pressly conveyed by a deed effectual only as against them. Is it possible that the fact that David Bowie signed such a deed, effectual only for such a purpose, and acknowledged it, can make such a deed his deed? Manifestly not. The testimony in the case shows that Frank and Frances Bowie were husband and wife, and that David Bowie was their son. It is not, therefore, a case of mistaken identity on the part of the scrivener. He wrote exactly what he meant to write. He wrote a deed which could only bind the parties expressly named therein as grantors. See the authorities collected in Devlin on Deeds, vol. 1, § 194, through 206. See, also, the Alabama cases cited in the brief of counsel for appellee.

The precise question presented for adjudication here is: Did this alleged trust deed to Henry Marx & Sons, having been recorded, impart notice to third parties? Was the appellee notified by the record of such an instrument that it was the deed of David Bowie? We are clearly of the opinion that no such notice was imparted.

Affirmed

(84 Miss. 372)

DOBBS v. CHANDLER (KIRKSKY, Inter

vener).

(Supreme Court of Mississippi. April 4, 1904.)

INSURANCE MONEY EXEMPTION FROM DECEDENT'S DEBTS-DEBTS INCLUDED IN

EXEMPTION.

1. A claim for nursing decedent in his last illness is a debt against decedent within Rev. Code 1892, § 1965, exempting the proceeds of life insurance money from decedent's debts, but funeral expenses of decedent are not a debt against him, and hence his administrator is entitled to pay such expenses out of the insurance money.

Appeal from Chancery Court, Chickasaw County; H. L. Muldrow, Chancellor.

"To be officially reported."

Petition by Wesley Dobbs against R. W. Chandler, administrator of L. W. Dobbs, deceased, in which Lizzie Kirksky intervened. From an order overruling petitioner's exception to the administrator's answer and the demurrer to the intervener's petition, the petitioner appeals. Affirmed in part and reversed in part.

L. W. Dobbs died intestate, leaving as his sole heir Wesley Dobbs. R. W. Chandler took out letters of administration on his estate, and collected $500 of life insurance. Appellant, Wesley Dobbs, filed his petition in the chancery court setting up these facts, and asking that this money be delivered to him. The administrator answered, and asked for the allowance of the burial expenses due the undertaker for the burial of L. W. Dobbs. One Lizzie Kirksky presented her petition praying to be made a party defendant, and asking for the allowance, out of the $500, of her claim for services rendered to decedent during his last illness. Complainant filed exceptions to the answer of the

administrator and demurred to the petition of Lizzie Kirksky

A. P. Haley and Cowles Horton, for appellant. A. T. Stovall, for appellee.

WHITFIELD, C. J. The funeral expenses are not a debt of the decedent within the meaning of section 1965 of the Code of 1892. The considerations which support this view and demonstrate the correctness of the chancellor's decree in allowing the administrator to pay the funeral expenses out of the $500 insurance money are obvious. The administrator was also entitled to a reasonable attorney's fee, but the claim for nurse's hire was a debt of the decedent, and ought not to have been taken out of this insurance money.

The decree is affirmed in all things except as to the claim of Lizzie Kirksky for nurse's hire, which was a debt of decedent. As to that it is reversed, and the cause remanded to be proceeded with in accordance with this opinion.

(84 Miss. 332)

BUCHANAN v. STATE. (Supreme Court of Mississippi. April 18, 1904.)

HOMICIDE-MANSLAUGHTER-EVIDENCE-SUFFI

CIENCY-SPECIAL VENIRE-PREJ

UDICIAL ERROR.

1. The statute prescribing the manner of drawing a special venire being directory, merely, any irregularity of the court in the drawing of a special venire was not prejudicial, where the jury was an impartial one.

2. On a prosecution for homicide, evidence held to support a conviction of manslaughter.

Appeal from Circuit Court, Chickasaw County; E. O. Sykes, Judge.

