SPRINGFIELD 'C. HURT.
confirmed the sale. The case comes, therefore, clearly within the doctrine of reB adjudicata. The question now before us arose in a former case between the same parties or their privies. It' was properly presented to the court, testimony was taken, a hearing was had, and a final order was made. The orders heretofore made respecting the issues upon the CrOBSbill of respondent Bryant are to stand without modification. If respondents George W. and Abbie S. Frost desire an appeal. the same will be granted upon proof that the property is worth more than $5,000, and the bond for costs will be fixed -at $500.
(District Oourt, N. D. Mississippi. 1883.)
1. LIABILITY 01" THE Lllo"'l)S OF A. DECEDENT TO PAY
The liability of the lands of a decedent to pay his debts depends upon the statutory provisionB in relation thereto.
SAME-JURISDICTION IN EQUITY.
The statute of Mississippi, which renders lands so liable, provides the mode by which they shall lie so applied, and that mode must be pursued, when It can be done, and only in event that it cannot be done, can it be reached by a bill in equity. Partee v. KortreCht, 54 MiBB_ 66. 3.
DEMURRER TO BILL SUSTAINED.
A demurrer to a bill in equity, praying for the sale of lands of a decedent. and that the proceeds of the sale be applied to the payment of complainant's claims, will be sustained when the averments of the bill fail to show that the complainant has pursued the mode which the statute lays down to be followed before relief can be sought in a court of equity.
applied to the payment of the debts against her estate in that state; that the said Miss Totten owned, at the time of her death, the land described in the bill, situate in Coahoma county, in this state; that her said will, being attested by only two subscribing witnesses, was insufficient to pass the lands under her will, and that the title thereto, subject to the payment of her debts, passed to the defendants as her heirs at law; that there has been no administration upon her estate in this state. The prayer of the bill is that the lands, or so much thereof as may be necessary, be sold and applied to the payment of complainant's debt. The demurrer, among other causes, assigns as ground of demurrer that this coud, as a court of equity, has no jurisdiction to grant the relief prayed for, and, as this must be decisive of the case, no other need be considered. It is admitted that, prior to the Code of 1871, providing for the appointment of an administrator upon the estate of a decedent in another state, who died possessed of lands in this state, and which provision is brought forward in the Code of 1880, that this objection to the bill could not have maintained. The question here is, does this provision in the present law of the state oust this court as a court of equity from jurisdiction of this bill, and granting the relief prayed for? The liability of the lands of a decedent to pay his debts depends upon the statutory provisions in relation thereto. The decision of the supreme court of the state upon the question is binding on this court. This question was settled by the supreme court in the case of Partee v. Kortrecht, 54 Miss. 66. In that case it is held that the lands of a decedent are by statute liable to the payment of his debts, but that the statute which so renders them, provides the mode by which they shall be so applied, and that that mode must be pursued when it can be done, and that, in the event that it cannot be done, only can it be reached by bill in equity, and that under the statutes of the state, in a case like the present, an administrator can be appointed; if no one else applies, that the administration will be confEJrred on the county: administrator. The facts in that case, so far as the point in question is concerned, were the same as those in this case. The demurrer was sustained and· the bill dismissed. When six months have expired after the death of the decedent, and no one has applied for letters of administration, and there is no county administrator in the county in which the land, or some part of it, is situate, and these facts are averred in the bill, I am of opinion that the chancery court, or this court, as a court of equity, would have
jurisdiction to grant the relief sought. This would unquestionably be so, if the bill further averred that application had been made to the chancery court to appoint a county administrator, which perhaps ought to be done. Neither the creditor nor anyone else is compelled to administer upon the estate. The county administrator is a public officer, and as such required to duty. This bill does not contain these necessary averments, as held by the supreme court of the state; consequently the demurrer must be sustained and the bill dismissed, with leave, however, to the complainant to amend bill, if he can, so as to avoid the ground of demurrer stated.
CARUTHERS and others.
(Jourt, N. D. Missis8ippi. December Term, 1882.)
When the act charged in an indictment is fraudulent, it is not necessary to use the word" fraudulent."
2. BAME-Al'POINTMEM'1' OF INCOMPETENT ABBISTA:NT INSPECTORB' 01' ELllicTIONS -HEV. ST. § u51li. All indictment charging inspectors of elections with the appointment of in-
competent and unsuitable persons as assistant insp,ectors, to be good under section 5515, Hev. St., must state that it was with the intent to affect the election or the result thereof, otherwise it would be insufficient and quashable. These allegations must on the trial. be proved to the satisfaction of the jury, beyond a reasonable dO'lbt; if Dot, no conviction can be .had.
Although a statute providing for the appointment of persons to fill vacancies assist as inspectors of elections does not use the words" competent and sUit· able person," these qualifications are necessarily implied, as the vacancy ",ould not be properly filled unless by one having the same qualification possessed . by the person for whom he is substituted.
G. Ohander, Dist. Atty., and J. R. Ohalmers, Asst. Dist. Atty., for plaintiff·. H. A. Bar',. and G. B. Hourey, for dafendants. The questions DOW presented for decision arise upon;'defendant's motion to quash the indictment against them." The grounds alleged in support of the motion are that the indictment does not allege any offense against the statutes of the Uriited States under the title of "Crimes." The indictment in substance alleges and charges that the defendants were appointed and acted as inspectors of the election at Taylor's election precinct in Lafayette county, at the election held'on the seventh day of November, 1882, for the election of a represeuta-