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(102 So.) sured while the policy was in force. In case, "Finally, it is contended that this policy is however, of a voluntary default in the pay- to be construed as a policy for a year, upon ment of any installment, when due, or with which a quarter of the premium has been paid, in the grace period, it is expressly provided and three-quarters remains due as a credit to that the policy shall no longer be an exist in this regard from Insurance Co. v. Sheridan,

the company. The case cannot be distinguished ing contract, and in such case the insurer has 8 H. L. Cas. 745, where the policy was in all no right to collect the remaining installments, substantial respects similar to the one under and no action can be maintained thereon by consideration. It is an annual policy, but it is the beneficiary.

an annual policy on which the premium is payIn the case of New York Life Insurance able by quarterly installments, leaving the Co. v. Alexander, 122 Miss. 813, 85 So. 93, 15 insured at liberty to drop it at any quarter, A. L. R. 314, it was held that:

and imposing no liability on the part of the

company, unless the quarterly payment is made "When a life insurance policy provides for a at the end of the quarter. If, however, the forfeiture of the insurance, in case of a fail- insured die at the end of the first quarter of ure to pay premium, the policy, in case of fail- the current year, the insurance company reure to pay, is forfeited, and sickness or insan-ceives only one-quarter of the annual premium, ity will not avoid the forfeiture."

instead of the whole. It has insured the de

ceased for a year, subject to his voluntary deIn the case of Thompson v. Fidelity Mutual fault. He has died, and the policy is earned.

He should pay the whole year's premium Life Insurance Co., 116 Tenn. 557, 92 S. W. therefor, but has only paid one quarter's pre1098, 6 L, R. A. (N, S.) 1039, 115 Am. St. mium. To meet this injustice, the proviso is Rep. 853, the court had under consideration introduced that, if the insured should happen provisions sitalar to the ones here involved, to die before the whole of said quarterly payand the court there said:

ments shall become due, then the company shall

be entitled to deduct premiums for all the sub"The privilege of paying the annual premi- sequent quarters of that current year from um in quarterly installments was evidently the amount of the policy. That proviso is not for the convenience of the insured. Ordinarily, meant to apply to the case of a defaulted paythese premiums are payable as a whole in ad-ment, but only to a case where the payments vance for the term of one year. The failure to

are regularly made as they become due, and pay the whole of the premium in such a case

where all the installments have not become due works a forfeiture in the event that it is so

on the death of the insured. In this case there provided. In this instance the result is the

was a failure to pay a quarterly installment on same, upon the failure of the insured to meet the day fixed. As a consequence, the policy his quarterly payments when due. At the end | became forfeited, and all liability thereon of any quarter there is no obligation imposed

ceased." upon the insured to pay the next succeeding quarter; his failure to pay works a forfeiture

In Howard v. Continental Life Insurance of his contract, but the company cannot com: Co., 48 Cal. 229, a similar question was inpel him to pay the remaining installments. In the event of the death of the insured, before volved, and the court there said: the end of the first quarter, or any succeeding “We agree that it was intended--in case of quarter, if he has paid his premiums when due, the death of the assured before one or both his representatives are entitled to collect his of the postponed installments would have beinsurance. In the absence of any provision come due, had he continued to live-that the permitting the company to deduct from the face company should deduct, from the amount invalue the remaining installments for the year, sured, the balance unpaid of the year's prethe insured would receive the face value of mium. But we do not think that, as a consethe policy, having paid one-fourth, two-fourths, quence of this right reserved by the insurers, etc., as the case may be, of the annual pre- the assured was relieved of the necessity of mium. In order to avoid this, the company said paying any installment, when it was agreed it to the insured, 'You pay your premium in in- should be paid. The company was authorized stallments. If you meet those installments to deduct any installment not due at the regularly when due, and die before all of 'the death, but was not compelled to pay the sum installments have become due, we will pay the insured, with the right to deduct an installment face value of the policy, less any unpaid portion overdue when death occurred.” of the yearly payment.' In other words, the company reserves the right to deduct the dues In Joyce on Insurance, vol. 2, par. 1108, the for the current year accruing but not due. rule is announced that: Thus, in the event of a loss, while the contract

“If the stipulation is that the annual preis in force, to preserve to itself the right to mium shall be paid quarterly in advance upon collect the unpaid portion of the annual pre: specified days or the policy shall be forfeited, mium. In the case of a default in the payment the party will be held strictly to the perform. of any installment when due, the policy is no longer an existing contract, and the insurer has determined by nonpayment as stipulated, unless

ance of such condition, an the contract will be do right to collect the remaining installments.” such condition is legally modified or waived by

the insurer. * * And the rule obtains, alIn the case of McConnell v. Assurance So-though the policy stipulates that if the asciety, 92 F. 769, 34 C. C. A. 663, in constru- sured shall pay the annual premium when due, ing similar provisions in a policy, the court the company shall be liable, and also that, if the

whole of the quarterly premium shall not have

said:

been paid when the assured dies, the company may deduct the whole unpaid balance of that H. K. MULFORD CO. v. Dr. C. MCMILLAN year's premium from the amount of the policy."