R. L. Buchanan was convicted of manslaughter, and he appeals. Affirmed.

The evidence for the state is, in substance, as follows: A. P. Porter testified that Mr. Dehay was killed shortly after 9 o'clock on the night of August 21, 1903, in the cabin of Mose Prophet, a negro who lived on Dehay's place. Witness lived in about 200 yards of Dehay's residence, and a short time before 9 o'clock that night he and Dehay were sitting on Dehay's gallery, when witness said to Dehay, "There is some one coming," and Dehay remarked that it was Lee Buchanan and Charlie, and some one else. Witness then left for home, and Dehay said that he would step over to the negro's house and see if he could not catch Lee Buchanan in a crap game. When witness got in about 150 yards of his house, he heard a pistol fired, and thought he heard Dehay call him. In about half an hour he was told by one Will Reed that Dehay had been killed, and he then went with Reed down to the cabin of the negro Mose Prophet, and found several negroes in the front yard. He went in the cabin, and found Dehay there dead, lying on his back. There

1. See Criminal Law, vol. 15, Cent. Dig. § 3114.

was a pistol lying in Dehay's hand, cocked, which Dehay had said was his, and also a scabbard lying on the floor near the pistol. Mose Prophet testified that there were several negroes in the cabin, and that they had a blanket on the floor to shoot craps on; that Buchanan came in with his son Charles and a negro, Jordon Prophet; that Buchanan went near to the fireplace and squatted down; witness went out of the door, and a short distance from the door, passed Dehay coming in; that he heard talking in the cabin, and then he heard a pistol fired. Will Reed testified that he was in the cabin when Buchanan and his son and Jordon Prophet came in, and the men there were shooting craps on the blanket; that Buchanan came in and squatted down at one corner of the blanket, and "faded the dice twice"; that, shortly after Buchanan came in, Dehay came; that he had a pistol and a scabbard in his hand down by his side; that Buchanan was there squatted down in front of the blanket; that Dehay said, "Here, you are shooting craps;" Buchanan said, "No, I aint;" Dehay then said, "Yes you are, and on my place. I thought you had better raising than to be here with a lot of negroes shooting craps"; that Mr. Buchanan then hit Dehay, and said, "You had better whip me about it," and Dehay went towards him, and Mr. Buchanan threw his hand up, and about that time the light went out, and a pistol fired. Archie Houston testified that he saw Dehay's body after he was dead, and examined it; that the bullet went in under the left shoulder, almost at the end of the muscle, and came out above the nipple on the right. John Davis testified that the bullet ranged up a little. The testimony for defendant was to the effect that, after Buchanan struck Dehay, Dehay threw his pistol on him and was about to shoot Buchanan, and that Buchanan only shot in self-defense after it was apparent that Dehay was attempting to shoot him.

T. J. Buchannan and Mayes & Longstreet, for appellant. J. N. Flowers, Asst. Atty. Gen., and A. T. Stovall, for the State.

TRULY, J. Very many assignments of error are presented to the court. Some of them do not appear in the record. Others are in reference to the action of the court in drawing the special venire. As it is firmly fixed that the laws in this regard are simply directory, and as it is not contended that he was not tried by a fair and impartial jury, we cannot see that any harm was done the appellant.

The assignment most strongly relied on is that the proof is not sufficient to sustain a conviction of manslaughter. It is earnestly contended that the verdict of the jury should be set aside and the case reversed on the facts. The testimony adduced on the part of the state, if believed by the jury, considered in connection with the environment and

attendant circumstances of the homicide, the location of the wounds upon the body of the deceased, and the range of the fatal bullet, are amply sufficient to sustain this conviction. The jury had the witnesses before them, saw them upon the stand, observed their demeanor and noted their manner of testifying, and, under the law, were given the right to pass upon and decide which story they would believe. They adopted as true the theory of the prosecution as testified to by the witnesses and corroborated by the physical facts, and we are not prepared to say that their conclusion was erroneous.

There is manifestly no error of law. The instruction for the state defining manslaughter is in the exact language of the Code, and every phase of appellant's defense was fully and fairly presented by the numerous and liberal instructions granted in his behalf.

