. Miller, Judge. John Kidd was convicted of the unlawful and felonious manufacture and distillation of intoxicating liquor, and he appeals. Affirmed. R. F. Cochran, of Meridian, for appellant. Harry M. Bryan, Asst. Atty. Gen., for the State. ETHRIDGE, J. The appellant was indicted at the August term, 1922, of the circuit court of Lauderdale county, for the unlawful and felonious manufacture and distillation of intoxicating liquor. The offense was said to have been committed on April 15, 1922, when the prohibition enforcement officers made a raid upon a still being operated in Lauderdale county, Miss. The officers testified that they came up to the place where the still was in operation, having two boilers, and that they got within 20 to 25 yards of the still, and saw five or six men there; this boy, John Kidd, being one of them. They saw the boy go from where the whisky was running at the worm, back close to where the fire was, and stoop over there, and that he had something in his hand; that at about that time some one shot in the thicket, and the officers rushed in and caught the boy; that the still was in full operation, and 15 to 18 gallons of whisky were captured. sion and the fact of his being present is sufficient to convict him. [2] It was next insisted that the court erred in sentencing the boy to the county jail instead of to the penitentiary, and that the act of the Legislature defining offenses prescribes the punishment as imprisonment in the penitentiary. There was a recommendation by the jury of mercy on account of the youth of the defendant. It appears from the evidence that the defendant at the time of the offense was 14 years of age, and that at the time of the trial, which was a little more than 2 years after the commission of the offense, that he was 17 years of age. Section 1513, Code of 1906 (section 1271, Hemingway's Code), reads as follows: "When the court shall be satisfied that a person who has been found guilty of a felony not capital is not more than sixteen years of age, the punishment imposed may, in the discretion of the court, be imprisonment in the county jail not exceeding one year, instead of imprisonment in the penitentiary." In our view, this section is intended to mitigate the punishment for offenses committed by youth under 16 years of age, and this section must be construed in connection with all other sections defining punishments for felonies less than capital, and authorized the judge in his discretion to sentence such offenders to the county jail not exceeding For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (102 So.) one year rather than to the penitentiary. | supersedeas was applied for as to the balance This was evidently the view of the trial of the money judgment, and supersedeas was judge, and the judgment will be affirmed. allowed as to the money judgment on a bond Affirmed. for twice the amount of the balance of the judgment, and the cause was appealed, and all of the issues involved in the court below were reviewed in this court. After the rendition of the judgment and the decision of the cause, two motions were filed to correct the judgment; one by the appellant and the oth MEEK et al. v. ALEXANDER et al. (No. 24170.) (Supreme Court of Mississippi, Division B. er by the appellee. The appellant insists Dec. 8, 1924.) (Syllabus by the Court.) that the allowance of damages at 5 per cent. on the $13,508.93 was error, and that such damages should only have been 5 per cent. of 1. Costs 263-Five per cent. on balance of the balance of the judgment after giving judgment after partial payment, with reser-credit for the amount paid subsequent to the vation to review entire judgment, not authorized. Where a judgment embraced a number of questions, and embraced a sum of money adjudged to one of the parties litigant, and the person against whom the judgment is rendered appeals, and the judgment is affirmed on appeal, the 5 per cent. damages allowed by section 4926, Code of 1906 (section 3202, Hemingway's Code), is calculated on the amount of the judgment as rendered by the trial court, and the payment, after rendition, of a part of the judgment with reservation of the right to review the entire judgment does not authorize the calculation of the 5 per cent. damages on the balance after such payment. Appeal from Chancery Court, Humphreys County; E. N. Thomas, Chancellor. Proceedings between G. W. Meek and others, and J. A. Alexander and others. From the judgment rendered the former appeal. On motion to correct judgment (101 So. 502). Overruled in part. Wasson, Nelson & Wasson, of Greenville, and Green, Green & Potter, of Jackson, for appellants. rendition of the judgment. The appellee moved to correct the judgment by allowing 6 per cent. on the decree as rendered from the date of the rendition thereof to the date of the payment made subsequent to the rendition, adding the interest from the date of the rendition to the date of the payment of the principal sum decreed, and then deducting the payment from the principal sum with the interest, and then calculating interest at 6 per cent. from date of payment on the balance until the time of affirmance. [1] The damages allowed on appeals when the appellant is not successful, that is to say, when the judgment is affirmed, involves an interpretation of section 4926, Code of 1906 (section 3202, Hemingway's Code), which reads as follows: "In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect the Supreme Court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property; if the judgment or decree be for the dissolution of an injunction or other restraining process at law or in chancery, the damages shall be computed on