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to be a very plain case of palpable injustice, tion, dismissed the case, and discharged the before this court will in any way interfere defendant. with the action of the chancery court. The The sole question in this case is whether or removal of this trustee was not under section not the city of Laurel, being a city of over 2035 of the Code of 1906; that is to say, it 7,000 inhabitants, has the power to select a was not at the instance solely of any interest- police justice pro tem. by its mayor and ed person, charging improper conduct and board of aldermen. The rights of the city of asking for the removal. If it had been, then Laurel are controlled in this particular by five days' notice would have been necessary, section 3398 of the Code of 1906; this section as required by above section. The removal being the one which applies to all cities of was under section 2123 of the Code, and by over 7,000 inhabitants, and the city of Laurel the court itself, and because of willful neg. is in this class. Such being the case, the lect on the part of the trustee to obey the city of Laurel is utterly without any power to court's own orders.

elect a police justice pro tem., either through This case is destitute of merit, and the ap- its mayor and board of aldermen or in any peal is affirmed.

other way, since no such authority is given by the statute. The rights of municipalities

are controlled by their charter powers, and (96 Miss. 631)

what is not in the charter cannot be placed CITY OF LAUREL V. TURNER. there by municipal action, Municipalities (No. 14,345.)

are dependencies, not sovereignties. (Supreme Court of Mississippi. Feb. 21, 1910.) The action of the court was correct. JUDGES (8 16*)-POLICE JUSTICE – APPOINT So ordered. MENT-STATUTES.

The city of Laurel, being a city of over 7,000 inhabitants, has no power to elect a police

(96 Miss. 686) justice pro tem. by its mayor and board of aldermen, under Code 1906, § 3398, providing for

MCALISTER V. CITY OF MOSS POINT. the creation of a police court in municipalities

(No. 14,441.) and for the election of a police justice in such (Supreme Court of Mississippi. Feb. 21, 1910.) cities.

[Ed. Note.-For other cases, see Judges, Dec. 1. INTOXICATING LIQUORS (> 198*)-CBIMINAL Dig. $ 16.*]


AFFIDAVIT. Appeal from Circuit Court, Jones County;

In a prosecution brought in the mayor's R. L. Bullard, Judge.

court, an affidavit charging defendant with the

sale of liquors “contrary to the statute and Proceeding by the City of Laurel against against the peace and dignity of the state” was W. D. Turner. From a judgment sustaining fatally defective, in failing to charge the violadefendant's motion to dismiss an appeal to tion of any municipal ordinance. the circuit court, the City appeals. Affirmed.

[Ed. Note.-For other cases, see Intoxicating

Liquors, Dec. Dig. § 198.*] W. S. Welch, for appellant. T. H. Oden 2. INTOXICATING LIQUORS (§ 207*)-CRIMINAL and J. P. Thornton, for appellee.


TION-PLACE OF OFFENSE. MAYES, J. The city of Laurel appealed the mayor's court, charging defendant with the

An affidavit in a prosecution brought in this case. It seems to be conceded by all unlawful sale of liquors in the county, was parties that the city of Laurel has more than i fatally defective, as failing to state that the 7,000 inhabitants, and its charter is under the crime was committed within the city limits.

[Ed. Note.-For other cases, see Intoxicating general municipal law of the state. The

Liquors, Dec. Dig. $ 207.*] mayor and board of aldermen of the city of Laurel passed an ordinance providing for the

Appeal from Circuit Court, Jackson Counelection of a police justice pro tem. by the ty; W. H. Hardy, Judge. mayor and board of aldermen, and after pass

Alex McAlister was convicted of violating

Reversed, ing the ordinance proceeded to elect one B. the liquor laws, and he appeals. F. Carter to fill the place. Afterwards an

and appellant discharged. affidavit was made against one W. D. Turner, J. H. Mize, for appellant. Denny & Denny. charging him with a violation of a city ordi- for appellee.

We do not deem it necessary to set out the charge, since no question grows out SMITH, J. Appellant, having been conof it alone. A trial was had before the po- victed in the mayor's court on a charge of lice justice pro tem., resulting in a convic- unlawful retailing, appealed to the circuit tion of Turner, who prosecuted an appeal to court, and, being again convicted, appeals to the circuit court of the county. When the this court. cause reached there, the defendant made a The affidavit upon which he was tried is motion to dismiss the case, be ause the trial in the following language: "Before me, the and conviction was before a police justice pro undersigned authority, Geo. W. O'Neill, maytem., elected by the mayor and board of als or of the city of Moss Point, comes R. D. dermen of the city of Laurel without any McLeod, sheriff of Jackson county, who makes power so to do. The court sustained the mo- oath that Alex McAlister, on the 12th day


of July, 1909, in said county, did unlawfully SMITH, J. The court erred in granting the sell to Enos Miller and other persons vinous, peremptory instruction requested by appellee. spirituous, alcoholic, malt, or intoxicating under proper instructions.

