the title to this land. Murphey v. Sloan, 24 | Miss. 658; Fairly v. Fairly, 38 Miss. 280; Winn v. Dillon, 27 Miss. 494. The decree of the lower court will be reversed, and a decree entered here, divesting the appellee, McCreight, out of all interest and title to the land in controversy, and vesting the same in appellants; that appellants will reimburse appellee for the $20 paid out in procuring the title from these negroes, together with legal interest from the date of payment; that appellants will further pay the appellee, as reasonable compensation for his services in procuring the deed, the sum of $5. Reversed, and decree here for appellants in accordance with this opinion. Reversed, and decree here. (117 Miss. 666) DUNAGIN-WHITAKER CO. v. MONTGOM- [1] The testimony in the case shows that the appellant was in the grocery business, and among other things handled a great many sacks of a mixed molasses feed prepared especially for stock called "Summo"; that the appellee was a farmer and had a lot of dairy cows, and on various occasions prior to the time in question had purchased from the appellant sacks of this feed which he had fed to his cattle; that on the 19th day of February, 1916, he purchased one sack of this feed from the appellant, being waited upon by one of the clerks in the store. The appellee says that he asked this clerk if he had any good mixed feed and the reply was, "Yes, the best there was." Appellee then purchased one sack of it. That night he fed out of this sack a number of his dairy cattle, and they became sick and died, evidently from the effects of this feed. It is also clear from the record that this sack of feed was spoiled, and had become The judgment in (Supreme Court of Mississippi, Division A. poisonous for cattle feed. 1. SALES 266 WARRANTY. May 13, 1918.) IMPLIED CATTLE FEED There was no implied warranty of the soundness of mixed feed for cattle, sold on request of the buyer for good mixed feed. this case could only be sustained in this court upon one theory, viz. that the appellant knowingly sold poisoned stock feed to the appellee for the purpose of being fed to his cattle. There was no express warranty of the soundness of this feed, and there was 2. POISONS 6 SALE OF CATTLE FEED no implied warranty of its soundness. DuPOISONOUS CHARACTER-KNOWLEDGE-SUF-laney v. Jones & Rogers, 100 Miss. 835, 57 FICIENCY OF EVIDENCE. Evidence held not to show that defendant company knowingly sold poisonous cattle feed to plaintiff to be fed to his stock; the only hypothesis on which plaintiff could recover, there having been no express or implied warranty of soundness. Appeal from Circuit Court, Jones County; Paul B. Johnson, Judge. Suit by J. A. Montgomery against the Dunagin-Whitaker Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment entered for defendant. Chas. S. Street, of Laurel, for appellant. Stone Deavours, of Laurel, for appellee. South. 225. [2] There was some testimony in the case by the appellee that just before Christmas he was in appellant's store and one of the clerks, a different clerk than the one who sold him the sack of poisoned feed, asked him if he did not want to buy some damaged feed, that they had a lot on hand, to which appellee replied that he would not have it, or words to that effect. Another witness for the appellee also testified that he had seen some damaged mixed feed in the warehouse The of the appellant along about Christmas. Assuming that this testimony be true, it only shows that about a month and a half before this sack of feed was sold to appellee the apSYKES, J. Appellee filed suit in the cir- pellant had on hand in his warehouse some cuit court against appellant for damages for damaged feed of the same character. the value of several cows alleged to have testimony shows that he was constantly sellbeen killed from the effects of spoiled or poi-ing feed of this kind and buying same. It soned mixed cattle feed purchased by appel- does not show that the sack sold appellee lee from appellant. The declaration of appellee contained two counts. The first count a month and a half later was in the wareis based upon an implied warranty that the feed was pure and free from poisonous substances. The second count is predicated upon the negligence of the appellant, in that he knew, or by the exercise of ordinary care could have known, that the feed was damaged and liable to injure the cattle. A demurrer was properly sustained to the first count of the declaration, and the case was tried upon the second count, and verdict and judgment rendered in favor of the appellee for the sum of $150. Hence this appeal. house where this witness saw damaged feed. Taken most strongly in favor of the appellee, the testimony totally fails to show that appellant knowingly sold poisoned cattle feed to appellee for the purpose of being fed to his stock, and this is the only hypothesis upon which he could have recovered in this case. A peremptory instruction was asked by the appellant and refused. This instruction should have been given. Reversed, and judgment will be entered here in favor of appellant. POPE ▼. IVY et al. (No. 19864.) (Supreme Court of Mississippi. May 6, 1918.) Appeal from Circuit Court, Clay County; T. B. Carroll, Judge. Action by Mrs. Allie Pope against Gates T. Ivy and others. Judgment for defendants, plaintiff appealed, and judgment was reversed and remanded. 