MELTON v. STATE. (No. 22504.)

Oct. 9, 1922.)

The narrow question for decision is whether under this testimony Jim Carter was fleeing, or attempting to flee, before arrest. It is uncontradicted that he was in hiding. (Supreme Court of Mississippi, Division A The manifest purpose of his hiding was, of course, to evade arrest or capture. In the language of the opinion in Ex parte Webb, 96 Miss. 9, 49 South. 567.

"Whilst due care must be taken to see that these claims for reward are bona fide, the statute must nevertheless be given a liberal construction in aid of parties arresting fleeing homicides."

The term "fleeing from justice" as used in the statutes of the United States has been defined:

"To leave one's home or residence or known place of abode within the district, or to conceal one's self therein with intent in either case to avoid detection or punishment for some public offense against the United States." State v. Lem Woon, 57 Or. 482, 107 Pac. 974.

In 26 C. J. 741, to flee from justice is defined as follows:

"To leave one's home or residence or known place of abode with intent to avoid detection or punishment for some public offense."

The same definition is found in U. S. v. O'Brian, 27 Fed. Cas. 212, No. 15,908. From these authorities we think it is perfectly plain that a person who kills another and before his arrest conceals himself is fleeing, or attempting to flee, under this statute.

The judgment of the lower court is reversed and a judgment will be entered here in favor of the appellants.

Reversed, and judgment here for appel

lants.

WILLIAMS v. STATE. (No. 22717.) (Supreme Court of Mississippi. Oct. 9, 1922.)

In Banc.

Appeal from Circuit Court, Marshall County; W. A. Roane, Judge.

Frank Williams was convicted of murder, and he appeals. Affirmed.

Frank Roberson, Atty. Gen., for the State.

HOLDEN, J. Frank Williams was convicted on a charge of murder and sentenced to death, from which judgment this appeal is prosecuted. There is no assignment of errors in the record, nor has the appellant appeared to present his appeal in this court. However, before passing upon the death sentence awarded in the lower court, we have carefully examined the evidence in the record upon which the conviction was had, and we find that the testimony introduced by the state fully warrants the finding of guilt on the charge in the indictment. Therefore the judgment of the lower court must be affirmed.

Affirmed, and Friday, November 17, 1922, is

Appeal from Circuit Court, Marion County; G. Wood Magee, Special Judge.

George Melton was convicted of murder, and a life sentence imposed, and he appeals. Affirmed.

Rawls & Hathorn and Davis & Langston, all of Columbia, for appellant.

H. T. Odom, Sp. Asst. Atty. Gen., for the State.

(93 So.)

VINCENT et al. v. STATE. (Nos. 22586, 22587.)

(Supreme Court of Mississippi, Division A. Oct. 9, 1922.)

4. Bail 882-Scire facias on forfeited recognizance not discontinued by failure to take action for one or more terms.

A scire facias on a forfeited recognizance is a civil cause, and is not discontinued by the unexplained failure of the court to take action

Appeal from Circuit Court, Leflore County; on it for one or more terms. S. F. Davis, Judge. 5. Certiorari 58-Invalidity of proceeding sought to be quashed must appear from record itself.

Proceedings between Simon Vincent and Joe
Williams and the State. From the judgment
rendered, the former appeal. Affirmed as to
Vincent, and reversed as to Williams.

R. H. & J. H. Thompson, of Jackson, and S.
R. Coleman, of Greenwood, for appellants.
H. T. Odom, Sp. Asst. Atty. Gen., for the

State.

SMITH, C. J. The evidence is sufficient to sustain the verdict against Simon Vincent, but not against Joe Williams. Consequently the judgment of the court below will be affirmed as to the former, and reversed, and the cause remanded, as to the latter.

Affirmed in part, and reversed in part.

BUSBY et al. v. STATE. (5 Div. 403.)* (Court of Appeals of Alabama. May 16, 1922. Rehearing Denied May 30, 1922.)

