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well. Had it performed well it would not, of course, have set fire to the cotton. This MATTHEWS v. STATE. (No, 23320.) then was a breach of the contract on the part of the manufacturer. The contract, (Supreme Court of Mississippi. March 31, however, further provides that if the ma

1924. Suggestion of Error Overruled

May 26, 1924.) chinery does not operate well the buyer must notify the seller within 10 days of this

(Syllabus by the Court.) fact. The bill alleges that soon after the gins were installed cotton was frequently set 1. Searches and seizures 3–Search war. on fire. It does not state whether this hap

rant directed to any lawful officer and exe

cuted by sheriff held pot void. pened during the first 10 days of the operation of the gin; but, taking the allegations (Laws 1908, c. 115), providing that the search

Under Section 2088, Hemingway's Code of the bill most strongly against the pleader, warrant herein provided for shall be directed it is our duty to assume that these fires to the sheriff or any constable, a warrant is. started within that time. Under this con- sued and directed "to any lawful officer of tract it therefore became the duty of the said county" is not void, where it is delivered purchaser to at once inform tite seller of by the justice of the peace to the sheriff to be this breach of the contract. The seller fail-executed and is executed by him. Under seced to do so, but operated the gins without Code 1906), it is provided that any process

tion 2945, Hemingway's Code (section 3938, complaint during the ginning seasons for

may be amended, and that failure of the offiover one year. Under this contract it be.

cer issuing it to insert any matter in or on came the duty of the purchaser to notify such process shall not make it void. 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 ww80(2)-Law prochaser thereby breached his obligation un

viding issuance under seal held not applicable der the contract. The contract further pro

to process issued by justice of the peace.

Section 2919, Hemingway's Code (section vides what is to be done by each party in 3912, Code 1906), providing that process shall case there is a failure of the warranty in be issued by the clerk and shall have the seal connection with the machinery. In such of the court impressed thereon, or its abcase their rights and liabilities are measur-sence accounted for, except in cases otherwise ed by this contract. The contract further provided for, has no application to process is. provides that failure to give this notice after sued by a justice of the peace who is not re

quired by law to have or use a seal. Process 10 days' use shall be conclusive evidence of by a justice of the peace is otherwise provided the fulfillment of the warranty. No such for in the chapter on justices of the peace. notice was given, and the purchaser by, this contract is now estopped from claiming a

3. Searches and seizures m3-Affidavit for

search warrant held sufficient as to descripbreach of the warranty. Threshing Machine

tion of premises. Co. v. McCoy, 111 Miss. 715, 72 South. 138.

A description in an affidavit for a search [1, 2] In case of a private contract of this warrant under section 23 of the Constitution kind where the duties and liabilities of the of 1890, describing the premises, as “on the parties are both stipulated in the contract, premises occupied by L. A. Matthews, in disthere is no implied or other duty owed by trict No. 5, about 14 miles northeast of Hazleeither party, but all of these duties and li- hurst, in said county and state," is sufficient, abilities are contained, measured, and gov

where the caption shows the county and state erned by the contract.

Where the wbere the premises are situated.

It is said that the premises are described sufficiently to enable suit is an action of tort. The relation, how the officer to certainly locate the place to be ever, between these parties arises from the searched and sufficiently specific and definite contract; it is a suit necessarily based upon to enable the occupant of the premises to the breach of a contract. The bill shows know, from the warrant, the place the officer that there has been no breach of the contract, is directed to search, it will be sufficient to or rather that by the terms of the contract comply with said section. It does not require the plaintiff is estopped to claim a breach. the technical description of a deed of conveyThere then can be no liability on the part of the defendant. The contract precludes any

Smith, C. J., and Sykes, J., dissenting. recovery. The case nearest in point cited by counsel is that of Birdsinger v. McCor- In Banc. mick Harvester Mach. Co., 183 N. Y. 487, 76 Appeal from Circuit Court, Copiah County ; N. E. 611, 3 L. R. A. (N. S.) 1047, 5 Ann. D. M. Miller, Judge. Cas. 586. In this case, however, it becomes

L. A. Matthews was convicted of the ununnecessary to discuss the question of whether or not the damages here sued for lawful manufacture of intoxicating liquors, are proximate or remote.

and he appeals. Affirmed. The decree of the lower court is affirmed. J. F. Guynes, of Hazlehurst, for appellant. Affirmed.