We must decline to invade the province of the jury. The judgment is affirmed.

(84 Miss. 758)

THOMPSON v. STATE. (Supreme Court of Mississippi. April 18, 1904.) HOMICIDE-EVIDENCE-PREVIOUS DIFFICULTIES

BETWEEN PARTIES-WITNESSES-CROSS

EXAMINATION OF DEFENDANT.

1. It was error, on trial for murder, for the court to permit evidence of the details of previous difficulties between defendant and deceased and between defendant and his wife, who was deceased's daughter, and the reason of such difficulties.

2. Where the court had properly excluded the testimony of a certain witness as to a conversation, it was error to permit the district attorney to ask defendant on cross-examination as to whether he had not made a certain statement in the conversation.

Appeal from Circuit Court, Monroe County; E. O. Sykes, Judge.

"To be officially reported." Frank Thompson was convicted of manslaughter, and appeals. Reversed.

On the 17th day of June, 1903, appellant was going south in the public road, not far from his home, and met deceased, McGraw, and his wife in a buggy, going north. The difficulty which resulted in the killing of McGraw occurred immediately upon the meeting of the parties. The only eyewitnesses were Thompson himself and the wife of McGraw, who was in the buggy with him at the time of the homicide. Mrs. McGraw testitied as follows: "We had started to Aberdeen. Along the way we met Frank Thompson in the middle of the road. In half a second after I saw him he caught hold of the horse's bridle just so, and shot Mr. McGraw, and when he caught hold of the bridle he said: 'You are going to town this morning to settle this, are you? God damn your soul to bell!' and shot him twice and run." Defendant's version of the difficulty was that deceased, upon being saluted with the usual "Good morning, Mr. McGraw," began to draw out his pistol, which became tangled in the

lap robe or some other furnishing of the buğgy, when defendant drew his pistol and shot deceased. The evidence further showed that Thompson married a daughter of deceased in January, 1903, and at the time of the marriage McGraw and his family were living in the same house with the defendant, Thompson; that in a short time after the marriage disagreements began to occur, and McGraw and his family moved away; that Thompson's wife soon became dissatisfied, and abandoned her home, and went to live with her father's family. A good deal of evidence was brought out on the trial in regard to the frequent troubles of the family, and the difficulty between Thompson and deceased, McGraw. The state was permitted to show, over defendant's objection, that on the day before the homicide defendant passed the field where deceased was plowing, and had a wordy altercation with him, all the details of which were admitted in evidence.

Geo. C. Paine and C. L. Tubb, for appellant. J. N. Flowers, Asst. Atty. Gen., for the State.

WHITFIELD, C. J. The court ought not to have permitted the details of the previous difficulty to be shown in evidence, nor the falling out between the accused and his wife and her family, nor the reason of that falling out, nor the conduct of Mrs. McGraw in making two or three trips to Thompson's home to bring her daughter away. All this testimony should have been excluded as foreign to the issue which the jury was trying. It is true that in the cross-examination of Mrs. McGraw some of this testimony was drawn out by the counsel for defendant, particularly with respect to the three separations between the husband and wife, and with reference to Mr. McGraw's reasons for leaving Frank Thompson's place; and it is further true that the state objected, and the court overruled the objection. But there is very much more of the testimony, along all these lines, introduced by the state over the objection of the defendant, and erroneously admitted. We specify particularly here the testimony of Mrs. Barnet, who was permitted to detail at great length the conduct of defendant in riding up and down in front of McGraw's house, the day before the killing, with a shotgun, daring him out, cursing, and disturbing the entire family; and the testimony of Fannie May McGraw to the same effect. The necessarily evil effect of admitting this testimony introducing a number of irrelevant issues is plainly seen in the examination and cross-examination of the defendant, which was very lengthy. Counsel for defendant went into all these matters, deeming it essential, since the testimony had been admitted, that defendant should make the best explanation that he could; and the counsel for the state naturally crossed on all these irrelevant issues. One illustration will