(No. 24538.) The judgment of the court below will there- (Supreme Court of Mississippi, Division B. fore be reversed, and judgment will be en

Dec. 8, 1924.) tered here for the appellant. Reversed, and judgment for appellant.

Appeal from Circuit Court, Bolivar County; W. A. Alcorn, Jr., Judge.

Somerville & Somerville, of Cleveland, for appellant. Sillers & Pearson, of Rosedale, for appellee.

PER CURIAM. Affirmed.

L. A. McLAIN V. STATE. (No. 24436.) (Supreme Court of Mississippi, Division A. Dec. 1, 1924. Suggestion of Error Over

ruled Dec. 15, 1924.)

Appeal from Circuit Court, Greene County;

W. C. LOWREY v. James A. SMITH. * C. C. Miller, Judge.

(No. 24524.) Draughn & Waller, of Hattiesburg, for ap- (Supreme Court of Mississippi, Division B. pellant.

Dec. 8, 1924.)
Harry M. Bryan, Asst. Atty. Gen., for the
State.

Appeal from Circuit Court, Lowndes County;

J. I. Sturdivant, Judge. PER CURIAM. Conviction in lower court of having liquor in possession, with sentence to

Loving & Loving, of Columbus, for appellant. pay fine of $100 and to 60 days' imprisonment.

Jas. T. Harrison, of Columbus, for appellee. Affirmed.

PER CURIAM. Affirmed.

Stokes V. ROBERTSON, State Revenue Agent,
Use, etc., Calhoun County, v. W. 0. LAW.

RENCE et al. (No. 24070.)
(Supreme Court of Mississippi. Dec. 8, 1924.
Suggestion of Error Overruled

Dec. 22, 1924.)
En Banc.
Appeal from Chancery Court, Calhoun Coun-
ty; J. G. McGowan, Chancellor.

Teat & Odom, of Jackson, and W. J. Evans, of Calhoun City, for appellant.

Thos. L. Haman, of Houston, Creekmore & Creekmore, of Water Valley, J. H. Ford, of Houston, and Flowers & Brown, of Jackson, for appellees.

Felix MORAN v. STATE. (No. 24432.) † (Supreme Court of Mississippi, Division B.

Dec. 8, 1924.)
Appeal from Circuit Court, Harrison County;
D. M. Graham, Judge.

F. W. Elmer, Jr., of Biloxi, and Mize & Mize, of Gulfport, for appellant.

E. C. Sharp, Asst. Atty. Gen., for the State.

PER CURIAM. Conviction in lower court of selling liquor to a minor, with sentence to pay fine of $500 and to three months' imprison. ment. Affirmed.

PER CURIAM. Affirmed.

Buddie DUKES V. STATE. (No. 24438.) Elvin CUNNINGHAM v. STATE. (No. 24610.) (Supreme Court of Mississippi, Division B. (Supreme Court of Mississippi, Division B. Dec. 8, 1924.)

Dec. 8, 1924.) Appeal from Circuit Court, Greene County: Appeal from Circuit Court, Lowndes County; C. C. Miller, Judge.

J. I. Sturdivant, Judge. A. T. L. Watkins, of New Augusta, for ap Wm. P. Stribling, of Columbus, for appellant. pellant.

F. S. Harmon, Asst. Atty. Gen., for the E. C. Sharp, Asst. Atty. Gen., for the State. State.

PER CURIAM. Conviction in lower court PER CURIAM. Conviction in lower court of of unlawful retailing, with sentence to pay fine having liquor in possession with sentence to of $100 and four months' imprisonment. Af- pay fine of $300 and 30 days' imprisonment. firmed.

Affirmed. *Suggestion of error overruled January 3, 1925. † Suggestion of error overruled 102 So. 388.

(102 So.)

L. A. Smith, of Holly Springs, for appellants. FRANKLIN MOTOR CAR CO. v. W. R. Lester G. Fant, of Holly Springs, for apCHRISMOND. (No. 24539.)*

pellee.
(Supreme Court of Mississippi, Division B. PER CURIAM. Afirmed.

