Volume 1 — Mississippi Reports

<p>This was an action of debt brought in the Superior Court of Wilkinson County, founded upon a judgment of the State-of Louisiana. The defendant pleaded 1st. nil debit, 2d. nultiel record, upon which pleas, issues were joined. On the trial below, the plaintiff offered to read, as evidence, a transcript of the record of said judgment, duly authenticated, from which it appeared, that the suit in which that judgment was rendered, was commenced by attachment under the laws of Louisiana, against the defendant, who, at the time of the institution of the suit, was not within the limits of the state of Louisiana, but was a resident of the state of Mississippi. The defendant’s counsel objected to the reading of said transcript, because it did not show that the defendant had been personally served with process, or had any notice of the pendency of the'suit. The court below, sustained the objection, and would not permit the said transcript to be read. .The plaintiff, thereupon, submitted to a non-suit, but afterwards moved the court to set it aside, upon the ground, ’ that the judge erred in excluding said transcript: which motion was by order of the judge and consent of parties transferred to the Supreme Court, for their decision.</p> <p>The j udgment of a foreign court is by our laws considered as presumptive evidence ofa debt, when such court had jurisdiction of the case. But by the constitution of the United States, and the act of congress, the judgments of a sister state stand on very different ground. The records &c. of a sister state-,when authenticated as the act of congress requires, “ shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state, from whence the said records are or shall be taken.” There has been some contrariety of decision in the courts of the different states, upon the proper construction of this act of Congress; but the better opinion seems to be, that the judgment of a sister state, duly authenticated, is to be received in all cases, ás presumptive, and in many, as conclusive evidence of a debt. 1 Dal. 261; Add. 265; Har. 413; 1 N. Y. T. Rep. 460. The transcript of the record which we offered to read, is duly authenticated, and the judgment rendered in strict conformity with the laws of Louisiana. Some property of the defendant-, found within the limits of that state, was attached by legal process, which gave'that court jurisdiction of the cause. The court will not, under such circumstances, reverse a foreign judgment, much less, that of a sister state. 2 Dal-. 51, 221, 302; 2 Bay 485; 1 Day 168; 1 Penn. 407. Can it be pretended that the record of this judgment, would not he received as evidence, in the courts of Louisiana, to support an action of debt brought on it in that state ? Certainly not. Then an authenticated copy of it, ought, under the act of Congress before referred to, to be received in the courts in this state, as prima facie evidence at least.</p> <p>The object of the plaintiffin this case, is to carry into effect, in this state, a judgment obtained by him against the defen-•daut in the state of Louisiana upon a process by attachment, to which the defendant made no defence, and of which he had no notice. The courts of this state will not carry into execution the judgment of a foreign court, or of a sister state, unless the court rendering it, had jurisdiction, both of the cause and the parties. If it appears from the record, that the defendant had been served with process and resided within the state or country where the judgment was rendered, our courts will, from courtesy, presume jurisdiction, and will consider the judgment as prima facie evidence of debt. But when, as in the present case, it appears that the defendant was not an inhabitant of the state in which the judgment was obtained, that he was Hot servec with process, and had no notice of the suit, and that the proceedings wer not against his person, but only against certain specific articles of his property, the presumption of jurisdiction over the person in the court rendering the judgment does not arise, and such judgment, instead of being considered by the court to which application is made, to carry it into execution, as prima facie evidence of a debt, will be considered a nullity. It is admitted that the court of Louisiana had jurisdiction over the cause to a certain extent — to the extent of the property attached.. Certain articles of the defendant’s property were found within the state of Louisiana, and his creditors, living in that state, might lawfully attach them, and on recovering judgment, apply them to a discharge of his debt. But if the property attached should not be sufficient to satisfy the judgment, the creditor-could not resort to the person of the defendant for satisfaction, because he was not personally subjected to the jurisdiction of the court rendering the judgment.</p> <p>But the plff. does' not contend that this judgment should be considered as conclusive, but only as presumptive evidence, against us. It is unreasonable to throw the burthen of proof upon the defendant. It would be more difficult for him, if the claim were unjust, to prove that it never existed, than for the plaintiff, if he have a just demand, to establish it.</p> <p>The plaintiff has not been able to produce any decision of any court, in which a judgment obtained under circumstances like those in the present case, has been received or recognised as presumptive evidence. On the contrary, the whole current of authorities, both English and American, was strongly in favor of the doctrine for which we contend. Doug. 6; 5 John. 41; Kirby 119; 3 Wilson 297; 9 Mass. 462, &c.; 8 John. 86,194; 1 Dal. 261; 1 Caines 460;. 9 East. 192.</p> <p>Should the doctrine for which the defendant’s counsel contend, be recognised and sanctioned by the court, the plaintiff will be placed in a very strange dilemma. We cannot enforce the judgment which he has obtained in Louisiana, because the courts of that state had no jurisdiction over the person of the defendant. Should he institute suit in the courts of this state, upon the original contract, he would be told, that his simple contract debt was merged in a judgment rendered by a tribunal which had jurisdiction of the cause; so that in either case he is without redress or remedy-</p>

<p>The defendants were separately indicted, at the March Term, 1818^ of the Claiborne Superior Court, for an assault and battery with an intent to murder one John Hays, on the 4th of February, 1818. In eachindictment there was also a separate and distinct count for a simple assault and battery. Upon the affidavit of the defendants that they did not believe they could have a fair and impartial .trial in Claiborne county, by reason of the exertions of John Hays, the prosecutor, to influence and excite the public mind against them, of the prejudices of many men of weight and influence, and of the malice and ill will of the sheriff of the county against the defendants, the indictments were transferred to Jefferson county, to be tried by a jury of that county. The defendants were tried jointly upon their several pleas of not guilty, although they claimed the right to he tried separately ; and were both found guilty by the jury, and a fine of eight hundred dollars assessed against Harman Blennerhassett, and of two hundred dollars against Dominic. The defendants moved the court for a new trial, and assigned the following reasons, viz:</p> <p>1. Because the court ruled the said defendants into a trial of the indictments found against them in the above cases, without compelling the prosecutor, John Hays, who had instituted a civil suit for damages for the same assault and battery, to make his election either to proceed in the civil or criminal cases, but not in both, though an application to that effect veas ■made by defendants’ counsel and overruled by the court.</p> <p>2. Because the court admitted the said John Hays, who is endorsed on the indictments as the prosecutor, and who may be liable for the costs, to be sworn and examined as a witness upon the trial of said indictments, though the counsel for the defendants took and urged an exception against his competency.</p> <p>3. Because the court ruled the said defendants to be tried jointly and by the same jury, though the indictments are several, and though they claimed and urged by their counsel a right to be tried separately on the several indictments against them.</p> <p>4. Because the court refused to permit the said Dominic Blennerhas-sett to be examined as a witness on behalf of the said Harman Blcnner-hassett, on the indictment against him,though the said defendant, Harman, produced the said witness and claimed that he should be examined on his behalf.</p> <p>5. Because the defendants were surprised at the trial by the absence of Thomas Rogers, a witness summoned on behalf of the state, who was material for them, and who, they believe, was procured to absent himself by the mal-practice of the prosecutor, John Hays.</p> <p>6. The verdict was contrary to law and evidence. This motion for a new trial, was by the Superiour Court of Jefferson county, referred to the Supreme Court, for their consideration and decision.</p> <p>It is not denied, that an individual who has sustained an injury, such as the prosecutor in this case is alleged to have received, has a right to call in the public arm to avenge his wrongs; but he ought not to be permitted, at the same time, to pursue the defendant by a civil suit, to recover damages for the same injury. Neither reason, policy nor authority will sanction such a proceeding. If an individual be permitted to carry onapublic prosecution and a civil suit, against the same defendant for the same offence, and be also permitted to testify in behalf of the state in the public prosecution, will not the. testimony which he shall then give, disguised and disfigured by his real or imaginary sense of injury, have a tendency to operate greatly to the prejudice of the defendant on the trial of the civil suit? If the court tolerate a proceeding of this kind, they will afford but loo much scope and too much encouragement for the exercise of malignant and vindictive passions. No man ought to be twice punished for the same offence : and although it may be said that the fine in the public prosecution is a punishment for a breach, of the peace, and for the violation of the majesty of the laws, and that the verdict in the civil suit is a remuneration to the prosecutor for the injury which he has sustained; yet both are in fact punishments upon the defendant, and he has in truth committed but one offence. The case of Rex vs. Fielding, 2 Bur. 719, ’20, goes strongly to support the doctrine contended for. The court refused to grant an information against the defendant, a justice of the peace, for mal-practice in office, until the prosecutor would discontinue a civil suit which he had instituted for the same offence. And the court then observe, that if the prosecution had been commenced in a manner strictly legal, by indictment, the Attorney General would, and ought to, enter a noli •prosequi upon the indictment, unless the prosecutor would enter a discontinuance of the civil suit. In the State vs. Blythe, 1 .Bay 168, ’7, the court declare it to be the settled practice in South Carolina to compel the prosecutor to make his election. That was an indictment for assault and battery. In Rex vs. Starrs, 3 Bur. 1702, the Attorney General admits that it is the practice in assault and battery, &c. for the prosecutor to elect whether he will proceed by indictment or civil suit. In the Territory of Mississippi vs. Peper, Judge Simpson decided that the prosecutor must make his election. I think, therefore, that in.our first point we are fortified both by reason and authority.</p> <p>2d. point. If the prosecutor were absolutely liable for costs upon failure of the prosecution, he would unquestipnably be an incompetent witness. A liability to pay costs goes to the competency, not the credibility of a witness. Hence a prochein ami, by whom an infant sues, cannot be a witness for the infant, nor the bail for his principal, because, being liable for costs, he is interested. 2 Stra. 1026. He has a direct interest in the event of the suit. 1 Term Rep. 164 ; 2 Esp. N. P. 347, 703; 1 Bin. 444. By our statute, it is made the duty of the Attorney General, to endorse the name of the proseculor upon all bills of indictment; and if the government fail in the prosecution, and it appears to be frivolous or malicious, it is the duty of the court to render a judgment for costs against the prosecutor. Dig. 237. It is a general rule, that he who is to be the gainer or loser by the event of a suit, cannot be a witness. 2 Haw. 010; 2 Hale 279,280; 1 Hale P. C. 302, ’3. And that which exempts a witness from a charge or loss which he may incur on the event of the suit, ia as much an interest, as the prospect of positive advantage. 2 Esp. N. P. 347 ; 703. In this cáse the prosecutor may, upon a conviction of the defendant, avoid the payment of cost, whichhe might incur by a failure of the prosecution : He is therefore directly interested, and his interest renders him an incompetent witness.</p> <p>3d'point. In this case the Attorney General might have indicted the defendants jointly. Had he doné so, the court, in their discretion, mighty perhaps, have directed them to he tried together: but as he has caused several indictments tobe found against them, they are entitled to separate trials. No case, it is believed, can be produced, in which two defendants who have been severally charged in distinct indictments, have been compelled, against their will and consent, to unite in their trial. By our constitution, every man accused of a crime or misdemeanor, is entitled to a speedy and public trial, by an impartial jury of his country. Although ins this case, the right to challenge any number of jurors peremptorily doesnot exist, the offence not being capital, yet each defendant might challenge any number of jurors against whom he could show good cause of challenge. If one defendant 'shews good cause of challenge against a juror, to whom 'the other defendant has no legal objection, and in whom he has the utmost confidence, what course would the court pursue? They must deprive one of the defendants of that fair and impartial trial ¡Secured to him by the constitution. If the challenge be disregarded, the challenger is tried by a juror who is not impartial; and if it be allowed, the other defendant is deprived of a juror in whose uprightness and integrity he has great confidence, and 'to whose services as ajuror he had an unquestionable right from the moment that the name of the juror was entered on the pannei, and he was 'called to the book to be sworn. Where several individuals are indicted for "a joint offence,''either a joint or several venire facias may issue, but it íé the preferable mode to issue a several one. 2 Hale P. C. 263, 173; 2 Haw. 407; Trials per pais 46, ’7. By ruling the defendants to he tried jointly,"one defendant was deprived of the testimony, of the other on his trial. If it can be shown, that oné of these defendants would have been a competent witness for the other, if they had been tried separately, and that this right was denied them upon a joint trial, it would seem to follov as a legal deduction, that the court erred in compelling them to be tried together, and, therefore, a new trial ought to be granted. This leads to the consideration of the fourth point. N.o good reason can be assigned, why an accomplice, who is indicted,.separately, should not, before conviction, be a witness for his associate. He is not interestedin.the event of the trial; the judgment of acquittal or conviction of his associate could not be given in evidence for or against him on his trial; and he is not rendered infamous until after conviction. Why then should his testimony be rejected? His credibility may be impeached from .the circumstance of his being an accomplice, but his .competency cannot be.denied. An accessary before or after the fact may be a witness, for or against the .principal felon, unless scried with him by the same jury, which he is, net bound to submit to, if they are indicted separately. If three .persons be separately indicted for perjury in swearing falsely to the execution of a bond, and one traverse the indictment and be put upon his trial, the other two may be witnesses for him. if two persons be severally indicted for the same assault and battery, they may be witnesses for each other. Foster 380; 2 Esp. N. P. 393, 726; 2Hale P. C. 280; 2 Haw. 620; 1 McNal’y 204; Peake Ev..l44; 1 Term 301; 1. Wash. .1.87..</p> <p>5. It appears from the affidavit of the defendants that the testimony of Thomas Rogers was material for them, of which they were deprived without any fault in themselves. Rogers had been summoned by the state,and -had been attending during the trial, but left the court without the knowledge of defendants, before the testimony on behalf of,the state was closed,- ■and before the defendants could call upon him to testify. The defendants, knowing he had been summoned by the state,.and seeing him in attendance upon the court during the trial, could not deem it necessary for them io summon him, and were therefore taken by surprise, when they discovered that he had left the court. Surprise is a good ground for granting a sew trial:. If the absence of Rogers was procured by the prosecutor, it is such a fraud upon the defendants that the court will grant a new trial. 6Bac.Abr.Gwil. 671, ’2.</p> <p>6th Point. If the court are satisfied that the verdict is .against law or evidence, or that justice has. not been done the defendants, they will not hesitate to grant a new trial. 1 Bur. 390; 3,Bla. Com. 387. If death in this case had ensued, the defendants, would, at most, have been guilty of manslaughter only, In that case the defendants could not have been mulct in a larger sum than five hundred dollars. Dig. 244. And the jury in this case having assessed a fine against Harman Blennerhassett of eight hundred dollars, affords very good reason for the conclusion, that the verdict is so unjust, and the fine so unreasonable, that the court will grant a new trial.</p> <p>1st Point. It is important to every government that all breaches of its penal laws should be punished. It would be better not to enact laws, than to permit them, when enacted, to be violated with impunity. This is a much more penal offence than a simple assault and battery. It was attended with circumstances of peculiar aggravation and atrocity. The prosecutor was very severely wounded, and it was little less than a miracle that he escaped with his life. Can it be seriously contended that the government ought to wink at offences of this kind, because the, prosecutor is seeking a pecuniary remuneration for the' atrocious injury which he has sustained 1 Should such be the decision of the court, there will be no longer any security for life or liberty; the government and laws will justly fall into contempt; and become a “laughingstock and a bye-word among the people.” The prosecution is not carried on for the benefit of the prosecutor alone: the whole community are deeply interested in it. It is important for them that offenders, like the present defendants, should be severely punished, that others of similar dispositions may be deterred from committing the like outrages. The prosecutor cannot be deprived of his action for damages, It is secured and guaranteed to him asjwell by the principles of eternal justice, as by the express provisions of the constitution. 3 Bla. Com. 121; 4 do. 156; 3 Bac. Ah. 156; Ass’t. and Bat. D.</p> <p>The cases cited by the counsel for the defendants do not support the principle for which they contend. The case of Rex vs. Fielding is very distinguishable from the present. That was an application to the court for leave to file an information against a magistrate, who had conducted illegally in the execution of his office. The court were satisfied that the magistrate had acted honestly, that no corrupt or evil intention could be imputed to him, that application was made by the prosecutor from malicious and vindictive motives, and therefore, in the exercise of a just discretion, they rejected the application, until the prosecutor should discontinue a civil suit which he had instituted for the same misconduct or misdemeanor. There is no English case, where the prosecution was, by-indictment, in which the court have required the prosecutor to make his election. In some cases of a trifling nature, or where the prosecutor appears to be instigated by malice, the Attorney General will enter a noli p'oseqni, unless the prosecutor will discontinue the civil suit. The case in Bays’ reports cannot be considered as entitled to much weight, when put in competition with several- English cases,and a decision of the Supreme Court of Massachusetts expressly in point. 1 Bac. Abr. 215, ’6; 1 Bos. &Pul. 191; 2 Mass. Rep. 372.</p> <p>2d Point. It is generally true in criminal as well as civil cases, that a person wh'o may gain or lose by the event of the suit cannot be admitted as a witness. But in robbery and larceny, where the prosecutor is’entitled, upon conviction of the defendant, to a restitution of the goods stolen, and in cases where a reward is offered to the prosecutor, by statute, by proclamation, or by a private person, he is, notwithstanding, a good witness. Phil. Ev. 86, 91; 1 McNal. 61. It is not pretended, that the prosecutor in this case is interested in the event of the suit, except that he may be liable for costs, upon certain contingencies, if the State should not succeed in the prosecution.. He is not entitled to any reward, in case the defendants should be convicted, nor can the verdict and judgment be given in evidence for him in the civil suit. Should the state fail in the prosecution, he is not liable for costs unless, in the opinion of the court, the prosecution is frivolous or malicious. His liability then depends upon two contingencies, future and remote. This is not such a liability as will disqualify him from being a witness, or exclude his testimony. To render a witness incompetent, his interest must be legal and fixed, not depending on any contingency. Phil. Ev. 39; Salk. 283;' 1 Term. Rep. 163.</p> <p>3d and 4th Points. All offences are several as it respects the offenders. If two or more individuéis are jointly concerned in the commission of the same offence, the Attorney General, may at his pleasure, indict them jointly or severally. 2 Hale P. G. 173; 2 Haw. 342. It is not denied by the counsel for the defendants,, that they might have been tried together, if they had been jointly indicted. What good reason can be given, why two persons jointly indicted, may, in the discretion of the court, be tried together, when, if they had been charged with the same offence, in separate indictments, they must be separately tried. It is conceived there is none. It is not the circumstance of their being jointly indicted that authorises the court to put them upon trial together, but that of their being jointly concerned in the commission of the offence. The evidence against the one, goes to disclose the guilt or innocence of the other. No injury, can, there fore, result to either of the defendants from a joint trial. But it is said, that by denying the defendants a separate trial they are deprived of the», testimony of each other. It is very clear that one. defendant-cannot be a witness for another,, unless there is no evidence given against him; and in that case, when they are tried together, the court will send up an issue for, the one against whom no evidence has been given, and upon the return of a verdict of acquittal, his testimony will be received on behalf of the other defendant. 1 McNal. 56; Phil. Ev. 74. Belmore’s case is very distinguishable from the present. The perjury of one man is not that of another; and although they may have sworn falsely in regard to the same circumstance, they cannot be joined in the same indictment. As to the other principles relied upon by the defendants’ counsel on this point, they are the mere dicta of McNally, and the American editor of Espinass’. Nüi, Prius, not supported by any adjudged cases.</p> <p>5th Point. It does not appear from the affidavit of defendants that the testimony of Rogers, if it could have been procured, would have been material for their defense. They swear that they could have proved by him, an offer of a compromise or reference with the prosecutor, prior to the assault for which they are indicted, and an assault upon them by the prosecutor, on the morning of the same day, on which they committed the assault upon him. These facts, if true, would not be material for their de-fence, nor could they be legally given in evidence upon the trial; and if they could have been given in evidence, the verdict must have been the same. There is- no evidence that the absence of Rogers was procured by the prosecutor, except the belief of the defendants; and the affidavit of Mills, goes strongly to show the fallacy and improbability of that belief. The defendants did not summon Rogers; and if they relied upon him, they were guilty of laches in this respect. The Attorney General is not bound to keep, till the end of the trial, all the witnesses whom he may have summoned. He may dismiss them when he pleases, and the adverse party will have no cause of complaint. 6. The verdict is neither against law or evidence. The assault was most atrocions and aggravated, and the jury showed their good sense by inflicting a heavy fine upon Harman Blenner-hassett.</p>