1. Bail 74(1)-Sureties not relieved of undertaking by subsequent prosecution of principal for same offense.

To authorize the Court of Appeals on certiorari to quash an order or judgment of the county court against petitioners as sureties on an undertaking for the appearance of an accused principal, the invalidity of the proceedings must appear from or by an inspection of the record itself. 6. Bail 93

Adjudication of liability of sureties on undertaking held sufficient.

In proceedings in county court to enforce sureties' liability on forfeited recognizance, where the obligors were duly notified to show cause why conditional judgment against them should not be made absolute, and the record of the judgment recited the style of the case, the charge against the principal, and that, each of the sureties appearing and offering no sufficient excuse for principal's default, "the judgment is made final against said sureties," there was a sufficient adjudication of the obligors' liability.

Appeal from Circuit Court, Chilton County; B. K. McMorris, Judge.

Certiorari by J. R. Busby and others to quash the proceedings in the county court of Chilton county whereby they will be made to answer for their undertaking to have Busby

Sureties on an undertaking for the appearance of an accused principal to appear at a county court to answer charge of violating the prohibition laws were not relieved of their undertaking, where the principal failed to appear, by the fact that an indictment which was sub-present at said court to answer charges. sequently returned by the grand jury of the county for a like offense as that pending in the county court against the principal was for the same offense as that charged in the affidavit in the county court, and for which the sureties bound themselves for the defendant's appear

ance.

2. Bail 56-Sufficiency of affidavit not questionable by sureties on recognizance.

Where no question was raised but that a recognizance was taken by an officer authorized by law to take and approve it, the sureties thereon could not escape liability for the default of their principal by questioning the sufliciency of the affidavit, as by contending that the affidavit contained both a felony and a misdemeanor charge.

3. Bail 74(1)-Plea of discontinuance by sureties on recognizance on accused's failure to appear held without merit.

On certiorari to the Court of Appeals to quash an order or judgment of the county court against petitioners as sureties on an undertaking for the appearance of an accused principal, their plea that there was a discontinuance of the cause against the principal in the county court could not avail them where it clearly appeared that the principal did not appear at the term of the county court as obligated.

From an order denying the certiorari and refusing to quash, petitioners appeal. Affirmed.

A. C. Smith, of Clanton, and Brassell, Brassell & Brassell, of Montgomery, for appellants.

Harwell G. Davis, Atty. Gen., for the State.

MERRITT, J. [1, 2] This is a common-law certiorari proceeding, and seeks to quash an order or judgment of the judge of the county court of Chilton county whereby judgment was rendered against the obligors, petitioners and appellants here, who, as sureties, entered into an undertaking for the appearance of one J. R. Busby, the principal, at the county court of Chilton to answer a charge against him pending in said court for a violation of the prohibition laws. No question is raised but that the principal failed to do. There is absolutely nothing in the recappear at said court, as he had obligated to ord to substantiate the contention that the indictment subsequently returned by the grand jury of Chilton county for a like offense as that pending in the county court against the principal in the undertaking was for the same offense as that charged in the affidavit in the county court, and for which

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(93 So.)

ants of defendant, contracted for by the plan-
tation superintendent, evidence of the custom
on the plantation for the superintendent to so
contract held to show his authority to do so.
2. Principal and agent 116(1)-Person, re-
lying on apparent authority indicated by cus.
tom, not bound by private limitations on
agent's authority.

offense the sureties bound themselves for the appearance of the defendant, but, if so, this fact could have in no wise relieved the sureties of their undertaking that the principal should appear at the Chilton county court to answer the charge there pending against him. No question is raised but that the recognizance was taken by an officer authorized by law to take and approve it, and, this be- If physician, furnishing medical attention ing so, the sureties cannot escape liability for to defendant's plantation laborers under conthe default of their principal by questioning tract with defendant's plantation superintendthe sufficiency of the affidavit. Consequent-ent, relied on a custom that had prevailed on ly there is no merit in the contention of the appellants that the affidavit contained both a felony and misdemeanor charge. Peck v. State, 63 Ala. 201; section 6354, Code 1907, and authorities there cited.

the plantation for some years for the superin-
tendent to make such contracts, it was immate-
rial that defendant had forbidden his superin-
tendent to employ medical services.
3. Principal and agent 100(6)· Superin-
tendent of plantation has authority to do
things necessary to the business.

