Volume 10 — Mississippi Reports

This was an action' of indebitatus assumpsit for work and labor and materials furnished, brought by Edwin Moody against Letitia Dickson, to the May Term, 1838, of the circuit court of… Held: that it was no independent contract, but a modification of the original contract. 10 J. R. 420. But where it is for a new subject matter, distinct from that of the original agreement, it is a perfectly new agreement. Esp. N. P. part 2, p. 119. 1 Bos. & Pul. 73. Such is the present case.

The facts of the case fully appear in the opinion of the court. . Unless it be necessary for a jury, in a special verdict, to find facts, which do not exist, to find that everything did not happen, which might have taken place, the first error is well assigned. Because, it is clear that the transaction was not usury; there were none of the ingredients of usury found.

<p>On appeal from the probate court of Carroll county.</p> <p>The appellees, James Young and Sarah A. his wife, formerly Sarah A. Green, filed their petition in the probate court of Carroll county, setting forth that Sarah A. was one of the heirs and legatees of Frances Beazley, deceased, who by her last will and testament, among other things directed that a certain slave, named Jim, should be set free, and that the appellant, who was appointed executor of her will, should make application to the legislature for the emancipation of said slave. The petitioners state their belief that the clause in the will which refers to said slave, is void by reason of its being contrary to the policy of this state. They also state that said negro never has been emancipated by an act of the legislature. Thejr further set forth that Sarah A. together with Frances Taylor now Frances Sanders, and Eliza Williams, were by a clause in said will made residuary legatees of the estate of Frances Beazley, one half of the residuum to go to Sarah A. and one fourth to each of the others. The petitioners claim an interest in one half of the value of Jim, by virtue of the residuary clause in the will, and pray for an order or decree of the court for the sale of said slave, and the distribution of the proceeds among the residuary legatees. The appellant, as executor of the will, opposed the petition, but the court granted the order, and directed the executor to advertise, &c. and sell the said slave on a credit of twelve months. From which order the executor appealed to this court. By the will which is made an exhibit the executor is directed to petition the legislature for the'emancipation of said slave on account of his meritorious services, and in the meantime to take charge of him, giving him the benefits of his labor until the favorable action of the legislature could be procured.</p> <p>The clause of the will was in these words : “ The very faithful and meritorious services of my negro boy Jim, I cannot consent to pass unrewarded; my will, therefore, is that for said meritorious services, the said Jim shall be forever set free, and I hereby charge my executor to set forth the said meritorious services of the said Jim, with this part of my will, in a petition to the. legislature of this State, and procure an act for the emancipation of said Jim, with the least possible delay, and further that my executor take charge of the said boy Jim, give him the exclusive benefit of his own labor, until he can procure the passage of the said act.”</p> <p>The errors assigned are</p> <p>1. That the probate court ordered a sale of property it had no power over, the same being held in trust by the executor.</p> <p>2. That the negro Jim, was never in the possession of the appellant as executor but as trustee.</p> <p>3. That even if Jim was the subject of sale and distribution, it was erroneous in the probate court to make that order in this case, because the other claimants were not parties before the court.</p> <p>It is contended, the court ought not to have granted the order for sale of the slave upon the petition of appellees (if it presented in other respects a case proper for the order) without having before it all the parties interested in the subject matter of that order. The residuary legatees were all interested — if the slave does not pass under the residuary clause, in an order for his sale at the instance of one distributee or legatee, the other dis-tributees should all be made parties. It is not sufficient that the legatees should be named in the petition. They should have been made formal parties. See Edwards’s Parties in Chancery, pages 1 and 2, and authorities. H. & Hut. Digest, 402, ch. 36, sec. 61.</p> <p>The provision in the will concerning the slave in controversy is expressly sanctioned by the seventy-fifth section of the act respecting the emancipation of slaves, passed in 1822. Rev. Code, page 385. It is therefore a legal trust which the will imposes upon the executor. And the probate court has no right or power to take that trust out of his hands, or to interfere with his control over the subject of the trust. It is not stated in the petition that the executor had failed to procure the favorable action of the legislature, nor that he had suffered a reasonable time to elapse without making an application for that purpose. See 2 Call. 317 and 357. 1 Leigh, 172. 4 Wheaton, 35. 1 Coke. 22, b. Porter’s case.