<p>ON WRIT OR ERROR.</p>

This was an action of trespass on the case, instituted in the year 1812, by the defendant in error, in the county court of Adams county, and transferred to the Superior Court of said county, under the act oí January 20, 1814. The declaration contained four counts.

<p>An action cannot be maintained on a final decree in Chancery, rendered against am individual after his death, though founded upon an interlocutory order, made (luring his life .</p> <p>Courts have no jurisdiction over the dead unless represented as required by law, and judgments rendered against such unrepresented deceased persons are nullities.</p>

<p>PETITION FOE FEEEDOM:.</p> <p>The north-western territory, ceded by Virginia to the United States, prior to the peace of 1763, was subject to and claimed by France, but by the treaty of 1763, \s as transferred to Gréat Britain.</p> <p>In 1775, this territory was under a government distinct and separate from that of the colony of Virginia.</p> <p>There is no eviaence, that the laws of Virginia were ever extended to this territory, or that Great Britain ever changed the laws existing prior to 1763, and therefore the laws then existing were the municipal laws of that country.</p> <p>The treaty of cession by Virginia to the United States, which guarantees to the inhabitants of that territory, their titles, rights, and liberties, does not render void that article of the ordinance of Congress of 1787, which prohibits slavery in that territory.</p> <p>Any state, may by its constitution, prohibit slavery within the limits of such state, and so may the legislature of any state, when not restrained by the constitution. ¿.laves within the limits of the north-western territory, became freemen by virtue of the ordinance of 1787, and can asseit their claim to freedom, in the courts of this state*</p>

<p>IN OHANCEHY.</p> <p>Upon an interlocutory decree of a Court of Chancery, referring an account to three persons, by name, as Auditors, or a majority of them, — it is no "valid objection to the proceedings and the Report of the Auditors, that one of the three was never notified to attend. Had the exception to the absence of one of the Auditors been valid, it should have been taken before the Auditors.</p> <p>Exceptions to the Auditors Report cannot be sustained, unless they were made and overruled before the Auditors, and certified by them to thfe Court,</p> <p>A party cannot by exception to an Auditors report, impugn the decree directing thereport lobe taken. A party cannot by exceptions to the Auditors Report, rely upon new grounds of defence not set forth in the pleadings.</p> <p>•The practice of Auditors in this country, ought to be in strict conformity to the practice .of the master in England, where no change is introduced by statute.</p> <p>The system of equity jurisprudence in this state, has been greatly improved, by the labors and assiduity of the present able Chancellor of Mississippi, and by various statutory enactments. The great delay, which is the reproach of the Chancery Courts of England, exists to a less extent in this state, and it is hoped, that the improvement here, in this respect, will be progressive. The most striking objection to Chancery Courts, is, the delay produced, and expense incurred, in the trial of cases in equity, that have heretofore been tried at common law. It strikes the mind, as a singular anomaly, that one court should be constituted to try causes upon technical principles, precluding an investigation of the merits of such cases, and required to' render judgments contrary to justice, and that another tribunal must be organized, to retry these same causes, and pronounce a wholly opposite decree. Thus, it has been decided, that if A sells a tract of land to B, with general warranty of title, and there should be an ascertained failure of title to a part of the land, nevertheless, that A can obtain a judgment in the courts of common law, for die whole amount of the purchase money, and B be required to resort io a court of equity for relief, and the case be probably remanded to a jury, under the direction of the same common law court, to ascertain the extent of the injury sustained by the partial failure of title, which verdict, would probably govern the Chancellor in his decree. Now, wherefore, the necessity of this delay and expense, and why not permit a jury in the first instance, to investigate the facts, and render a verdict conformable to justice? other analogous cases might be cited, in which great delay is produced, and expense incurred, by denying to the courts of common law, the power to investigate the merits of the case. In Louisiana, and other countries where the civil law prevails, the merits of the cases are investigated and determined in one court: There seems to be no insuperable obstacle to the adoption of üiavc forms of administering justice, without incorporating into our system their principles of jurisprudence. This has in fact been accomplished in several of the states of the American Union, by extending the powers of the common law courts, so as to enable them to decide upon equitable principles. The chancery system, arose in England, from the technialjties introduced into the courts of common law. But wherefore the necessity of introducing these technicalities, or why not remove them in this as in several other states of this Union, by extending the powers of the common law courts, so as to investigate at once the merits of the case? The framers of the constitution of this state have decided differently, and it therefore becomes the.duty of all, to co-operate in rendering our present chancery system, as perfect as possible, and if causes must be tried and decided upon their demerits' first, and their merits afterwards, it is certainly advisable, that the tribunals which pro-nbunce these opposite decrees, should be separate.</p>

<p>The sale, by a father, of the lands of his child, a minor, is void, both under the com»-mon and the Spanish law, if unauthorised by the decree of the proper tribunal.</p> <p>Such sales of lands here, during the existence of the Spanish government in Mississippi, would be governed by the Spanish law.</p> <p>That the sale was for the benefit of the Minor, does not render such sale valid.</p> <p>JVo¿e-The questicn seems »ot to have been agitated by the Court or Counsel, whether the law of Spain did ever controul the transfer or descent of'lands in this slate, above the thirty-firstdegreeof North latitude. Over this country, it now settled, by recent decisions, that Spain never did or could exercise any lawful jurisdiction, and never was the proprietor of this domain. 12 Wheaton 523,530. These cases decide, that this country 44 was wrongfully occupied by Spain,” that her grants of the soil have of themselves no intrinsic validity, and that Georgia, at that period possessed the right of soil and sov-reignty. Grants made by the state of Georgia of part of this territory, and transfers under them, have also been sustained as valid by the Supreme Court of the United States., 6 Cranch 87. During the occupancy by Spain of this territory, the eminent domain, and sovreignty, were united in Georgia. Spain, it is said, had the actual occu-panc}r,.but that occupany is now decided to have been 44 wrongful,” and never was acquiesced in by Georgia, or by the United States. From 1783, till the 27th of October 1795, Georgia passed many laws, claiming the right of soil and jurisdiction over this country, and 'the United States, during the same period, by many official acts, sustained the claim of Georgia, both here, and at the court of Spain, till finally, on the 27th of October 1795, Spain, by a treaty with the United States, acknowledged our right to 44 said territory” not as a cession by Spain, but as a pre-existing right. Commenting on this treaty, the Supreme court of the Union say:</p> <p>• 44 Had Spain considered herself as ceding territory, she could not have neglected a 44 stipulation, which every sentiment of justice and national honor would have demand-44 ed, and which the United States could not have refused. But instead of requiring u an article to this effect, she has expressly stipulated for the withdrawal of the settlements made within what the treaty admits‘to be the territory of the United States, *4 and permission to the settlers to bring their property with them. We think this an unequivocal acknowledgement, that the occupation of that territory by Spain was wrong-4‘ ful, and we think the opinion thus clearly indicated, was supported by the state of the 44 facts. It follows, that Spanish grants made'after the treaty , of peace (1782) can 44 haveno intrinsic validity, and the holders must depend for their titles on the laws of 44 the United States.” 12 Wheat. 535. Can it be contended, that there could be the exercise at the same time here, of a divided and conflicting sovereignty, by Spain, and Georgia, and that although the laws of Spain could not control the grants of land, yet they might govern their transfer and descent, in opposition to the laws of Georgia, especially when Spain stipulated for the boon of the withdrawal of her settlements, and the privilege to the settlers to 44 take with them all the goods and effects which they possessed ?” The laws of Spain could only extend here as the sovereign de facto, upon .which principle, they would controul the transfer and descent of aJJ the lands within the territory occupied by Spain, including as well the British as the Georgia titles. Yet we have seen, this was not the case. 6 Cranch 87,12 Wheat. 523, 530. Can it then be, that the transfer and descent of lands held here by a British or Georgia title would be governed by the laws of Georgia, but that the transfer and descent of adjoining tracts, would be governed by the law's of Spain? Georgia, by the cession of 1802 to the United States, stipulated for the confirmation of certain Spanish, British, and Georgia titles, but never introduced, or sanctioned the introduction here, of the laws of Spain. Now, during the Spanish occupancy, Georgia had extended her.laws over this country, not over detached portions of it, but over the whole territory, and her legislation was general and exclusive. The power to regulate the transfer of all the lands within this territory was vested in Georgia, and in the language of the Supreme Court of the Union. 44 The existence of this power must negative the existen.ee of any right which may conflict with or control it.” An absolute title to lands, cannot exist at the samp time in different persons or in different governments. An absolute must be an exclusive title ” 8th Wheat. 588. The title and right of Georgia to this territory is now admitted to have been absolute and exclusive, — -this right wras exercised by Georgia throughout the period of the occupancy by Spainj and “must negative the existence of any right which may conflict with and control it.” The Supreme Court, in deciding in favor of the title of Georgia, say 44 there was no territory within the United States that was claimed in any other right, than that of some one of the confederated' states,”-and «peaking of onr first treaty of peace with Great Britain, by w'hich the 31st degree of North latitude extending Westward to the Mississippi, was fixed as the Southern boundary of the United States, and consequently of Georgia, they say, “ it has been viewed only as a recognition of pre-existing rights, and on that principle, the soil and sovereign-ip within their acknowledged limits, were as much theirs at the declaration of Independence, as at this hour.” Neither by the British, or Spanish treat}', was there any change of sovereignty, but the admission of the pre-existing rights of one soverign,in exclusion of-the other. If the transient wrongful occupancy by Spain, operated any change of sovereignty, it would not ipso facto abolish the common law, which was the law of Great Britain the previous occupant, unless that law was expressly abolished by Spain. But no such abolition of the common law here, or introduction of the Spanish law by the King of Spain, can be found. The Spanish law was duly extended to Florida, but it is now admitted, that this territory never was a part of Florida, and consequently, the laws of Spain never were extended- here. The commencement of the occupation of this country by the Spanish forces, was as our ally, during the war of the revolution. Surely this could give Spain no right of sovereignty over the territory of her ally, nor could the subsequent occupancy by the Spanish tioops, under the pretence that this was a part of Florida, introduce here the laws of Spain. If Louisiana should for a few years take possession of a county of Mississippi, this state always claiming this county as a part of her territory, and legislating over it, would not the ti-■ties to land, and transfers of it, be governed by the laws of Mississippi? That the laws of Spain could vest no one with a title to lands here, is settled; how then could these laws govern the transfer of the title, and that in opposition to the laws of Georgia the rightful sovereign. When there isa wrongful, and rightful sovereign, both legislating at' the same time over the same territory, the laws of the latter must prevail. Nor could Spain, or her citizens, complain of the operation of these principles here, for neither Georgia or the United States, ever acquiesced in this wrongful Spanish ocdipan-cy. -4few of these acts are referred to below. Statute of Georgia of Feb. 17th 1783-extending her laws and jurisdiction here. Statute of Georgia of the 7th Feb. 3785 creating a county here, and extending the land laws of the state here.</p> <p>Statute of South Carolina of 1787, relinquishing to Georgia her claim to this territory, approved by Georgia.</p> <p>ActofGeorgia of7thofJan. 1795 — selling part of the land of this tcnitoy — sustain, cd by Supreme Court of the U. States. 6 Cranch 87.</p> <p>Act of Georgia, 13th Feb. 1796 &c. &c. as to this territory.</p> <p>Resolutions of Congress, 20th Oct. 3787, approving the relinquishment of her claim by S. Carolina to Georgia, of this territory.</p> <p>The report of Mr. Jefferson, as Secretary of State, claiming this territory, as already within the acknowledged limits of Georgia.</p> <p>7th December 1793 — Report of our Commissio.ners to Spam, insisting on the above claim.</p> <p>10th August 1795T-rCommunication of Mr. Pinckney, our'Minister to the Court of Spain, insisting upon the right of Georgia tb this territory.</p> <p>27th October, 1795 — Spanish treaty recognizing the above claim.</p> <p>30th March 1798 — This territory finally evacualed by the Spanish troops.</p> <p>Act of Congress 7th April 1798 in regard to the government of this territory, saving “ the right of the State of Georgia.” s</p> <p>Act of Congress May 10th 1801, of asimilar nature, saving “the right of the state ofGeorgia.”’</p> <p>24th of April 1802 — Cess&ion by Georgia of this territory to the United States, by compact with Congress.</p> <p>On a perusal of the above acts, it is clear, that neither Congress or Georgia, ever assented to the introduction of the laws of Spain here, but that such assent was uniformly refused, Georgia- con ti n ua 1 Jy extending her own law here, as the rightful sovereign, sustained by the United States, and herpre-existing.right, was admitted by Spain, on the27th of October 1795. Under these circumstances, many questions of great magnitude may still arise for solemn adjudication. Did the laws of Spain ever extend here, did they govern the transfer and descent of both real and personal property, were the decrees of their courts valid, had they any jurisdiction'? If these laws ever extended here, did they cease with the Spanish treaty of the 27th of October 1795, or continue till the evacuation by the Spanish troops on the 30 th of March 1798 ? Did the comrnpn law, or the laws of Georgia, control in the interim, and do they still govern, when unrepealed by our territorial, or state legislation, and which class of laws has been recognised by such legislation? Did the laws of South Catolina, prior to her cession in 1787 of this territory to Georgia extend here, and how fardo they still extend, when unrepealed by Georgia, or by our legislation? If the common law extended here prier to the occupation by Spain, how or when did it cease to operate, and when did the operation of the Spanish law begin? If the Spanish law'was ever the lex loci of this territory, when and how did it cease to operate, and how far does it still operate, when unrepealed by our local legislation? How far ate the acts of the territorial government of the United States, prior to the cession by Georgia of the 24th of April 1802 valid, it being now admitted, that prior to that period, this territory was a part of the State of Georgia, embraced within her legislation, and not a part of Florida, and consequently, that the organisation by Congress of a territorial government here, prior to the cession by Georgia, was a usurpation ofppwer. These inquiries might be enlarged, but enough has been said, to direct the public attention to this subject.</p>