the amount due the appellee which was enjoined or restrained; if the judgment or decree be for the dissolution of an injunction or other restraining process certain interest in property, or be a judgment as to certain property, real or personal, or a or decree for the sale of property, or some interest in it, to satisfy a sum out of the proceeds Moody & Williams and Chapman & John- of sale, or to enforce or establish a lien or son, all of Indianola, for appellees. ETHRIDGE, J. This cause was decided on a former day and judgment entered allowing damages at 5 per cent. on the amount of the money judgment in the court below, which was $13,508.93. The judgment appealed from embraced a number of things besides the money judgment rendered. After the rendition of the judgment for $13,508.93, there was paid on the decree $5,215.12, after which a charge or claim upon or some interest in property, and the only matter complained of on the appeal is the decree as to some particular property or claim on it, the damages shall be computed on the value of the property or the interest in it be less than the judgment or deinterest in it, if the value of the property or cree against it; but if the value of the property or interest in it be greater than the amount of the judgment or decree against it, the damages shall be upon the amount of the judgment or decree." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The receipt for the payment made on the judgment after its rendition recited that it was without prejudice to the appellants' right to have the judgment reversed and res titution made. The section above quoted gives the damages on the sum of money decreed. The damages are not dependent upon superseding the judgment. An appeal may be prosecuted without supersedeas and damages accrue if the judgment be affirmed. So the payment made upon the judgment was not a recognition of the appellees' right to recover any sum, and the entire judgment was challenged as being wrongful. The section above quoted is in the nature of a penalty, or a condition of appeal, and affords also the basis of remuneration of the expense to the successful party, and must be calculated upon the sum adjudged or decreed in the court below where the judgment is for a sum of money. We therefore hold that it was not error to calculate the 5 per cent. upon the $13,508.93, and the motion to correct as to the 5 per cent. penalty will be overruled. [2] The subject of partial payments upon judgments and other instruments bearing interest is governed by section 2681, Code of 1906 (section 2079, Hemingway's Code), which provides: "When partial payments are made, the interest that has accrued to the time of payment, if any, shall be first paid, and the residue of such partial payment shall be placed to the payment of the principal." Under this section the interest is calculated up to the date of payment, and is paid, and the balance becomes the basis of calculation, and the interest calculated on the balance at 6 per cent. from the date of the partial payment to the date of the affirmance, and the total sum will bear interest from that date forward till paid. So ordered. all bonds or money it has deposited with him under the provisions of these acts. 2. Statement of statute. Section 40 of this act (section 3598, Hemingway's Code) is plain and unambiguous. It provides that a guaranty bank upon retiring from business, shall be entitled to receive from the state treasurer its bonds deposited with him, after all its depositors have been paid in full, and after it had paid all assessments on account of the guaranteed banks in liquidation. Appeal from Chancery Court, Hinds County; V. J. Stricker, Chancellor. Suit by C. Adams, Liquidating Agent of the Gloster Bank & Trust Company, against the Mississippi Banking Department and others. Judgment for plaintiff, and defendants appeal. Affirmed. Odom, of Greenwood, for appellants. Lowrey & McLain, of Gloster, Currie & Smith, of Hattiesburg, and Watkins, WatPotter, of Jackson, amicus curiæ), for appelkins & Eager, of Jackson (Green, Green & lee. SYKES, P. J. The Gloster Bank & Trust Company, a state bank organized under chapter 124, Laws of 1914, as amended by chapter 207, Laws of 1916, was chartered in 1919, and became one of the guaranteed banks of the state under the above acts. While it continued in business it paid every assessment levied against it for the support and maintenance of the guaranty fund, as provided by section 35, chapter 207, of the Laws of 1916. In January, 1922, it voluntarily liquidated and discharged and paid in full all of its deposit liabilities. It has also paid all assessments made against it under the above acts. When it started business, and in compliance with these acts, it deposited with the state treasurer proper bonds of the par value of $500. By this suit its liquidating agent seeks to MISSISSIPPI BANKING DEPARTMENT et recover from the state treasurer and the al. v. ADAMS. (No. 24359.) banking department these bonds. It is un (Supreme Court of Mississippi, Division B. necessary to review in full the various sec Dec. 8, 1924.) (Syllabus by the Court.) 