the declaration was executed by the defend- | to crave oyer, made nugatory that part of ant." The common-law rule seems to have the declaration in the instant case by which been this: If a deed is made part of the the lease was made a part of the same. It is declaration by being set out on oyer, and true that by virtue of the statute the defendthere is a variance between the deed and the ant could not crave oyer and thereby have declaration, not going to the foundation of made the lease a part of the declaration. the cause of action, the variance is not reach- But the plaintiff of his own motion and withed by demurrer; but if, upon comparing the out oyer made the lease a part of his declaradeed with the construction of it relied on in tion. The statute does not render this act the declaration, it appears that the declara- of the plaintiff nugatory. It may, under our tion states no cause of action, then a demur- system of pleading, be embarrassing to the rer does lie. See the remarks of Lord Abing- defendant for him to do so. But the deer in the case of Paine and Others, Execu- fendant did not object and request a comtors, v. Emery, 2 C. M. & R. Exch. 304. In pulsory amendment under section 1433, Gen. the case of Snell v. Snell, 4 Barn. & C. (10 St. 1906. The record is in this shape with Eng. C. L.) 782, it is held that "where, in the defendant's consent. covenant, a defendant craves oyer of the deed, sets it out, and pleads non est factum, the deed so set out becomes a part of the declaration, and the only question at the trial upon that issue is whether the deed set out was executed by the defendant." In this case a deed was set out on oyer, and under the plea of non est factum the court was asked to construe the deed to determine whether certain words in the deed amounted to "a covenant on the part of the lessor, or only a condition or qualification of the lessee's covenant to repair." Abbott, C. J., said: "The deed so set out becomes a part of the declaration. The defendants, in order to raise that question, should have demurred." He further said: "I abstain from giving any opinion upon the question of law as to the construction of the deed; that is, whether it contains a covenant on the part of the lessor to find timber for the repairs of the demised premises. The course of pleading which has been adopted precludes the court from entering into or deciding that question. The plaintiff by his declaration surmises that there is such a covenant in the lease; the defendant prays oyer, and, having set it out, pleads non est factum. When that has been done, it appears by all the authorities that the only question is whether the party did or did not execute the deed so set out and transcribed into the record, whereby it is rendered a part of the declaration."

Under such circumstances this court has heretofore dealt with the record as it found it, and we have held that, where a demurrer is filed to such a declaration, it is addressed to the entire declaration, including the cause of action which is made a part of it, and if, when so considered, the statements of the cause of action are repugnant or inconsistent with the allegations of the declaration, it will be held bad on demurrer. State v. Seaboard Air Line Ry., supra. At the present term in the case of Capital City Bank v. Hilson, 51 South. 853, we held that a demurrer to pleas reaches back to the declaration, and if the legal effect of a contract, which was made a part of the declaration in ipsisimis verbis and was the foundation of the suit, was not that which was relied on by the plaintiff, no cause of action was stated.

In such a case the matter is one of law, and not one of fact, and a demurrer is the proper method by which a question of law is raised. If the lease had not been made a part of the declaration, but it had been simply sued upon according to its legal effect as construed by the plaintiff, then under plea of non est factum the defendant might have properly made the objections he insisted on at the trial. He might well have contended: I executed a lease, it is true; but the lease I executed does not bear the construction which you place on the one upon which you sue, and therefore is not the lease which I executed. In other words, I made no such lease as you sue on. Stephens on Pl. (Tyler) 171, 172, 253. It is said by Williams, J., in Smith v. Scott, 95 E. C. L. *771 (decided in 1859, while the above-cited rule fixing the scope of the plea of non est factum was in force): "The proper mode of taking advantage of a variance between the alleged and the real effect of a deed is by a plea of non est

Rule 67 of the Rules of Circuit Court in Common-Law Actions is as follows: "In actions on specialties and covenants, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defenses shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable." This is an exact copy of the tenth rule of the Trinity term, 1853. | factum." In this case the deed was not made See Day's Common-Law Proc. Acts, p. 495. We have been unable to discover any English decision upon this rule giving a broader construction to the plea of non est factum than that already given.

The defendant below seems to have acted on the theory that our statute (section 1429, Gen. St. 1906), doing away with the necessity

a part of the declaration, by oyer or otherwise.