Dec. 8, 1924.)
Appeal from Circuit Court, Choctaw County;
T. L. Lamb, Judge.

Jones & Boydstun, of Louisville, for appel Duff HEIMAN v. STATE. (No. 24465.) → lapt.

David E. Crawley, of Kosciusko, and J. L. (Supreme Court of Mississippi, Division B. Seawright, of Ackerman, for appellee.

Dec. 8, 1924.) PER CURIAM. Affirmed.

Appeal from Circuit Court, Warren County; E. L. Brien, Judge.

Anderson, Vollor & Kelly, of Vicksburg, for

appellant. Buck DEVINE v. STATE. (No, 24597.)

F. S. Harmon, Asst. Atty. Gen., for the State. (Supreme Court of Mississippi, Division B. Dec. 8, 1924.)

PER CURIAM. Conviction in lower court

of unlawful retailing and sentence to pay fine Appeal from Circuit Court, Webster County; of $500 and to three months' imprisonment. T. L, Lamb, Judge.

Affirmed.
MeKeigney & Latham, of Empora, for appel-
lant.
E. C. Sharp, Asst. Atty. Gen., for the State.

ILLINOIS CENT. R. CO. v. S. M. KEEL. PER CURIAM. Conviction in lower court

(No. 24370.) of manufacturing liquor, with sentence to three

(Supreme Court of Mississippi, Division B. years in penitentiary. Affirmed.

Dec. 8, 1924.)
Appeal from Circuit Court, Marshall Coun-

ty; Thos. E. Pegram, Judge.
SOUTHERN RY. CO. v. Cleveland LEE.
(NO. 23840.)

R. V. Fletcher, of Chicago, Ill., and May,

Sanders & McLaurin, of Jackson, for appellant. (Supreme Court of Mississippi, Division B. Geo. T. & Chas. S. Mitchell, of Tupelo, and Dec. 8, 1924.)

R. G. Draper, of Memphis, Tenn., for appellee. Appeal from Circuit Court, Alcorn County;

PER CURIAM. Affirmed. C. P. Long, Judge.

Crum & Lauderdale, of New Albany, for, appellant.

J. M. Boone, of Corinth, and Ewing, King & King, of Memphis, Tenn., for appellee.

John ROBINSON V. Hiawatha McCOLLUM,

(No. 24534.) PER CURIAM. Affirmed.

(Supreme Court of Mississippi, Division B.

Dec. 8, 1924.) Jack STRICKLAND v. STATE. (No. 24229.) Appeal from Circuit Court, Jones County;

R. S. Hall, Judge. (Supreme Court of Mississippi, Division B.

D. B. Cooley, of Laurel, for appellant. Dec. 8, 1924.)

Collins & Collins, of Laurel, for appellee. Appeal from Circuit Court, Lauderdale County; C. C. Miller, Judge.

PER CURIAM. Affirmed.
R. F. Cochran, of Meridian, for appellant.
E. C. Sharp, Asst. Atty. Gen., for the State.
PER CURIAM. Conviction in lower court of
selling intoxicating liquor and sentence to pay

ITZIG CO. v. S. P. CALKINS & CO, fine of $500 and to five months' imprisonment.

(No. 24529.) Affirmed.

(Supreme Court of Mississippi, Division B. Dec. 8, 1924. Suggestion of Error

Overruled Dec. 22, 1924.) H. G. LOFTIN et al. v, J. R. WATKINS CO. (No. 24369.)

Appeal from

Circuit Court, Washington

County; S. F. Davis, Judge. (Supreme Court of Mississippi, Division B. Nov. 24, 1924. Suggestion of Error

Walton Shields, of Greenville, for appellant, Overruled Dec. 22, 1924.)

Humphreys & Anderson, of Greenville, for

appellee. Appeal from Circuit Court, Marshall County; Thos. E. Pegram, Judge.

PER CURIAM. Affirmed. *Suggestion of error overruled January 3, 1925. † Suggestion of error overruled January 19, 1925.

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(157 La.)

Judgments for plaintiffs 10 unsatisfactory
No. 26036.

amounts, they appeal. Reversed and ren

dered. BERRY et al. v. BASS et al.

Modisette & Adams, of Jennings, for appel. (Supreme Court of Louisiana. Nov. 3, 1924.) lants.

J. H. Heinen and Miller & Miller, all (Syllabus by Editorial Staff.)

Jennings, for appellees. 1. Arrest Om68-One merely notified to appear before magistrate not under “arrest."