A superintendent or general manager of a plantation has authority to do those things which are necessary and proper to be done in carrying out the business in its usual and accustomed way, and which the principal could and would do in like cases, if present.

[3, 4] The plea of the petitioners that there was a discontinuance of the cause against the principal in the county court, if conceded, cannot avail the petitioners, for it is clear from the allegations of the petition that the principal did not appear at the October term of the county court, as the obligation bound him to do, neither was there a discontinuance of the proceedings in the county court to de-4. clare a forfeiture of the undertaking. A scire facias on a forfeited recognizance is a civil cause, and is not discontinued by the unexplained failure of the court to take action on it for one or more terms. Hunt v. State, 63 Ala. 196.

[5, 6] To authorize us to quash the proceedings in the county court, the invalidity of the proceedings must appear from or by an inspection of the record itself. Benedict v. Board of Revenue, Mobile Co., 177 Ala. 52, 58 South. 306; Dean v. State, 63 Ala. 154; Town of Camden v. Bloch, 65 Ala. 239. No such invalidity appears in this case. The obligors were duly notified to appear and show cause why conditional judgment against them should not be made absolute. The record of the judgment recites, the "style of the case, the charge against the principal and each of said bondsmen or sureties appearing and offering no sufficient excuse for the defendant's default, the judgment is made final against said sureties," and this was a sufficient adjudication of the liability of the obligors under the undertaking. Holcombe v. State, 99 Ala. 185, 12 South. 794.

No error appearing in the record, the judgment refusing to quash the proceedings in the county court is hereby affirmed. Affirmed.

Principal and agent 1601⁄2 Pecuniary benefit to agent from contract did not invalidate it as to innocent third party.

dered and medicine furnished to plantation ten

In suit on account for medical services ren

ants of defendant, contracted for by the plantation superintendent, held, that the fact that the superintendent benefited financially from the contract with plaintiff, unknown to defendant, did not invalidate the contract as respects defendant.

1011(1)-Conclusion

5. Appeal and error
of trial judge, not plainly contrary to weight
of evidence, not to be disturbed.

Where a case was tried by the judge without a jury, and, while the evidence conflicted, the trial court's conclusion was not plainly and palpably contrary to the weight of evidence, his judgment would not be disturbed.

Appeal from Circuit Court, Bibb County; S. F. Hobbs, Judge.

Assumpsit by Cooper Nicholson against Allen P. Howison. Judgment for plaintiff, and defendant appeals. Affirmed.

Lavender & Thompson, of Centerville, for appellant.

Jerome T. Fuller and Frank Head, both of Centerville, for appellee.

MERRITT, J. The appellee brought suit on an account, for medical services rendered and medicine furnished during the year 1920 to the tenants of appellant, and recovered a HOWISON V. NICHOLSON. (2 Div. 252.) judgment. There was no denial of the fact (Court of Appeals of Alabama. April 11, that the services were rendered, and medi1922. Rehearing Denied May 9, 1922.) cine and drugs furnished, and that the ac1. Principal and agent 123 (4)-Evidence count was true and correct. The question, held to show plantation manager's authority and the only question, is the liability of the to employ physician for plantation tenants. appellant. One Helton testified that he was In suit on account for medical services ren- general superintendent, and had full and dered and medicine furnished to plantation ten- I complete control of appellant's farm for the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