The case should have been submitted to the jury liquors, contrary to the statute and against Reversed and remanded. the peace and dignity of the state of Mississippi.” This affidavit is fatally defective for two reasons. It does not charge the violation of any municipal ordinance, and does not

RHYNE V. STATE. (No. 14,334.) charge that the alleged crime was committed (Supreme Court of Mississippi. Feb. 28, 1910.) within the corporate limits of the city of Appeal from Circuit Court, Holmes County; Moss Point. The mayor, and consequently

J. M. Cashin, Judge.

William Rhyne was convicted of murder, and the circuit court, was therefore without ju- appealed. Affirmed. risdiction to try the cause, and the judgments

Boothe & Pepper, for appellant. Geo. Butler, and convictions were mere nullities. Wash- Asst. Atty. Gen., for the State. ington v. State, 93 Miss. 270, 46 South. 539.

PER CURIAM. Affirmed. The judgment of the court below is reversed, and appellant discharged.

HALEY V. STOVALL et al. (No. 13,689.)

(Supreme Court of Mississippi. Feb. 28, 1910.) MCALISTER v. CITY OF MOSS POINT.

Appeal from Chancery Court, Monroe Coun(No. 14,442.)

ty; J. Q. Robins, Chancellor. (Supreme Court of Mississippi. Feb. 21, 1910.) vail and others. From the judgment, Haley ap

Action between Beulah Haley and A. T. StoAppeal from Circuit Court, Jackson County ; pealed. Affirmed. W. H. Hardy, Judge. Alex McAlister was convicted of crime, and

Leftwich & Tubb, for appellant. Anderson & appeals. Reversed, and appellant discharged.

Long, for appellees. J. H. Mize, for appellant. Denny & Denny, PER CURIAM. Affirmed. for appellee.

SMITH, J. This case is controlled by the opinion this day rendered in the case of Mc WEBBER v. STATE. (No. 14,396.) Alister v. City of Moss Point, 51 South. 403, (Supreme Court of Mississippi. Feb. 28, 1910.) wherein the parties are the same as in the case now under consideration.

Appeal from Circuit Court, Yazoo County; Reversed, and appellant discharged.

W. H. Potter, Judge.

Armine Webber was convicted of receiving stolen goods, and appeals. Affirmed.

Holmes & Holmes, for appellant. Geo. Butler, LAUREL BOTTLING WORKS V. JERSEY Asst. Atty. Gen., for the State. CREAM CO. (No. 14,231.)

PER CURIAM. Affirmed, (Supreme Court of Mississippi. Feb. 21, 1910.)

Appeal from Circuit Court, Jones County; R. L. Bullard, Judge.

LONG v. STATE. (No. 14,125.) Action between the Laurel Bottling Works and the Jersey Cream Company. From an ad (Supreme Court of Mississippi. Feb. 28, 1910.) verse judgment, the former appeals. Reversed

Appeal from Circuit Court, Lauderdale Counand remanded.

ty; J. L. Buckley, Judge. R. E. Halsell, for appellant. Shannon & Hattie Long was convicted of unlawfully reStreet, for appellee.

tailing liquor, and appealed. Affirmed.

Ethridge & Ethridge and Bourdeaux & VenaWHITFIELD, C. J. The case should have ble, for appellant. Geo. Butler, Asst. Atty. gone to the jury.

Gen., for the State. Reversed and remanded.

PER CURIAM. Affirmed.


(Supreme Court of Mississippi. Feb. 28, 1910.) (Supreme Court of Mississippi. Feb. 21, 1910.)

Appeal from Circuit Court, Simpson County ; Appeal from Circuit Court, Harrison County; R. L. Bullard, Judge. W. H. Hardy, Judge.

A. G. Heflin was convicted of assault with Action between Esther E. Blair and the Hat- intent to kill, and appeals. Affirmed. tiesburg Lumber Company. From an adverse

J. B. Sullivan and Flowers, Fletcher & Whitjudgment, the former appeals. Reversed and re- field, for appellant. Geo. Butler, Asst. Atty. manded.

Gen., for the State.
J. H. Mize and F. W. Saucier, for appellant.
T. S. Howell and J. D. McLendon, for appellee. PER CURIAM. Affirmed.