</p> <p>It does not appear in the petition, nor in the copy of the will, nor in any part of the record, when the will was proven, or when the executor qualified; by the law a legatee or distributee cannot demand the legacy or distributive share for twelve months after the executor qualifies ; for aught that appears to the court, the executor might not have qualified more than a day before this petition was filed. See H. & H. Dig. p. 406, sec. 70 and 71.</p> <p>Personal property is to be sold by order of the probate court, on the application and petition of the'executor, here he never applied to the probate court for order of sale.</p> <p>We submit to the court to decide whether the slave would (if the will cannot be carried into effect in relation to his emancipation) go to the petitioners tinder the residuary clause in the will. We refer to the case of Luclcey, et al. v. Dykes, et al., decided at the present term of the court.</p> <p>We respectfully ask the attention of the court to the opinion delivered in the case of Jane B. Ross, et al. v. Yertner, et al., 5 Howard’s Rep. p. 356 — particularly the two last pages of the opinion. We would also ask that the court will read the argument of the counsel for the appellees in that case, at page 353, which we conceive to be applicable to the present case, and to be well sustained, by both reason and authority.</p> <p>We contend that whatever disposition the testator, while living, could have made of the slave, she could empower her executor to make after her death. If living she could control the slave, and give him the benefit of his labor till she could get a law passed for his emancipation. She has by her will given all her other slaves to her relatives, but directed her executor, in consequence of the “ very faithful and meritorious services ” of her negro boy Jim, to take charge of him, and give him the exclusive benefit of his own labor, until he could procure the passage of an act of the legislature for his emancipation.</p> <p>The negro is not. in the meantime, free, but entirely subjected, as far as the community are interested, to all the disabilities of slavery. Nothing is done contravening the law, or its policy, but on the contrary, the act of 1822, before cited, sanctions the course pursued. We contend that the trust created by the will is not limited to any time, but continues during life, if not in the meantime carried out in the manner prescribed by law.</p> <p>The emancipation of slaves is contrary to the policy and laws of the state of Mississippi, as indicated by the constitution and the acts of the legislature, and no slave can be emancipated, except by act of the legislature. See the act of 1830. See the case of Hinds, et al. v. Brazeale, et al., 2 Howard, 837, et seq.</p> <p>This court recognizes this doctrine as correct, in the case of Ross, et al. v. Vertner, et al., 5 Howard, 305.</p> <p>The testator in this case clearly seems to have an eye to this settled policy of the state, and the executor is directed to apply to the legislature for an act of' emancipation, for without this act the testator does not intend the slave to be free.</p> <p>It is contended, though, that the words of the will which provide that the executor shall take charge of the boy Jim, and give him the exclusive benefit of his own labor until he can procure the passage of an act of emancipation, takes this case out of the operation of the law and policy of this state. That the boy Jim is not free, but that the executor is vested by the will with ownership in trust for benefit of the slave, &c.</p> <p>The intention of the testator is the pole-star which governs cotirts in the construction of wills, and I think it is manifest this clause was intended to give the boy the benefit of his own labor, while an application was made to the legislature for an act of emancipation.</p> <p>Suppose an act of emancipation is never procured : is the boy Jim entitled to the benefit of his own labor for life'? Surely not, for if such be the construction given by the court then this settled policy of our state can at any time be evaded by a provision of this kind, and all the evils intended to be avoided will ensue.</p> <p>Suppose, for a moment, the executor should fail to give the boy the exclusive benefit of his own labor, who could compel a performance of the trust ? The slave could not, and the heirs and legatees perhaps could not.</p> <p>If the object of this testator was only to give the boy Jim the benefit of his own labor, while an application was made to the legislature for an act of emancipation, then the question arises, what length of time shall be allowed for such purpose, no specific time being given, then a reasonable time only can be required. Seven years have elapsed since the death of the testatrix, and the probate of the will, which the court will regard as ample time.</p> <p>An application for such purpose has been made, and failed. See Journal of the House of Representatives, Session of 1839, p. 151. This being the case the matter is at an end, and the court was correct in making the order of sale.</p>

EeRor to the circuit court of Covington county. The facts sufficiently appear in the argument of Mr. George S. Yerger, and the opinion of the court. This was an action of assumpsit, against the plaintiffs in error, as makers and indorsers of a promissory note.

