(102 So.) sured while the policy was in force. In case, however, of a voluntary default in the payment of any installment, when due, or within the grace period, it is expressly provided that the policy shall no longer be an exist ing contract, and in such case the insurer has no right to collect the remaining installments, and no action can be maintained thereon by the beneficiary. In the case of New York Life Insurance Co. v. Alexander, 122 Miss. 813, 85 So. 93, 15 A. L. R. 314, it was held that: "Finally, it is contended that this policy is to be construed as a policy for a year, upon which a quarter of the premium has been paid, and three-quarters remains due as a credit to in this regard from Insurance Co. v. Sheridan, the company. The case cannot be distinguished 8 H. L. Cas. 745, where the policy was in all substantial respects similar to the one under consideration. It is an annual policy, but it is an annual policy on which the premium is payable by quarterly installments, leaving the insured at liberty to drop it at any quarter, and imposing no liability on the part of the company, unless the quarterly payment is made at the end of the quarter. If, however, the insured die at the end of the first quarter of the current year, the insurance company re "When a life insurance policy provides for a forfeiture of the insurance, in case of a failure to pay premium, the policy, in case of failure to pay, is forfeited, and sickness or insan-ceives only one-quarter of the annual premium, ity will not avoid the forfeiture." In the case of Thompson v. Fidelity Mutual Life Insurance Co., 116 Tenn. 557, 92 S. W. 1098, 6 L. R. A. (N. S.) 1039, 115 Am. St. Rep. 853, the court had under consideration provisions similar to the ones here involved, and the court there said: instead of the whole. It has insured the deceased for a year, subject to his voluntary default. He has died, and the policy is earned. therefor, but has only paid one quarter's preHe should pay the whole year's premium mium. To meet this injustice, the proviso is introduced that, if the insured should happen to die before the whole of said quarterly payments shall become due, then the company shall be entitled to deduct premiums for all the subsequent quarters of that current year from the amount of the policy. That proviso is not meant to apply to the case of a defaulted payment, but only to a case where the payments are regularly made as they become due, and where all the installments have not become due on the death of the insured. In this case there was a failure to pay a quarterly installment on the day fixed. As a consequence, the policy became forfeited, and all liability thereon ceased." In Howard v. Continental Life Insurance Co., 48 Cal. 229, a similar question was involved, and the court there said: "The privilege of paying the annual premium in quarterly installments was evidently for the convenience of the insured. Ordinarily, these premiums are payable as a whole in advance for the term of one year. The failure to pay the whole of the premium in such a case works a forfeiture in the event that it is so provided. In this instance the result is the same, upon the failure of the insured to meet his quarterly payments when due. At the end of any quarter there is no obligation imposed upon the insured to pay the next succeeding quarter; his failure to pay works a forfeiture of his contract, but the company cannot compel him to pay the remaining installments. In the event of the death of the insured, before the end of the first quarter, or any succeeding quarter, if he has paid his premiums when due, his representatives are entitled to collect his insurance. In the absence of any provision permitting the company to deduct from the face value the remaining installments for the year, the insured would receive the face value of the policy, having paid one-fourth, two-fourths, etc., as the case may be, of the annual premium. In order to avoid this, the company said to the insured, 'You pay your premium in installments. If you meet those installments regularly when due, and die before all of 'the installments have become due, we will pay the face value of the policy, less any unpaid portion of the yearly payment.' In other words, the company reserves the right to deduct the dues for the current year accruing but not due. 