1. Banks and banking 15-Liquidating agent of bank which had paid depositors in full and all assessments could recover from state treasurer bonds or money deposited under statutes. When a bank organized under chapter 124, Laws of 1914, as amended by chapter 207, Laws of 1916, voluntarily liquidates and goes out of business, after having paid its depositors in full, and paid all assessments made against it while it was doing business, as provided by section 40 of the Act of 1914 (section 3598, Hemingway's Code), its liquidating agent is entitled to recover from the state treasurer tions of these acts relating to this guaranty law, because this case must be determined by a construction of section 40 of the Act of 1914 (section 3598, Hemingway's Code), which reads as follows: "A solvent guaranteed bank, upon retiring from business and liquidating its affairs, shall be entitled to receive from the state treasurer its bond or money pledged, after all depositors in such bank and all assessments on account of the guaranteed banks in liquidation have been paid in full, but not any part of any unused assessments that may be in the bank depositors' guaranty fund." It is the contention of the banking department that the liquidating agent of this bank (102 So.) is not entitled to the return of these bonds, year in which death occurs shall be deducted until the liabilities of all guaranteed banks from the amount payable thereunder. in liquidation have been paid in full. That the record in this case shows that there are approximately $500,000 of liabilities incurred before and during the time the Gloster Bank was doing business, and that these bonds are liable for the pro rata part of the liabilities which the Gloster Bank would have to pay, provided it continued in business. It is the contention of the appellee liquidating agent that it is not liable for anything more than the assessments which have been made against it, and, since in this case the Gloster Bank paid all assessments made against it, it is liable for nothing more. [1, 2] It is needless for us to discuss the holdings of other states, nor is it for us to consider the wisdom or folly of this section of the act. This section is perfectly plain and unambiguous, and practically construes itself. It says that a guaranteed bank upon retiring from business shall be entitled to receive from the state treasurer its bonds after all its depositors have been paid in full, and after it has paid all assessments on account of the guaranteed banks in liquidation. It has to pay nothing more than the assessments that have been made against it under this banking law. It is not liable for any fund under this act until an assessment has been made against it. This law limits the number of assessments each year and the amount thereof. The bank paid these assessments, and its liquidating agent is entitled to a return of these bonds. The learned chancellor so held, and his decree is affirmed. Affirmed NEW YORK LIFE INS. CO. v. MORRIS. (No. 24522.) (Supreme Court of Mississippi, Division B. Dec. 8, 1924.) (Syllabus by the Court.) 1. Insurance 349(4)-Life policy held not to remain in force after expiration of quarter, for which installment of premium has been paid, without payment of installment for succeeding quarter. 2. Insurance 349 (2)-Policy held contract for insurance for one year, only on condition that insured pays quarterly installments of premium when due. Under such a contract the insurance is not for one year absolutely, but for that period, only on the condition that the insured pays the premiums, when due under the terms of the policy. 3. Insurance 349 (4)-Life policy held not existing contract in case of voluntary default in payment of quarterly installment of annual premium when due, or within grace period. Under such contract of insurance the ining the annual premium in quarterly installsurer grants the insured the privilege of payments, but reserves the right to collect a full yearly premium in the event of the death of the insured while the policy is in force, but, the contract so providing, in case of a voluntary default in the payment of any installment when due, or within the grace period, the policy is no longer an existing contract, and the insurer has no right to collect the remaining installments, and no action can be maintained thereon by the beneficiary. Appeal from Circuit Court, Covington County; E. L. Dent, Special Judge. Suit by Isabelle K. Morris against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered. A. H. Longino, of Jackson, for appellant. COOK, J. The appellee, Isabelle K. Morris, instituted this suit against the New York Life Insurance Company on an insurance policy issued for her benefit on the life of her husband, William E. Morris, now deceased, and from a judgment for appellee, this appeal was prosecuted. To the declaration filed by appellee the defendant company pleaded all the various provisions of the policy in reference to the payment of premiums, and the provision for a forfeiture for nonpayment of premiums. The cause was submitted to the court, without the intervention of a jury, on an agreed statement of facts. It was agreed that an anWhere a life insurance policy provides for the payment of the premium in quarterly in-nual premium on the policy, if it had been stallments, which shall maintain the policy in paid annually, would have been $73.83, but, force for three calendar months, and that the by written agreement between the insured payment of such premium shall not maintain and the defendant, the premium was to be the policy in force beyond the date when the paid in quarterly installments of $19.56; next payment becomes due, except as to bene-that, by agreement of the parties, the policy fits provided for after default in premium took effect on the 8th day of January, 1923, payments, the contract binds neither party be yond the quarter for which payment has been and the first quarterly installment of the made, except at the option of the insured, and premium was paid; that the quarterly inthis is true, although the policy further pro- stallments included 6 per cent. interest on vides that any unpaid premiums required to the amount of an annual premium; that, becomplete