suffice: The court had, earlier in the trial, excluded the testimony of Bob Dickerson on the objection of the defense, and yet the defendant was allowed to be asked on crossexamination this question: "Didn't you say to Bob Dickerson, Sally Dickerson, and Nels Paine, on the morning of the killing, that if you met him (meaning McGraw) you or him one would eat breakfast in hell?" It is true that defendant denied making the statement, and his denial was not contradicted, but no such question should have been asked, in view of the fact that the court had correctly excluded the testimony of Dickerson early in the trial, which testimony of Dickerson was about the very conversation when Nels Paine and Sally Dickerson were present the morning of the killing. If the testimony of Dickerson was incompetent about this very conversation, upon what theory should the district attorney be permitted to ask the defendant about an incompetent conversation already excluded? We only add this observation that the testimony of Mrs. McGraw and of the defendant are in direct conflict as to what occurred at the time of the killing, and in view of this fact it is not possible for us to say that these errors are not reversible errors.

Reversed and remanded.

(83 Miss. 385)

COCKRELL v. COCKRELL. (Supreme Court of Mississippi. April 18, 1904.)

WITNESSES-COMPETENCY-CLAIMS AGAINST ES

TATES.

1. Under Rev. Code 1892, § 1740, declaring that a person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of deceased, but shall be permitted to give evidence in support of his claim or defense against the estate of a deceased person which originated after the death of deceased in the course of administering the estate, a widow is a competent witness, in an action by herself as next friend of her son against a legatee of her deceased husband, to testify to an equitable assignment of a life insurance policy from deceased to the son during the lifetime of the insured.

Appeal from Chancery Court, Leflore County; C. C. Moody, Chancellor.

Action by Mrs. M. V. Cockrell, as next friend of Claude Cockrell, an infant, against M. E. Cockrell. From a judgment for plamtiff, defendant appeals. Affirmed.

8. R. Coleman (McWillie & Thompson, of counsel), for appellant. McClurg & Gardner and Lomax & Tyson, for appellee.

CALHOON, J. When this case was in this court before (Cockrell v. Cockrell, 79 Miss. 569, 31 South, 203) we reversed a de cree below which sustained a demurrer to the bill, and it is now here again; this time on appeal and cross-appeal from final decree on the merits. The contest is over the right to the proceeds of a policy of life in

surance. Claude Cockrell, who is a minor, charges in his bill that from 1893 to the date of his death his father, William M. Cockrell, was the holder of a policy of insurance on his life in the sum of $1,000, in which policy Mary V. Cockrell, the mother of Claude, was beneficiary, and that she had the policy in possession, and kept the premiums paid on it until the year 1900; that in 1899 his mother obtained a divorce from his father, after which she still retained possession of the policy until the spring of the year 1900, when her former husband, William M. Cockrell, persuaded her to give him possession of it, giving, as his reason, his wish to have possession of it in order to have it changed so as to be made payable to Claude, who was the only child of the marriage; and that this was a mere fraudulent pretense, used to deceive Mary V. Cockrell, and in order to defraud her and Claude; that this fraudulent pretense induced her to part with the possession of the policy and to sign the release of her right as beneficiary, which she did at the instance of William M. Cockrell, without reading the release, and under the belief that Claude's name was in it, not thinking the man would perpetrate a fraud upon her and his own child; but that in fact William M. Cockrell, in pursuance of his fraudulent purpose, had inserted his own name in the release and the policy as beneficiary instead of the child's; that a few months thereafter, William M. Cockrell died, having attempted to bequeath the proceeds of the policy to his mother, Martha E. Cockrell, the appellee in this case, and that then for the first time did Mary V. Cockrell and her son, Claude, have any knowledge that William M. Cockrell had not carried out his promise, but had perpetrated this fraud upon Claude. The prayer of the bill is that the life insurance company be required to pay the proceeds of the policy to Claude just as if William M. Cockrell had carried out his agreement with Mary V. Cockrell, and just as if Claude's name had been inserted in the policy as beneficiary, as it should have been. Mrs. M. E. Cockrell, the mother of W. M. Cockrell, in her answer, denies that he fraudulently procured possession of the policy as charged, sets up her ownership of it and its proceeds in virtue of his will specifically bequeathing it to her, and avers by way of cross-bill that she was not a mere volunteer, but entitled independently of the will, because of money she advanced him at various times, and that he had “placed said policy in her hands, and made his will transferring said policy to her, said policy having been given over to her at the time said will was executed," when she had no knowledge of the pretended equitable assignment.