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 collect the unpaid portion of the annual pre-specified days or the policy shall be forfeited, mium shall be paid quarterly in advance upon mium. In the case of a default in the payment of any installment when due, the policy is no longer an existing contract, and the insurer has no right to collect the remaining installments." In the case of McConnell v. Assurance Society, 92 F. 769, 34 C. C. A. 663, in construing similar provisions in a policy, the court said: "We agree that it was intended--in case of the death of the assured before one or both of the postponed installments would have become due, had he continued to live-that the company should deduct, from the amount insured, the balance unpaid of the year's premium. But we do not think that, as a consequence of this right reserved by the insurers, the assured was relieved of the necessity of paying any installment, when it was agreed it should be paid. The company was authorized to deduct any installment not due at the death, but was not compelled to pay the sum insured, with the right to deduct an installment overdue when death occurred." In Joyce on Insurance, vol. 2, par. 1108, the rule is announced that: the party will be held strictly to the perform. ance of such condition, and the contract will be * determined by nonpayment as stipulated, unless 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 entered here for the appellant. Reversed, and judgment for appellant. Dec. 8, 1924.) 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. W. C. LOWREY v. James A. SMITH. * (No. 24524.) Draughn & Waller, of Hattiesburg, for ap- (Supreme Court of Mississippi, Division B. pellant. Harry M. Bryan, Asst. Atty. Gen., for the State. PER CURIAM. Conviction in lower court of having liquor in possession, with sentence to pay fine of $100 and to 60 days' imprisonment. Affirmed. Stokes V. ROBERTSON, State Revenue Agent, Use, etc., Calhoun County, v. W. O. LAWRENCE 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 County; 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. PER CURIAM. Affirmed. Dec. 8, 1924.) Appeal from Circuit Court, Lowndes County; J. I. Sturdivant, Judge. Loving & Loving, of Columbus, for appellant. Jas. T. Harrison, of Columbus, for appellee. PER CURIAM. Affirmed. 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' imprisonment. Affirmed. 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. Jack STRICKLAND v. STATE. (No. 24229.) (Supreme Court of Mississippi, Division B. Dec. 8, 1924.) Appeal from Circuit Court, Lauderdale County; C. C. Miller, Judge. R. F. Cochran, of Meridian, for appellant. PER CURIAM. Conviction in lower court of selling intoxicating liquor and sentence to pay fine of $500 and to five months' imprisonment. Affirmed. H. G. LOFTIN et al. v. J. R. WATKINS CO. (No. 24369.) Affirmed. ILLINOIS CENT. R. Co. v. S. M. KEEL. (No. 24370.) (Supreme Court of Mississippi, Division B. Dec. 8, 1924.) Appeal from Circuit Court, Marshall County; Thos. E. Pegram, Judge. R. V. Fletcher, of Chicago, Ill., and May, Sanders & McLaurin, of Jackson, for appellant. Geo. T. & Chas. S. Mitchell, of Tupelo, and R. G. Draper, of Memphis, Tenn., for appellee. PER CURIAM. Affirmed. John ROBINSON v. Hiawatha McCOLLUM. (No. 24534.) (Supreme Court of Mississippi, Division B. Dec. 8, 1924.) Appeal from Circuit Court, Jones County; D. B. Cooley, of Laurel, for appellant. PER CURIAM. Affirmed. ITZIG CO. v. S. P. CALKINS & CO. (No. 24529.) (Supreme Court of Mississippi, Division B. Dec. 8, 1924. Suggestion of Error Overruled Dec. 22, 1924.) Appeal from Circuit Court, Washington (Supreme Court of Mississippi, Division B. County; S. F. Davis, Judge. Appeal from Circuit Court, Marshall County; Suggestion of error overruled January 3, 1925. Walton Shields, of Greenville, for appellant. Humphreys & Anderson, of Greenville, for appellee. PER CURIAM. Affirmed. † Suggestion of error overruled January 19, 1925. (157 La.) No. 26036. judgments for plaintiffs in unsatisfactory amounts, they appeal. Reversed and rendered. Modisette & Adams, of Jennings, for appel BERRY et al. v. BASS et al. (Supreme Court of Louisiana. Nov. 3, 1924.) lants. (Syllabus by Editorial Staff.) 1. Arrest 68-One merely notified to appear before magistrate not under “arrest." While actual use of force is not necessary to constitute arrest, intention to arrest (i. e., to take into custody) must be present and evidenced by unequivocal act, as by keeping arrested party in sight and controlling his actions, and one merely told to consider himself under arrest, or to appear before magistrate, is not under arrest, whether such notice or summons be complied with, or compliance be caused by fear of consequences of noncompli ance, or not. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Arrest.] 2. Constitutional law 56-Courts 160Legislature held authorized to establish municipal courts to enforce municipal ordinances. Authority conferred by Const. 1898, art. 96, to provide for establishment of municipal courts to enforce purely municipal ordinances, cannot be questioned, after general acquiescence therein for over 25 years, in actions against mayor and town marshal for false arrest and imprisonment, on ground that Act No. 136 of 1898, § 29, establishing mayor's court with jurisdiction over violations of ordinances, violates Const. 1898, art. 84. 3. False imprisonment 7 (2)-Validity of ordinance held not subject to attack by persons convicted thereunder. Proceedings before mayor, on charge of disturbing peace, being valid, though informal, and within his jurisdiction, under Act 136 of 1898, § 29, defendants cannot mulct mayor and marshal in damages for false arrest and imprisonment, after sentence was imposed and fully executed, on ground of unconstitutionality of ordinance under which they were convicted, without having challenged its validity at time of hearing in absence of evidence of malice. 4. False imprisonment 7 (2)-Mayor, erroneously imposing sentence of imprisonment without alternative of fine, not liable for damages. Mayor, imposing sentence of imprisonment for breach of peace without alternative of fine, under ordinance authorizing imprisonment only in default of payment of fine, is not liable for damages for false arrest and imprisonment, in absence of bad faith, malice, or corruption; inferior magistrates like superior court judges, not being liable for mere errors in judgment, even in respect to extent of jurisdiction or powers under laws they are called on to enforce. Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis; Thos. F. Porter, Jr., Judge. Actions by Mrs. Louis Berry and Laussard Dupuy against John Bass and another. From J. H. Heinen and Miller & Miller, all of Jennings, for appellees. By the WHOLE COURT. ST. PAUL, J. These are two cases, consolidated for trial, in which Mrs. Louis Berry and one Laussard Dupuy seek to recover damages in solido from John Bass and one John Fletcher, respectively mayor and town marshal of the town of Lake Arthur. From a judgment in favor of Dupuy against both defendants for $5 for false arrest (i. e., without a warrant), and another in favor of Mrs. Berry against Bass, alone, for $20 for false imprisonment. Both plaintiffs have appealed, seeking to have said judgments increased, and both defendants have answered said appeal, praying that both judgments be reversed in toto. I. The practically undisputed facts of this case, so far as they are pertinent to the issues involved, are substantially as follows: Two itinerant picture dealers (husband. and wife) complained verbally to the mayor that, in a controversy over the delivery of some pictures, plaintiffs had cursed and abused them; whereupon the mayor verbally directed the marshal to notify the plaintiffs (that being the usual proceeding in such cases) to appear before him, the mayor, on the next morning, and answer to a charge of disturbing the peace. The marshal did as directed; he notified both plaintiffs to appear before the mayor next morning. This they did, and were both tried and adjudged guilty. Dupuy was fined, and his fine was paid. Mrs. Berry was sentenced to 24 hours' imprisonment, without alternative of a fine; but was released after some two hours' detention, when the mayor was told that she was not in good Dupuy testified: (102 So.) "Question: You have known Mr. Fletcher, the marshal, for a long time? Answer: Yes. "Question: He didn't arrest you-he never touched you? Answer: No; he tell me to come to court, 9 o'clock next morning." The marshal testified: "Question: I will ask you if your notices or summons to these people were such as you generally use in bringing people into court? Answer: Yes, sir. "Question: You went to their house and told them that they should appear at the mayor's court at a certain hour for a certain purpose? Answer: Yes, sir. "Question: You didn't have any paper (warrant) with you? Answer: No." The trial judge says (in Dupuy's case): "Upon receiving this instruction (verbally, from the mayor) defendant, the marshal, rode around on horseback to the plaintiff's (Dupuy's) home, and, without getting off his