(58 Fla. 480)

him, of the conditions of said agreement, and NOBLES v. L'ENGLE et al.

the payment at any time within said period (Supreme Court of Florida. Dec. 21, 1909. of 99 years aforesaid of the sum of $300, he, Rehearing Denied Feb. 22, 1910.) or they, would execute and deliver to your

orator, or those holding through him, a good (Syllabus by the Court.)

title in fee to the land described in said 1. SPECIFIC PERFORMANCE (8 105*)-LACHESWHAT CONSTITUTES.

agreement. Where only 2 years have elapsed since a “(2) That your orator, in pursuance of said complainant in a bill for specific performance agreement, made the initial payment of $5 was wrongfully ousted from the possession of

as aforesaid, and thereupon took possession the premises in controversy, and there has been no material change in the status of the property, of the land embraced in said agreement as or in its value, or of the parties interested, and above described; that thereafter and until where the contract of purchase has over 60 about, to wit, June 3, A. D. 1894, he paid all years to run, there is no such laches as would debar the complainant from specific perform- and every the sums due for rent and a por

tion of the principal sum of $300 aforesaid; [Ed. Note. For other cases, see Specific Per- that on or about, to wit, June 3, A. D. 1894, formance, Cent. Dig. $$ 325-341; Dec. Dig. 8 he paid the remaining sum due upon said 105.*]

principal sum of $300 to the said Francis F. 2. EQUITY (8 339*)—ANSWER-WEIGHT AS Ev. L'Engle, who then and there received from IDENCE. An answer in equity, contradicted in a

your orator said sum as the payment in full material point, loses all weight as evidence, and of the purchase money provided for in said serves the purpose only of a pleading in the agreement, who then and there promised to

execute and deliver to your orator, in accord(Ed. Note.--For other cases, see Equity, Cent. Dig. $ 695; Dec. Dig. $ 339.*]

ance with said written agreement, a good

title in fee for the land described therein; In Banc. Appeal from Circuit Court, Du- and your orator thereupon delivered up to val County; R. M. Call, Judge.

him, the said Francis F. L'Engle, said writBill by January Nobles against Charlotte ten agreement, the surrender of which was J. L’Engle and otbers. Decree for defend the predicate for the making of such deed as ants, and complainant appeals. Reversed aforesaid; and the said written agreement and remanded, with directions.

was so surrendered for no other purpose Cockrell & Cockrell and J. W. Archibald, than as a predicate for the consummated for appellant. Geo. U. Walker & Son (D. A. deed there and then to be executed in the Simmons, on petition for rehearing), for ap- completion of the contract as provided therepellees.


“(3) That said Francis F. L'Engle was a TAYLOR, J. The appellant, as complain-resident of the county aforesaid at the time ant below, filed his bill in equity in the cir- of his death, and had been for a long time cuit court of Duval county on the 230 day of prior thereto; that said Francis F. L'Engle June, 1905, against the appellees, as defend- died in said county and state in the month of ants below, for specific performance of two August, 1899; that up to the time of his contracts for the conveyance of two lots lo-death, and for a long time prior thereto, said cated in the city of Jacksonville, and for an Francis F. L'Engle was an attorney at law accounting. The said bill, omitting its form- in said city, and engaged in the practice of al parts, alleges as follows:

his profession; that your orator is an ex"(1) That said Francis F. L'Engle, being slave, of little education and without capacthen and there seised and possessed of the ity to enter and keep accounts, and made no lands therein described, executed under his effort to do so, but relied entirely upon said hand and seal to your orator, in the presence Francis F. L'Engle with regard to all busia of witnesses thereunto subscribing their ness dealings had with him; that your oranames as such, a certain agreement in writ-tor is advised and believes, and upon such ing, on or about, to wit, the 1st day of Feb- advice and belief avers, that said Francis ruary, A. D. 1884, by the terms of which F. L'Engle kept full and complete accounts agreement said Francis F. L'Engle leased to of all transactions between your orator and your orator that certain tract or parcel of himself in a book or books kept by him for land in the county of Duval and state of that purpose. Florida described, to wit, as fractional lot 5 "(4) That notwithstanding the surrender in block 198, La Villa, a subdivision of Jack- of said agreement as aforesaid, and said sonville, for the period of 99 years, upon con- promise of Francis F. L'Engle, neither he sideration, to wit, of an initial payment of during his lifetime, nor his legal representa$5 and the payment thereafter four times in tive since his death, has executed or deliveach year of the sum of $5; it being further ered to your orator a deed for said land; that covenanted in said agreement by said Fran- your orator is informed and advised, and so cis F. L'Engle, for himself and his legal rep- believes, that said written agreement and resentatives, that upon the faithful perform- books of account severally are in the possesance by your orator, or those holding through 'sion or control of said defendants to this

bill, or one of them; that your orator is en- | January, A. D. 1903, said Claude L'Engle, titled to a discovery of said agreement and claiming to act as trustee under said will the said accounts.

