1. Limitations by contract. Insurance. Code of 1906, Secs. 2575, 3126,
3127. Constitution 1890, Sec. 87.
Code 1906, Sec. 2575, providing that conditions or stipulations in
insurance contracts limiting the time within which suit may be
brought thereon to less than one year, shall be void does not pre-
vent such contractual limitation for a period of not less than one
year. Taylor v. Insurance Co., 480.
Code 1906, Sec. 3127, providing that the limitations prescribed in
this chapter shall not be changed in any way whatsoever by
contract between the parties, etc., does not repeal or nullify Sec.
2575, in view of the facts that these two sections were adopted
at the same time, are in different chapters and that Sec. 3126
in the same chapter as Sec. 3127 provides that chapter shall
not apply to any suit which is limited by any statute to be
brought within a shorter period than is prescribed in such chap-
ter, and because repeals by implication are not favored by the
courts. Ib.
3. Constitution 1890, Sec. 87. Special or local laws. Limitation of
actions.
Constitution 1890, Sec. 87, prohibiting the enactment of special or
local laws or the suspension of general laws, etc. is not violated
by Sec. 2575, Code 1906, permitting insurance companies to make
contracts limiting the time in which suits can be brought thereon
to not less than one year. Ib.
4. Municipal Corporations. Public improvements. Change of grade.
Damages. Waiver.
Where a property owner is required by a resolution of a munici-
pality to construct a sidewalk in front of her property on a cer-
tain grade within twenty days, or show cause for her failure to
do so, she did not by constructing such sidewalk waive her right
to claim damages for being forced thereby to raise her lot and
houses to conform to such grade and the fact that she waited
for more then twenty days to construct such sidewalk makes no
difference. City of Jackson v. Muckenfuss, 555.
A plaintiff cannot predicate his recovery on grounds not alleged
in his declaration and it is not error for the court to refuse an
instruction which does this. Richards v. City Lumber Co., 678.
6. Laws 1910, Ch. 135. Retroactive operation.
Chapter 135, Laws 1910, providing that "in all actions hereafter
brought" for personal injuries, contributory negligence shall
not bar a recovery, is not retroactive. Ib.
The legislature has no power to take away vested rights in order
to create a cause of action out of an existing transaction for
which there was at the time of its occurrence no remedy; nor
can it destroy a valid defense to an action existing before the
enactment of the statute. Ib.
The erection of an embankment which causes the obstruction of
the natural flow of water and causes damages to the land of
another is a continuing nuisance for which successive recoveries
can be had. Rosamond v. Carroll County, 701.
9. Principal and agent. Code of 1906, Sec. 10.
Code 1906, Sec. 10, by which certain words are made actionable
has no application in a suit to hold a principal liable for words
spoken by an agent unless possibly such words are spoken at
the command of the principal. Fire Insurance Co. v. Betty, 880.
1. Navigable waters. Title.
The owner of land adjoining a navigable river owns the alluvion
formed in front of his land, though such alluvion first com-
menced to form in front of adjoining property and extended later
in front of his property. Smith v. Leavenworth, 238.
The general rule for apportioning alluvion between coterminal
land owners, is to give each such proportion of the new shore
line as they possessed of the former shore line before the forma-
tion of the alluvion. This rule however is not absolute and there
may be exceptional cascs requiring the application of a different
rule in order that justice may be done. Ib.
1. Municipal ordinances. Appeal to circuit court.
Where a criminal case is tried in a mayor's court for a violation
of a municipal ordinance, it cannot be tried on appeal in the
circuit court as a violation of the state law. Thomas v. State, 74.
In such case the proper disposition of the case in the supreme
court is to reverse the judgment, and remand the case, to be
proceeded with as a prosecution by the city. Ib.
3. Criminal law. Trial. Argument of counsel.
In a trial for murder where the district attorney was permitted
over the objection of defendant to say to the jury, "If you bring
in a verdict of manslaughter, the court does not have to sen- .
tence defendant to the penitentiary, but can fine her or send her
to the county farm," it was reversible error. Minor v. State, 107.
4. Criminal law. Instructions.
Where accused was indicted for an assault and battery with intent
to kill and murder and the evidence only showed an assault
with intent to kill, it was harmless error for the court to
instruct the jury that if they believed from the evidence beyond
all reasonable doubt that defendant was guilty of assault with
intent to kill and murder they should find him guilty as charged
in the indictment, as under an indictment for an assault and
battery with intent to kill and murder a conviction can be had
for assault with intent to kill and murder. Flowers v. State, 108.