The court decreed that the change in the name of the beneficiary was a fraud, and that the proceeds of the policy should be paid

to Claude, except the sum of $107.85, which is the aggregate of the several sums advanced by Mrs. M. E. Cockrell to W. M. Cockrell, and that much of the proceeds was decreed to her on cross-appeal. This latter part of the decree we decline to disturb on the facts. Whether the former part of it shall be affirmed or reversed depends on the sole question whether Mrs. M. V. Cockrell was a competent witness to establish the alleged equitable assignment made in the lifetime of W. M. Cockrell. We concur with the chancellor in the opinion that she was a competent witness under section 1740 of the Revised Code of 1892 and the numerous cases construing it. In the matter of any claim by Mrs. M. E. Cockrell, the mother, under the will, to occupy the position of an innocent purchaser for value, we say, under the decision of the chancellor on the facts, that she is a mere volunteer, as she was held to be, on the face of the bill, in 79 Miss. 569, 31 South. 203. In relation to her claim for moneys advanced by her to her son, she is in a different category on the evidence as held below.

Affirmed on appeal and cross-appeal at the costs of appellant.

BOWLES v. DEAN.

(84 Miss. 376)

(Supreme Court of Mississippi. April 18, 1904.)

TENANT HOLDING OVER-DISPOSSESSION PRO

CEEDINGS-AFFIDAVIT-SUFFICIENCY-AMEND

MENT

APPEAL-AFFIDAVIT OF DENIAL.

1. The affidavit in a proceeding under Rev. Code 1892, § 2547, to dispossess a tenant holding over, which recites that defendant, "a tenant for a part of" a year of plaintiff, "holds over * * after the expiration of his term without permission of the landlord" (plaintiff), is defective for failing to allege facts from which the court may determine the existence of the relation of landlord and tenant, with the term of the lease, as required by section 2548.

2. A motion to dismiss a proceeding under Rev. Code 1892, § 2547, to dispossess a tenant holding over, based on the ground that the affidavit required by section 2548 was defective for failing to allege the facts from which the court might determine the existence of the relation of landlord and tenant and the term of the leasing, should not be granted unless the landlord declined to amend as he might do under Rev. Code 1892, § 717, authorizing amendments in pleading and proceedings.

3. It is error to refuse the motion of defendant in proceedings to dispossess him for holding over after his term as tenant for leave to file in the circuit court an affidavit denying the facts averred in plaintiff's affidavit, the motion being accompanied with an affidavit showing good reason why it was not filed in the justice's court.

Appeal from Circuit Court, Leflare County; A. McC. Kimbrough, Judge.

Action by G. G. Dean against T. A. Bowles. From a judgment affirming a judgment of a justice in favor of plaintiff, defendant appeals. Reversed.

Gwin & Mounger, for appellant. Williamson & Stone, for appellee.