horse, told the plaintiff (Dupuy), who was about 12 feet distant, and in his yard, to appear in court the next morning for trial on a charge of disturbing the peace. At the appointed time and place plaintiff appeared for trial." We hold that the foregoing facts do not show an arrest. In 5 Corp. Juris, 386, verbo "Arrest," 2, it is said that: "The custody or control, the assumption of which is involved in an arrest, imports actual restraint or detention; the mere utterance of words indicative of an arrest being insufficient (except perhaps when followed by submission), as is also the reading or verbal proffer of the warrant without more, or mere personal service of process." It must be said, however, that there is conflict between the authorities as to whether mere compliance with a notice or summons to appear before a magistrate is such a "submission" as to constitute an arrest. 5 Corp. Jur. 386, 387, notes 8-20. And this court has once held that there had been an arrest, where defendant had called upon a deputy sheriff, who happened to be present, to arrest plaintiff, and "the deputy sheriff toid plaintiff to consider himself under arrest and to report at the justice of the peace court the next morning at 9:30." Thomas v. Henderson, 125 La. 292, 51 So. 203. But not one authority is cited, nor a single reason given for the holding. Now, we are quite ready to admit that the actual use of force is not necessary to constitute an arrest; but the intention to arrest, i. e., to take into custody, must be there, and must be evidenced by some unequivocal act, as by keeping the arrested party in sight and controlling his actions. But one person can no more arrest another by simply telling him to "consider himself under arrest" and then turning on his heel and leaving that person free to go his own way, than one can commit a homicide by merely tellOn ing another to consider himself dead. the contrary, the very purpose of merely notifying a person charged with some offense simply to appear before a magistrate is precisely to avoid arresting him therefor; it is precisely not to deprive him of his liberty for the time being; it is for the very purpose of leaving him master of his own movements until the time fixed. And the person so notified or summoned is no more under arrest than a witness summoned or notified to appear before a magistrate on a given day. Nor is the fact that he is told to "consider himself under arrest" any more potent to make him be under arrest, than his being told to consider himself an emperor's son to make him a crown prince. And whether or not such notice or summons be complied with, and, if so, whether such compliance be or be not because of fear of the consequences, whatever those may be, should he fail to comply, is wholly beyond the present question; since the fact remains that such person is not under arrest for the time being, but is master of his own movements. 13 Eng. Com. Law, 242, 108 English Reprint, In Barry v. Adamson, 6 Barn & Cres. 528, 546 (cited 5 Corp. Jur. 386, 387, notes 8a, 19c), where the officer simply gave notice of the writ and asked defendant to fix a time for giving bail, it was held that there was no arrest, although defendant complied with the request of the officer, and afterwards appeared and gave bail. In Connor v. Spark, 6 Modern, 173, 87 Eng. Reprint, 928; 1 Salkeld, 79, 91 Eng. Reprint, 74 (cited in 5 Corp. Jur. 386, note 10a), the court said: laid hands on the defendant; for his shewing "Here was no arrest, the bailiff having not the writ, and pronouncing the word 'arrest,' without touching him, was no more an arrest than it would be one if a bailiff sees a man look out of a window, a pair of stairs or two high, and tells him he has a writ for him, and says that he arrests him." In Arrowsmith v. Le Mesurier, 2 Bos. & Pul. New Rep. 211, 127 Eng. Reprint, 605 (cited 5 Corp. Jur. 387, note 19b), Lord Mansfield, C. J., said: "I can suppose that an arrest may take place without an actual touch, as if a man be locked up in a room; but here the plaintiff went voluntarily before the magistrate. The warrant was made no other use of than as a summons. The constable brought a warrant, but did not arrest the plaintiff. How can a man's walking freely to a magistrate prove him to be arrested?" And although this ruling was dissented from in Warner v. Riddiford, 4 Com. Bench, N. S. 180, 93 Eng. Com. Law, 180, 140 Eng. Reprint, 1052 (cited 5 Corp. Jur. 387, note 19b), yet we think the ruling sound to the |