A sufficient statement of the case is made in the argument of Mr. Baker, and in the opinion of the court. This record contains the proceedings in two cases, to wit: The estate of James Cole, deceased, and Absalom Griffin, deceased. James Cole died in 1812, intestate, and his wife Sythia Cole, and one Gideon Hopkins administered on his estate.

In error, from the Copiah circuit court. By the bill of exceptions filed in the record, it appears that at the May term, 1841, Mattheny moved the court “ to set aside the bond of William Hudson, and others, given to Joseph S'.-Totten, for the purchase money of the property sold under the original execution,” setting out several grounds for the motion, “ but the court overruled the motion to set aside the bond, as also a motion ■ to quash the same, for the same reasons.”…

In error, from the circuit court of Lawrence county. This was an action brought in the court below, by Furr, to recover damages for trespass in assault and battery upon his person, by Pearce. To the action there were two pleas; First, the general issue. Second, son assault demesne ; to both of which, there was issue joined. A jury was empaneled and verdict for the plaintiff below, for $ 525 damages.

At the April term of the probate court of Carroll county, the appellants filed their petition, setting forth that William Johnson, late of said county, had departed this life, making his last will… Held: that the effect of a direct and positive bequest, could not be controlled by inference and argument from other parts of the will. The same rule was fully recognized, in the case of Collet v. Lawrence, 1 Yes.

This was an action of assumpsit brought by Hoopes and Bogart against Reuben B. Newman, as executor of Uriah Newman, deceased, to the October term, 1841, of the circuit court of Carroll county, on the following promissory note, to wit: “ $5283 J|j. Tchula, Miss.

The facts of the case appear sufficiently in the opinion of the court. The error relied upon, was that the verdict of the jury was contrary to law, upon the evidence before them. The issue to be tried, was, whether the judgment had been paid to the attorney, A. G-. Brown. The evidence offered for that purpose, showed that said attorney was indebted to defendant, Scott, and gave him a receipt against the judgment, taking upon himself to settle the judgment with the plaintiff.

The appellees sued the appellant in the court below upon the following note: ' “ $229. On or before the first day of January, eighteen hundred and forty, I promise to pay either Albert Harris, William Hampton, William M’Demartin, S. D. Alexander, or C. C. Garner, trustees of the town of Legrange, or their successors, the supi of two hundred and twenty-nine dollars, value received, this 3d day of November, 1837. W. F. Beewee.” The defendant appeared and plead non assumpsit.

In error, from the circuit court of Wilkinson county. Held: that a note payable in bank paper, is not a promissory note, and not entitled to the privileges which the law attaches to that instrument. Chitty on Bills, 152 and 153, 8th Am. ed. and notes. 3 Kent’s Com. 75, 4th ed. and notes.

David CaRNes filed his bill in the district chancery court charging that on the 30th of August, 1838, he sold and conveyed to John Hubbard, one quarter of a section of land, lying in Carroll county, for twelve hundred dollars; -for which sum, Hubbard executed and delivered his-promissory notes to Carnes'; that on the 3d of September 1838, Hubbard sold and conveyed the same land to Wilson Hemingway, who, on the 15th of February 1840, conveyed about one half thereof to William…

In error from the Claiborne circuit court. The plaintiff in error sued the defendants in error, upon four of their circulation notes, of the amount of ten dollars each, signed by their president, R, Hughes, and countersigned by S. Callender, their cashier. The action was originally brought before a justice of the peace, and the defendants appealed to the circuit court.

In error, from the Claiborne circuit court. Stephen Duncan sued James Watson, as administrator of Benjamin Blanton, on a note of C. Jefferson, indorsed by Blan-ton, for $ 1100, due Jan. 1, 1836. At May term, 1842, judgment was rendered for the defendant on the verdict of the jury in his favor; bills of exception were taken at the time of the trial.