S. C. Broom, Asst. Atty Gen., for the State. em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ance.

(100 So.) ETHRIDGE, J. The appellant was in- If any matter required to be inserted in or dicted, tried, and convicted of manufacturing indorsed on any process be omitted, such prointoxicating liquors, and sentenced to the cess shall not on that account be void, but it penitentiary for three years; from which may be set aside as irregular, or amended on

such terms as the court shall deem proper; judgment he appeals. The evidence introduced against the application to set aside or quash the writ."

and the amendment may be made upon an appellant was procured by a search of the premises of the appellant under an affidavit

There seems to have been no specific moand search warrant alleged to be found by tion made to quash the warrant for this dethe defendant. The affidavit for the search fect, but, if there had been, it may have been warrant reads as follows:

amended and would not have voided the writ. "State of Mississippi, County of Copiah.

[2] It is also urged that the warrant did “This day D. T. Lowe came and personally not have the seal thereon, nor was the ab

Counsel appeared before the undersigned, a justice of sence of the seal accounted for. the peace of the first supervisor's district of cite section 2919, Hemingway's Code, Pharis said county, and makes oath that he has rea

v. Conner, 3 Smedes & M. 87, and Burton v. sons to believe and does believe that intoxicat. Cramer, 123 Miss. 848, 86 South. 578. ing liquors are manufactured, given way, and Section 2919, Hemingway's Code (section sold in violation of law on the premises occul- 3912, Code of 1906), is not applicable to a pied by L. A. Matthews, in district No. 5; proceeding before a justice of the peace, beabout 14 miles northeast of Hazlehurst, in said

cause the process before a justice of the county and state," etc.

peace is 'otherwise provided for, and a jusThe search warrant was addressed "To tice of the peace is not required to have or Any Lawful Officer of Copiah County," and keep a seal, and, in fact, but few justices of recites the making of the affidavit, and com

the peace keep a seal at all.

[3] It is next contended that the affidavit mands the officer

in insufficient to comply with section 23 of "with such aid as shall be needful you do pro- the Constitution, because the place is not ceed in day or night to enter by breaking, if sufficiently described. The language of the necessary, and diligently search the residence, Constitution is: premises, automobiles, and all outhouses for said liquors, and any such vessels and appli- “No warrant shall be issued without probances, making known to the occupant thereof, able cause, supported by oath or affirmation, if any, your authority for so doing,” etc. specially designating the place to be searched

and the person or thing to be seized.” The evidence was objected to on the trial and exceptions taken to its admission, and In Loeb v. State (Miss.) 98 South. 449, we the only evidence was the evidence of the held that the Constitution did not require officers obtained by means of search made such a description as would be sufficient in a under the search and affidavit; and the evi- deed of conveyance, but that any description dence was found, part in an outhouse near that will clearly and certainly enable the ofthe residence, and part in the different rooms ficer to locate the place to be searched was in the dwelling, and part in the possession sufficient. In the present case the descripof the defendant.

tion in the affidavit is “on the premises oc[1] It is contended that the search warrant cupied by L. A. Matthews in district No. 5, is void because it is not addressed to the about 14 miles northeast of Hazlehurst, in sheriff or constable as required by section said county and state.” This description very 2088, Hemingway's Code (chapter 115, Laws probably would be sufficient if contained in of 1308). This section, after providing for a contract to convey the premises to warrant the affidavit, provides:

the court, with the aid of oral evidence, to "It shall be the duty of any justice of the compel a conveyance. It is not only describpeace

to issue a search warrant, di- ed as the premises of L. A. Matthews, but rected to the sheriff or any constable of the “the premises occupied by L. A. Matthews, in county, or if in a municipality, to the sheriff, district No. 5, about 14 miles northeast of or any constable or marshal, or policeman Hazlehurst,” in said county. therein," etc.