<p>During the existence of the Spanish government in the Mississippi territory, the laws pf Spain controuled the transfer and descent of property.</p> <p>The law of Spain continued in force here, till after the territorial government was actually organized, under the act of Congress of the 7th of April 1798, and this government was not actually organized, until the beginning of the year 1799.</p> <p>The ancient laws of conquered, or ceded countries, remain unchanged, until actually abrogated by the new government.</p> <p>Under the laws of Spain, executors had no power to sell the immoveable property of the testator.</p> <p>The grants of land here by Spain, were donative, and were not subject to the rights of community, between husband and wife. The conditions contained in thesegrants, were for the benefit of the donee, and were rarely if ever fulfilled. A purchaser is presumed to have notice of every defect, disclosed by any recital in any deed essential to his title. In order to protect himself in equity, as a purchaser without notice, that fact must be averred in the bill.</p> <p>Persons standing by in silence when a sale of their property takes place, are not deprived of their rights, unless the purchaser in fact, was ignorant of the existence of their ' title.</p> <p>JVofe. Whatever doubts may have at one lime existed as to the question, now settled by the Supreme Court of the United States, whether any part of this terri- ■ tory North of latitude 31, was ever embraced within the limits of British West Florida^ is certain, that Spain had scarcely the shadow of a claim to this territory. Independent of the fact, that this territory was not embraced within the limits of British West Florida, and consequently that Spain could receive no valid title from Great Britain; it is clear, that Great Britain did not undertake to sell to Spain, or the latter to purchase the territory in question. On the 20th of Nov, 1832, the provisional treaty of peace, between the United States and Great Britain was executed, by which, the territory in question, was acknowledged to be within the limits of the United States, and the 31st degree oí North latitude, fixed asa boundaiy. This treaty was made by public instrument, and was well known to Spain, when subsequently, on the 20th of January 1783 she acquired Florida from Great Britain. No such fraud was attempted by Great Britain, as the sale of territory to Spain, previously relinquished by GreatBritain to the United States* But it is said Spain established a government de facto here. Upon the same principles, her grants of land should be valid, yet they are not. Why then are her grants declared to be void ?■ Because her laws could convey no title to any one. How then could they govern the transfer and descent of the lands? Her occupancy was a usurpation, and during the whole period, Georgia extended her legislation here. This territory, designated by Georgia as Bourbon county, was then as much a part of Georgia, as any other county in that State, and when her laws conflicted with those of Spain, which must controul ? A different view of the Spanish treaty of October 1795, seems to have been taken by the Supreme Court of the Union in 12 Wheaton 535, from that expressed in this case.</p>

<p>The constitution of this state, does not define the jurisdiction of the Supreme Court, but leaves that to the legislature. The statute, authorizing an inferior court, when it doubts as to the law, to transfer the case, before final judgment, to the Supreme Court, is constitutional.</p> <p>Where an inferior court makes a general order, transfering a case, for its decision before final judgment, to the Supreme Court, such tranfer is valid, though the reasons for the transfer are not contained in the order of the court below.</p>

<p>An execution, issued against an administrator, without revival by scire facias, and after the lapse of a year and a day from the rendition of the judgment against the intestate, in his life time, is irregular.</p> <p>Such irregularity cannot be taken advantage of by writ of error, that writ lying only to correct the errors of the judgment of the inferior court, and not the irregularities of the clerk or other officers.</p> <p>‘The proper method to correct such irregularity is by motion to the court below, or by writ of audita querela.</p> <p>The only cases m which a writ of error will lie to correct an irregularity in issuing an ' execution, is where it is awarded by the order of the court below»</p>

<p>The Boadlaws of this State, do uot require notice to individuals, and the interven-lion of a jury, in order to discontinue a public road.</p> <p>In the case of a mere discontinuance of a public road, the individual proprietor is restored to the use of the soil, previously applied to public use, though he may have received compensation therefor.</p> <p>It is otherwise in the laying out, turning, changing, or altering a public road; there an actual view of the ground for the new route is nec.essaryj and the intervention of a jury is required.</p> <p>P erhaps, in such cases, also, notice must be given to the owners of the soil, and the compensation to which they may may be entitled, must be ascertained by the verdict of a jury of their country.</p>

<p>The questions involved in this case, were — 1st. whether an open account was assignable, so as to enable the assignee to sue for his use, in the name of the assignor — 2nd. whether the assignee of such open account holds an interest, which is hot prejudiced by the insolvency of the assignor.</p> <p>Turner and Metcalf for the plaintiff, contended — 1st. Every interest which is capable of ownership is assignable, and consequently, the debt due from defendant to plaintiff was properly assigned to Reese, for whose use this action was brought, and that this assignment gave to Reese, a vested equitable interest, which could not be affected by the subsequent act of insolvency of Defrance, and the rendition of a schedule by him for the benefit of his creditors generally.</p> <p>2nd-. That Reese’s claim, being a vested interest, recognized by law, there must be some mode of securing it, and as at common law, a suit cannot be maintained in the name of the assignee, it results ex necessitate rei, that the suit must be maintained in the name of the assignor as trustee, for the use of the assignee.</p> <p>Mr. Reed for the defendant contended. 1st. A chose in action, is not assignable at common law, and that is the law of this state, unless repealed or modified by our statutes. The statute of this state does not. provide for the assignment of an open account, but only for the assignment of notes and other instruments. Our legislature, therefore, did not design to render open accounts assignable.</p> <p>2nd. The amount due on this account is indeterminate, and a chose in action is not assignable, unless it be reduced to a certainty.</p>

<p>If A, is in possession of a rumor, calculated materially to1 effect the price of any commodity, and purchases it, without previously communicating this rumor to the vendor, the sale is fraudulent and void, as well in a court of law, as in a court of equity.</p> <p>Fraud avoids every obligation, however solemn, and courts of equity, and of common law, have concurrent jurisdiction, in all cases of fraud, properly brought before them.</p> <p>Note, It would certainly be well, for the best interests of society, if the pure principles of morality inculcated in this case, could be established as the law of the land, and practically enforced in the ordinary transactions of life. >Such a rule, as is laid down in this case, has been considered by many enlightened tribunals, as replete with difficulties. «$, by accident, or superior industrjr, hears rumors, calculated if true, to enhance the price of an article,and P, purchasesit,¡without communicating this rumor to B. Is A bound to enquire of B, the extent of his knowledge, before lie purchases from him — if so, before he enters upon a bargain, is he bound tó communicate to him, every fact or rumor calculated to enhance the price of the article — or if not every fact, what facts, and who is tobo the judge, or is there tobo no certain standard? If A hears, that bad seasons have affected the crops, must he communicate it to B, before he purchases, and unfold to him, every fact within his possession, calculated to affect this price, and is the obligation on the part of B, to apprize A of every fact calculated to diminish the price of an article reciprocal, on pain of rendering the contract invalid ? Or who shall decide that the facts not communicated, were material, or that they were fraudulently withheld, or how ascertain the fact of the ignorance of either party? In the case of Laidlatvvs. Organ, 2d Wheaton 178, the Supremo Court of the United States, in facts identical with those contained in this case, decided, as follows: 44 The question in this case is, whether the intelligence of extrinsic circumstances which might influence tho price of the commodity, and which was exclusively within tho knowledge of the vendee, ought to have been communicated by him to tho vendor? The court is of opinion that he was not bound to communicate it.” The fact withhold in this case, was the news of tho peace concluded between Great Britain and the United States, ami th*» article pir.xha^vd, was mbn wi3 materially enhanced in price by •hi-; intelligent".',,</p>

<p>‘The want of the original process, to bring the party into court, when he appeared, anti took defence, cannot be taken advantage of by writ of error.</p> <p>It is very doubtful, whether there is any mode, in which such defect could be taken advantage of, after appearance, defence, and verdict, but if there be any made, it is by writ of certiorari.</p> <p>The omission to state in the declaration, the sum claimed, and the date of the promise, may be taken advantage of by special demurrer, but such error is cured by a verdict. A verdict will aid a title or demand defectively set out, but not a defective title.</p> <p>Where there is a defect, imperfection, or omission, fatal on demurrer, yet, if the issue bo such, as necessarily requires on the trial, proof of the facts omitted, or imperfectly ¡ stated, without which, the party could not recover, it is cured by verdict.</p>

Motion to set aside a non suit transferred from Wilkinson Superior Court. In pleadings, and proof under them the allegata and probata, must correspond. If matter in avoidance or justification is set up in a plea by the defendant, the proof must correspond.

<p>Thai: counsel did not continue to presfo the examination of a witness unwilling to testify, 1«be tho court, might commit the witness for a contempt, is no ground for a new trial.</p> <p>I’Jie court will not grant a new trial upon the suggestion of the discovery of new and material evi • deuce since the trial, unless tho truth of the suggestion is fully established.</p> <p>One tenant in common cannot sustain an action of trover against another.</p> <p>If one tenant in common take all the personal chattel to his own separate possession, tho other has no remedy by action, but may take to himself flie personal chattel, when opportunity occurs.</p> <p>In trover, the value of the personal chattel, and interest from the date of the conversion, is tho irtvl measure ofdamages.</p>

<p>In the State of Mississippi, murder may be committed by the killing a slave, as well as by the killing a freeman.</p> <p>In some respects, slaves may be considered as chattels, Butin other respects they aro regarded a*</p> <p>The ancient laws of Romo, giving power over the life of the slave, never extended hero.</p> <p>Slavery exists not by force of the law of nature or of nations, but by virtue only of the positive provisions of the law, to these the master must look for all his rights, and they do not confer the power of taking the life of the slave.</p> <p>The term “reasonable creature” in the definition of murder, means a human being, and embraces an idiot, luDatic, or unborn child, and a slave.</p> <p>The term “king’s peace” in the same definition, means the place where the crime was committed, and embraces persons attainted, outlawed, or even alien enemies not engaged in battle.</p>

<p>If a person dies intestate, and administration is granted to A. B. who dies without having administered all the inlestatesgoods, administration of the goods unadministered must be granted to another, for the first administrator cannot continue the trust reposed in him to another administrator.</p> <p>It is error in the court below to permit a verdict to be rendered without an issue, or .judgment b)’ default and writ of enquiry.</p>

<p>Upon an obligation of A B promisingto [/ay to C D Curator of the estate ofE F, deceased, or to the legal representatives of said estate the sum of nine hundred and fifty-five dollars an action cannot be maintained in the name of certain persons describing themselves as the legal representatives of the estate of B F deceased without stating how or in what manner they aro the representatives of such ostate.</p> <p>Such an instrument, -boíng a chose in action, belongs to tire executor orjan administrator, and not to the heir.</p> <p>The term legal representatives, is a generic term embracing several species, as heirs, executors, administrators, do bonis non, or with the will annexed and the exact character in which the plaintiff sues, should be statedin the declaration, or it might not be a bar to a second suit.</p>

<p>¿Exceptions not taken to the charge of the court below, by a bill of exceptions duly signed and sealed, cannot be taken notice of by the supreme court.</p> <p>Martin Hackler who died in December 1803, having* been entitled under the act of Congress of the 3d of March 1803 to a section of land in this state, as a donation claim, which was recognized by a certificate to his heirs and legal representatives, by the board of commissioners, on the'llth June 1806, and confirmed by a patent issuing to the same persons in July 1819, the surviving widow of said Hackler is entitled to dower in said land. The heirs of Martin Hackler in such a case must claim by descent and not by purchase, and cannot question the validity of the title under which they claim. The patent- relates to the act of Congress which is the foundation of the title. It is the act of Congress which constitutes the title, and a-patent is not the only evidence of title.</p> <p>The act of Congress and the proceedings of the board of commissioners constitute in themselves a perfect title in the original donee, which cannot be questioned or revoked by the government itself, {much less by the heirs of the original donee) and the patent must relate to them as the origin and foundation of the title.</p>

<p>If it is manifest to a reasonable certainty, that justice lias not been done, the court will grant a new trial.</p> <p>ltis an evident mistake, in point of law, for the jury to take out a deposition notread on the trial, and constitutes a strong: reason for granting a new trial.</p> <p>Note. It has been decided in England, that if adeposition, part of which was rejected as incompetent, be handed to the jury by the plaintiff’s counsel, though the rejected parts had* not been read by the jury, the verdict will he sot aside, Pratt’s case, 21st. Vin. 451. It has been also decided in this eountry, that even if the jury take out the deposited by mistake, the verdict will besetaside,unless the evidence contained in the deposition, be altogether irrellevant and immaterial, to the issue, so that it could nothave influenced tho finding of the jury. 4 Wash. 157. 5 Mass. 405"</p>