Assumpsit brought by David J. Ely, for the use of Israel Loring against John B. Thrasher, to the November term of the circuit court of Claiborne county, 1840, upon a guaranty of a promissory note… Held: that this statement, although unnecessary, must be proven. 1 Campbell, 175.

This was an action of assumpsit broug.ht to the May term, 1839, of the circuit court of Hinds county, by Benjamin Fort-ner against Ethelevin Sadler, William S. Parham, Willis H. Gibson, James M. Wall, and Michael Wall, on the following promissory note. ’ “ i$ 128 Clinton, January 20th, 1838. “ One day after date I promise to pay to the order of Parham & Gibson, one hundred and twenty-eight dollars thirty-five one hundredths, for value received, with interest from January…

The Grand Gulf Bank recovered judgment against H. W. Barnes, and H. N. Spencer, on the 10th of June, 1841, in Claiborne circuit court, for $1136 66. Execution issued to November term, 1841, which was levied on “ one pleasure carriage,” as the property of H. N. Spencer. Mrs. Sarah A. Spencer, wife of H. N. Spencer, made affidavit of her right to the carriage, and gave the sheriff a claimant’s bond, under the statute.

This was an action of assumpsit brought to the April term, 1840, of the circuit court of Holmes county,- by William Me D. Martin for the use of Stephen Johnson, against John M. Ellis, on a promissory note, payable to “ William McD.

Error from the circuit court of Holmes county. This was an action of assumpsit brought by the defendants in error, against the plaintiffs in error, to the April term, 1839, of the circuit court of Holmes county.

On the 14th day of August, 1840, Miles C. Folkes, as mayor of the city of Vicksburg, took a recognizance in the following words and figures, to wit: “ State of Mississippi, ) City of Vicksburg, ) s “ Personally appeared before me, Miles C. Folkes, mayor of said city,.N. J. Deán, David Dean, and Joseph H. Vannoy, who severally acknowledged themselves to be indebted to the state of Mississippi, as follows, to wit: the said N. J. Dean, in the sum of fifteen hundred dollars; the…

<p>Tn error from the circuit court of Holmes county.</p> <p>The opinion of the court is referred to, for the facts of the case.</p>

The plaintiffs in error sued out an attactment at law, against the defendant.

This was an action of ejectment, brought by the heirs at law of Chafin Smith, to the October term, 1839, of the circuit court of Holmes county, to recover a tract of land lying in that county. The declaration and notice were served on Joseph Wallis, who, at the July special term, 1840, appeared, and caused himself to be made defendant, confessed the lease, entry, and ouster, &c., and pleaded not guilty.

This was an action of assumpsit, brought to the November term, 1839, of the circuit court of Hinds county, by Perry Cohea against George Finucane, George W. Amos, and John Long, as the makers, and Fidelio S. Hunt as the indorser of a promis*. sory note. The defendants pleaded the general issue.

In error, from the Kemper circuit court. 'I'his was an action founded on a bill of exchange, drawn by-John B. Watkins, on J. Watkins, and by him accepted, payable ■on demand, in favor of Thomas Cherry, and dated May 4,1840. The bill was indorsed by Cherry to F. S. Scott, and hy him to the plaintiff, all of whom were jointly sued under the law of 1837. The defendants pleaded the general issue, and payment.

In error from the circuit court of Lauderdale county. The declaration in this cause was a special one on the case, in these words: “ The State of Mississippi, ) In circuit court, Lauderdale County. j November Term, A. D. 1843. “ Henry R. Wilson, as the assignee of James W. Long, who was the assignee of Ptolemy T. Harris, assignee in bankruptcy for the southern district of the State of Alabama, to whom Daniel Walker, and Jacob B. Walker, known and designated by the way and…

In error from the Kemper county circuit court. . The plaintiff in error sued the defendant in error as acceptor of a bill of exchange. On the trial the defendant offered as a witness, John B. Watkins, the drawer of the bill of exchange sued upon, to testify on his behalf.

In error, from the Hinds circuit court. The record stated, “ that an attachment had issued, at the suit of Thomas A. Woodward, against the estate of William S. Burch,” and proceeded to set forth the writ of attachment. No bond and affidavit, as required by the statute, appeared of record. Upon this writ, Elizabeth Ford was summoned to answer as a garnishee of Burch. Judgment was had against Burch, for five hundred and fifty-nine dollars.