In the case of Rignall v. State (Miss.) 98 The warrant here is addressed “To Any "searched the premises of Joe Rignall,” with

South. 444, the warrant only used the term Lawful Officer," but was delivered to the

out further words of description. The court sheriff for execution. We do not think that

said: addressing the warrant "To Any Lawful Officer" vitiates it. It was delivered to and

"The command of 'the warrant in the case at 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 has full authority to execute the warrant. meanings, usually determined by the context,

are located. The word 'premises’ has varying Section 2945, Hemingway's Code (section and when used with respect to property means 3933, Code of 1906), provides:

| land, tenements, and appurtenances, and we

Some of the de

think a warrant merely to search the 'prem- I am also of the opinion, however, that the ises' of a person, without other description, evidence is admissible, nothwithstanding the and without any words of limitation as to oc- defects in the warrant, for the reasons set cupancy or use, or otherwise, and without any forth in my dissenting opinion in Owen v. designation of the county in which such premises are located, is entirely too broad and in State, 98 South. 233, but until Tucker v. definite to meet the constitutional and statu- State, 128 Miss. 211, 90 South. 845, 24 A. L. tory requirement of a specific designation of R. 1377, shall be overruled, I must of course the place to be searched."

adhere to its ruling that evidence obtained

by a search without a lawful warrant there The premises here, in the opinion of the for is inadmissible. 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- GARNER v. TOWNES. (No. 23817.) ed to search, so that both the officer and the citizen could tell from the papers whether (Supreme Court of Mississippi, Division A.

April 14, 1924. Suggestion of Error the officer was at the right place and had the

Overruled May 19, 1924.) legal authority to make the search. In our opinion, this is what the Constitution intend

(Syllabus by the Court.) ed the affidavit and the warrant to contain. 1. Witnesses w 1 28-Claimant of life insurThere is some difference in the authorities ance policy by assignment and delivery from in other states about the particularity of the

deceased father, whose estate not interested, description required under the same or simi

held competent; "claim against estate of

deceased person." lar constitutional provisions. SO states hold that the premises must be de- life insurance policy by assignment and deliv

Complainant, who claimed ownership of a scribed with the same particularity of the

ery by his father, since deceased, against dedescription required in a conveyance, while fendant, who claimed title thereto also by asother states hold merely that there must be signment as a gift from the same source, the such description as will enable the officer estate of said decedent not being a party to by inquiry and search to find the place. The the suit, and not affected directly or indirectly, various holdings of the different states will was not incompetent as a witness to establish be found in the notes upon the subject in 3 his claim to such insurance policy under secA. L. R. 1518 et seq., 13 A. L. R. 1318 et seq., 1 tion 1917, Code of 1906 (Hemingway's Code,

$ 1577), which renders incompetent a person and 27 A. L. R. 751 et seq. The constitu

to testify as witness to establish his own tional provisions against searches and sei- "claim against the estate of a deceased perzures is to be construed favorably to the son,” which originated in the lifetime of such rights of the citizens, and we would not decedent. abridge or restrict his constitutional rights, (Ed. Note.-For other definitions, see Words but in the very nature of things we do not and Phrases, First and Second Series, Claim think that the Constitution makers intended against Estate.) to have more particularity than such as 2. Insurance w222_Statute held not to prowould give the information above indicated

hibit proof that assignment of life policy, to the officer and to the persons whose prem- absolute in form, intended as collateral seises are to be searched.

curity; "property." The court below held in accordance with

Section 4783, Code 1906 (Hemingway's these views, and the judgment will be af- Code, g 3127), providing that a writing absofirmed.

lute on its face, where the maker parts with Affirmed.

the "property" conveyed, shall not be proved by parol to be a mortgage, unless procured by

fraud, applies alone to tangible property, and SYKES, J., dissents.

has no application to intangible property, and

therefore said statute is not violated by proof SMITH, C. J. (dissenting). I am of the that the assignment of a life insurance policy opinion that the search warrant here in ques- lateral security for an indebtedness due by the

absolute in form was in fact intended as coltion is void for want of a sufficient descrip-assignor to the assignee. tion of the place to be searched. The descrip

(Ed. Note. For other definitions, see Words tion of the premises to be searched is not and Phrases, First and Second Series, Proponly too indefinite to meet the constitutional erty.] requirement, but the only statute under which the warrant could have been issued is 3. Limitation of actions ww39(7)-Action to

cancel assignment of insurance policy must section 1749, Code of 1906 (Hemingway's

be brought within 10 years after action acCode, $ 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 asdavit."

signment thereof, an action to have such asFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

crues.

