JUDGMENT.

JUDGMENT-Continued.

4. Vacation after term. Adjourned terms.

All final decrees made in term time remain in the breast of the
chancellor until the adjournment, and may be amended or va-
cated at any time during the term, but not afterwards. Beard v.
McLain, 316.

5. Same.

Where a special term was called by the chancellor for June, an
order by him attempting to adjourn such term until August and
retain control and jurisdiction over final decrees rendered at
such special term was void, so that a decree setting aside at the
August term a final decree, rendered at the June term was void.
Ib.

6. Cancellation, Evidence. Sufficiency.

Under the facts set out in its opinion the court held that the evi-
dence was not sufficient to warrant a cancellation of a judgment
against a garnishee on the ground that it was taken while he re-
lied on a statement of plaintiff's counsel, that it was not neces-
sary for him to answer. Mohr & Sons v. Tate, 606.

7. Same.

In such case the burden of proof was on the garnishee to show by
clear and convincing evidence the charges of fraud relied upon
by him for setting aside the judgment. Ib.

8. Former adjudication. Conclusiveness.

A judgment on the merits between the same parties for the same
cause of action is conclusive between them. Neither does it
make any difference that the plaintiff in one suit is trying to
recover in contract, and in the other suit in tort. The vital
question is, is the plaintiff trying to recover in separate suits
for damages growing out of one cause of action. Home Ins. Co.
v. Tate Mercantile Co., 760.

Where plaintiff brought suit to recover a balance under a fire in-
surance policy, and in another suit attempted to recover damages
in tort for delay by the insurance company in making payment,
in such case all damages flowed from the breach of contract and
an adjudication in one suit barred the other. Ib.

10. Counties. Claims. Allowance. Effiect.

Under Code 1906, section 311 (Hemingway's Code, section 3684),
requiring presentment of claims to the board of supervisors
and providing for an appeal from their judgment, where plain-
tiff filed a claim for damages to a colt by dipping and the
claim was allowed in part by the board and there was no appeal,

JURY-JUSTICE OF THE PEACE.

JUDGMENT-Continued.

such judgment of the board became final and plaintiff could not
thereafter sue for the full amount of his claim. George County
v. Bufkin, 844.

See JUSTICES OF THE PEACE.

JURY.

Special venire.

Since under section 2718, Code 1906, so providing, all the provisions
of law in relation to impaneling juries, are directory merely
where the jury box had five compartments, two of which con-
tained less than ten names each, and a special venire was de-
manded. In such case it was not error for the court to direct
the clerk to issue an open venire facias for fifty jurors as pro-
vided for by Code 1906, section 2715, when the jury box is ex-
hausted, although the names in the boxes had not in fact been
exhausted. McVey v. State, 243.

JURISDICTION.

See JUSTICES OF THE PEACE.

JUSTICES OF THE PEACE.

1. Transcript on appeal. Sufficiency.

In view of Code 1906, section 2726 (Hemingway's Code, section
2225), requiring a justice of the peace to keep a docket showing
among other things the time of issuing process, when the same
is returned, and a copy of the return, and section 83, Code 1906
(Hemingway's Code, section 63), requiring a justice in case of
appeal to make up a transcript and transfer the same to the cir-
cuit court, where neither the justice's transcript nor the origi-
nal papers certified by the justice showed service of process on
defendant to support a judgment by default, an execution on
such judgment was properly quashed and a garnishment thereon
was properly discharged by the circuit court; since a justice has
no authority to enter judgment by default unless the defendants
are personally served as required by law. Carrollton Hardware
& Implement Co. v. Marshall, 224.

2. Process. How served.

Service of a summons from a justice of the peace court by reading
the same to the defendant is not service as required by law. Ib.
3. Jurisdiction. Return of process.

In order to justify a default judgment before a justice of the
peace, it must appear not only that summons was served on

LANDLORD AND TENANT-LIABILITY.

JUSTICES OF THE PEACE-Continued.

defendant by the officer but that the summons was returned to
the justice of the peace, because he would not be authorized
to proceed until such return was made. Carrollton Hardware &
Implement Co. v. Marshall, 224.

4. Certiorari. Judgment entry.

On the trial of a writ of certiorari in the circuit court from a judg-
ment in replevin in a justice court, the proper judgment to be
entered was either one of affirmance of or reversal of the judg-
ment of the justice of the peace, and in case of a reversal the
court should "enter up such judgment as the justice ought to
have entered, if the same be apparent, or may then try the cause
anew on its merits," as provided in section 90, Code 1906 (sec-
tion 72, Hemingway's Code). Williams v. Williams, 251.

5. Bastardy. Proceedings. Jurisdiction. Taking down evidence.
The jurisdiction of a justice of the peace in bastardy proceeding
is obtained by following the procedure prescribed for bringing
the parties into court, and the mere failure of the justice to
take down the evidence at the trial in writing as required under
Code 1906, section 268 (Hemingway's Code, section 217), did not
deprive him of jurisdiction since this provision of the statute
only relates to trials. Ham v. West, 340.