It seems to us that the circuit judge erred in sustaining the objections of the defendant to the introduction of the lease in evidence. We would be glad, for the convenience of the parties, if we could do so without violating the well-established rules of procedure, to

and thereby injured, bruised, and maimed said child, so that it afterwards died from such injuries, to plaintiffs' damage in the sum of $15,000. Wherefore they bring their suit.

the contention of the defendant is correct. | years of age, and who was on the said track, But we do not feel we are permitted to go farther than to say that such an examination of the declaration as we have made does not disclose to us that it fails to state a cause of action. We cannot say what our judgment would be upon a critical examination "Second Count. Plaintiff further complains of the declaration and the authorities. of the defendant in this action, for that he The judgment of the circuit court is re- says that at the time of the committing of the wrongs and injuries herein complained of, wherefore, that on the 4th day of March, TAYLOR, SHACKLEFORD, and COCK-1908, and for a long time prior thereto, deRELL, JJ., concur. WHITFIELD, C. J., fendant was and had been operating its said and PARKHILL, J., disqualified.

versed.

97 Miss. 483)

YOUNG et ux. v. SOUTHERN RY. CO. (No. 14,532.) (Supreme Court of Mississippi. April 18, 1910.) RAILROADS (§ 358*)-INJURIES TO PERSON ON TRACK-LIABILITY.

A railroad maintained at a station residences fronting on the roadbed for the occupancy of its employés and their families. The usual way of ingress to and egress from the residences was over the track, and the railroad knew and permitted it. It was the custom of the children of the employés to play on the track in front of the residences, and this was known to the railroad. Held, that a child of an employé was, when on the track, more than a mere licensee, and the railroad was liable for injuries occasioned by simple negligence in the operation of its trains.

railway to and across the tracks of the Yazoo & Mississippi Valley Railway Company at the station of Elizabeth, in the county and state aforesaid, at which a union depot of said two railway companies is situated; that for a long time prior to said date defendant had maintained at said station, and a short distance west thereof, and on the south side of defendant's tracks, and immediately adjacent thereto, some four or more places of residence facing to and fronting on and touching the roadbed of defendant's track, and for the use and occupation of its employés engaged in the maintenance of its roadbed and track, one of whom was James Young, plaintiff, together for the use and occupation of themselves and their families and children, one of which said employés was plaintiff, who had three children, all of whom, with Viney Young, wife of James Young, and one of the plaintiffs, resided in one of said places of residence so kept and maintained by said defendant as aforesaid; Action by J. E. Young and wife against the that one of the main and usual ways of inSouthern Railway Company in Mississippi.gress to and egress from the premises occuFrom a judgment sustaining a demurrer to the amended declaration, and dismissing the action, plaintiffs appeal. Reversed and remanded.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1236, 1237; Dec. Dig. § 358.*] Appeal from Circuit Court, Washington County; J. M. Cashin, Judge.

The amended declaration reads as follows: "First Count. Comes James Young and Viney Young, plaintiffs, and complain of the Southern Railway Company in Mississippi, a corporation under the laws of the state of Mississippi, owning and operating a line of railroad through the county aforesaid, with stations, depots, and depot agents therein, defendant, in action on the case, for that heretofore, to wit, long before and at the time of the committing of the wrongs and Injuries herein complained of said defendant owned and operated said line of railroad through said county as aforesaid extending by and through a station or town therein known as Elizabeth; that on or about the 4th day of March, 1908, and while said defendant was owning and operating said line of railroad near and at the station aforesaid, it did then and there carelessly and negligently, by and through its employés, run its engine and cars over and against and upon one Jimmie Young, the infant child of plaintiffs, who then was the age of two and a half

pied by plaintiffs and their children was over and along the track of said defendant, all of which was well known to defendant, and by it permitted unto plaintiffs and their children as tenants and employés of defendant as aforesaid, and all of which existed at the time the committing of the wrongs and injuries herein complained of, and was known to defendant; that at the time and on account of the facts herein stated the defendant and its employés operating its engines and trains along said road became and was in duty bound to plaintiffs and their said children, and owed to them a duty of ordinary care, then to keep a reasonable safe lookout or watch for plaintiffs and their children as they might pass over and along said tracks, as aforesaid, so that defendant would not run plaintiffs and their children down, injure or kill them, or any of them; that in violation of its duties aforesaid, at the place aforesaid, to plaintiffs and their children as aforesaid, owing by the defendant as aforesaid, to them as aforesaid, the defendant, through its employés, at the place aforesaid, on the date aforesaid, negligently and without the exercise of ordinary care ran one of defendant's engines and trains over

plaintiffs' infant child, Jimmie Young, of the age of two and a half years of age, who was at that time passing over and on said track of said defendant, and was upon said track or immediately there against, greatly injuring said child, from which said injuries it died, to plaintiffs' damage in the sum of $15,000. Wherefore they sue.