payment for the current insurance fore the maturity of the second, or April, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and lndexes quarterly installment of the premium, the, one year, and upon the death of the insured defendant gave the insured due and proper during the year, the company became liable notice of the date when said installment for the face of the policy, less the unpaid would became due and payable, but the same premium installments for the year. was not paid on its due date, or within 30 days thereafter; that likewise the July and October quarterly installments were not paid; and that the insured died on December 3, 1923. [1-3] We think this is a misconception resulting from a failure to construe together, and give effect to, all the provisions of the policy. The policy provides that the first quarterly installment shall constitute the The policy contract contains the following first premium, and shall maintain the policy provision: "This contract is made in consideration of the payment in advance of the sum of $19.56, the receipt of which is hereby acknowledged, constituting the first premium, and maintaining this policy to the 8th day of April, 1923, and of a like sum on said date and every three cal-provided for therein, after default in preendar months thereafter during the life of the insured." As to the grace allowed in the payment of premiums, the provision of the policy is as follows: "Grace.-If any premium is not paid on or before the day it falls due, the policy holder is in default; but a grace of one month (not less than 30 days), subject to an interest charge of 5 per cent. per annum, will be allowed for the payment of every premium after the first, during which time the insurance continues in force. If death occurs within the period of grace, the unpaid premium for the then current insurance year will be deducted from the amount payable hereunder." As to the payment of premiums and the effect of nonpayment the provision of the policy is as follows: in force for three calendar months, at the end of which time a second installment shall become due, and that the payment of the premium shall not maintain the policy in force beyond the date when the next payment shall become due, except as to the benefits mium payment, and if the contention of the appellee is sustained, it will result in nullifying these provisions, except as to the initial yearly payments. The provision for a forfeiture on the date when a premium shall become due is absolute, except as to the benefits provided for after default in the payment of the premium. A benefit after default in a premium payment is found in the provision that a grace of one month will be allowed for the payment of any premium, during which time the insurance will be continued in force, and the unpaid premium for balance of the insurance year deducted from the face of the policy. Construing these provisions together a forfeiture cannot occur until the period of grace allowed for the payment of a premium has expired, but, if death occurs during this peri"Payment of Premiums.-All premiums are od, it is expressly provided that the company payable on or before their due date, at the home office of the company or to an authorized may collect the premium for the current inagent of the company, but only in exchange for surance year by deducting it from the amount the company's official premium receipt signed payable under the policy. When this last proby the president, a vice president, a second vice vision is considered in connection with the president, a secretary, or the treasurer of the general provision that any unpaid premiums, company, and countersigned by the person re- required to complete payment for the current ceiving the premium. No person has any au- insurance year in which death occurs, shall be thority to collect a premium, unless he then deducted from the amount payable thereunholds said official premium receipt. The pre-der, it seems clear that the right to deduct mium is always considered as payable annually from the face of the policy the installments in advance, but, by agreement in writing and not otherwise, may be made payable in semiannual or quarterly payments. Any unpaid premiums required to complete payment for the current insurance year in which death occurs shall be deducted from the amount payable hereunder. The payment of the premium shall not maintain the policy in force beyond the date when the next payment becomes due, except as to the benefits provided for herein, after default in premium payment." not due attaches only when the insured regularly meets his payments at maturity, or within the period of grace, and dies before all the payments for the current year become due. We think that, for the purpose of this decision, it may be conceded that the policy is an annual insurance, but the payments are to be made quarterly, and it is expressly provided that the failure to make any payment when due will work a forfeiture. The The court below held, and the contention insurance was not for one year absolutely, of the appellee is, that the contract of insur-but for that period only on the condition that ance is a contract for annual insurance, and, the insured paid the premiums when due unsince the policy provides that any unpaid premiums required to complete payment for the current insurance year in which death occurs shall be deducted from the amount payable thereunder, the payment of the first der the terms of the policy. By the contract of insurance the insurer granted the insured the privilege of paying the annual premium in quarterly installments, but reserved the right to collect a full yearly pre |