78 South. 367. Plaintiff's motion that the court amend its opinion and judgment heretofore rendered in the case, so as to JACKSON v. STATE. (No. 19931.) give her a final judgment in the Supreme Court, (Supreme Court of Mississippi. May 13, 1918.) sustained. JORDAN v. TOWN OF LOUISVILLE. (Supreme Court of Mississippi. April 8, 1918.) Appeal from Chancery Court, Winston County; Albert Y. Woodward, Chancellor. Suit between S. M. Jordan and the Town of Louisville. Decree for the latter, and the for mer appeals. Motion for allowance of attor ney's fees sustained, and fee of $20 allowed appellee. See, also, 77 South. 826. Wells, May & Sanders, of Jackson, and Jones & Jones, of Louisville, for appellant. Green & Green, of Jackson, and L. H. Hopkins and Richardson & Richardson, all of Louisville, for appellee. PER CURIAM. Motion for allowance of attorney's fees sustained, and fee of $20 allowed appellee. LITTLEJOHN v. STATE. (No. 20188.) (Supreme Court of Mississippi. May 13, 1918.) Appeal from Circuit Court, Warren County; E. L. Brien, Judge. Proceeding by the State against Ida Littlejohn, in which she appeals. Affirmed. J. N. Piazza, of Vicksburg, for appellant. Ross A. Collins, Atty. Gen., for the State. PER CURIAM. Affirmed. BROWER et al. v. STATE. (No. 20142.) (Supreme Court of Mississippi. May 13, 1918.) Appeal from Circuit Court, Yalobusha Coun CARR v. TOWN OF LOUISVILLE. (Supreme Court of Mississippi. April 8, 1918.) Appeal from Chancery Court, Winston County; Albert Y. Woodward, Chancellor. Suit between J. S. Carr and Town of Louisville. Decree for the latter, and the former appeals. Motion for an allowance of attorney's fee sustained, and fee of $20 allowed appellee. See, also, 77 South. 827. Richardson & Richardson and L. H. Hopkins, all of Louisville, and Green & Green, of Jackson, for appellant. Wells, May & Sanders, of Jackson, and Jones & Jones, of Louisville, for appellee. PER CURIAM. Motion for allowance of attorney's fee sustained, and fee of $20 allowed An exception of no cause of action which has been overruled in the trial court and all rights thereunder have been reserved by defendant in its answer, may on appeal by defendant be argued and considered in the appellate court. 2. NATIONAL BANKS EMBEZZLEMENT BY CASHIER-STATUTE. "Any cashier, who embezzles, abstracts or willfully misapplies any of the moneys, funds or credits of the association [a national bank] * * shall be imprisoned_not less than five years nor more than ten." Rev. St. U. S. § 5209 (Comp. St. 1916, § 9772). 3. BANKS AND BANKING * 256(3)—NATIONAL BANKS - - EMBEZZLEMENT BY CASHIER ELEMENTS INTENT TO DEFRAUD. "The crime of embezzlement from a national bank by an officer, clerk, or agent, within Revised Statutes, 5209, involves two general elements; one a breach of trust or duty with respect to the moneys, funds, or credits of the bank embezzled, which must have been lawfully in the custody or possession of the accused by virtue of his office or employment, although such possession need not have been exclusive of that of other officers, clerks, or agents; and, second, wrongful appropriation of such moneys, funds, or credits to his own use, with intent to injure or defraud the association or others. "The intent to injure or defraud need not necessarily have been the object or purpose with which the act was done; but it is sufficient if the natural and necessary effect of the act was to injure or defraud the bank or others, and it was willfully and intentionally done. United States v. Breese (D. C.) 131 Fed. 915; United States v. Heinze (C. C.) 161 Fed. 425. 4. BANKS AND BANKING 256(3)-NATION AL BANK-EMBEZZLEMENT BY OFFICER. The embezzlement or "misapplication of the funds of a national bank by an officer without the knowledge or consent of the bank is not changed, as to its criminal character, by the fact that the act subsequently became known to the officers of the bank, and that they impliedly consented thereto, by taking no action in regard to it." Rieger v. United States, 107 Fed. 916, 47 C. C. A. 61. "Embezzlement is the fraudulent appropriation of property by a person to whom such" property "has been intrusted, or into whose hands it has lawfully come.' Moore v. United States, 160 U. S. 268, 16 Sup. Ct. 294, 40 L. Ed. 422; State v. Roubles, 43 La. Ann. 200, 9 South. 435, 26 Am. St. Rep. 179. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Embezzlement.] these notes had been used by the president in connivance with the cashier, who was the director, and another director to give him fictitious credit. "The acts and intent of the president in obtaining money ** on worthless securities being such as to make him guilty of embezzlement, abstraction, or willful misapplication of its funds it is immaterial that his acts were committed, sanctioned, or ratified by the other officers of the bank, with knowledge of the facts." Breese v. United States, 106 Fed. 680, 45 C. C. A. 535. (Additional Syllabus by Editorial Staff.) 7. PRINCIPAL AND SURETY 155-FIDELITY BOND-CAUSE OF ACTION-PETITION. A petition alleging that the cashier of a national bank abstracted its money in his possession and control, and converted it to his own use to the pecuniary loss of the bank, and that such acts amounted to an embezzlement, stated a conditioned to make good and reimburse the cause of action against the surety on his bond bank for any loss by reason of the fraud or dishonesty of the cashier in connection with the duties of his office amounting to embezzlement or larceny. 8. PRINCIPAL AND SURETY 155 - ACTION ON SURETY BOND-PETITION. the bond of the cashier of a national bank covA petition in an action against the surety on ering his embezzlement or larceny need not be phrased in the technical language which would have been used in an indictment or information charging embezzlement or larceny. 9. PRINCIPAL AND SURETY 79 FIDELITY BOND-EMBEZZLEMENT BY CASHIER OF NATIONAL BANK. In a suit against the surety on the bond of the cashier of a national bank, conditioned to reimburse the bank for any loss from his fraud or dishonesty amounting to embezzlement or larceny excepting liability for his acts or omissions under instructions from his employer, or for any mere error of judgment or bona fide mistake, evidence that he was a stockholder, a director, and a member of its board, and indorsed notes of concerns in which he was a stockholder or officer and which he knew to be insolvent, and discounted notes of such conty, and overdrew his own account and borrowed cerns and his own notes without proper securi mortgage note for a few days so as to attach his note discounted and abstracted a bill of ladit temporarily to one of his own so as to have to the consignee, a company with which he was ing attached to a draft for collection and gave it connected, without collecting the draft, all without instruction from his employer or supe rior officer, showed an embezzlement, and not a mere error of judgment or bona fide mistake. Appeal from Sixth Judicial District Court, Parish of Ouachita; Ben C. Dawkins, Judge. Action by the Union National Bank, by H. F. Thomas, receiver, against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant appeals. Judgment affirmed in favor of the People's Investment Company, Incorporated, substituted for plaintiff. Stubbs, Theus, Grisham & Thompson, of Monroe, and J. Zach Spearing, of New Orleans, for appellant. Hudson, Potts, Bernstein & Sholars, of Monroe, for appellee. SOMMERVILLE, J. May 10, 1907, the defendant executed a bond as surety of H. D. Apgar, cashier guaranteeing the Union Bank & Trust Company in a sum not to exceed $10,000 that it would "make good and reimburse to the said employer by reason of the fraud or dishonesty of the said employé in connection with the duties of his office or position amounting to embezzlement or larceny and which have been committed during the continuance of said term, or of any renewal thereof." The bond further provided that the defendant shall not be liable "for any act or thing done or left undone in obedience to or in pursuance of any instructions or authorization received by him (Apgar) from the employer or any superior officer or for any mere error of judgment or bona fide mistake, or any injudicious exercise of discretion on the part of the employé (Apgar) in or about all or any matters wherein he shall have been vested with discretion," etc. The Union Bank & Trust Company was, on March 4, 1912, nationalized, and became the Union National Bank, and the bond was renewed from year to year, until the bank was closed by some one connected with the national banking affairs of the government; and this is a suit by the receiver against the defendant as surety or guarantor on said bond for the full amount thereof. The petition is long, and it would serve no useful purpose to refer to each one of the 42 articles contained in it. It recites numerous transactions by notes, indorsements, renewals, and overdrafts by which Apgar, while acting as cashier of the bank, became indebted to the bank in a sum far in excess of the amount of the bond. Defendant filed an exception of no cause of action, which was overruled. It then answered that the matters charged against Apgar were not fraudulent and dishonest, and did not amount to "embezzlement or larceny" of the funds of the bank. Further, that what was