"Third Count. Plaintiff further complains of defendant in this action for at the time of the commission of the wrongs and injuries herein complained of, while it was operating its said line of railway through the county aforesaid, and through the town and station aforesaid, said railway so operated was the main line of defendant; that it crossed the main line of the Yazoo & Mississippi Valley Railroad Company at said station of Elizabeth; that around said station at said time had been and was existing a considerable town; that at the time of the commission of the wrongs and injuries herein complained of plaintiff lived in a box car furnished by said company to James Young, plaintiff, as a residence for himself and his wife and children; that said box car was situated on the south side of the railroad track of said defendant, and 200 feet west of said junction of said two railroads, and a few feet from said track of the main line of defendant; that nearly at the same place and on the same side of said railway track were situated four or five other cabins and box cars, which were used by the employés of said railway company in the same manner and way as that one used by James Young, plaintiff; that at the time the said James Young was employed by said railroad company as a section hand, by said railroad company provided with said box car as a house to live in; that long before and at the time of the commission of the wrongs and injuries herein complained of it had been the custom of the children of plaintiff and the children of other employés of said defendant living in said other cabins and box cars to at times escape from the custody of their parents, including plaintiff, and go upon said railway tracks of said defendant in front of said cabins and box cars, and eastward as far as defendant's depot, situated at the crossing of said two railroads aforesaid, and go to and fro upon said track and play thereon, all of which was well known to the defendant; that under the foregoing state of case then existing it became and was the duty of the defendant, owing to said children and to plaintiff while operating its train to and fro over and along its track at the place aforesaid, to exercise reasonable care in keeping a lookout for such children, including those of plaintiff, so as not to run them down and kill them, or injure or maim them; that, notwithstanding said duty as aforesaid, the defendant negligently and carelessly, without exercising reasonable care in keeping a lookout, or a reasonably safe lookout, for such children, including plaintiff's, did on or about the 4th day of March, 1908, rune

of its trains, composed of an engine and cars, against, upon, and run down one of plaintiff's said children, to wit, Jimmie Young, an infant of two and one half years of age, which had escaped from those intrusted with the custody of it, and gone upon the edge of said track, thereby greatly maiming and bruising said infant, from which injuries it died, to the damage of plaintiffs, who are the father and mother of said child, in the sum of fifteen thousand dollars. Wherefore they bring this suit.

"Fourth Count. Plaintiff further complains of defendant in this action for that heretofore, to wit, at the time of the commissions of the wrongs and injuries herein complained of, and for a long time theretofore, the defendant was operating its said line of railway through the county and state aforesaid, and through the town or station of Elizabeth, at which place the defendant's main line of railway crosses the main line of the Yazoo & Mississippi Valley Railway; that at the time of the committing of the said wrongs and injuries, and for a long time prior thereto, there was a considerable town built up around said station of Elizabeth, and on either side of the railway track of defendant west of said crossing, with streets and roads laid out therein, some of which crossed said track of said road on the west side of said crossing; that about three hundred feet west of said crossing, and on the south side of said defendant's said track, was situated

some four or five or more cabins or box cars

used as cabins for the occupancy of the section hands then employed by the defendant in the maintenance of its roadbed, one of which was occupied by the plaintiffs, James Young and Viney Young, his wife, same having been furnished to the said James Young and Viney Young by said defendant as such residence or living house; that with plaintiffs in said house lived their three children, one of which was named Jimmie Young, a girl then two and a half years of age; that for a long time before and at the time of the committing of said wrongs and injuries it was the habit of the people living around and immediately at said station of Elizabeth to gather upon, stand around and on, and walk over the track of the said defendant extending from said crossing westward to and past the cabin or box car occupied by plaintiffs; that it was also the habit at that time and for a long time prior thereto of the people living in said box cars and cabins of defendant's company, including their children, and including the children of plaintiffs, to also go upon said tracks, to walk up, over and along the same, to play upon the same at the place aforesaid, from said crossing westward to and past said box car or house occupied by plaintiffs, all of which foregoing facts and conditions were well known to the defendant at the time of the committing of said wrongs and injuries, and