<p>When the jurors depart from the bar, should they doubt as to the testimony given them, they may hear one of the witnesses again, so it be in open court, and in the same manner, propound any question to the court, but this cannotbe done except in open court.</p> <p>If the jury examíne a witness sworn on the trial, except in open court, though he only repeat the same testimony which he gave on the trial, the verdict will beset aside.</p> <p>It is unlawful for tho jury to separate befoie they return their verdict, nor will it be any excuse, that a sworn constable attended the juror, when he separated from his fellows, unless under the permission of the court.</p> <p>At common law, the jury could take out no evidence, except certain writings under seal, unless by the consent of the parties.</p> <p>A statute of this State permits'the jury to take out papers read in evidence on the trial, though not under seal, but we are not willing to go any further than the provisions of this statute, in relaxing th* rules of the common law.</p> <p>Notice of protest may be proved without producing the written notice.</p> <p>An acknowledgement by an endorser of a bill of exchange, that he had received notice of the protest, and supposed he should have to provide for the payment of the bill, is tantamount to legal notice and to a promise to pay.</p> <p>If the drawer or endorser of a dishonored bill of exchange, pay the amount to the holder, without having received notice, and not knowing tho fact, ho may recover the money back.</p> <p>But a promise to pay under an ignorance of the facts is not binding.</p> <p>It is immaterial from whom the notice of protest is íeceived. The holder of a hill of exchange, payable at afixed, timo after date, should call at the usual business hours, and present it for acceptance, if accepted he should under like formalities, call upon the diaweo for payment, before the expiration of the days of grace, and ifpaymentis refused,protest the bill before the expiration of the days of grace, and on the same day, if the mail has not left, deposit the notice of protest in tho post-office.-</p> <p>Quero. — Is a bill of exchange drawn in our state, by one of its citizens upon a citizen of another state, and there payable, a foreign or an inland bill of exchange?</p> <p>Note. — It will be perceived, that the court in this case, declined deciding the much litigated question, whether a bill drawn iu one State, upon a person residing in another átate, is a foreign or inland bill of exchange, although they intimate that the right of authority is in favor of regarding it as an inland bill. This intimation was certainly true at the date of this decision. The supreme court of New York, had positively decided that such a bill was an inland bill; Miller vs. Hackley, 5 Johnson. 375. The same opinion had been expressedby Tucker in his edition of Blackstone, 2. vol. 467 N. 22. There had been then no decision promulgated to the contrary, though an opposite opinion was expressed in Swift’s essay on bills, 291. The decision of Judge Washington has been published in 1829, declaringsuch bi\\Bforeign bills of exchange, 4 Nash, 148, 157. Lansdale, vs. Brown, and this decision has been recently sustained by the supreme court of the United States, 2. Peters, 586.</p>

<p>An action for money had and received, will lie in all cases, whore the defendant himself has come to the possession of plaintiff’s property by permission of the law, and has himself raised a surfr certain by tho sale of said property. Courts oflaw are disposed to extend the action of indebita-tus assumpsit, to advanco the ends of justice.</p>

<p>On an appeal from the decision of a justice of the peace, to the circuit court, if there be no pies, judgment by default, or writ of enquiry, before verdict, it is error, for which the judgment must be reversed.</p>

<p>After a plea of payment it is wholly irregular to enter up judgment against the defendant by default.</p>

<p>An injunction requested upon principles apparently of justice and equity, should never be refused in the first instance.</p> <p>When the facts stated in complainant’s bill are denied in respondent’s answer, they must be proved by two credible witnesses, or one witness, and strong corroborating circumstances.</p> <p>If the equity of complainant and defendant be equal, the courts of chancery will not interfere.</p>

<p>A certiorari is not a wiit of right, to be granted as a matter of course, without any showing'that the law has been violated, or injustice done.</p> <p>In England, in prosecutions at the instance of the king, it is the custom to issue the writ of certio-rari, as a matter of course, on behalf of the crown.</p> <p>In civil cases, a certiorari should not be granted, where an appeal is given, if the objection ho not to the want of jurisdiction, nor should it be granted pending an appeal.</p> <p>It does not necessarily follow, because a right of appeal is given, that after the expiration of the right of appeal, a certiorari should never be granted.</p> <p>Whenever the right of individuals are infringed by the acts of poisons clothed with authority, who exercise it illegally, and to the injury of an individual, he may have redress by certiorari, unless he can resort to a writ of error. i</p>

<p>/Parol evidence is not admissible to shew a mistake in the quantity of acres mentioned in a doed,-, where no fraud is proved.</p> <p>Where articles of agreement are consummated by a deed, the articles of agreement are a nullity.</p> <p>A contract cannot rest partly in writing, and partly in parol; every thing resting in parol, is extinguished by the written contract.</p> <p>A different consideration from that stated in a deed, cannot he proved by a parol evidence.</p> <p>The court incline to the opinion, that in a sale of a tract of land, where the quantity of acres warranted in the deed is not to be had, if fho failure be entire, it is a good defence to an action at law for the purchase money, but not where there is only a partial failure, unless it be combined with fraud.</p>

<p>A Spanish ordor of survey, signed by a deputy Governor, is presumed prima facie, to be issued by th® competent authority, and in the absence of proof to the contrary, will be regarded in the same light as if signed by the Governor in chief. Such order of survey vests such a right, as could only be defeated by the alienation of the grantee, or his voluntary abandonment, or by an entire failure to perform the conditions, or some act against the government, which would justify a confiscation.</p> <p>The report of the surveyor of the Spanish government, stating the land to be vacant, and the allegation of that fact in a Spanish grant, does not amount to a confiscation, or a revocation of a prior grant of the same land.</p> <p>A revocation of a grant, if the effect of capricious tyranny, ought not to ho regarded.</p> <p>But little importance wasattached by the Spanish government to the conditions set forth in their grant.</p> <p>The plaintiff must recover in ejectment upon the strength of his own title, and upon a legal, not an equitable title.</p> <p>A judge, during the progress of the trial below, may change his opinion, though embodied in abill of exceptions, signed and sealed.</p> <p>The non performance of conditions subsequent, can only be taken advantage of by tlxe grantor or his heirs.</p> <p>The performance of the conditions of a Spanish order of survey, aro eithor admitted, or dispensed with, by a confirmation of the title by congress.</p> <p>Apatent shall have relation to the origin of the title, and in this point of view, is admissible in evidence, though it emauated after the demise laid in the declaration or after the death of the patentee.</p> <p>The Spanish order of survey, confirmed by the United States constituted a legal title, independent of the patent.</p> <p>Congress cannot impair the vested rights of individuals, much less could their subordinate officers impair those tights.</p> <p>It is the duty of the land office department to advance and perfeetthe rights of claimants of land, and not to obstruct or vacate such rights.</p> <p>The proceedings of the board of commissioners, are not conclusive against individuals.</p> <p>A mere stranger without title, cannot, at least in a court of law, say that a patent obtained without fraud is a nullity.</p> <p>At the common law, an heir could not recover on a demise laid in his name during the lifetime of the ancestor, because the Loir had not then the right of possession, but after issue joined, this dofect is cured by our statute of jeoafails.</p>

<p>The interest Avhich rendors a witness incompetent, must be direct and positive, not remote or eontia-gent, and it must be an interest in the event of the suit.</p> <p>If the witness believes that he has an intorest in the event of the suit, though that belief be erroneous, he is incompetent, but it is otherwise if he believes that-the interest is only honorary..</p> <p>Where the verdict may be used for or against the witness in another suit, he is incompetent, though" called to testify against his interest.</p> <p>There are four causes which render a witness incompetent. 1st. If he he insane, an idiot or lunatic. 2d. If he be an atheist, or does not,believe in a state of future rewards and punishments. 3d. If. he be convicted of an infamous offence. 4th. If he be interested in the event of the suit.</p> <p>JVbíc. — Thercaremany conflicting authorities in relation to the doctrines involved in this decision;A majority of the. states have not sustained the positions assumed by the court in this case. A contrary rule also prevails in Louisiana, and in those countries under the empire of the civil law. A certain interest in the oventof the suit renders the witness incompetent, without regard to the magnitude or extent of the interest. If we extend this rule, so as to embrace individuals having no interest in the event of the suit, but believing themselves to be interested, is there not great danger of exclud* ing testimony, calculated to shed much light on the investigation of causes? Those general rules are most judicious, which, in a majority of cases, will probably produce more benefit than injury in the eearch after truth. How is the fact that tiie witness believes himself to be interested to be ascertained? By questions propounded to*the witness upon an examination on his voire dire, As this belief, of the witness in an interest which does not exist, mustbe confined to the bosom of the witness himself, would lie avow this belief and thereby exclude the party calling him from the benefit of his testimony, if he were willing to commit perjury for the benefit of that party; and if he were willing to do so, would he not conceal the fact that he,believed himself to be inteiested? The rule then, would not in practice, exclude thoso who were will ing to commit perjury, whilst its practical affect would be, to prevent the examination of witnesses, having no actual interest in the event of the suit, and in whose testimony the jury might so often reposo with implicit confidence. The leaning of the courts in the modern decisions, is to confine the objection to the credibility of the witness. Why then enlarge the ancient rule, so as to place an ideal, on the same footing us an actual interest? Is the competency of the witness to depend upon his ignorance of the law of evidence, and is this to deprive parties of important testimony? Even an interested witness cannot deprive a party of his testimony, by refusing to receive a release, why then should he be permitted to do so, by persisting in a belief that he was interested, when the contrary might bo evident to the bench, the bar, and tho jury? Are persons called as witnesses, toSbe converted into judges in their own case, in the last resort, of the law of evidence, and their ignorance, be permitted to inflict a serious injury upon others? If a belief of a witness in an interest, where none exists, should exclude his testimony, why should not his belief that he was not interested, when the contrary was the fact, render his testimony admissublc. If his belief should be the standard in the one case, why not in the other?</p> <p>Nor is it perceived, why a witness should be excluded fiom testifying against his internet.</p> <p>Because an individual is interested in the success of the plaintiff, is there any good reason why the defendant should be deprived of the benefit of his testimony. In such a case, the motives of interest, against which the person is called to depose, are superadded to the sanctity of an oath, to the dictates of conscience, to the fear of discovery and the apprehension of punishment here or hereafter. Such a witness, would in almost every case be believed by the jury. Why than exclude Iiis testimony?</p> <p>It must bo conceded, however, that the points ruled by [the court in this case, are sanctioned by many respectable authorities.</p>

<p>On an indictment for Grand Larceny, the jury not being able to agree, up to the last moment, when the term of the court ceases by^ limitaion of'law, may be discharged without tho consent oftho .accused, and he may bo lawfully remanded to the jail for trial at the next term of the court.</p> <p>Even in capital casos when a: striking necessity exists, the jury may be discharged.</p> <p>The clause in the constitution oftho United States “nor shall any one be subject for tho same offence to be twice put in jeopaidy of life or limb,” is binding’in the courts oftho states, aB well as of the United States. ,</p> <p>Under this clause in the constitution, the prisoner is not put in jeopardy till after verdict.</p>

<p>In an action of assumpsit upon ajdintana several promissory not6, oneof the co-obligors'cannot discharge himself at law by evidence that be was a security only and had been injured by the failure or neglect of the plaintiff to prosecute his demand against the principal debtor after being requested so to do by the security.</p> <p>Such a defence, if available any where, must be made in a court of equity, where the'form of th« security is as above stated.</p> <p>Note. — The case of the People vs. Janson, et al, cited from 7th Johnson, has been overruled by the supreme court of the United States, in the case of tho United States vs. Kirkpatrick, et al, 9, Whoaten, 720. In this case, the late lion. Jonathan H. Walker, then District Judge of the United States, for tho Western District of Pennsylvania, affirmed the doctrine decided in the case cited from 7th Johnson, and declared the surety rcloased by tho injurious laches of the Government of the United States; but this decision was roversed by the supreme court of the United States, upon the "round, that “Jaches is not imputable to the government.” This may be the law of England, upon the principle of regal prerogative, but tho doctrine which gives here, the government, as a suitor, lights paramount to individuals, does not seem to be consonant to the genius of our institutions. Tho contrary principle, and in a question of suretyship, was sustained in the very able opinion of Judge Porter of the supremo court of Louisiana. That distinguished civilian, says; — “In relation to the consequence of giving* time without the consent of tho surety, 1 have considered tho case precisely a» if the State of Louisiana was an individual, for I understand her rights in matters of this kind, are neither greater or less. There is no singlo principio ofafree constitutional government, which more challengesapplauso, or brings withitmore advantage to the citizen, than that which makes society in its collective capacity, bound bythoso laws which it enacts for the direction of each individual composing it, and compels the sovereign power tobe just from necessity, rather than from election.” 4 Louisiana Reports, 413. The principle thus eloquently defended by Judge Porter, constitutes one of the main pillars on which the fabric of civil liberty reposes. If the government of the United States, may, as a suitor, release itself from the ordinary obligations imposed upon individuals, upon grounds of supposed “public policy,” it may, upon the same principles, demand of its judicial tribunals the sacrilico of all individual rights, as a burnt offering upon the altar of state necessity. That “public policy” is most glorious and expedient, by which the government, in contests with the chi-pen, subjects itself to the controul of the same laws, and thus, by the justice of its career, entwines Hself inseparably with the affections, and sustains itself by the power of a free and happy people.</p>

<p>A promisory note indorsed specially, cannot be given in evidence to support an action in the name of the original payee.</p> <p>Possession of a note payable to bearer, or of a note payable to order, and endorsed in blanlr, is prima facie evidence of ownership of the note, but if the endorsement be special, the suit must be in the name of the last endorsee. After a special endorsement, if the note comes again into the possession of the payee, he must, in an action at law, show a transfer from the last endorsee, or the jury will be instructed as in case of an non suit.</p>

<p>The Constitution of the State of Mississippi, is paramount to the authority of the legislature, ano! it is the duty of the judiciary to declare void, any legislative enactment which may be repugnant to the provisions of the constitution.</p> <p>The infraction of the constitution should bo clear and obvious to authorize tiie court to declare a legislative enactment unconstitutional. The act of the legislature of this slate, abolishing the office of clerk of the Probate Court, and directing the judge of that couitto discharge all the duties required of the clerk, is unconstitutional.</p> <p>The clerk of a court, can be removed in no other manner, than that prescribed by the 31th section of the 5th article of the constitution of this state.</p>

<p>A special agent, who exceeds his authority, does not bind his principal, unless the latter ratifies his.-</p> <p>Any act of a general agent within thelinrts of his ostensible powers, as a factor, or consignee, bind* the principal, tho’ he may have given secret instructions to pursue a different course.'</p>

<p>In trover for the value of a slave, the jury would bo instiuctcdto give a verdict for the value of ti-io-slave at the date of the conversion with its yearly value from that date.</p> <p>If A sells with warranty an uusnund slave to B, in an action by B against A on the warranty, it is no defence to the action, that before its institution B sold the same slave toa third person, and that no recovery has been had against B.</p>

<p>It is error t° refuse t° clrnnge the venue, when thedefendantmakes oath that lio is a resident freeholder ot a differenteounty from that in which the action is instituted,</p> <p>llie opinion m the case ofLevi Kendricks, administrator, vs. William Snodgrass, affirmed.</p>

<p>A refusal by a person without colour of title to restore slaves upon the demand of the true owner ‘to his possession, is such a fraudas brings the case within the provisions of the Habeas Corpus act.</p>

<p>An execution cannot issue against the effects of a deceased person before a revival of the judgment against his legal representatives.</p>

<p>A husband may be convicted of an assault and battery upon his wife.</p> <p>By the- ancient common law, the husband possessed the power of chastising his wife.</p> <p>Perhaps the husband should still be permitted to exercise the right of moderate chastisement, in caree of great emergency, and to use salutary restraints in every case of misbehaviour, without subject» rag himself to vexatious prosecutions, resulting in the discredit and shame of all parties concerned.</p>

<p>The rules which govern the circulation of negotiable paper must prevail, and the court cannot mod^-erate any hardship resulting from these rules in relation to illiterate persons, or graduate the system, so as to adapt it to the various degrees of intelligence.</p>

<p>Under a contract to convey title to land, accompanied with a tender of a deed, and possession takefl and retained by the purchaser, he cannot rescind the contract, unless after eviction by title paramount to that of his vendor*</p>

<p>Who» tlioro is a deficit in the quantity of good land sold, an injunction should be granted to restrain the party from proceeding at law to collect the purchase money.</p>

<p>An administrator of a deceased person, dying here without heirs, cannot by injunction restrain tho csoheator general from collecting tho property of the deceased.</p> <p>A creditor of such deceased person, must proceed against the escheator general.</p>

<p>Appeal from a decebe of the superior court of chancery foe the Westeen District.</p>

<p>Kinder ilie statute of this state allowing double damages to the landlord, where llio tenant replevies* the goods destrained for rent found to be justly due, and in arrear, the landlord is not entitled to double damages, where he obtains a verdict for only part of the sum claimed by him as due for rent.</p>