A conviction will not be reversed for an error not prejudicial to
the party complaining. Ib.
6. Criminal law. Character of accused. Particular acts.
While a witness introduced as to the character of accused for
peace or violence can testify as to his general reputation on
that subject, it is error to compel him to testify as to the
details of a number of independent fights, etc., in which it was
claimed that defendant had been engaged. Neal v. State, 122.
7. Supreme Court. Exceptions. Instructions. Stenographer's notes.
Where a peremptory instruction was given by the court and so
marked and filed by the clerk, and no motion for a new trial
was made, but an exception to the action of the court in granting
101 Miss.-58
APPEAL AND ERROR-Continued.
this instruction was taken at the time, it was given and in due
course, a bill of exceptions consisting of the stenographer's
notes, embodying all of the evidence was filed, it became a part
of the record and was reviewable on appeal without a motion for
a new trial. McCorkle v. I. C. R. R. Co., 124.
In such case where the evidence in the case is made a part of the
record by a bill of exceptions, it will be looked to by the court
on appeal in order to determine the correctness of the lower
court's ruling. Ib.
Where an appeal from a decree rendered in the third supreme court
district was perfected by the filing of an appeal bond in July,
and in October the appellees moved in the supreme court to
docket and dismiss the appeal, such motion was overruled, as
the docket of the third district is called on the first Monday
of December, that day by virtue of Code of 1906, section 4906,
being the return day for appeals from that district, and citation
for appellees was unnecessary for by their motion to docket
and dismiss the appeal they entered their appearance before
the return day for appeals from that district. McAllister v.
Richardson, 132.
10. Delay in prosecution. Dismissal.
Where the record in a cause had been filed in the supreme court
and appellee's appearance had been entered more than ten
days prior to the return day for an appeal there was no such
delay in the prosecution of the cause after taking the appeal
as will warrant a dismissal. Ib.
11. Justice of the peace.
Answer of garnishee. Time of filing. Ap-
peal. Code of 1906, sections 2345-2347.
Where a party was garnished in a justice of the peace court and
failed to answer on the day required by section 2347, Code of
1906, and judgment was rendered against him in said court, he
cannot on appeal to the circuit court for the first time make
answer in that court to such garnishment over the objection of
the garnishor. Lumber & Mfg. Co. v. Mallett, 135.
Where in such case the answer of the garnishee is filed without
objection and remains on file for a long time the objection will
be considered to have been waived. Ib.
APPEAL AND ERROR-Continued.
13. Instructions. Harmless error.
Where a party to a suit obtains a judgment he cannot complain
that the court refused to give him a peremptory instruction, for
the jury have done what the party requested the court to
peremptorily charge them to do. New Orleans, M. & C. R. R. Co.
v. Cole, 173.
14. Review. Harmless error.
A party cannot complain of an erroneous instruction where in-
structions were given at his request embodying the same prin-
ciple. Ib.
15. Failure to file transcript. Dismissal. Code of 1906, sections 4902-
4906.
Where a transcript should have been filed in the supreme court
on or before the third Monday in January as provided for in
Code of 1906, sections 4902-4906, and a motion was made to
docket and dismiss the appeal, but the transcript was filed
within four days after such motion, the court overruled the
motion to docket and dismiss, holding that appellant was not
in fault in the matter as had he gotten out a certiorari to the
clerk to send up the record, and such writ would not have
obtained the record much if any sooner than the date on which
it was in fact filed in the court. McKenzie v. Fellows, 226.
16. Criminal law. Disqualified jurors. Reversible error.
Where a defendant on trial for crime uses every peremptory chal-
lenge allowed him by law, it is fatal error for the court to over-
rule his challenge of disqualified jurors for cause. Dixon v.
State, 320.
17. Improper argument of counsel.
It is reversible error for the prosecuting attorney in the argument
of a criminal case to call the attention of the jury to the fact
that the wife of defendant had not testified and that the state
could not introduce her as a witness. Fannie v. State, 378.
18. Trial. Presence of defendant.
It is fatal error in a murder trial to examine a witness in the ab-
sence of the defendant. Lee v. State, 387.
19. Review. Constitutional questions. Matters not necessary to deci
sion. Constitution 1890, Sec. 147. Laws 1908, Ch. 204. Interlocu-
tory order. Civil cause.
Under Constitution 1890, Sec. 147, providing that no judgment or
decree in any chancery or circuit court rendered in a civil cause
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