for a long time prior thereto. That by rea- Lamar Watson and Hugh C. Watson, for son of the premises aforesaid, facts afore- appellants. Catchings & Catchings, for apsaid, condition aforesaid, the habits and cus- pellee. toms of the people aforesaid, and the habits of the children aforesaid, including the infant MAYES, J. The demurrer to the amended child of plaintiffs, Jimmie Young, aforesaid, declaration filed in this case ought to have known to said defendant as aforesaid, it been overruled. The declaration contains became and was the duty of defendant, in much that is unnecessary for the purpose of operating its trains aforesaid over and along stating a cause of action; but, taking into its said track at the place aforesaid, to use consideration the whole declaration, a case ordinary care in keeping a lookout at the of negligence is sufficiently stated, making place aforesaid, to use ordinary care in the railway company liable if the facts statkeeping a lookout for said people, said chil- ed are sustained by the proof. Under the dren including said infant child of plaintiffs, allegations the infant was more than a mere so as not to run them down, injure or destroy licensee, and the case of Railroad Company them, or to run any of them down, injure v. Arnola, 78 Miss. 788, 29 South. 768, 84 or destroy them, including said infant, Jim-Am. St. Rep. 645, does not settle the law of mie Young, which duty was also owing plain- this case. tiffs as the father and mother of said child. Plaintiffs aver that, notwithstanding the duty or duties owing to the plaintiff as aforesaid, the defendant did, on the 4th day of March, 1908, carelessly and negligently, and without the exercise of ordinary care, run one of its trains against and over said infant of plaintiffs, Jimmie Young, of the age of two and a half years, and so bruised, crushed, and maimed it that it died soon thereafter from said injuries, to plaintiff's damage in the sum of fifteen thousand dollars. Wherefore they bring this suit."

Reversed and remanded.

(96 Miss. 846)

BISHOP v. STATE. (No. 14,271.) (Supreme Court of Mississippi. April 18, 1910.) 1. CRIMINAL LAW (§ 531*)-EVIDENCE-CON

FESSION

SHOWING.

ADMISSIBILITY

PRELIMINARY

All that was said and done in a room wherein an alleged confession was made was plainly competent, as going to show whether the confession was free and voluntary.

[Ed. Note.-For other cases, see Criminal Defendant filed this demurrer to the Law, Cent. Dig. § 1214; Dec. Dig. § 531.*] amended declaration: 2. CRIMINAL LAW ($ 354*) — EVIDENCE-INSANITY-ADMISSIBILITY.

"Now comes the defendant in the above

styled cause, by its attorneys, and demurs to the amended declaration filed herein, and prays the judgment of this court whether it shall make further answer thereto, and for grounds of demurrer would show: (1) The said amended declaration states no cause of action against this defendant. (2) The amended declaration shows that the person for whose death suit was brought was a trespasser or licensee upon the track of this defendant, and does not allege that she was wantonly or willfully injured by defendant. (3) The said amended declaration of plaintiffs shows that the person for whose death suit was brought was a trespasser or licensee upon the track of this defendant, and does not allege that the employés of the company failed in their duty towards said person after discovering her peril. (4) The suit is brought for the death of Jimmie Young, and the allegations of the amended declaration show that Jimmie Young was a licensee or trespasser upon the track of the defendant company, and the failure of duty complained of was failure of defendant to keep a reasonably safe lookout or watch for said Jimmie Young, and defendant alleges that no duty was required of it to keep a lookout or watch for said Jimmie Young. (5) And for other causes to be assigned on the hearing of this demurrer."

whether accused was sane or insane; the deIt was also plainly competent to show fense being based on insanity.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 760; Dec. Dig. § 354.*] 3. CRIMINAL LAW (§ 452*)-EVIDENCE-OPINION EVIDENCE-INSANITY.

In a case wherein insanity was the defense, a witness who stated that he had known accused while he was young, and had seen him every day or so, and had known him intimately for opinion as to whether he was sane or insane. 27 or 28 years, should be allowed to give his

[Ed. Note.-For other cases. see Criminal Law, Cent. Dig. § 1054; Dec. Dig. § 452.*] 4. CRIMINAL LAW (8 48*)-INSANITY AS DE

FENSE.

However horrible the crime, there would be accused was insane at the time of its commis no responsibility for it if the evidence shows sion, or even raises a reasonable doubt as to his sanity.

Law, Cent. Dig. § 53; Dec. Dig. § 48.*]
[Ed. Note.-For other cases, see Criminal

5. CRIMINAL LAW (§ 682*)-TRIAL-INSANITY
AS SOLE DEFENSE-RULE AS TO ADMITTING
TESTIMONY.

In a prosecution for a peculiarly horrible sanity, the trial court should give defendant all offense, wherein defendant relies solely on inthe latitude the law allows, rather than restrict him unduly in the introduction of testimony.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1614; Dec. Dig. § 682.*] Appeal from Circuit Court, Sunflower County; J. M. Cashin, Judge.

"To be officially reported."

G. T. Bishop was convicted of murder, and insanity. This was objected to, the objection he appeals. Reversed.