Instructions to Clerks of Circuit and Chancery Courts as to Making up Transcripts of Record on Appeal to This Court. NOTE The references are to sections of the Code of 1906, and clerks are requested to read these Rules as revised, very carefully, before making up their records in appeal cases. I. In making up the transcript, copy first the minutes showing organization of the Court at the trial term, and in criminal cases, copy next the minutes showing organization of the court, grand jury, etc., at the term when indictment was found. II. The order of time in which proceedings were had and papers filed should be preserved; except that the pleadings and orders of court should precede the testimony, and in appeals from chancery court the testimony should precede the final decree. III. Every order of court, should, for convenience and certainty, be preceded by a statement giving the date-day, month and year-on which it was entered. IV. The petition for appeal must be in writing (Sec. 41); must be marked by the clerk "filed," and must be dated; and, with the endorsements, must be copied in the transcript. (Sec. 42.) V. In cases appealed from the circuit court, copy the petition for appeal, should there be any, after the bill of exceptions, and after the final decree, in cases appealed from the chancery court. VI. No appeal can be had without bond or a deposit for costs, except as provided in Secs. 62, 63, 93, 94. The kind of bond required in each character of case is prescribed in Secs. 49 to 62 inclusive. VII. Bail after conviction is regulated by Secs. 65, 66, 67 and 68; and a defendant out on bail must either give a cost bond or make the affidavit of inability prescribed in Sec. 62, or make a deposit as prescribed in Sec. 63. VIII. The original of all bonds, except bail bonds in cases of misdemeanors, must be transmitted to the clerk of the Supreme Court; the clerks of the lower courts being required to keep copies. Sec. 69. IX. When a deposit for costs has been made in lieu of a bond, the fact should be certified in the transcript. Sec. 77. X. The original summons in appeal, or a certified copy of it, and the return thereon must be sent up to the Supreme Court. Sec. 73. And for convenience, should accompany the transcript. XI. The certificate contemplated by Sec. 4921 should always be accompanied by a copy of the judgment or decree appealed from, and the appeal bond, if any has been given, in order that a proper judgment or decree may be entered here against the sureties, as well as the principals, in such bond. Such certificates should give the full name as disclosed by the record, of all parties those who appealed, and those against whom the appeal was prayed. XII. The Clerk of the Supreme Court is authorized to issue executions for the costs of transcripts, and other costs accrued on appeal (Sec. 3961); which includes costs for issuing and serving appeal process, taking bond, etc. He is required to withhold mandate until all such costs be paid. Sec. 4946. Such costs will be included in execution for appeal costs, to be issued as soon after decision of each case as practicable; and when collected, should be paid by the sheriff to the person to whom they may be due. XIII. The binding fee, referred to in Rule 2 of the Court, should be charged as part of the transcript fee. XIV. Clerks should make a statement on the transcripts of the amount of their fees for such transcripts, and whether or not they have been paid; otherwise such costs will not be taxed or collected by the Clerk of the Supreme Court. Sec. 78. Only fees incident to the appeal, i. e., for preparing transcript, approving bond, issuing summons, etc., should be included in such statement. XV. The attention of circuit clerks is called to Sec. 70. XVI. Rule 2 requires that every transcript shall be prefaced by a suitable index; and clerks are earnestly requested to precede the index with style of the case, court, county, and the name of presiding judge or chancellor; also amount or nature of judgment, and date of same. XVII. Attorneys are requested to indorse the style of the case on all counsel papers, before presenting them to be filed. XVIII. Clerks in sending up binding fees for transcripts should send postoffice money order, or express money order—no personal check for less than 65 cents per volume will be taken, as the banks charge exchange on all personal checks, and the clerk of this Court is required to pay the binder 60 cents net, cash. GEO. C. MYERS, Clerk. INDEX. ABORTION. 1. Abortion. Code 1906, sections 1233, 1234, 1235. Under Code 1906, section 1233, providing that the killing of a human by accused while engaged in the perpetration of a crime shall be manslaughter, a defendant who performed an operation on a pregnant woman to procure a miscarriage and the woman died in consequence thereof, was guilty of manslaughter, since the crime he was endeavoring to commit was the killing of an unborn child, which if accomplished would have been manslaughter under Code 1906, section 1235. State v. Proctor, 792. 2. Same. In such case section 1234, Code 1906, making the willful killing of an unborn child by injury to its mother manslaughter, has no application. Ib. ACCORD AND SATISFACTION. 1. Waters. Water Meters. Defects. Estoppel. Accord and satisfaction. In a suit by a waterworks company against a consumer on a contract for water furnished, the mere negligence or lax business methods of the waterworks company in failing to put in a correct meter to properly register the amount of water used, will not estop the company from collecting the amount actually used unless it can be shown that the consumer was misled thereby to its injury. Waterworks Co. v. Railroad Co., 504. 2. Same. If the parties to the contract, knowing that the meter was out of commission, had agreed to estimate the amount due and accepted the estimate as the total amount, in such case there would be an accord and satisfaction. Ib. ACTIONS-CAUSE AND RIGHT. 1. Misjoinder. Code 1906, section 2256. Constitution 1890, section 147. Neither the common law or equity courts have jurisdiction of the cause of action, where the rights and remedies of the complainants ACTIONS-CAUSE AND RIGHT. ACTIONS-CAUSE AND RIGHT-Continued. are entirely separate, independent and distinct, and in no court In such case there would be not only a misjoinder of parties but also 3. Judgment. Res judicata. Identity of causes of action. In order that the judgment in a first suit may constitute a bar to a 4. Same. Where plaintiff in a former suit sought to recover damages from 5. Judgment. Res judicata. Matters not litigated. Those things which might have been litigated, as well as those actually 6. Same. When the cause of action in the two suits is different, only those 7. Deeds. Cancellation. Grounds. Partial failure of consideration. 8. Contract. Breach. Sale of standing timber. Declaration. Sufficiency. contract for the sale of standing timber, the.contract specified the |