for one Frank Fatio L'Engle, unlawfully dis(5) That about 10 years prior to the death possessed and wrongfully ousted your orator of said Francis F. L'Engle your orator erect- from the possession of the land embraced in ed upon said premises three frame houses, each of the two agreements aforesaid. which he thereafter rented; that your ora "(11) That your orator, so wrongfully ousttor, from the date of said written agreemented from possession of the lands so granted to up to and until about, to wit, January 1, A. him in the lease of about, to wit, February D. 1903, was in the peaceable, quiet, and ex- 1, A. D. 1884, before about, to wit, the 3d clusive possession of said land embraced in day of June, A. D. 1894, performed all and said agreement, and in the exclusive per- every the conditions on his part agreed to be nancy and perception of the income, rents, performed in accordance with said written and profits thereof; that after the surrender agreement of about, to wit, February 1, A. of said written agreement, and until said D. 1884, and has since been, since the comJanuary 1, A. D. 1903, your orator exercised pletion of said final payment of the princias the absolute equitable owner full control pal sum of $300 and the surrender of said thereover.

agreement upon about, to wit, June 3, A. D. "(6) That said Francis F. L'Engle, being 1894, entitled to a deed in fee for the said then and there seised and possessed of the land; that at the time he was so dispossesslands therein described, executed under hised the houses upon said premises were renthand and seal to the person therein named as ed, and the aggregate rental received theregrantee, in the presence of witnesses there from amounted to about, to wit, $24 per unto subscribing their names as such, a cer- month; that said Claude L'Engle, so claimtain agreement in writing on the 29th day of ing as trustee for Frank Fatio L'Engle under January, A. D. 1896, which instrument was said will of Francis F. L'Engle, deceased, thereafter duly proven for record and record has since that time collected a large sum ed in the office of the clerk of the circuit from such rentals, which your orator is adcourt for the county aforesaid, a copy of vised and believes, and, so believing, avers which agreement is hereto annexed, marked said sum, to be about, to wit, $700; and your 'Exbibit A,' and prayed to be made a part orator avers that said Claude L'Engle, so hereof, the original of which agreement will claiming as trustee aforesaid, should be re be produced at the hearing hereof.

quired to account for and pay to your orator "(7) That said agreement was for a valu all such sums received by him. able consideration assigned to your orator "(12) That your orator had, before being so by Annie K. Smith, the grantee therein, on unlawfully evicted therefrom, erected valuor about, to wit, April 29, A. D. 1896; that|able improvements upon said land embraced said Francis F. L'Engle recognized said in said agreement of January 29, A. D. 1896; agreement, and accepted during his lifetime that said Claude L'Engle, claiming as trusfrom your orator as such assignee the rents tee for Frank Fatio L’Engle under said deaccruing thereon.

vise to him as such trustee under said will, "(8) That your orator has, since the date has since said wrongful dispossession of of said assignment and up to and until about, your orator of said premises been continuto wit, the 1st day of January, A. D. 1903, ously receiving as such month by month the been in the quiet, peaceable, and exclusive rents, income, and profits thereof, which as possession of said land described in said your orator is advised and believes, and so written agreement so assigned, and in the states the fact to be, has amounted to a exclusive pernancy and perception of the in- large sum of money, the exact amount of come, rents, and profits thereof; that your which is to your orator unknown, but which orator, up to and until about, to wit, said upon information and belief he states to be 1st day of January, A. D. 1903, has perform- quite sufficient to pay off and discharge, not ed all and every the conditions, covenants, only the rent month by month provided for and stipulations of said agreement so assign-in said agreement, but also to pay off and ed to him, and by such assignment, so rec- discharge in full the purchase money for ognized by said Francis F. L'Engle, agreed said premises, and upon the payment of to be performed up to and until that time; which your orator was to receive by the terms that during said time your orator has not of said agreement a deed in fee to said premonly paid the sums due as rent upon said ises, and in respect of which receipts, whethproperty, but has paid a large portion of the er by the said F. F. L'Engle in his lifetime, principal sum of $500, to wit, about $150. or by his representatives under his will