year 1920; that there were about 30 families engaged in farming on this farm; that appellant lived about 20 miles from the farm, and had not visited it for more than 2 years; that Helton had general supervision and control of the farm, and that it was a part of his duties to look after the stock and laborers, make provision for the stock and laborers, and to look after the health of the laborers and make provision therefor; that during the spring of the year 1920 he made a contract with the appellee, whereby he was to do the practice for the hands on the plantation, and that during the year he did render medical services and make professional visits to the tenants on the farm; that there was considerable sickness among the hands on the farm during the year; that nothing was said between appellant and Helton about medical attention for the hands on the farm at the time he was employed as superintendent; that appellant knew nothing about the agreement between Helton and appellee, whereby appellee was to do the practice on the farm; and that no statement of the account was sent appellant until the fall of the year.

the physician would send in his bill, and it was sent to appellant, and it was paid; that the general manager had the duty to look after the health of the hands and their families on the farm.

The appellant's witness Freeman testified that he was superintendent of this farm a part of the year 1918; that there was no agreement between him and appellant relative to medical attention for the hands on the farm; that the rule on the plantation was that, unless hands cleared enough money above what it took to pay their plantation account, the appellant did not pay their medical bills; that every doctor's bill that was made while he was manager was paid by appellant. Another witness, bookkeeper for appellant, testified that the bills for medical attention to the hands on the plantation were paid by appellant only in case they made more than the amount of their account with appellant.

The appellant testified that he did not employ the defendant to visit professionally or furnish medicine for his tenants at any time, or authorize any one to do this for him; that Helton, his superintendent, did not have authority to employ appellee in any way; that Helton, as superintendent, had no authority to make any contract that would bind him without first submitting such for his approval, and that the only way that he paid for medical attention to any of his hands was in case they had mon

There was testimony tending to show that Helton had authority to, and did, buy some supplies for the farm, which accounts were made without direct authority from appellant, but that the accounts were paid by appellant. The plaintiff testified that the only contract he had for the services performed and medicine furnished was with ap-ey due them in the fall of the year, after pellant's superintendent, Helton; that it was the custom on appellant's farm, and had been for several years, for the superintendent or general manager to employ a physician for the laborers, and to see that the hands on the farm had medical atten

tion, and this custom was known to him when he contracted with Helton; that it was the custom of appellant to pay whatever physician rendered the medical services under orders from the superintendent, the latter part of the year; he (appellant) had always paid his father, who is a doctor, when he did the practice on the farm, in years past; that he knew, at the time he traded with Helton, that he (Helton) was buying supplies for the farm, purchasing what he needed, and the goods were being charged to appellant, and he paid for them. One Cleveland, a witness for appellee, testified that he was general superintendent of the farm for the year 1919 and part of the year 1918; that he had no instructions as to the employment of a physician; that, as was the custom on the farm, he had entire con trol, management, and supervision in the operation and management of the farm; that the hands on the farm had to have medical attention and medicine to keep them fit for work, and as general manager, as was the custom there, he employed a physician when

they had settled their indebtedness with him; that he was not indebted to any of the parties named in the account which was the foundation of the suit, as all of them came out in debt.

On this statement of facts, the judge, trying the case without a jury, we think, was warranted in rendering a judgment for appellee.

[1-3] From the testimony of the appellee, it is clear that Helton, as general manager or superintendent to look after and make provision for the health of the laborers, was not only following the custom on the plantation, but was well within his authority as a general superintendent, in contracting with appellee to give medical attention to appellant's laborers.

"An agent with power to conduct a particular line of business has authority * ** to do whatever is necessary or proper and usual in the ordinary course of such business." Dothan Grocery Co. v. Pilcher, 200 Ala. 151, 75 South. 899; Simpson & Harper v. Harris, 174 Ala. 430, 56 South. 968.

Appellee, as a third party, was no doubt relying upon a custom that had prevailed, according to his and a former superintendent's testimony, on this plantation for some years, and it matters nothing if appellant