ERROR from the circuit court of Adams county. A statement of the pleadings is made in the opinion of the court. This cause comes up on the decision of the court below, in overruling the plaintiff’s demurrer to the plea in abatement of defendant. This was an action in assumpsit, brought by plaintiff, as the holder of a promissory note against the defendant, Walton, as the maker.

In error, from the circuit court.of Clark county. An attachment was sued out of the court below, by the plaintiff in error; the affidavit .he made was in these words : “ Before me, Silas M. Mott, an acting justice of the peace, in and for said county, personally appeared Minor Woolley, agent of Samuel Page, and made oath that William A. Ford is justly indebted to Samuel Page in the sum of three hundred and fifty-two dollars and seventy-three cents, or thereabouts, and that…

In error from the Adams circuit court. At the May term of the circuit court of Adams county, 1838, William H. McFarland obtained judgment against Andrew L. Wilson, and D. W. Connelly, for 6832 ^ dollars. Executions were regularly issued from term to term and stayed.

In error from Covington circuit court. Contended that the record,below did not show, the plaintiff’s right to sue; he being an administrator, and the declaration not sufficiently averring that fact, and the letters of administration not being filed.

The Planters Bank and Fielding Davis, representing themselves to be creditors of W. H. Eggleston’s estate, filed their petition in the probate court of Wilkinson county, at the June term-, 1842; and state in the petition that Saunders, as administrator of the estate, represented it insolvent, at the October term, 1840, of the court, and thereupon the court appointed J. C. White, B. H. Williams and Robert Norwood, commissioners of insolvency on said estate, to receive and…

In error from the Adams circuit court. This was an action of assumpsit brought by the defendant in error, against Nicholas J. Basley, Nathaniel Harrison, Anthony M. Dignowitty, and Charles A. Lacoste, upon a joint pomissory note, executed by Nicholas J. Basley and Nathaniel Harrison, payable to the said Anthony M. Dignowitty, and indorsed by him and the said Lacoste, to the plaintiff, for the sum of $500.

In error, from the circuit court of Adams county. The defendants in error sued the plaintiffs in the court below, upon a note payable to Earl Clapp, for twelve hundred dollars. The defendants plead non assumpsit,• and payment. On the 10th day of December, 1841, the case was submitted to a jury, and verdict rendered by them in favor of the plaintiffs below for one thousand four hundred and forty-eight dollars, and judgment was entered accordingly.

On appeal: from the probate court of Madison county. The appellant filed his petition in the court below, at the May term of said court, 1842, setting forth that he, on the 22d day of October, 1838, had become the purchaser of certain lands lying in Madison county, which belonged to the heirs of Michael McCaffrey, deceased, at the administration sale of the appellee, James H. Denson, who was the administrator de bonis non, of the personal estate of said deceased ; that he…

This cause, for the third time', comes into this court by writ of error to the circuit court of Adams county.

In error, from the circuit court of Jasper county. The plaintiff in error made the following motion in the court below, on the 9th day of May, A. D. 1842 : “ Whereas, on the 27th day of February, 1841, a pluries writ of fieri facias was issued from the circuit court of' Jasper county, directed to the sheriff of said county, commanding him, that of the goods and chattels, lands and tenements of Pierson Lewis and Thomas Wiatt, he cause to be made the sum. of one thousand three…

In error from the circuit court of Yazoo county. The opinion of the court contains a statement of the facts. The record in this cause is so replete with errors, that it only becomes necessary to point out a few of the most prominent ones, in order to obtain a reversal of the judgment.

This cause is brought to this court from the circuit court of Wilkinson county, by writ of error. Held: that a notice proved to have been received, addressed through the post-office, to the drawer of a bill of exchange by the holder, informing the drawer that he held such bill, was either actual or constructive presentment of the bill, so as to bind the indors-ers?

The appellee instituted an action of ejectment against the appellant; the jury brought in a special verdict in the case, which is recited, substantially, in the opinion of the chief justice. The appellant purchased the locus in quo under a judgment rendered in October, 1840, and the appellee, Marlow, purchased under a judgment which was rendered in October, 1839.