CALHOON, J. So far as this record shows, the proceedings were begun under Rev. Code 1892, § 2547 et seq., by an affidavit before a justice of the peace, showing that there personally appeared "J. T. Dean, Agt. for G. G. Dean, who makes oath that T. A. Bowles, a tenant for a part of the year 1903, of G. G. Dean, for a certain lot of land described as [describing it], holds over and continues in possession of said premises after the expiration of his term, without permission of the landlord, G. G. Dean; wherefore he prays for a writ to issue requiring the said T. A. Bowles to remove from said premises, or to show cause why possession of same should not be delivered to said G. G. Dean." This is signed "J. T. Dean," and sworn to by him. This affidavit is defective in not fulfilling the requirements of Rev. Code 1892, § 2548, which are that it shall show "the facts which, according to the last preceding section, authorize the removal of the tenant * and that the necessary notice has been given to terminate such tenancy." However, we do not think it defective on the ground that it does not show that the three-days notice in writing requiring payment, under the second clause of the preceding section, had been given. This proceeding is not under that clause, but under the first, as to a tenant holding over after the expiration of his term, and this requires no notice, as does the second, which is for default in the payment of the rent. The defect in the affidavit is in the failing to exhibit facts to enable the court to determine from their statement that there was the relation of landlord and tenant, that there was a term of lease, and what that term was, with its beginning and ending. But we refuse to hold that, because these matters appear only inferentially and without particularization, the circuit court erred in not sustaining absolutely a motion to dismiss "the affidavit and this cause." This should follow only if the landlord declined to amend; and we think he might amend, under Rev. Code 1892, § 717, so as to bring the merits to trial. The proceedings in the court of the justice of the peace do not show on their face any objection made to the sufficiency of the allidavit, but show merely the appearance of the parties, that argument was heard on evidence adduced, and judgment for plaintiff, Dean. Mr. Bowles appealed to the circuit court, where he made the motion to dismiss which we have referred to and passed upon. He then made a motion to be allowed to file in that court for the first time his affidavit denying the facts set out in plaintiff's affidavit, accompanying the motion with an affidavit showing good reason why it was not filed in the justice of the peace court. His motion was overruled. This was error. Harvey v. Clark, 81 Miss. 166, 32 South, 906. Reversed and remanded.

(84 Miss. 380)

COCK. WESTERN UNION TELEGRAPH CO.

(Supreme Court of Mississippi. April 18, 1904.)

TELEGRAPHS-MESSAGES-PUNITIVE DAMAGES

PENALTIES-STATUTES.

1. An action to recover damages against a telegraph company for the act of its agent in divulging the contents of a message is not within Code 1892, § 1301, imposing a penalty on any person being an employé of any telegraph company who divulges the contents of a message.

2. Where the conviction of plaintiff's brother of murder and sentence to death had acquired wide notoriety, and a journey of counsel to obtain a writ of error to the United States Supreme Court after the conviction had been affirmed by the state court and the Governor had refused clemency was well known to the public, and had appeared as news in the public prints, the act of a telegraph operator thoughtlessly divulging the contents of a mes sage sent by such counsel to plaintiff to the effect that the writ would probably be refused, before such message had been delivered to plaintiff, did not justify the imposition of punitive damages.

in

Appeal from Circuit Court, Tate County; J. B. Boothe, Judge.

Action by W. G. Cock against the Western Union Telegraph Company. From a judgment in favor of plaintiff for less than the relief demanded, he appeals. Affirmed. Harris & Pow

J. F. Dean, for appellant. ell, for appellee.

CALHOON, J. Mr. Cock's declaration asks punitive damages because the telegraph company, through its operators and agents, disclosed the contents of his dispatch. The court below held the jury to nominal damages, and they accordingly returned a verdict for $1, which was his actual outlay. The claim for vindictive damages is based solely on mental distress, grief, mortification, and humiliation because of the publicity given his message. He appeals to this court.

This case must be decided, of course, without reference to and independently of section 1301 of the Code of 1892, which denounces a penalty against any person, being the employé of any telegraph company, who divulges the contents of a message. It must, of course, be determined by the law applicable to the violation of all contracts, which may or may not entitle to smart money, as the facts may warrant. Involved in every contract for the transmission of a telegraphic dispatch is an obligation on the part of the transmitting company to keep its contents secret from the world. This obligation was not observed in the case before us, and the message was divulged by one or two of the employés of appellee. This gave a right of action beyond question to recover actual damages. Whether it warrants exemplary damages or not must be determined by the facts of the record in the light of the settled principle that compensation is the rule and punishment the exception, justified only by circumstances of outrage, malice, oppression,