done by Apgar was with the authorization of the other officers of the bank; or they were errors of judgment; bona fide mistakes; or that the indebtedness was the result of an injudicious exercise of the discretion which had been vested in him. There was judgment for plaintiff for the full amount of the bond, and defendant has appealed. complained of, both by overdrafts and notes, were made with the authorization and approval of the superior officers and board of directors, and that while many of the loans were probably injurious to the bank, they were "the injudicious exercise of discretion on the part of the employé," which acts are specially exempted from liability under the terms of the bond. [1] Plaintiff objects to the consideration by the court of the exception filed by defendant. The exception was overruled, and in its answer defendant reserved its rights thereunder. It is therefore properly before the court. It is peremptory in its nature, and, as such, might have been filed at any time in the course of the proceedings. Rogers v. Southern Fiber Co., 119 La. 714, 44 South. 442, 121 Am. St. Rep. 537. Plaintiff refers to the case of Lykiardopoulo v. New Orleans & C. R., Light & Power Co., 127 La. 314, 53 South. 575, Ann. Cas. 1912A, 976, in support of its position. It has no application here. A ruling on an exception of vagueness, and not on a peremptory exception, was therein disposed of. The bond sued on was attached to and made part of the petition, and the two documents will be considered together in considering the exception. Assuming the numerous irregularities resulting in heavy loss to the bank, and detailed in the petition, to have been practiced by Apgar, defendant argues that they did not amount "to embezzlement or larceny" on his part, and that it is not alleged that Apgar was not authorized to do the things enumerated in the petition by his employer or any superior officer, or that any of the alleged misappropriations were not authorized, or that there were errors other than errors of judgment and mistakes, or that those things were done without the consent of the bank. [7] We are of the opinion that the transactions of Apgar enumerated in the petition, taken together with article 40 thereof, shows a cause of action against defendant on the bond issued by it to make good and reimburse the bank for any loss "by reason of the fraud or dishonesty of the said employé in connection with the duties of his office or position Defendant has filed the following assign- amounting to embezzlement or larceny," and ment of errors in this court: which were committed during the continu (1) The district court erred in not sustain-ance of the bond, to the extent of $10,000. ing the exception of no cause of action. The said article 40 of the petition is as follows: (2) The district court erred in holding that the evidence showed that H. D. Apgar had "Petitioner shows that the said Harvey D. committed any act of "fraud or dishonesty" Apgar (for himself and the above-named partin connection with his position or office as nerships, of which he was a member, and his copartners thereof, and W. B. Clarke) did, on cashier "amounting to embezzlement or lar- the several dates alleged, take and abstract the ceny," or that the evidence shows any want aforesaid and respective sums of $23.433.65, of authorization by the board of directors $4.800, $1.325.78, $3,207.92, $3,250, $2,500, $2,or superior officers to make the loans com- property, and funds belonging to the Union Na314.50, $876.95. and $17.960. of the moneys, plained of; but, on the contrary, the evidence tional Bank, which said moneys, property, and shows affirmatively that the principal, H. funds were, at the time of such taking and abD. Apgar, committed no crime "amounting to straction, in the immediate possession, custody, and control of the said Harvey D. Apgar as embezzlement or larceny," and that the tes-cashier of the said Union National Bank. And, concerns, which he knew to be insolvent. It also shows that he overdrew his own account, and permitted the several concerns with which he and members of his family on which advice avers the fact to be, that the, ber of the discount board. He was also a said Harvey D. Apgar converted the aforesaid stockholder or officer of several insolvent $23,433.65, $4,800, $1,325.78. $3,207.92, $3,250, $2,500, $2,314.50, $876.95, $17,960 to his own use; and petitioner is advised and therefore alleges that the act and acts of the said Harvey D. Apgar, as herein above related and set forth, with respect to the said transaction. amounted to embezzlement or larceny of the said money were connected to do the same thing. He and property, and that, as a result and conse- indorsed the notes of these concerns, and quence of the act and acts of the said Harvey he discounted his own notes and the notes D. Apgar amounting to embezzlement, the said Union National Bank