In error, from Lowndes circuit court. Evan P. Thomas and William G. Thomas, recovered a judgment at law against William J. Estes, John Fletchall, and Joseph W. Carroll, for one thousand and eighty-three dollars and thirty-three cents.

In error from the circuit court of Lafayette county. ■On motion to dismiss the writ of error. I move to dismiss this cause, because the plaintiff in error, who was defendant below, has not. filed the record in the case, to the present term of the court. The writ of error is returnable to the first day of the present term, the citation is executed in the proper time.

This was an action of assumpsit brought to the December term, 1839, of the circuit court of Jefferson county, by James Wemple, against Henry Terrell and Thomas H. Duggan, as the makers, and Lewis W.… Held: that in order to charge a distant indorser, the notice of nonpayment, if sent to him by the holder, must be mailed by the first post leaving after the protest; and if sent by a subsequent indorser, by the first mail after he himself had received notice.

Error from the circuit court of Franklin county. The pleadings and facts are stated in the opinion of the court.

Errok from the circuit court of Adams county. •The facts of the case are very fully stated in the arguments •of the counsel. The plaintiff in error obtained a judgment by default against the defendants in error, in the court below, at the May term, A. D., 1841, in an action of debt founded upon a bond, or bill single.. The bond was dated April’ 25, 1833, due four years after date, for $3162 50, with interest, at eight per cent, per annum, from the date thereof until paid.

In error from the Adams circuit court. This was an action of assumpsit, on a note made by W. J. Ferguson, indorsed by Brander, McKenna, and Wright, William Harris, A. L. Gaines & Co., and R. M. Gaines, for #6180.

Error from the circuit court'of Copiah county. The facts are stated in the argument of Mr. Peyton, and the 'opinion of the court. The execution, in favor of James Andrews, issued on the 6th of May, 1841, and was received by the sheriff on the 10th of the same month, and was levied on the same day, on the properly sold by him.

In error from the circuit court of Marion county. The defendant in error sued the plaintiff in error, and one Joseph M. Ford, in an action of assumpsit, upon a joint note. The process was not served on Ford, and the suit was dismissed as to him; the .portions of the record, therefore, that refer to him, are not noticed. The defendant, Rankin, plead non assumpsit and payment.

In error, from the Carroll circuit court. The appellees sued the appellant in the court below, upon a joint and several note in their favor, made by the appellant, and B. G. Whitehead, Jefferson Fatheree, and Mark Noble, for forty-seven hundred fifty-four dollars, and sixty cents.

In error, from the circuit court of Marshall county. Felix G. Gibbs sued Lemuel Smith, in the circuit court of Marshall county, in an action of assumpsit, as indorser of a promissory note, made by Meacham, M’Kee & Person, payable on the first of April, 1839, tó Smith, or order, for eight hundred and fifty-one dollars, at the Branch of the Union Bank of Tennessee, at Jackson. The note was indorsed to Gibbs by Smith.

In error from the Wilkinson circuit court. The action was founded on the following due bill., “$5000. Due George S. Smith, or bearer, five thousands dollars,' payable in Brandon money. Held: in covenant on a sealed note, for a sum certain, in current bank paper. It is not the sum named in the note, but the value of the bank paper at the maturity of the note, which is the standard for the jury in their verdict.

<p>By the words “speedy trial,” as used in thfe constitution of this state, in guaranteeing to each one indicted, a speedy trial, by an impartial jury, is meant a trial regulated and conducted by fixed rule's of law-; and any delay created by the operation of those rules, is not included in the meaning of the constitutional provision.</p> <p>The statute of this state which gives the accused a right to examine the indictment “ at least two entire days before the trial,” intends thereby two entire judicial days. In computing, therefore, the two days, the fraction of the day of its service must be excluded.</p> <p>Where a prisoner, indicted for murder, cannot, by the rules of law, be put Upon his trial until the last judicial day of the then term of the court has partially elapsed, it will not be an infraction of the constitution, entitling him to a speedy trial, for the court, on the application of the s'tate, to postpone the trial to the next term.</p> <p>The certificate of the clerk of the probate court, that the list of jurors, by whom a bill of indictment was found, was drawn in open probate court, in the mode prescribed by the law, when the clerk of the circuit court has failed to draw the jurors as required, is evidence to the circuit court that the panel has been properly drawn.</p>

In error, from the Lowndes circuit court. Contended that it was error to issue an execution on a forfeited forthcoming bond, where a year and a day had elapsed from the date of the forfeiture without reviving the judgment by scire facias.