<p>The true distinction between trespass and case, is, when the act itself occasons the injury to tli# plaintiff’s person or property, the action should be trespass, but where the act itself is not an injury, but a consequence from that act is prejudicial, the proper remedy is by an action on tbe case. The action of trespass for an injury to property, is founded on possession, and cannot be maintained unless the plaintiff has actual or constructive possession.</p> <p>A having hired a slave to B, cannot support trespass for an injury done to the slave during the un-expived term for \vhich the slave was hired. B, is the proper person to bring that action, and A may bring an action on the case, for the injury done to his reversionary intoiest. Such an error in the form of the action, is not cured by the statute of jeoffails, or by verdict.</p>

<p>It is irregular to issue execution aftor tlio death of the defendant in the judgment, and before revival against his representatives.</p>

<p>Under the statute, a forthcbming bond whilst Uio execution remains unquashed is a complete satis* faction of the original judgment.</p>

<p>A notice of protestgivcn on the day that a note falls due is sufficient.</p> <p>JVbte. — See Contra 1. Esp. E. 261, &c.</p>

<p>Where the complainant filed a bill to stay waste, threatened to be committed on lands by one in possession under an adverse claim, a demurrer to the bill will be sustained and the injunction dissolved. The result might be otherwise, in the case of a lawless trespasser, without colour of title.</p> <p>Unless under veiy special circumstances, an injunction will not be granted to stay waste, oxcept in cases where irreparable injury will be sustained.</p> <p>An injunction to stay waste will not be granted, where there is adequate remedy at law.</p>

<p>The English rule adopted, by which interest at 4 per cent, per annum is computed on legacies charged on personal property, at one year from testator’s death.</p>

<p>Upon a -proper showing to this court that ono of llio defendants who was a non resident is dead, the, cause may be íevived by publication under the direction of the court.</p>

<p>The officers of tho government should give the patent to him ■who is bylaw entitled toi it, and if they give it to another, he is a trustee for the true owner.</p> <p>If a government by a mere act of power, malíes a grant and gives title to another, the courts will respect tho title of the first grantee.</p> <p>A confirmation by Congress of a Spanish title, shall roíate back to the origin of the title.</p> <p>Whore A received a grant of lands fiom the Spanish government, which was revoked by them by an arbitrary act of power, and the land íegi anted to B, and A driven from the country, and B’s title is confirmed by the board of Commissioners — B shall bo decreed to hold as trustee for A.</p> <p>Note. — It ig much to be lamented, that no notes have been preserved of the arguments of counsel in this important case. The opinion of the courtis certainly able and eloquent; out with every feeling of respectful deferenco, it seems difficult to perceive, how the defendant could be decreed to stand towards the complainant, in the relation of a trustee.</p> <p>The grant oithe Spanish government conferred no title on Robert Stark, according to the principles now settled by the supreme court of the United States. Nor was this title embraced within the provisions of the articles of agieement and cession between Georgia and the United States. The title, was not “Jegailyand fully executed,” according to the provisions of that compact, even if Stark could be viewed as a settler within the meaning of the articles. Were Stark, however, viewed as embraced within the provision of theso articles, or of any act of Congress,' his*title would have been forfeited for want of proper presentation to the board of commissioners as required by law. The title of Stark then, was a mere nullity, that of Rlather was a complete legal title, being embraced within tho articles of cession, and confhmedby the United States. How then could Mather be viewed as a trus-. tee for Stark? He did not hold under Starts title} for that was a nullity, but by a distinct title of his own, unconnected with that of Stark, embraced within the provisions of the compact with Georgia, and confirmed by the United Stales. He who holds the legal title may be decreed to stand a# trustee for the person holding the equitable title, but Stark never held any valid title, legal or equitable. What avails it even if the Spanish Government could not revoke their grant, if that grant was a nullity. If Mather had taken possession under tho title of Stark, and procured a confirmation of .that title in his own name, the question might bo different;, but he took and held possession by a title wholly distinct from and directly adverse to that of Stark, which adversary title was confiimed by the United States. This confirmation might by the reliospcctive energy of the compact with Georgia relate to the Spanish grant to Mather so as to give it a legal existence; but that would only operate to rendervalid the Spanish title to Mather, winch title was directly contradictory to, and destructive of the title of Stark. The cases in which a patentee is directed to hold the title as trustee for an-other person, are when that person and the patonteo hold under the same original title, and the officers of government in obedience to the law, should have givao the patent to such person and not to1 the patentee. ‘Courts cannot create titles, and Stark never hold any valid title. The oiheevs government cannot create titles, and had they given a patent to Stark, they would have disobeyed, the laws, which alone can vest the title, and the patent would have been invalid. But it is said that the actofthe Spanish government in revoking the grant to Stark, and granting the same lands to Mather, was a lawless act of arbitrary power, and that Mather participated in the misconduct of the ‘Spanish government, in other words that the Spanish government should have completed the title of Stark, and that congress should have confirmed his title, and therefore that the court will do what, in their opinion, should have been done by the governments of Spain and of the United States. And are the courts of this country competent to vest a title in an individual who never had any valid title, legal or equitable; and are they also competent to divest a complete legal and equitable title, created by the only power which can dispose of the public domain? If the Spanish government acted unjustly in granting a title to Mather, and the Congress of the United States participated iu that injustice, in confirming that title, the judicial tribunals are not competent to correct the errors of the government, so long as the constitution is not violated by any legislative enactment. Stark having no valid titlo, legal or equitable, Congress, the only competent power to dispose of the public domain, vested a title in Mather. In doing so, no provision oftlie constitution was violated, and the justice or propriety of the act does not come within the sphere of judicial enquiry, otherwise the -courts ave omnipotent, and may repeal or disregard any legislative enactment which appears to them inexpedient or unwise.</p> <p>Mather’s title being embraced within the treaty with Georgia, and the acts of Congress carrying that treaty into effect, was itself protected by the constitution, which makes a treaty the supreme law of the land.</p> <p>Mather is'said by the court to have held possession, in contemplation of law, as trustee for Stark. If so, the statute of limitations, which does not run as between trustee and cestui que trubt, would never have given Mather a title, yet his possession was clearly adverse, and under a claim of ownership, and title also directly adverse to that of Stark, and the statute oflimitations would undoubtedly have run in favour of such a possession. The court, it will be perceived, were divided in opinion.</p>

<p>Au equity of redemption is subject to sale, on an execution upon judgment in this State.</p> <p>The interest of the mortgage is not the subject of sale upon an execution issuing upon a judgment in this State.</p>

<p>A court of chancery will grant* relief in cases of mistake, as well as fraud, and this, as well in aid of’ a complainant, as of a defendant in chancery. A resulting trust may be proved by parol, in opposition to the deed, and to the answer denying the trust</p> <p>A party en eavoring to perpetrate a fraud, cannot succeed in a court of equity, against a particeps eriminis, but a party making a deed with the view to bar certain suppositious rights of his wife, does not commit such an act as will'prevent relief, against a party endeavoring to pervert the deed to fraudulent purposes.</p>

<p>In declaring on a written contract, it is not necessary'kio use the words of ¡¡the party, but the plaintiff may declare according to their legal effect.</p>

<p>A note dated 23st March, 1822, promising to pay a specified sum, being for t{ money loaned at forty per cent until paid,” is sufiiciencjy explicit as to the agreement of the borrower to pay inteiost at the rate of forty per cent per annum, and must be enforced under the then existing provision of the constitution of the state of Mississippi.</p>

<p>ÍNDlCTaiEKT FORSTEAMNC A SLAVE REFERRED FROM PlKE CIRCUIT COURT.</p> <p>An indictment for stealing a negro man, not called a slave, is insufficient. A trial and acquittal on an indictment for stealing a negro man, is no bar to a subsequent prosecution for stealing a negro man slave. A conviction or acquittal or an invalid indictment, is no bar to a second prosecution.</p>

<p>In an action of slander, a verdict was rendered for one dollar damages and costs, after tlie passage of a law enacted subsequent to the commencement of the suit, but before the verdict, dsclaring that costs are not to be allowed in actions of slander, where the amount of the verdict for the plaintiff* does not exceed ten dollars. The costa are recoverable, asthelawmust not be construed bo as to give it a retrospective effect.</p>

<p>A. having taken out letters of administration on the estate of B, in one State, cannot be sued as administrator in another state on-a judgment obtained againsthim as such, in the State where he administered.</p>

<p>Judgments obtained in 1806 do not carry interest.</p> <p>Statutes regulating interest should not have a retrospective effect.</p> <p>Upon a judgment revived by scire facias the, execution should issue ott the original judgment.</p>

<p>As a general rule on an appea^jjun the decree ortho Chancélíor to the supreme court, newly disco-vored evidenco cannot bo aiflRed.</p> <p>Whether the Chancellor will grant á re-hearing, is discretionary with him, and his refusal tó grant a re-hearing, cannot be reviewed upon an appeal.</p> <p>It is usual to grant a re-hearing hpon petition signed by two counsel.</p> <p>The intervention of a sheriff’s deed relieves the case from the rule oflaw which as between vendor and vendee, declares the continued possession of the vendor ipso facto a fraud.</p>

<p>A verdict without judgment will not sustain tho plea of formorrccovery.</p>

<p>An administrator cannot, as such, sustain a suit for forciblo entry and detainer of real estate.</p>

<p>An answer responsivo to ihe bill, can only be rebutted by the testimony of two witnesses, or of one witness, and strong corroborating circumstances.</p> <p>The rule is otherwise as to matter in avoidance, statod in an auswer.</p> <p>If a bill charges, that a bond was executed by the defendant, an answer admitting the oxecuüon of the bond, but averring payment, is no evidence of the payment, unless the defendant was interrogated as to that point.</p>

<p>Summary remedies given by statute, cannot bo extended beyond the letter of the law.</p> <p>If an attorney, without authority from ins client, compromiMís a chum, and receives apart of the monoy and gives a receipt in full, ho can be compelled by motion, to pay the overplus.</p> <p>Woie — In the above case, Messrs Whiting and Lewis considering a compromis-judicious, had received a part of their client’s claim, and gave a receipt ip full, and had tendered the amount collected to theirclient, but demanded at the same time, a receipt in full, which was refused.</p>

<p>ÜA sustaining a demurrer to a plea, there should be judgment of respondeat ouster.</p>

<p>The judgoof the criminal court, may re-examine the causes of commitment, and remand or discharge tho prisoner, according to his own belief of his innocence or guilt.</p>

<p>The statute allowing double pleas, means legal pleas.</p> <p>' A special plea which amounts to the general issue, may be Rejected by the eóurt as frivolous.</p> <p>A*promissory notéis prima facie proof of a valuable consideration either in the hands of the first, or of any other holder.</p> <p>An averment in a replication, requires no stronger proof than an averment in a declaration.</p>

<p>Wagor of law is abolished by tho constitution of this State.</p> <p>Tlio descriptio rei in an action of detinue for a slave has always been deemed sufficient to enable the jury to assess some value, and the amount assessed is immaterial, if the defendant has it m his power to deliver the slave.</p> <p>Anew trial is never granted for excessive damages in assessing the alternate value in an action of detinue, if the defendant has it m Ins power to deliver the bpcciiic article.</p> <p>A transaction taintless of fraud, undisturbed by accident and unaileoted by mistake in fact, cannot be set asido for a mistake of law.</p> <p>If the specific property recovered in detinue cannot he had, then the plaintiff must ta/ce tho alternate value assessed, and if released, by a mistake of law, by the plaintiff, it does not enable him to bring anew action of detinue.</p> <p>Whether the judgment for the alternate value be satisfied or not, a now action of detinue cannot bo sustained.</p> <p>Whore the mother of a slave is recovered in an action of detinue, a new action connot be sustained for her child, Ltorn before the commencement offfie suit.</p>

<p>Where A sell» land to which he has nota valid title, the purchaser who has not been evicted, or threatened with eviction, cannot withhold the payment of the purchase money; there being no fraud in the transaction, and the purchaser having taken bond to secure the perfection of the title.</p>

<p>A levy of an/sxecution upon the first judgment, and loss of the property by the neglect of tho Sheriff" presents no ground for quashing another execution issued upon another judgment on the forthcoming bond.</p>

<p>^ Dower may be claimed in lands, for which a certificate only has issued, and a sale on execution uoes not digest the wife’s right to dower.</p>

<p>Although a tenancy in common may bo created by a deed or will, yot effect shall bo given to word* of survivorship, if there is a time to which such words may be applied.</p>

<p>A forthcoming bond forfeited, raises tho lien of the first execution on which it is taken, and is a sa* tisfaction of the judgment, until such bond shall bo quashed.</p> <p>The statutes giving summary remedies against sheriifs, must be strictly construed.</p>

<p>The penalties inflicted by the statute upon a sheriff for omitting to levy an execution, or for failing-to pay over móney collected on an execution, cannot be recovered without notice to the sheriff of the motion against him.</p>

<p>A judgment obtained by the indorsee against the maker of a note is not conclusive in a suit bo-tween the payee and maker of the note.</p>

<p>&uere — In an act of the territorial legislature authorising executors to sell the land of minor .heirs* •or¡áriViseea constitutional?</p> <p>A third person cannot bo permitted to avail himself of such an objection.</p>

<p>A plea in abatement and in bar, cannot be put in at the same time the latter is a waiver of the former.</p>

<p>Clorks of Courts have no authority to recoivo the plaintiff’s money; and a payment to them is no* satisfaction of the claim or judgment.</p>

<p>A decree in chancery obtained against a party after his death, and unrepresented, may be reversed, •on a bill of review, or by wiit of error, coram nobis.</p>

<p>-A surviving partner cannot sustain an action at law against the administrator of a deceased paitner ' on an unsettled account growing out of the partnership transactions.</p>

<p>tTnder the proceedings for a forcible entry and detainer, the plaintiff may show his right of possession, though he has never had actual possession of the premises.</p> <p>This proceeding is merely possessory, and the judgment thereonis no evidence in asubsequent action of tresspass or ejectment.</p>

<p>^he Bank of the State of Mississippi cannot proceed by notice against an endorser of a note made payable at one of its offices of discount and deposit.</p>

<p>A forthcoming bond is a satisfaction of the preceding judgment, and each subsequent replevy bond has a like effect, under the laws of Kontucky, or those which preceded it.</p> <p>Contracts must be governed by the laws of the state where made and the construction adopted, given by the courts of a sister state to their statutes.</p>

The question for decision in this case, arises upon the following bill of exceptions, to-wit: “ Be it remembered, that on the trial of these causes which were consolidated and came on together, by order of the court, it appeared in evidence, that on or about the fifth of November, A. D. ISIS, one Gabriel Winter and Isaac Gaillard entered into a contract, which follows in these words, to-wit. f‘ Memorandum of an agreement made and entered into between Gabriel Winter of the…

<p>The question involved in this case,was,whothernwoman married and domiciled in Louisiana, upon the decease of her husband, could claim her dower in a plantation and slaves according to the la,ws of this state, or whether the laws of Louisiana would prevail, slaves being moveable property by the laws of this state, but immoveable by the law of Louisiana.</p>

<p>.A woman married and domiciled in Louisiana, is nevertheless, on tho death of her husband, entitled to dower in real and personal estate, situate here, according to the laws of this state.</p>

<p>The provisions in thestatute for the salo of runaway slaves, are merely directory, and a non-comp!U anee with these provisions does not invalidate the sale.</p> <p>If the slave sell for less money, because of any neglect in the sheriff .to perform his duty, the remedy is by an action against the sheriff for damages.</p>

<p>A party cannot divide an account, though composed of various items, so as to give jurisdiction toa magistrate.</p>

<p>A party may proceed by attachment in this state to recover damages for a broach of covenant.</p> <p>A judgment obtained in Louisiana, upon a proceeding commenced by attachment, is only binding* upon the effects attached.</p>

<p>Tlifi judge of probate has no'po wer to issue a writ of certiorari.</p>

<p>X plaintiff cannot be a witness to'sustain bis account, by bis own book of accounts.</p>

<p>Words morolv abusivo and insulting are not actionable at common law, unless special damages ar* laid in the declaration and proved ¡such words being actionable under the statutes of this state.</p>

<p>A dcfimrlanlexocator can give in evidonco any special matter, without filing a list of offsets, Tinder the g -ñera I issue.</p>