"(9) That said Francis F. L'Engle duly ex- since he died, your orator is entitled to a ecuted his will, which was after his death full accounting; that said defendants to this duly admitted to probate, a copy of which bill, though often requested by your orator, is annexed to this bill, marked 'Exhibit B,' have heretofore and do now refuse to perand made part hereof, for the purpose of form the terms of said agreement; that if showing what was devised therein and the any part of said principal or rental sum or relation of the parties to said devisees. sums shall be found upon an accounting had

any condition or conditions yet unperformed, and dismissing the bill at complainant's cost. which by the terms of said agreement is or This decree the complainant below brings are to be performed by your orator, he stands here for review by appeal. ready and willing and now offers, as he has We think the court below erred in renderheretofore been ready and willing and has | ing the decree made. In so far as the quesoffered, to pay said sum or sums and to tion of laches is concerned, we do not think, perform said condition or conditions.

under the circumstances proof, that the "To the end, therefore, that said several complainant should be shut off from the redefendants be made parties defendant hereto, lief he seeks thereby. According to the proand answer, your orator prays as follows: visions of one of the contracts sought to be

"(1) That said defendants discover to this enforced, made some time during the year court the agreement of about, to wit, Febru- 1884 or 1885, the vendor therein bound himary 1, A. D. 1884, aforesaid, and all and ev. self to make title at any time within 99 ery book or memorandum or books or mem- years from its date upon compliance thereorandums in the possession or control of with by the lessee and vendee, and in the them, or either of them, bearing upon or second contract, also sought to be enforced, in any wise relating to the two agreements the time for compliance runs for 69 years aforesaid.

from January 29, 1896. The proofs further "(2) That said defendant Charlotte J. L'En- show that the complainant was in the uningle, as executrix of the will of Francis F. terrupted possession of all of said premises L'Engle, deceased, be decreed to execute and until the year 1903, only about 2 years bedeliver to your orator a good and sufficient fore the exhibition of his bill, and that durdeed in fee simple to said parcels of land ing that time he sought to regain possession and each thereof.

by actions of forcible entry and detainer. “(3) That said Claude L'Engle, individual. During that time of delay the proof does ly and as trustee for Frank Fatio L'Engle, not show that there has been any material be required to account for all sums received change either in the property or in its value, by him as incomes, rents, and profits of said or in the status of the title or of the parties land described in said agreements, and that interested. We think, further, that the dea full accounting be had of all sums paid in cided preponderance of the proofs shows that pursuance of said agreements during the life the complainant has fully complied with his time of said Francis F. L'Engle and there contract for the purchase of fractional lot 5 after.

of block 198 in La Villa, a subdivision of the "(4) That if, upon an accounting had, it ap city of Jacksonville, and that he is entitled pears that a balance is due your orator after to a deed thereto from the defendant execupayment of the rentals and principal sum trix of Francis F. L'Engle, deceased, as prayof the agreement dated January 29, A. D. ed in the bill, and that as to the second lot, 1896, said balance be decreed unto your ora- described as the north third of the west tor.

half of lot 4, in said block 198, in said La (5) That your orator may have such other Villa, the proofs show that, even if he has and further, or other or further, relief as not paid the full amount of the agreed purthe nature of this case requires."

chase price, he has paid the major part thereTo this bill the defendants demurred on of, and will be entitled to a deed therefor the ground of the want of equity, and be- upon an adjustment of any balance that may cause of laches apparent upon the face of the be due thereon. We further think that the bill.

overwhelming preponderance of the proofs This demurrer was overruled, and the de- shows that the complainant was wrongfully fendants jointly answered, in which the mak. dispossessed of all of said premises by the ing and delivery of the agreements sought defendant Claude L'Engle during the year to be specifically performed are admitted as 1903; that said Claude L'Engle has since that alleged, but the answer denies that said time wrongfully collected and appropriated agreements have been complied with by the the rents, income, and profits of said lots, complainant as alleged in the bill; and on and that the complainant is entitled to an acthe part of the defendant Claude L'Engle curate accounting from him of such rents, said answer denies that he took wrongful income, and profits; and the complainant possession of the premises involved from the should be allowed to apply so much out of complainant, and alleges that the complain- such rents collected by Claude L'Engle as ant, finding himself unable to pay what he may be sufficient to pay any balance due owed on said lots, voluntarily surrendered from him on his contract for the purchase of them to him, and voluntarily went with him said north third of the west half of lot 4 in and notified all the tenants on the premises block 198, La Villa. to attorn to him, the said L'Engle.

The bill alleges that the complainant in the A master was appointed to take and report year 1903 was wrongfully dispossessed of the testimony, a large volume of which was said premises by the defendant Claude L'Entaken and reported, and at the final hearing gle. The answer of the latter denies this, the chancellor, on the bill, answer, and tes and alleges that the complainant at that time timony reported, rendered a final decree find- voluntarily surrendered to him the posses

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