(100 80.)' signment canceled and the title divested out ( tion of this state, living on his plantation. of the defendant and invested in the complain. During the year 1892 appellee took out a ant is an action of exclusive equitable cog. $5,000 life insurance policy on his life in the nizance, and is governed by that provision of Equitable Life Assurance Society. His fasection 3125, Code 1906 (Hemingway's Code, $ 2489), which provides that bills for reliet ther had in his residence a safe, where he not elsewhere specifically provided for shall

as well as appellee kept their valuable be brought within 10 years after the cause of papers. When this insurance policy was obaction accrued.

tained by appellee in 1892 he placed it in On Suggestion of Error.

said safe in his father's home, where it re

mained until March, 1913, when his father 4. Appeal and error on 1236_When judgment assigned the same to appellant, his grand

for damages in action for possession of life daughter; such assignment evidencing a policy will be rendered on appeal stated. gift from the grandfather to the grand

Under Section 4926, Code 1906 (section daughter. The policy matured during the 3202, Hemingway's Code), on the affirmance of year 1912. Prior thereto, and on December a judgment for the possession of a life insur- 16, 1909, appellee borrowed from his father ance policy, the Supreme Court will render a judgment against the appellant for damages at home which had been destroyed by fire. and

the sum of $3,500 with which to rebuild his the rate of 5 per centum on the value of the policy, if the value thereof can be ascertained to secure the loan assigned, and transferred from the record. If the value of the policy to his father the policy of insurance incannot be ascertained from the record, the volved. This assignment was in writing, and cause will be remanded to the trial court for was absolute in form, and was signed and the ascertainment thereof. Section 4927, Code acknowledged by appellee. Appellee testified, 1906 (section 3203, Hemingway's Code). however, and his testimony was corroborated

by other evidence that, although the assignAppeal from Chancery Court, Tallahatchie ment of said policy was absolute in form, it County; C. L. Lomax, Chancellor,

was only intended as security for said debt Suit by J. K. Townes against Elizabeth to his father. In January, 1913, appellee had Garner, a minor. From a decree for plaintiff, tire indebtedness to his father including said

a settlement with his father by which his endefendant appeals. Suggestion of error sus

loan of $3,500, was paid, and the life intained in part and cause remanded.

surance policy in question was thereupon surHays, Stingily & Whitten, of Sumner, and rendered to appellee by his father, and at the May, Sanders & McLaurin, of Jackson, for request of appellee was returned to his faappellant.

ther's safe, where it had been kept since its Gardner & Gardner, of Greenwood, for issuance in 1892, with the understanding that appellee.

his father would at once prepare or have

prepared in writing a reassignment of said ANDERSON, J. Appellee, J. K. Townes, policy to appellee, and sign and acknowledge filed bis bill in the chancery court of Talla- the same. In a day or two afterwards aphatchie county against appellant, Elizabeth pellee's father undertaking to carry out this Garner, a minor, and the Equitable Life As- agreement, together with Mr. Farquhrason, surance Society, by which he sought to can- who was his nurse and attendant, and who, cel an assignment of a $5,000 life insurance when called upon, assisted him about his policy on his life in said insurance company business affairs, went to Minter City to the made by his father, James A. Townes, de- office of a justice of the peace, taking this ceased, in his lifetime to appellant, and to policy along; his purpose being to execute have said insurance policy in the hands of a reassignment of said policy to appellee, appellant surrendered up and delivered to but found the office of the justice of the peace appellee. The appellant answered, denying closed. Shortly afterwards James A. Townes the material allegation of appellee's bill. went to Battle Creek, Mich., for his health, The Equitable Life Assurance Society an- and remained awhile, and came back and swered as called upon by the bill, giving a soon died. history of the insurance policy in question as The settlement claimed by appellee to have shown by the records of its office, and dis been had with his father which resulted in claiming any interest in the subject-matter the reassignment and delivery of said policy of the litigation. The cause was heard on back to appellee was witnessed and testified bill, answers, and proofs, and a decree ren- to by appellee, the said Mr. Farquhrason, apdered granting the prayer of the appellee's pellee's wife, and appellee's daughter, Mrs. bill, from which appellant prosecutes this ap- | Parker. The assignment of the policy by peal.