<p>When the defendant in chancery, neither domurB to the bill or pleads in bar a judgment at law, but answers to the merits, it is too late, at the trial, to object, on the ground that a court of law was the appropriate tribunal.</p> <p>A note given for a gambling consideration may be doclavcd void, either at law, or in a court of chancery.</p>

<p>The Probate Court has power to enforce obedience to its orders by an attachment.</p>

<p>It is etror to app oint a widow administratrix of her deceased husband, if site w a minor.</p>

<p>Where an individual dies intestate, leaving no wife or descendants or brothers of the whole blood, •the brothor of the half blood inherits his estate, real and personal.</p>

<p>A promise upon a sufficient consideration made to one, to pay the debt he may be owing to another Í6 sufficient to the third person on which to recover against the promisor.</p>

<p>When the defendant permits judgment to go against him by default, he cannot object to an imparfoc'-tioa in the declaration.</p>

<p>The aüpreme coart is one of limited, not of general jurisdiction, and it must clearly appear, or it doe» not exist.</p>

<p>Upon an agreement to refer a cause pending in court to referees, whose award to bo entered ,88 ft judgment of the court, which was done accordingly, an execution may issue.</p>

<p>A juror cannot be asked, either by the state, or the accused, whether he hasformed or expressed asa opinion, as to the guiit or innocence of the prisoner, before lie is challenged.</p> <p>A hypothetical opinion, or one formed upon lumor, subject to bo changed by the evidence on th* trial, does not disqualify a person fiom serving as juror inthocase.</p>

<p>The deed of a married woman is a nullity — a will probated is operative till revoked by the -propej tribunal.</p>

<p>In sueing upon anote for fifty dollars, the plaintiff must declare for infcurest or tho court has not jurisdiction.</p>

<p>On sustaining a demurrer of the plea of the defendan tthe judgment of the court should be respondeat ouster.</p>

<p>Upon a judgment by default, taken by an indorsee against the indorser of a note, the judgment sfy final without the intervention of a jury.</p>

<p>A count in debt upon a promissory note, may be joined with a count upon a sealed instrument*</p>

<p>Motion for fine against the defendant as Sheriff of Adams county, on return of execution of plaintiff vs. Green and Nevitt, sureties of John Hankinson.</p> <p>Motion for judgment against defendant as Sheriff of Adams county, for amount of plaintiff’s money, interest, &c. in case of plaintiff vs. Green and Nevitt, sureties of John Hankinson.</p> <p>The trustees of the poor aro a public corporation subject to legislative control.</p>

<p>After atrial at law, apartywlllnot.be aided by a court of chancery, unless he can impeach the justice of the verdict or report, by facts, or on grounds of which he could not avail himself at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixod with fault or negligenco on his part.</p>

<p>cited the following authorities: 2Bacon’s Abridgment, pages 341, 345, 347; Landlord and Tenant, pages 311,316, 471; Revised Code, page 170, sections, 7,8,10,12; 3 Saunders, 284; 11 Statutes Geo. II., sections 1,2, 3.</p>

<p>When tl>o declaration leaves a blank as to the damages claimed, or sum due, it is cured by verdict. A defective averment in a declaration is cured by verdict, but not where the total want of titlo appears.</p>

<p>THE LETTER.</p> <p>“Such a length of time has elapsed, since my transactions with Mr. Samuel Pratt, that I cannot, at this time, without turning to my old papers,say what the balance is, that I am indebted to him by th e bond given by me. Whatever it may be, I will discharge it without a suit; and I shall be glad to see you, and arrange the business in question.”</p> <p>This is not an acknowledgment, nor a promise to pay the amount of the bond.</p> <p>It is a promise to pay, without suit,- whatever balance, upofi an examination of his old papers, may be found clue. The court should have instructed the jury that it was not a sufficient acknowledgment to take the case out of the statute; and there being no other evidence of a promise, as the bond was given more than 20 years ago, that they should find a verdict for the defendant.</p> <p>1. — If a conditional promise be made, the condition must be proved, to take the case out of the statute. I Raymond’s Rep389,421; 11 Mass.,-452; Hardin’s Rep., 301; IComyn, 159; 4 Bosanquet and Puller, 20; 8 Cranch, 72; 15 John., 511; 2 Brown 15.</p> <p>This, at most, is but a conditional promise to pay a balance due on the bond, and not an absolute promise to pay the. amount of the bond.</p> <p>Mr. Gaines urged:</p> <p>1. — That the question is, whether tho evidence should go to the jury; tho letter being ambiguous. 1 Espinasse, 435; 2 Starkie, 895; 2 T. Rep 760;4 East, 760; 4 East, 604.</p> <p>2. — The promise must be considered either as evidence that the debt has not been paid, or as a waiver.</p>

<p>‘The statement of a witness that, “so far as he knew or understood, the negroes were the property of the plaintiff,” is incompetent,</p> <p>hearsay evidence must be oxcluded.</p> <p>Records, not directly between tho plaintiff and defendant, yet, if they constitute part of the res gestie, are competent testimony.</p> <p>Cotemporary declarations, constituting part of the res gesta), are competent testimony.</p>

<p>A bill for discovery only, cannot be set down for final hearing.</p>

<p>A party 'Cannot lesoit to a court of equity, to recover tho possession of slaves upon a deed of gift vesting a legal title, _</p> <p>_ A party must recover according to the allegation in his bill; and when he sets forth an instrument as a deed of gift, aDd prays to be relieved upon it, as such, ho cannot, in law, claim a decree, by contending on the trial that such deed is, in fact, a will.</p>

<p>The city magistrate of Natchez, not being a justice of the peace, for the county, is not an officer before whom a landlord can take an affidavit for a destress warrant, for rent in arrear.</p> <p>The motion upon a replevy bond, given by á tenant on replevying g<?ods distrained for rent should bo for execution and not for judgment, the bond operating after forfeiture as a judgment.</p>

<p>A plaintiff lias a right, during the progress of the trial, to withdraw an account filed by him; and if the debits are withdrawn, the credits must necessarily follow;</p> <p>When A. dies, bequeathing a slave to B., which slave is in his possession at the testator’s death, and so remains, the executor of A. may recover hire for the slave, up to the period of one year after the granting of letters testamentary to the executor; he, having by law, that time to examine into, and settle the debts of the est ate.</p>

<p>An attorney's receipt, for the collection of money, cannot he assimilated to a bill of exchango, so as l to require, of the assignee, demand and notice/ ‘</p>

<p>Two witnesses must be present when a nuncupative will is made.</p> <p>No words can bo sustained as a nuncupative will, unless the person using them lias the animaré! k íestandi, and believes himself thatlio is making a will.</p>

<p>The commissioners of public roads are liable to a criminal prosecution iov neglect of duty.</p>

<p>An ofFet of money, in bags, is a legal lender; and it is llio duty ‘ of the roceiver to count it, and cob that thero is enough.</p>

<p>^Wherc a bargain was made for the sale of a gin Bland, the price agreed upon, the purchase money paid, the article in a complete state of preparation for delivery, and requiring no actof the yende'é for that purpose; it being inconvenient for the vendee to remove it, at that time, and remaining by mutual consentin the possession of. the vendor, where it was consumed by fire, without any negligence on his part, — the loss must fall upon tho vendee.</p>

<p>A widow is endowable of on equity of redemption.</p>

<p>A'plea by a surety, of extension of time given by the creditor to his principal debtor, is defectivo it it does not state that it was given without the consent of the surety.</p>

<p>Bill fot a specific execution of a contract, for tho salo or exchange of land.</p>

<p>Where matters in avoidance are stated in an answer to a Bill of Discovery, they aro subject to be supported or disproved by evidence aliunde on both sides.</p>

<p>'TJm city of Natchez is a port of entry.</p> <p>A notegiven to the city of Natchez, “for port duties to Ic collected,” is an illegal contract: being prohibited by the act of congiess admitting the stato of Mississippi into the union.</p>

<p>'the probate judge cannot surcharge and falsify an account settled by a final decree of the coútíty court.</p>

<p>A dismissal of a biilm chancery, for want of prosecution, is nót a bar to a future auit, for the sama cause.</p>

<p>Jl'domurroc to application, opens, to the consideration of the court* the defects in the pleas ofthe defendant.</p> <p>A plea, alleging that the premisos of the plaintiff were not inclosed by a sufficient fence, is not a good defence in an action of trespass stating that the defendant broke and entered the close of the plaintiff, and, with his oxen, &c., destroyed and carried off two hundred bnshels of corn.</p> <p>It is not error for the court to íofnso to charge the-jury upon a certain point, unless it appear by the bill of exceptions, that such point did arise in.the cause.</p>

<p>When the court are about to signafinal decree in chancery, it is too late to move to amend the answer.</p>

<p>The office of an itldicfmentis to connect the libel with extrinsic facts, to show the meaning and heat'-' ing of words and phrases used in it and is necessary, when tho words published woiild not be libellous, unconnected with such facts:</p> <p>The court will regard the use of fictitious names and disguises, in a libel, in the sense that they aré commonly understood by tho public.</p>

<p>•When a defendant in a judgment at law, files an injunction in chancery; upon his death, the wil cannot be revived in the name of a collector acl colligendum.</p>

<p>1 Chitty on Pleading, 358,7, &c., and the authorities there referred to: - — In an action on a statute, the'declaration should show that the act charged to have been committed, or the supposed cause of action was within the provisions of the statute, and all the circumstances necessary to the support of the action must be alleged, and the conclusion of “contrary to the statute,” will not aid the omission.</p> <p>In an action on the statute of Mississippi, for words charged to be slanderous, within the meaning of that statute, it is necessary to allege in the declaration, that the words spoken, “from their usual construction, and common acceptation are considered as insults, and lead to violence, and breach of the peace” — revised code, page 313, section 9.</p> <p>In an action for words that are actionable, only by the statute, it is necessary to allege in the declaration, that they were spoken in the presence or hearing of the person of whom they are spoken; or when they are charged to have been spoken of a married woman, in the presence or hearing of her husband.</p> <p>See the preamble of the statute, revised code, page 311, chapter 55:— Words spoken by one woman of an other, and which are not actionable at common law, do not come within the spirit, the object or the policy of the statute, pr of the evil intended to be remedied by it.</p> <p>The verdict of the jury and the judgment of the court below, being contrary to the evidence, and law of the case, tha same should be reversed, and a judgment awarded by the supreme court in favor of the appellants; or a new trial, in the court below, granted.</p>

<p>The assignee of a promissory note is vested with a legal interest therein, from the date of the assignment; and the service of process ofgarnishment upon the payee of a uote, after asignment, will not affect the rights of such assignee.</p> <p>Choses inaction are not affected by a judgment, not being subject to the plaintiff’s execution.</p>

<p>\Tnder the statute of this state, requiring o.\\sto? offsets to be filed with the plea of payment, thaí plea is nevertheless good, without such list, when the paymentwas made in money.</p> <p>Where, in a suit on a bill single, against the endorser, the defendant pleaded nil debet, payment, prolongation of time to the maker, and that the plaintiff had acquired the writing obligatory, by fraud, it was error in the court to strike out all tho pleas but the first.</p>

The formation and expression of an opinion does not disqualify a juror, without express favor, or express malice. The English authorities to this point, are full and uniform — Co. Litt., 157, (a.); Trials per Pais, 185, 189; 4 Hawk., b. 2, ch. 43, sec. 28; 3 Bacon, page 757; 1 Ch. Cr. L., top of page 442; 4 B. & A-, 470; in 6 Eng. C. L. Pi., 502.

<p>*3/he general rulo is that if no place be fixed for payment or performance, a tender to the person itf good.</p> <p>£n order to make a tender in propel fcylegal, the articles ought to be specifically pointed out, and their identity clearly ascertained, so that the plaintiff might be able to prove them, should he be driven to an action for them.</p>

<p>'Eveiy thing written of another, holding him up to scorn and ridicule, and calculated to provoke a breach of tho peace, is a libel.</p> <p>Questions to a witness suggesting the answer are leading interrogatories and inadmissable. impressions, opinions, and faint recollections not evidence, witthout the facts on which they are founded.</p>

<p>^subsequent mortgages, duly recorded, and without notice, takes precedence of n prior unrecorded</p>

First, After the examination of witnesses on both side! is closed, a party may introduce a witness, unless there be trick or artífice — 4 JBinn. page 200. . Second, The retaining of a bill by the drawee is sufficient evidence of ■an acceptance, but not of payment: Chittyon Bills, 195,304, 388; 2 Camp., 439.

<p>In this case, the only question is, whether the court erred in overruling the motion for a new trial ?</p> <p>There was but one motion made, and that was for arrest of judge* men t, and a new trial, which was treated by the court below simply asa motion for a new trial.</p> <p>Whether any offence is stated in the indictment, or whether the law is constitutional, are questions which Can only arise upon a demurrer ¡or on a motion in arrest; neither of which courses has been adopted by - the defendant.</p> <p>The ground chiefly insisted on in support of the motion for a new trial, is newly discovered evidence, and it appears from the record that the newly discovered evidence was only cumulative. This constitutes no ground for a new trial; 4 Am. Di., 446, sec. 28; 2 Caine’sH., 129,155; 8 John. 84; Smith vs. Bush, et al.</p> <p>The whole evidence is not spread upon the record, to enable the court to judge whether a new trial ought to be granted.</p> <p>The court will not hear, or give sentence in, a criminal case, where the punishment is corporeal, unless the accused is present, or at least under recognizance; or unless his presence is waived; see Chitty’s Criminal law.</p> <p>The offence charged is:</p> <p>“That Whitwell Craft, on the 18th of September, 1830, did improve, clear, clean up, and build houses on, plant and cultivate, and fence certain lands within the boundary ofthat part of said county, (to wit, Coving-ton,) lying and being within the lands occupied by the people called Indians.”</p> <p>Act of February 12th, 1830, page 39.</p> <p>Congress shall have power to regulate commerce with the Indian tribes:</p> <p>Revised Code, page 492.</p> <p>Trial of crimes, jurisdiction of — page 492, sec. 2, 3.</p> <p>Judicial powers of the United States, revised code, 496, sec. 1.</p> <p>Laws of the United States, and treaties; Gray don’s digest, 230, 428-5-6.</p> <p>Gordon’s digest, 264,(1604;) page 267, (art. 1615;) page 761, and note 2K.</p> <p>It is necessary to show his negative averments, and that defendant is not within the exceptions of the statute.; Chitty, 234.</p> <p>Motion for new trial, on affidavits for new trial; the affidavits stating that Craft cultivated the ground under the authority and by virtue of a contract with Susan Nabby, an Indian authorized'to cultivate said lands.</p>

<p>‘íhe supreme court has power to grant a mandamus*</p>

<p>The mortgagor of slaves not liable for hire, on forfeiture of the condition of the mortgage,»</p> <p>The issue of such is not subject to the lien of the mortgage.</p>

<p>There is no appeal from ¿lie “county and probate court.”</p>

<p>it is too late, two years after answer filed, and after the Cause set for hearing and argument, to mov# to amend, by inserting a new charge in the bill.</p>

<p>No writ of error lies to the criminal court of Adams county.</p>

<p>A court of chancery will not enforce the execution of a contract for the sale of a lot and house thereon, intended for a dwelling home, when only half the house and 1 it can be obtained.</p>

<p>The parties toa suit can legally transfer it, by consent, from the circuit court of one county to thai of another.</p>

<p>After verdict and judgmant, no defect in the declaration.and pleadings will be noticed, which raíghí have been taken advantage of by demurrer.</p>

<p>•On a petition for dower, out oí several tracts, sold by the husband in his life time, without the relinquishment of the wife, tho entire portion of the wife ougth not to be assigned out of but one of said tracts.</p>