6. Appeal. Amending appeal bond.

Where an appeal bond from a justice of the peace court is blank
as to penalty, it may be amended by inserting the proper amount
under the provisions of Code 1906, section 92 (Hemingway's Code,
section 74), which provides that in appeal to the circuit court,
if a bond be defective, a new one may be given. Barrett v.
Pickett, 825.

7. Review. Certiorari.

Certiorari may be resorted to to bring up to the circuit court a
record from a justice of the peace court, where a bond has been
filed but is deemed insufficient by the justice of the peace, who
refused to approve it. Ib.

LANDLORD AND TENANT.

See LIENS.

LIABILITY.

1. Eminent domain. Public improvements.

Corporation.

Where a city damaged private property for the general welfare by
changing the grade of a street, or by erecting barriers which
interfered with ingress and egress from and to the property, the
owner was entitled to recover damages. Funderburk v. Mayor
& Board of Aldermen, 173.

LIABILITY.

LIABILITY-Continued.

2. Negligence. Liability of manufacturer of goods.
While the general rule is that manufacturers are not liable to the
ultimate consumer for damages resulting from defects and im-
purities of the manufactured articles, the rule being generally
based upon the theory that there is no contractual relation ex-
isting between the ultimate consumer and the manufacturer, yet
the courts have from time to time made exceptions to the rule and
held the manufacturers of foods, beverages, drugs, condiments,
and confections liable to the ultimate consumer for damages re-
sulting from the negligent preparation of their products. Pil·
lars v. Reynolds Tobacco Co., 490.

3. Negligence. Manufacturers of goods causing injury.

Where a human toe was found in chewing tobacco and poisoned an
ultimate consumer, the manufacturer was liable. Ib.

4. Carriers. Carriage of freight. Commencement of liability as com-
mon carrier.

The liability of the railroad as a common carrier begins when
the shipper has done all that is required of him and paid the
proper charges. Hill Mfg. Co. v. N. Y. M. & O. R. R. Co., 548.

5. Carriers. Carriage of goods. Limited liability. Alternative rate
on file.

The shipper has the right to have the carrier carry his goods
on the common-law liability, and before the carrier can exon-
erate itself from this liability it must have an alternative
rate on file with the commission and at its station where the
goods are tendered for shipment. Ib.

6. Carriers. Carriage of goods. Action. Liability as warehouseman.
Under the facts in this case, which was an action against a
railroad for the destruction by fire of cotton shipped, even had
the railroad proved its liability was that of a warehouseman
and not of a common carrier, it could not have escaped lia-
bility on the ground that no liability as a warehouseman was
set forth in the pleadings, since the suit was brought under
the common-law liability in the declaration, and the railroad,
under its notice under the general issue which constituted part
of the pleadings, alleged that the cotton was destroyed by fire
not caused by its negligence, and the plaintiff in reply insisted
under the notice, that it was caused by the negligence of the
railroad company, and the proof tended clearly to establish
such negligence. Ib.

LIENS.

LIABILITY-Continued.

7. Master and servant. Injuries to servant. Contributory negligence,
Effect.

In a suit for damages it is only where the plaintiff's act is the
sole cause of the injury and when defendant's act is no part
of the causation, that defendant is free from liability.
land v. Native Lbr. Co., 602.

8. Master and servant.

Wrongful use.

Rag-

Injury to servant. Tools and appliances.

An employer is not liable in damages to one of its employees who
is injured by a piece of steel flying from a maul while attempting
to straighten a cant hook by placing it on a defective steel maul,
and striking it with an axe, where both axe and maul were im-
properly used, neither being intended for such use. Ten Mile
Lbr. Co. v. Gamer 814.

See CONTRACTS.

LIENS.

1. Sales. Labor claims. Right to lien.

In such case where the sawmill company, gave due bills to its em-
ployees, who cashed them at plaintiff's store assigning their wage
claims to plaintiff, he could levy upon the manufactured lumber
in the yards of the sawmill company, his rights being superior to
those of the purchaser of the lumber. Tallahatchie Lumber Co.
v. Thatch, 260.

2. Rights of purchaser. Advancements.

Where a contract by which a sawmill company sold lumber to a
lumber company, and received advancements of money did not
provide for a lien in favor of the lumber company it had no lien
by operation of law superior to the lien of employees for labor.
Ib.

3. Judgments. Rights of purchaser. Advancements.

Where a sawmill company sold lumber to a lumber company and
received advances upon the same the balance of the purchase
money not to be paid until the "lumber was loaded out and bills
of lading and a tally sent in to the main office" and an inspection
by the purchaser was had, which had not been done. In such
case when plaintiff took assignments of labor claims against the
sawmill company, his judgment against the sawmill company
was conclusive against the purchaser of the lumber as to the
indebtedness claimed and its character. Ib.