sustained a pecuniary of said companies without proper or adeloss to the amount of the aforesaid sums of quate securities. $23.433.65, $4,800, $1,325.57, $3,207.92, $3,250, $2,500, $2,314.50, $876.95, $17.960. by reason of the fraud and dishonesty of the said Harvey D. Apgar, in connection with the duties of his office and position, amounting to embezzlement, and which said acts of fraud and dishonesty amounting to embezzlement were committed during the continuance of the renewals of the aforesaid bond No. 302933-7.” He borrowed a mortgage note for a few days so as to attach it temporarily to one of his own, so as to have his note discounted. He abstracted a bill of lading which was attached to a draft for collection, and gave it to the consignee, one of the companies with which he was connected, without collecting the draft. These many misappropriations were done by Apgar on his own initiative, and not "in obedience to, or in pursuance of, any instructions or authorization received by him from his employer * who embezzles, abstracts or willfully or any superior officer." They were not misapplies any of the moneys, funds, or credits errors of judgment, or bona fide mistakes, or shall be imprison"the injudicious exercise of discretion in matters where he had been vested with discre [3] And in construing this section it was [2] The embezzlement charged is that covered by section 5209, U. S. R. S. (U. S. Comp. St. 1916, § 9772), which provides: "Any * cashier of a national bank], of the association * ed not less than five years nor more than ten." held in United States v. Harper (C. C.) 33 tion, or by instruction or by the rules and Fed. 471: regulations of his employer. The other officers of the bank were not con"The crime of embezzlement from a national bank by an officer, clerk, or agent, within Resulted by him in making these misappropriavised Statutes, 5209, involves two general ele- tions; they did not authorize them, and they ments; one a breach of trust or duty with re- had no knowledge of the existence thereof. spect to moneys, funds, or credits of the bank embezzled, which must have been lawfully in Some of the officers testified that at their the custody or possession of the accused by vir- monthly meetings Apgar, or his assistant, tue of his office or employment. although such read aloud all the discounts and loans which possession might not have been exclusive of had been made during the preceding month; that of other officers, clerks, or agent; and, second, wrongful appropriation of such funds, mon- but they did not learn of them until after eys, or credits to his own use with intent to in- they had been granted by the cashier, and jure or defraud the association or others. they did not know whether they were renewals or not, or whether the amounts had been increased or not from month to month. They approved of what had been done, without informing themselves of the true condi "The intent to injure or defraud need not willfully have been the object or purpose with which the act was done; but it is sufficient if the natural and necessary effect of the act was to injure or defraud the bank or others, and it was willfully and intentionally done." [8] The petition is not phrased in the technical language which would have been used in an indictment or bill of information charging Apgar with embezzlement or larceny; but the use of such language was not necessary in a civil suit. In the petition he is charged with having taken and abstracted from the bank certain sums aggregating near ly $60,000, which were in his custody, which he converted to his own use; and which taking amounted to embezzlement or larceny on his part. There was no error in overruling the exception. tion of affairs. This failure of duty on the part of the remaining directors of a national bank can not excuse the conversion or embezzlement of funds of the bank by the cashier. Having taken the funds of the bank for the use of himself and others, without the knowledge or consent of the bank officials, Apgar was guilty of the crimes charged in the petition. [4] The embezzlement or "misapplication of the funds of a national bank by an officer without the knowledge or consent of the bank, * is not changed, as to its criminal character, by the fact that the act subsequently became known to the officers of the bank, and that they impliedly consented [9] We are also of the opinion that the court correctly held that Apgar had committed acts of fraud and dishonesty amount-thereto, by taking no action in regard to it." ing to embezzlement while serving as cashier of the bank. The evidence shows that H. D. Apgar was a stockholder and the cashier of the plaintiff bank; was one of its executive officers, a Rieger v. United States, 107 Fed. 916, 47 C. "The intent to injure or defraud the bank within the meaning of the section does not necessarily involve malice or ill will toward |