<p>.Plea of release should have been sustained in hill to plaintiff’s action, '•and the demurrer to said plea overruled:</p> <p>First — Though this release be not technically formal, (for want of a seal,) yet being substantially good, and equivalent, in effect, it may be pleaded asa release; Or.El., 352;de., 623; 2 J. R.,186; 8J. R.,46.</p> <p>But this release, which is certainly formal in all its phraseologies, is not prejudiced because no seal is affixed, inasmuch asa parol release of a sealed instrument is sufficient; 14 J. R,, 330; 1 Sergeant & Rawle, 312; and especially so, if on sufficient consideration, as we insist this is expressed to be; 1 Cow., 125-6; 13 J. R., 87; 20 J. R., 463-4.</p> <p>Second — A release of one joint obligor is a release of both, or all; Co. Litt.,232 and 144; 2 Saunders, 48' a; 7 J. R., 207 ; 8 J. R., 17Í; 13 Mass., 188; 17 do., 518.</p> <p>. Hence, the above release being good to Semple, (the joint obligor with appellants in testate,) as founded on a good consideration, is good to us, and a seal was unnecessary; 1 Sergeant and Rawle, 3’"! 1 Rawle, 391; 14 J. R., 330-1 Cave, 126.</p> <p>But a second error of this record, and one so manifest as to admit of no doubt, is found in the verdict and judgment given in the court below.— This second defect goes to both form asubstance, and it is substantially defective in this, that the record ffAy shows the bond declared on to be conditioned for performing otter things than payment of money, and yet there is no suggestion of beaches of condition; and no breach of condition is found by the verdict if the jury, for which, only, they could assess damages. Our statute, on this point, is imperative — the words “may assign, 8¡c.f being construed as must-, revised code of Mississippi, pago 117, sec. 55; 1 Saunders, 58, n. 1; 4 J. R., 213-14. (Cite J. R., 187, n. 2; 8 J. R., 126.)</p> <p>Judgment isformally defective in this: that it is rendered for the “damages,” when our statute says that judgment on such bonds shall be “cn-iered as heretofore,'1'' which was, and therefore yet should be, in'default; 8 J.R., 115,116, 111, 112,4 p;n.; 1 Saunders,58;2 Wash. Rep., 143; 1 Mumf., 175; 5 Bac. Ab., 156.</p> <p>And if plaintiff take judgment without assigning breaches, and without damages being assessed upon inquest of breachesfrst found, it is error; 4 J.R.,213, 214; 5 J.R., 546; (2 Burr’s, 820; 8 J. R.,126; 2 Wilson, 377.)</p> <p>Therefore I conclude this judgment must certainly be reversed, and judgment rendered on the demurrer for the defendant below.</p> <p>Contracts are discharged two ways; one by discharging a party from the obligation to perform the contract; the other by a performance of it.</p> <p>The obligation to perform the contract; that is, the original contract itself, can only be dissolved by an act of as high a nature as that which created it: Eodem modo jus oritur, eodem mododissolvitur.</p> <p>A release or defeasance must be by deed under seal to discharge a contract under seal. It goes to the original obligation, and discharges the party fxom the performance; and it must also be a technical release, not barely a Covenant perpetual, not to sue, which is only a constructive release to avoiu-;rcuity of action: 6 Johnson’s Ch. Rep.; Coke upon Little-ton, 2646; 5Bac ’s Abridgment, 682,title release; IPothier, 397, note and appendix, 2d vol.., 2 Bacon’s Abridgment, 63.</p> <p>But the evidence of a -serformance which discharges a contract, need notbeunder seal, as a receipt^ a part for the whole; though in such cases, the great rule is the intention <,f the parties,</p> <p>The evidence must be that the paring intended a part performance, as a full performance; andan agreement to ^cept a part, for a full performance, though not under seal, yet, if for a Valuable consideration, and not a nudum pactum, will discharge the whole. Ho of a receipt in full for the whole. But a receipt in full to one of the joint debtors, of his share of the debt, will not discharge the other debtor; because it is not intended^ Boris it an acknowledgment that the whole debt is paid and satisfied by payment oí'a part; and the case in 1 Rawle, 391, cited by Mr. Henderson, is decided by the arguments of the two lawyers, who argued the case upon the bench, Huston and Gibson, in opposition to the judicial opinion given by judge Todd, and is contrary to the rule, both of law and equity courts.</p> <p>It is unsupported by the two cases referred to, 1 Sergeant & Rawle, 312, and 14 Johnson, 330. In the case in Johnson, the court only decided that a subsequent parol contract was a valid contract; but they do not decide that it was a release of the original contract under seal; in Sar-geant & Rawle, that a gift of a mortgage debt by a father to his daughter discharged the daughter from the debt, according to a decision of Lord Mansfield in Burrows, in order to effectuate the intention of the father as a gift; but neither case decides it tobe a rule, that a release not under seal is not a valid release.</p> <p>Huston & Gibson’s labored argument and citation of authorities to show that a release of one of two joint debtors isa release of both, isentirely unnecessary, as no judge or lawyer ever yet questioned that principle. The courts of chancery have inclined to the rule of the Roman law, which restrains the operation of a technical release to the intention of the parties: 6 Johnson’s Chancery Reports, appendix; 2 Evans’ Po-thier, 62 to80; 4 Greenl., 421; 7 Johnson, 207;2 do., 186, 449; 1 Evans’ Pothier, 397, note, 571; 9 Cow<m, 37. See 1 Wheaton’s Selwyn, page' 472; note 2 Cowen,</p> <p>But the cases relied upon by Mr. Hendarson, are cases of performance or part performance; and, in none of the cases, could the evidence be pleaded in bar, as a technical release: see the case in Sergeant and Rawle 1 Pothier,215, [358;] 1 Sergeant and Rawle, 312; S &9 John,, and 4 Cranch, cited by him. Such receipts were only prima facie, and not conclusive evidence, and are not to be extended by the construction of the court, beyond the intention of the parties. But a release is conclusive; and if given to one, will discharge all the obligors or debtors, whether such was the intention or not.</p> <p>But, if the court should give the instrument the effect of a perfectly technical release, under seal, yet the demurrer ought to be sustained; because the bond described in the instrument, relied on as a release, is not the bond sued on; the bond sued on being a bond for the payment of money, as appears by the verdict and judgment rendered under the 56th section, in the revised code, page 117; the same with the statute of Anne. But the bond, described in the release, isa bond conditioned todo some-other thing than the payment of money.</p> <p>By the demurrer, we admit the existence of the instrument pleaded as a release, and all the facts stated in the instrument; but we say the facts stated in said instrument show that, if a release at all, it is a release of some other bond than the one we have sued upon.</p> <p>Had this release been pleaded as a condition of the bond, and on oyer spread out in the plea; it would riot have been evidence, on record, of a condition to the bond; and, on demurrer, such plea would have been overruled; — much less, when pleaded as a release, is it evidence of a condition. The supreme court will take no notice of a condition, unless spread on the record by oyer.</p> <p>’ But a judgment for the whole penalty is correct, and not erroneous, even-under the- 55th section, statute of William. But the plaintiff can only take out execution for the damages assessed by the jury, for such breach of the condition; an<3 the judgment is to stand for any future breach, until the whole penalty is paid: so that there would be rio error in a judgment .for the whole penalty, upon nil dicit, -default or judgment on demurrer, tho’ breaches were not assigned, even if ^as a bond conditioned to do some other act than the payment of a sum certain. But the verdict and judgment show that it is a bond conditioned for the payment of money, and then, by the 56th section, the queen Anne act, no assignment of breaches is necessary, as a jury is not required to ascertain the amount of damages; the amount being ascertained by the condition of the bond, and being merely a matter of clerical calculation.</p> <p>But, in this case, it was not a judgmentupon a demurrer barely; but a plea of fraud was put in, which the plaintiff denied, arid the jury found a verdict against the plea.</p> <p>Mr. Henderson contends that his plea of fraud shows that there was a condition to do some other act than the payment of money. But we deny his plea; and our denial cannot be construed into an admission of the fact. There might have been fraud in pocuring another bond with a condition such as is stated in the plea; as also there may have been a release of such other bond; and on that very ground, for aught the court can see upon the record, the jury might have found against the plea of fraud, because the fraud was applicable to another bond having such a condition as is stated in the plea, and not to the bond upon which we have sued, as is alleged by the plea, but denied by the plaintiff; 1 Wheaton’s Sel win, 485; 9 Eng. Com. L. Rep., 37; 8 John., Ill; 3 Bos. &Pul., 607.</p> <p>A discharge to the surety does not discharge the principal debtor in equity; the rule of the civil law; 6 John. C. R.; 1 Pothier, 403, margin 581; appendix, 2d vol., pages 71 &■ 72.</p>

<p>Whore two judgments wore rendered on the same day, preference will be given to the one first enteré</p>

The bill charges that Gervais, in 1825, recovered judgment for '$3037 24, against complainants; — that at April term, 1826, they paid $1200, and that they paid the balance and cost to Gervais, through Mi Morse, in whose hands they put 120 bales of cotton for that purpose, the proceeds of which was $4274 75, — also that they had settled up with Morse for his store accounts, for all which he receipted in full; that the execution was not Credited as paid, but fraudulently kept…

1. The award was not an instrument signed by the party to be charged; therefore not within the statute. 2. The plaintiff was bound to prove a submission at the nisi prius trial, and a non performance by the defendant — 2 Phillips, 71; 12 John. Rep. 397. The award itself must have been proved — 2 Phillips, 71.

<p>^Depositions will not be excluded because in the hand writing: of the attorney of the party taking'</p>

The plaintiff contends that a want of prohable cause for the prosecution and malice is shewn in this case: First, That malice will be inferred from a want of probable cause, and Second, Malice is, in this case, expressly proved. (See evidence.) 1. That it was the province ofthe jury to weigh'the testimony and the credibility of the witnesses, and the court could not instruct the jury that probable cause was shown.

<p>In this case, the court below overruled the motion to quash the execution, and discharged the supersedeas.</p> <p>The counsel for Meredith contends that the execution was void, being signed “W. Baker, D. Clerk;” and the name of the clerk of the circuit court of the county of Amite, (out of which court the execution purported on its face to have issued,) not appearing on any part of said execution.</p> <p>In support of this position, I will cite the twentieth section of the circuit courtlaw, revised code, page 106, to show -that the clerk of the circuit court shall issue all the process of the court, and that, although, by section 12, of the same law, page 104, clerks of circuit courts may act bydeputy, it -is conceived to be essential to the validity of process that it shall appear who it is that thus acts- so that the clerk thus acting by deputy shall be responsible for the acts of his deputy. It has not unfrequently — or has sometimes happened that two individuals claim to be clerk of a particular court. In such a case, would it not be important that process issuing out of such court, (if purporting to be issued by a deputy,) should show by whose deputy the same may be issued.</p> <p>Again, this construction as to the powers of clerks and their deputies seems to be sanctioned for a further reason. — Clerks of courts are constitutional officers of government. See Revised Code, page 651, section 11; and all citizens are bound to know who fills each and every office of clerk, and the name of the clerk should appear upon the process,; and it is a mere privilege given to clerks by statute, to act by deputies — but it must, be the act of the clerk by the deputy, and not the act of the deputy. This act of the clerk may be by the deputy signing the name of the principal to the process simply, or it may be by signing the name of theprirs cipal by the deputy ,• but the name of the deputy without the name of ths principal, as in the case before the court, is not sufficient to make the process valid.</p> <p>It is contended on the part of the plaintiff that the court below did not err in over-ruling the motion to quash.</p> <p>1st. Because it is believed at Common Law it was sufficient in all cases where the duties of an office could be discharged by deputy, for the deputy to sign his own name without signing that of his principal.</p> <p>The statute of this State authorizes the clerks of the several Circuit Courts to appoint deputies, with the approbation of the court. Revised Code, page 104, sec. 12. It is believed that the approbation of the court is always expressed by directing the appointment to be entered on the minutes of the court.</p> <p>The statute provides that all the duties of the clerk may be discharged "by.the deputy so appointed. It however does not specify in what manner the deputy shall sign process, &c. in the discharge of those duties.</p> <p>The statute which authorizes the appointment of deputy sheriffs particularly directs that the deputy shall not only sign his own name, but that of his principal also, and assigns the reason why he shall so sign, to wit — to prevent disputes, &c. Revised Code, page 251, sec. 9.</p> <p>It is therefore insisted on the part of the plaintiff, that the Legislature did not intend to alter the common law practice as respects clerks. That the Legislature believed the common law practice to be such as above stated, is evident from the fact, that in the case of sheriffs, they particularly direct the deputy to sign the name of the sheriff.</p> <p>2d. Where is the necessity for the deputy clerk to sign the name of his principal. The appointment of the deputy is a matter of as much public notoriety as that of his principal; the appointment of •both is entered on the minutes of the court.</p> <p>It is conceived that the responsibility of the principal clerk for the acts of his deputy is not increased by the deputy’s signing the name of the principal, nor is it diminished by his omitting to do so. To fix that response bility in a particular case, it is only necessary to shew that the principal generally recognized the individual as his deputy, or that he recognized him as such in the particular case.</p> <p>Suppose the individual in the particular case wholly unauthorised to act as deputy, and has signed his own name as deputy, and the name of the principal clerk, .also, in the manner in which it is contended on the part of the defendant a deputy clerk should sign, is the mere fact of his having so signed, any evidence against the principal? It is conceived it is not.</p> <p>The section of the statute which directs .that all process shall be issued by the clerk, &c. and that which authorizes the clerk to appoint deputies, both relate to the same subject matter, to wit— the duties of clerk, and the discharge of those duties, and should both be construed together. When so construed, I think the court will have little difficulty in determining that whatever is done by a deputy in discharging those duties, is, in view of the law, done by the clerk himself.</p> <p>The supposition that two individuals may claim to be clerk of the same court at the same time, is not improbable; but that both should be acting clerks, and both have possession of the sealed records of the court, is scarcely possible.</p> <p>It is contended that if the statute made no provision for clerks to appoint deputies, and was entirely silent on that subject, they would still have the power to appoint deputies, and to discharge the duties of the office by deputies, such powers, having always belonged to the office of clerk or prothonatory.</p>

<p>Tho purchaser at Sheriff’s Sale of a tract of land, for which the defendant on the execution held only a bond to make title, takes it, subject to the vendor’s lien for the purchase money.</p>

<p>A court of equity will not enforce a specific performance of promises founded merely on benevolent intontions, without any consideration on which to base them.</p>

<p> In Chancery bill filed to injoin a judgment at law, and for an account and general relief. </p>

That the authorities cited by the counsel for the appellant could not apply in this State.