By the WHOLE COURT. While actual use of force is not necessary to constitute arrest, intention to arrest (i. e.,

ST. PAUL, J. These are two cases, conto take into custody) must be present and evi- solidated for trial, in which Mrs. Louis denced by unequivocal act, as by keeping ar- Berry and one Laussard Dupuy seek to rerested party in sight and controlling his ac cover damages in solido from John Bass and tions, and one merely told to consider himself one John Fletcher, respectively mayor and under arrest, or to appear beforė magistrate, town marshal of the town of Lake Arthur. is not under arrest, whether such notice or summons be complied with, or compliance be From a judgment in favor of Dupuy against caused by fear of consequences of noncompli- both defendants for $5 for false arrest (i. e., ance, or not.

without a warrant), and another in favor [Ed. Note. For other definitions, see Words of Mrs. Berry against Bass, alone, for $20 and Phrases, First and Second Series, Arrest.] for false imprisonment. Both plaintiff's have

appealed, seeking to have said judgments 2. Constitutional law 56-Courts Om 160— increased, and both defendants have answer

Legislature held authorized to establish mu. ed said appeal, praying that both judgments nicipal courts to enforce municipal ordinances. be reversed in toto.

Authority conferred by Const. 1898, art. 96, to provide for establishment of municipal

1. courts to enforce purely municipal ordinances, cannot be questioned, after general acquiescence

The practically undisputed facts of this therein for over 25 years, in actions against case, so far as they are pertinent to the ismayor and town marshal for false arrest and sues involved, are substantially as follows: imprisonment, on ground that Act No. 136 of Two itinerant picture dealers (husband · 1898, § 29, establishing mayor's court with ju- and wife) complained verbally to the mayor risdiction over violations of ordinances, vio- that, in a controversy over the delivery of lates Const. 1898, art. 84.

some pictures, plaintiffs had cursed and 3. False imprisonment m7(2)-Validity of or. abused them; whereupon the mayor verbally

dinance held not subject to attack by per. directed the marshal to notify the plaintiffs sons convicted thereunder.

(that being the usual proceeding in such Proceedings before mayor, on charge of dis- cases) to appear before him, the mayor, on turbing peace, being valid, though informal, and the next morning, and answer to a charge of within his jurisdiction, under Act 136 of 1898, disturbing the peace. $ 29, defendants cannot mulct mayor and mar The marshal did as directed; he notified shal in damages for false arrest and imprison- both plaintiffs to appear before the mayor ment, after sentence was imposed and fully executed, on ground of unconstitutionality of both tried and adjudged guilty. Dupuy was

next morning. This they did, and were ordinance under which they were convicted, without having challenged its validity at time fined, and his fine was paid. Mrs. Berry was of hearing in absence of evidence of malice.

sentenced to 24 hours' imprisonment, with

out alternative of a fine; but was released 4. False imprisonment Ow7(2)—Mayor, erro. after some two hours' detention, when the

neously imposing sentence of imprisonment
without alternative of fine, not liable for dam- mayor was told that she was not in good

health. ages.

II. Mayor, imposing sentence of imprisonment for breach of peace without alternative of fine, As to the alleged false arrest: under ordinance authorizing imprisonment only [1] The trial judge says: in default of payment of fine, is not liable for damages for false arrest and imprisonment, in

"There is, however, this difference in the two absence of bad faith, malice, or corruption; Berry was arrested prior to her trial.

There was no claim made that Mrs. inferior magistrates like superior court judges, not being liable for mere errors in judgment,

But we do not see this difference. even in respect to extent of jurisdiction or powers under laws they are called on to enforce.

Mrs. Berry testified:

"Question: When you were arrested, what Appeal from Fifteenth Judicial District did the marshal say to you? (Objected to beCourt, Parish of Jefferson Davis; Thos. F. cause it assumed a fact not proved. Objection Porter, Jr., Judge.

overruled.) Answer: He told me to report to

the pressing shop (mayor's court) because I Actions by Mrs. Louis Berry and Laussard had trouble with a woman that bring some picDupuy against John Bass and another. From tures in my house."