James A. Townes to appellant, his grandAppellee made by his bill, and his evidence daughter, took place on the 26th of March, tended to establish, the following case: 1913, less than three months after said settleJames A. Townes, deceased, the father of ap- ment and surrender and delivery of said dellee and the grandfather of appellant, policy to appellee. Substantially all of the was a large cotton planter in the Delta sec- 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 of the policy to appellant by her grandfather surrender and delivery up of said policy to was a gift; no consideration passed. She appellee, were testified to, not only by appel- was therefore a mere volunteer. There is lee, but by the other witnesses named above. no conflict in the evidence as to the fact that At the time of the assignment of said policy at his death James A. Townes owned no into appellant, and for some time prior thereto, terest in the policy. Therefore we have a James A. Townes had in his safe in his home, case where the evidence shows, and undoubtin addition to the policy here involved and edly competent evidence, that this policy of other valuable papers belonging to appellee, insurance at the time of the death of James two policies of insurance of $5,000 each on A. Townes constituted no part of his estate. the life of the appellee in the Des Moines If appellee succeed in this case, he will not Life Insurance Company, which had been be establishing his claim against the estate taken out some years before by appellee, and of his father. The estate of James A. by him assigned to his father, who had paid | Townes, deceased, is neither directly nor inthe premiums on the same. The bill charges directly involved in this cause. To put it that James A. Townes, in assigning the differently: If appellee succeed, the estate policy here involved to appellant on the 26th of his father will not be diminished one partiof March, 1913, intended and thought he was cle either in this suit or any other suit which assigning one of these policies in the Des may result therefrom. If appellant lose the ' Moines Life Insurance Company. However, policy in question, she cannot call upon her there was no direct evidence to sustain this grandfather's estate to make the loss good, charge in the bill; there were only infer- because she paid nothing for it; she was a ences from proven facts and circumstances. mere volunteer.

Three questions involved in this case we We are of opinion that the following decithink of sufficient seriousness to call for a sions of this court settle the proposition that discussion. They are: (1) Whether appellee, a party to a cause so situated is a competent under section 1917, Code of 1906 (Heming- witness under said statute. Love v. Stone, way's Code, $ 1577), was a competent witness 56 Miss. 449; Faler v. Jordan, 44 Miss. 283; in his own behalf? (2) Whether, under sec- Combs v. Black, 62 Miss. 831; Cole v. Gardtion 4783, Code of 1906 (Hemingway's Code, ner, 67 Miss. 670, 7 South. 500; Fennell v. Mc$ 3127), evidence was admissible to prove that Gowan, 58 Miss. 261; Gordon v. McEachin, the assignment of said policy of insurance in 57 Miss. 834; Jones v. Bank, 71 Miss. 1023, absolute form was only intended by the par- ( 16 South. 344; Jackson v. Smith, 68 Miss. ties as collateral security for appellee's in- 53, 8 South. 258; Wood v. Stafford, 50 debtedness to James A. Townes? (3) Wheth- Miss. 370. er the cause of action was barred by the The cases relied on by appellant, Griffin statutes of limitation?

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 (1) Section 1917, Code of 1906 (Heming- South. 737, 62 South. 432, 51 L. R. A. (N. S.) way's Code, s 1577), 'renders incompetent a 187, Ann. Cas. 1916A, 1051, are not in conflict person to testify as a witness to establish with the views here expressed. They were his own claim or defense against the estate all cases in which the estate of a deceased of a deceased person which originated in person was involved. 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; 8 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 property conveyed, shall not be proved by a deceased person, that of his father.

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 se by assignment to appellant, taking appel-curity. Armstrong v. Owens, 83 Miss. 10, lant's evidence to be true, divested himselt 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 in that case that this statute applied only to interest in this policy either by reassign- tangible property, and did not embrace a life ment and delivery to appellee or by assign- insurance policy. ment and delivery to appellant. He had done [3] 3. In considering what statute of limi. one or the other or both. Taking the evi- tations applies to this cause of action it is dence of the respective parties to be true he necessary to determine whether it is a cause had done both. But, as a matter of law, one cognizable alone in a court of equity. The or the other of those assignments must gravamen of the bill is to cancel the assignstand. Both cannot stand. The assignment | ment in writing of James A. Townes to ap

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