<p>It is not questioned by the appellant, but the authorities are somewhat multiplied, going to show that, where there has been a special agreement, the terms of which have been exeuted by the party who seeks its enforcement, should he fail to prove the special contract, as declared on, he may recover on the common counts, if the evidence offered is adapted to sustain them — “supposing there had been no special contract” on the subject.</p> <p>Yet, were this question res integra, or if not concluded by the decision of this court formerly made, I should insist that a party could not desert his special contract under any circumstances; see 18 J.R., 456; 13 do., 94 to 97; 1 Bibb, 172; 1 Tyler, 182; 12 J. R., 275; 14 do.', 326 ; 2 Term Rep,, 104.</p> <p>But the question now before the court is — not whether a party shall be bound to rely upon his special contract, exclusively for recovery, but,— Firstly: Whether he shall not declare on his special count?</p> <p>Secondly: How far proof of a special contract shall be applied to support the common counts? and</p> <p>Thirdly: Whether or not proof of the special contract in this case thai “plaintiff should build defendant a gin, and find all the materials, and defendant should board all plaintff’s hands, while building the gin, and pay him in addition therefor, $350, is pertinent proof, under the common counts for work and labor in building a gin, without any count or charge in the same,for any materials furnished, whatever?</p> <p>The reason indicated by the first point is obvious to all, and constitutes two of the first principles in pleading, viz. that the party called into court shall be advised by the plaint, as to what he is required to answer, and defend himself: and, also, that the record and proceedings shall be sufficiently explicit in exhibiting the subject of controversy, as to furnish evidence in bar to any subsequent action, for the same cause in point of fact; 10 J. R.; Doug. 24'; 4 Bos. & Pul., 351; 2Mumf., 345; 1 Bibb, 595; 5 Mass., 391; 4 Cr., 239; 4 East, 148-9; 3 Bos. & Pul., 584.</p> <p>The fact, too, is of no little weight that this form of declaring, (i. e. of setting forth the special contract) has been usual, where the question of recovering on the common counts has arisen; see 10 J. R., 37; 7 do., 133 ; 13 do.,96-7; 12do., 274,14 do., 326; 18 do., 451; 5Mass., 393;4 and 6 East.</p> <p>Second point we think sustained by the cases quoted, which require the proof to be such that, if there had been no special count, it would have been adjudged sufficient, and applicable to the common counts. Does proof of this special contract resemble the counts in this'narration? See 2 Stark. Ev., 95 and 96; and note of cases before cited.</p>

<p>Although a special contract existed, and is proved, yet the plaintiff may recover solely on the common counts.</p>

<p>A Divorce, “a mensa et thoro,” will be decreed for continued ill treatment. Adultery may Be set as a bar to alimony.</p>

<p>On apetition for dower, out of several tracts sold by the husband, in his life time, without tils relinquishment of the wife, tho entire portion of the wife ought not to be assigned out of but one of said tracts.</p>

<p>ttt d. bill to set. aside a voluntary deed a charge “that the grantor was indebted for transactions* before and since tho transfer, and that without the property transferred, there will not be enough to pay his debts,” is not sufficient.</p>

<p>A mortgage oxecuted by husband and wife, resident in this State, according to our forms of conveyance, upon lands situate here, is binding, and the wife cannot set up amarriage contract in Louisiana, by which they agreed that the piopeity acquired should be governed by tho laws of Louis-</p>

The note is alledged to have been made out'of the state, to wit: — in Washington, District of Columbia. In all cases where the note is made out of the state, the interest must be found by the jury. Hardin. 44, 5.. Judgment by default— The judgment should state the rate of interest,. 2d Bibb. 223;. 101 Harper’s Bell.. In cases on foreign contracts. — The interest is a matter of fact and as all other facts should be found by a jury. 2d Bibb. 634; Davidson vs. Gohogin.

<p> On a Motion to Dissolve the Injunction. </p>

<p>Tho plea of payment admits the execution of the bond sued on.</p>

<p>£11 a bill quia timet, it is necessary to allego and prove that the complainant will bo damnified by the act, to prevent which ho prays the interposition of the court.</p>

<p>Whorothocorisidemtion, upon which an instrument was given, is oxpressed, no other and differeni consideration can bo alloged or proved.</p>

<p>'*Tho docisions of tho board of commissioners, undor tho acts of 1803, &c., respecting tho public lands aro final, as regards tho United Statos.</p> <p>Tho chancory courts of this state will not entertain an inquiry into a chargo of fraud against a paton-teeoftlio United States, at tho inatanco of a volunteer, and_ not directed by tho government of tho United States.</p>

Wiley M. Pope, at the Yazoo circuit court, October term, 1828, brought an action of debt against Elias Oldham and Jonathan Brown, founded upon two records from Green county, state of Alabama; one for $121. 38i, and the other for $75.99¿ These records are described in a transcript thereof, annexed to the declaration of Pope. A joint judgment, in favor of Pope vs. Oldham and Brown was obtained at the same term, in the Yazoo eircuit court, for 213 dollars and 81 cents.

First — The court below had not jurisdiction to try this case, inasmuch as the law requires that loth associate justices should be present; 34th cb., revised code, page 226. Seeond— There was no legal'notice: 1. Because it was not served three days before the time of trial; and 2. Because the writ was not left with the defendant so that he might return the same; see rev. code, page 222, sec. 2.

<p>debt for tho penalty under the statute against cutting down trees, the defendant having cut the treos for building a bridge, is within the exception of tho statute, in favor of public roads.</p>

<p>When-die remedy ia purely legal, a court of equity will not entertain, jurisdiction, although the* de* fondant may have answered, instead of demurring to the bill.</p>

The court below erred in its charge to the jury in this case, and in all the opinions expressed in said charge, and the judgment should have been for the plaintiff, and not for the defendant. The settlement of an administrator’s account in the orphans court, whatever may be its effect in relation to distributees, is only prima facie as to creditors; See acts 1824, page 107, section 3.

The first, (so called,) is no plea; it has no conclusion whatever, and shows no reason why the plaintiff ought nottorecover; a plea must set out facts, and ask for some judgment; Chitty, 536, Each plea must be good in itself; one cannot he supported by the other, unless expressly referred to: they are as separate as if they were in distinct words; 1 T. R., 125; 1 Starkie Ev.,359, note 1; Chitty, 543, 481-2, note 1; Willis R., 380.

The bill prays for a new trial at law, oh the ground that the verdict is unjust and oppressive, and - that his defence was not there made, because of an accident to the horse of the attorney substituted for the attorney first/ by the complainant employed. In order to set aside a verdict on bill for thatpurpose, there must he injustice in the verdict, concurring with fraud in the complainant at law accident or mistake. Dodge, et al. vs. Strong, 2 J. C. R., 230.

<p>First— That the plea of nonest factum was sufficient for the defendants to have given in evidence an erasure in the bond; 5 Dane, page 417.</p> <p>The court erred in refusing to charge the jury that the bond was void as to Martin, one of the defendants. An erasure in a bond makes the bond void, though the erasure be immaterial, if done by a party thereto; but, to make the bond void, when done by a stranger, it must be in a material part; 1 Swift’s System, 310; 11 Coke, 27.</p> <p>Mr. Nabb was the agent; otherwise the bond never was perfect, because the delivery was to him. The alteration was made by McNabb & Shoape and consequently by a party to the deed; therefore void.</p> <p>But the erasure was in a material point. Martin and Quin were changed from principals to securities. If Martin paid the bond as principal, then Quin was bound to him for one-third only. But if as security, and Shoape should be insolvent, then Quin was bound for one half to Martin. This shows the erasure to be in a material part. '</p> <p>If the erasure was in a material part, the judge should so ¿ave declared it, and have charged the jury that it was void. He failed to do this, and, therefore, the judge erred when he refused to charge the jury that the bond *was void; 6 Dane, ch. 182, a, 5, page 232.</p> <p>Second — That the court erred in refusing to grant a new trial. New trials will be granted where the parties are taken by surprise. In this case, the erasure in the bond was a material enquiry. At one court, Me Nabb, the witness, swore that he did not recollect who waspresent, or that any one was, when he altered the bond. Was it not surprising, then, that he should have stated, at a subsequent court, 'that Shoape was present?— If the bond was altered in a material part, Shoape was discharged if he did not assent to the alteration. The plaintiffs were bound to prove this assent. Their ^witness, and their only one, failed to prove this fact at a former trial. Without this proof, Shoape was protected from a judgment, He was led to believe that this consent could not be established, and induced to rest his whole cause upon that single point. Then, for the same witness to come in and state that Shoape was present when the bond was altered, and consenting thereto,- thereby establishing the legality of the erasure, was enough to create surprise.</p> <p>The discovery of new and material testimony, after the trial, or which could not be had before, and which is not cumulative, is sufficient to authorize the granting of a new trial. The facts necessary are established by affidavits in the cause. Therefore the court errred in granting a, new trial.</p> <p>First — That a plea in bar, and a demurrer cannot both be allowed, at the same time.</p> <p>Second — That there is no bill of exceptions, because the evidence is not embodied in it.</p> <p>Third — That the erasure was immaterial; Shoape was the undertaker, and Martin and Quin his sureties; 2 Starkie, 475 to 480; 2Cow., 781;— Comyn on Contracts, 23; Acts of 1826, 7, 8.</p> <p>Fourth — A new trial will not be granted to enable a party to impeach the credit of a witness.</p>

<p>£f Ihe sheriff fails to rotura an execution on the return day, he is liable, on motion, to judgment for the amount of the execution, with 8 per cent inteiest, and5per cent damages.</p>

<p>¿IOxh heating, and decision of thocouitof a demwror to a bill, fox want of equity on iisfacc, it is too Zato to amend.</p>

<p>A court of law cannot euquire into and enforce a parol contract for the sale of land, although performed in part by dolivory of possession.</p>

<p>'Where A. agreeodin writing, in consideration of his own note, to B., for 2,850 dollars, due 1st January, 1830, and also of his transfer to J3. of C.’s noto for 2,350 dollars, to pay 33. two hundred dollars, in case both notes were not paid by tho tenth oí January, 1830, this is not a contract to do an act, the nort-performance -of which would justify a stipulation for specific damages; and the rate of interest is tho only legal measure of damages,</p>

<p>St is the universal practice to permit sheriffs to amend theirjreturns, agreeably to the facts.</p> <p>An erroneous charge upon an abstract point, which did not arise iñ the case, and could not prejG*1 dice the cause, is not a ground for reversal.</p>

<p>Whore it was doubtful whether the instrument offered in evidence was a deed or a will, the facte of* its execution and delivery, and declarations of the maker at the time, together with the instrument* should have been permitted to go to the jury.</p>

<p>'The circuit court can grant a mandamus to the county court, when there is no other legal remedy.</p> <p>The county court is empowered to settle and allow all claims against the county, and to levy ¡a tax for their liquidation; and, if it refuses to do so, this court will grant a mandamus.</p>

<p>Notice of protest, left at the nearest post office to the residence of tho endorser, where ho does no reside in town, is sufficient. C. gave two promissory notes to 33., which 33, endorsed to S., and S. sued both 0. andB. on one of the notes, and obtained judgment against (J’s. administrators, but was nonsuited in the case against B: Ó. having died insolvent, S. had the amount of Ins judgment and of the remaining note both allowed, by tho commissioners of insolvency, and received a dividend of 72 cents to the dollar, on his whole demand, embracing both the judgment and the noto. In tho caso of S. against 0. on the second note, the amount of the 72 per cent dividend should be credited on each claim, pro rata, and not to appropriate to the judgment first, and' then the balance to the 2d note.</p>

<p>This is an action of debtbroug,t by william Balfour, in his right as administrator of James Mathie decea&v^ and founded on the promissory note of Caradine, made by him to the said westate, on 19th January, 1828, for $157.82.</p> <p>The declaration alleges that plaibtiff obtained letters of administration from the orphans’court of Madison couuy5 and pleads prof ert of them.</p> <p>The defendant below craved oyer, set few, ¡bg paper rend to him, and demurred. The paper of which oyer wag giv»n, was in words and fig' ures following, to wit:</p> <p> “State of Mississippi, Madison county: </p> <p>Orphans’ Court, July 1829.</p> <p>Ordered by the court that William Balfour have lett®rs of administra^ tion on the estate of James Mathie, deceased, William Gartty and William L. Balfour be appointed securities.” Which paper was. certified by the clerk of the Orphans’ court.</p> <p>The defendant below assigned for cause of demurrer that the paper produced in oyer was not the letters of administration, but was a mere order; of court which did not appear to have been complied with; nor did it show that letters ever were issued. The court overruled the demurrer. The. defendant then plead in two pleas in bar</p> <p>1. Nemques administrator;</p> <p> 2 Payment to intestate.. </p> <p>In support which latter pfea, defendant filed'a bill’of discovery, which was disallowed by the court, and to which defendant excepted; and withdrew his plea of payment, after his bill of discovery had been disallowed. The case then went to the jury, on the other issue.</p> <p>rJ?he paper read in oyer was all the evidence offered to the jury, to the admission of which, and also to the court’s charging on the weight of evidence, the defendant excepted. The jury found a verdict for plaintiff, and judgment was rendered thereon.</p> <p>íhe defendant’s bill of discovery ought not to have been rejected. As the statute of 1S28 has transferred to courts oflaw the power to grant bills of discovery, if a court oflaw improperly refuse to allow the bill; see statute of 1829, page 109, ch. XC. It is an error at law; the defendant has a right to except to such illegal opinion; and an appeal, or [.writ of error to this court can alone be resorted to for relief; 1 Pothier, Evans’ edition,from page 478 to 503, and more particularly pages 492 and 493.</p> <p>By the bill, the intestate appears to have sold 39 bales of cotton and received the money, ones,quarter of which belonged to the defendant. The intestate held this money for the defendant’s use, and the court of law had full power to render him relief, under the statute of this state- relative to pleas of payment; see Rev. Code, 118,119, sec. 61'.</p> <p>The intestate and defendant’s being joint owners oí the cotton at the gin, did not constitute such a partnership as required the defendant to resort to a court of equity; and all other matters relative to the crop, appear by the plaintiff'1 s declaration to have been settled in January previous_ When the intestate converted this cotton iDto money, the joint ownership ceased, and the defendant has a legal right to one fourth part of the: money.</p> <p>If a third person had taken and converted the cotton into money, the defendant could have sued for his share at law. Defendant might even have sued Mathie, in his life time, and therefore had a right to interpose this matter in defence.</p> <p>2. The courthelow ought to have given judgment on the demurrer hr favor of the defendant; for there is s.fatal variance between the proferí in the declaration and the oyer granted.</p> <p>That the plaintiff below was administrator is a material fact, without which he cannot recover. The craving of oyer, and the plea of ne unqueS administrator, informed and gave notice to the plaintiff that he would be required to prove it. The proof admitted of record evidence, and as plaintiff has chose to make that proof a part of his declaration, the insufficiency of it may he taken advantage of by demurrer.</p> <p>But if the court should not think this the proper mode to take advantage of the defect, they will find the point reserved in another form in the second hill of exceptions.</p> <p>The record produced is no proof of the plaintiff’s being administrator. It does not show that letters of administration were ever granted. The plaintiff only shows an order to grant them, and an approval of the court of the securities; but does not show that they were granted; nor does the plaintiff show that the administration bond was ever executed, or that he ever accepted the trust, or was ever qualified, as the letters themselves, oí-an exemplification of them would have shown, had they been produced; see form of letters of administration; see also form of bond and oath — Revised Code, page 39, sec. 39; see also Rev. Code, page 37, sec. 33.</p> <p>The first part of section 39 requires the bond to be given and the oath to betaken before the letters issue.</p> <p>The proof offered by the plaintiff was not such as is required by law, in cases of this kind. It is not the best evidence the case admitted of ;^2 Starkie Ev., by Metcalf, ñ53; 1 Phillips’ Evidence, [176] — chap. 7, section VI.</p> <p>3. The court below also erred in letting the transcripts of the "orphans’ court be read to the jury, and also in charging the jury on the weight and sufficiency of evidence; thereby muzzling the jury, and not allowing them the liberty to think for themselves; Rev. Code, 137, sec. 144.</p>

<p>A prison bound bond given by n defendant, in custody on n ca. sa. payable to the Marshal of the tf. S. for this district, is void; the existing statute of this state, requiring such bonds to be made payable to the plaintiffs in the executions.</p>

<p>A recognizance must be taken for tho appoaranco of tho accused in criminal cases, removed into the Supreme Court from tho Circuit Court, ortho writ of error will not operate as a supersedeas.</p>

<p>In the action of detinue the service of the writ is a sufficient demand.</p> <p>This court will not notice errors in opinions given by the judge below if not oxcepted to*</p> <p>The jury should assess the separate value of each and every article found; but if not dono7 unde? our statute the court may award a writ of enquiry to ascertain the same.</p>

<p>!ího doctrino that a patty to a negotiable instrument is not a competent witness to affect it, doeEf not apply wliorotho endorser is offered to prove some fact transpiring after the papor had passed out of las hands.</p>

<p>Tho statutes of limitations of another state cannot bo pleaded in bar hero, but the courts will confine themselves to their own statutos.</p> <p>But, where the statute of limitations of Kentucky not only bars tho remedy, but takes away tho right and confers title, such statute may bo pleaded, with an averment that .the party acquired title thereby. An executor, in Kentucky, may authorize a legatee’in this state to sue. .</p> <p>. Itis not error to peimit a deposition, informally taken, to bo road, where it was tho condition upon» which a continuance was granted.</p>

<p>Where a defendant was delivered by the marshal of the U. S. Court in Kentucky to the county jailer} tho jailor was authorized to take a prison bound bond, according to tho laws of Kentucky. But tho discharge of such prisoner under tho insolvent laws of Kentucky is not a good defence to an ac « tion on the prison bound bond.</p>