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

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(102 So.) Dupuy testified:

one can commit a homicide by merely tell"Question: You have known Mr. Fletcher, ing another to consider himself dead. On the marshal, for a long time? Answer: Yes. the contrary, the very purpose of merely no

"Question: He didn't arrest you-he never tifying a person charged with some offense touched you? Answer: No; he tell me to simply to appear before a magistrate is come to court, 9 o'clock next morning." precisely to avoid arresting him therefor; it The marshal testified:

is precisely not to deprive him of his liberty

for the time being; it is for the very pur"Question: I will ask you if your notices or pose of leaving him master of his own movesummons to these people were such as you ments until the time fixed. And the person generally use in bringing people into court?

so notified or summoned is no more under arAnswer: Yes, sir,

"Question: You went to their house and told rest than a witness summoned or notified to them that they should appear at the mayor's appear before a magistrate on a given day. court at a certain hour for a certain purpose? Nor is the fact that he is told to "consider Answer: Yes, sir.

himself under arrest" any more potent to "Question: You didn't have any paper (war- make him be under arrest, than his being rant) with you? Answer: No."

told to consider himself an emperor's son

to make him a crown prince. The trial judge says (in Dupuy's case):

And whether or not such notice or sum"Upon receiving this instruction (verbally, mons be complied with, and, if so, whether from the mayor) defendant, the marshal, rode such compliance be or be not because of fear around on horseback to the plaintiff's (Dupuy's) home, and, without getting off his horse, told of the consequences, whatever those may be, the plaintiff (Dupuy), who was about 12 feet should he fail to comply, is wholly beyond distant, and in his yard, to appear in court the the present question; since the fact remains next morning for trial on a charge of disturb that such person is not under arrest for the ing the peace. At the appointed time and place time being, but is master of his own moveplaintiff appeared for trial.”

ments.

In Barry v. Adamson, 6 Barn & Cres. 528,
We hold that the foregoing facts do not 13 Eng. Com. Law, 242, 108 English Reprint,
show an arrest.
In 5 Corp. Juris, 386, verbo “Arrest,” 819c), where the officer simply gave notice of

546 (cited 5 Corp. Jur. 386, 387, notes 8a, 2, it is said that:

the writ and asked defendant to fix a time "The custody or control, the assumption of for giving bail, it was held that there was which is involved in an arrest, imports actual no arrest, although defendant complied with restraint or detention; the mere utterance of the request of the officer, and afterwards words indicative of an arrest being insufficient

appeared and gave bail. (except perhaps when followed by submission),

In Connor v. Spark, 6 Modern, 173, 87 Eng. as is also the reading or verbal proffer of the warrant without more, or mere personal serv.

Reprint, 928; 1 Salkeld, 79, 91 Eng. Reice of process."

print, 74 (cited in 5 Corp. Jur. 386, note 10a),

the court said: It must be said, however, that there is

"Here was no arrest, the bailiff having not conflict between the authorities as to wheth- laid hands on the defendant; for his shewing er mere compliance with a notice or sum the writ, and pronouncing the word 'arrest,' mons to appear before a magistrate is such without touching him, was no more an arrest a "submission" as to constitute an arrest. than it would be one if a bailiff sees a man 5 Corp. Jur. 386, 387, notes 8–20. And this look out of a window, a pair of stairs or two court has once held that there had been an high, and tells him he has a writ for him, and arrest, where defendant had called upon a

says that he arrests him." deputy sheriff, who happened to be present,

In Arrowsmith v. le Mesurier, 2 Bos. & to arrest plaintiff, and “the deputy sheriff

Pul. New Rep. 211, 127 Eng. Reprint, 605 toid plaintiff to consider himself under arrest and to report at the justice of the peace (cited 5 Corp. Jur. 387, note 19b), Lord Manscourt the next morning at 9:30." Thomas

field, C. J., said: v. Henderson, 125 La. 292, 51 So. 203. But "I can suppose that an arrest may take place not one authority is cited, nor a single rea- without an actual touch, as if a man be locked son given for the holding.

up in a room; but here the plaintiff went volNow, we are quite ready to admit that the untarily before the magistrate. The warrant

was made no other use of than as a summons. actual use of force is not necessary to con

The constable brought a warrant, but did not stitute an arrest; but the intention to arrest, arrest the plaintiff. How can a man's walking i. e., to take into custody, must be there, freely to a magistrate prove him to be arand must be evidenced by some unequivocal rested ?" act, as by keeping the arrested party in sight and controlling his actions. But one

And although this ruling was dissented person can no more arrest another by simply from in Warner v. Riddiford, 4 Com. Bench, telling him to "consider himself under ar- N. S. 180, 93 Eng. Com. Law, 180, 140 Eng. rest" and then turning on his heel and leav- Reprint, 1052 (cited 5 Corp. Jur. 387, note ing that person free to go his own way, than 19b), yet we think the ruling sound to the

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