In error from the Carroll circuit court. The facts of the case are stated at sufficient length in the brief of counsel. This was an action instituted against William P. Bryan, George K. Morton, and A. C. Baine, as makers, and the plaintiff in error, (Boush) as indorser, of a promissory note, under the McNutt statute. Process was executed on all the defendants.

Error from the circuit court of Tippah county. The plaintiffs in error obtained a judgment against the defendants, in the circuit court of Tippah county, on the 29th May, 1839; and the execution which issued thereon was bonded on the 2d of December, 1839. All of the judgment was satisfied, except the sum of $800, anterior to the 3d June, 1841, when a writ of venditioni exponas was issued for the collection of that amount, which was superseded by the defendants.

In error from the Yalobusha circuit court. Three cases, between the same parties, involving the same questions, were submitted to the court, at the same time. An analysis of one case will be sufficient. The plaintiff in error sued the defendants in an action of assumpsit upon a bill of exchange. The declaration was filed on the 30th of September, 1842. The defendants plead non assumpsit.

In error from the Yalobusha circuit court. The bank of Grenada brought suit for the use of William Minter, against the plaintiffs in error, on a promissory note, for $500, payable to the bank of Grenada, or order.

In error from the circuit court of Carroll county. John H. Ashley, by his next friend Hardy Worten, brought an action of detinue against Joseph Person, and Titus Howard, to recover a negro girl, Sophia. The defendants pleaded the general issue. A new trial was had, and the cause discontinued as to Person.

Weit of error to the probate court of Choctaw county. The opinion of the court sufficiently explains that portion of the record, upon which it based its opinion ; the remainder, not being material, is not set out.

This cause is brought by writ of error from the circuit court of Attala county. The record shows that the plaintiff in error, Solomon S. Pender, obtained a judgment in the said circuit court of Attala, at the spring term, 1838, on the 30th of March, against the defendant, Nathaniel H. Felts, for seventeen hundred and forty-six dollars and fifteen cents, upon w'hich judgment an execution issued, and was levied upon the property of Felts.

In error, from the' Yalobusha circuit court. The defendant in error sued the plaintiffs, as administrators of their intestate, in an action of assumpsit, for labor done and performed in and about the. plantation of the intestate, as overseer, for the year 1840, for which he promised to pay him three hundred dollars. The declaration averred that the promise was made on the 1st day of January, 1841.

In error from the Choctaw circuit court. The trial in this case was had before the Hon. David 0. Shat-tuck. Held: that he could not go into evidence of the good character of his daughter, the same not having been impeached. The case of Fowler v. JEtna Insurance Company, 6 Cowen, 673, was an actioii'of assumpsit, on a policy of insurance.

This was an action of debt, founded on two writings obligatory ; the declaration was in the usual form. The pleas are substantially set out in the opinion of the court. It is contended, for the plaintiff in error, that the court below erred in sustaining the demurrer to his plea, that the demurrer should have been overruled7 and judgment entered for the defendant below.

The bill in this case, was filed by David Beatty and Elizabeth Beatty, his wife, to enjoin the sale of cotton, alleged to be the wife’s, which was levied on by virtue of an execution against the husband and others, and also for the purpose of settling the rights of Beatty, the husband.

<p>In error from the circuit court of Lowndes county.</p> <p>The opinion of the court states the facts of the case.</p>

In error, from the Monroe circuit court. William Saunderson sued Jesse Neal, in an action of assump-sit, to recover damages for the non-delivery of fifty-nine bales of cotton, shipped by Saunderson on the fiat-boat of Neal.

In error from the circuit court of Choctaw county. The defendant in error having obtained a judgnmnf^ at law against Thomas N. Davis, levied an execution on a horse, as the property of Davis.

In error from the Lafayette circuit court. The plaintiff in error, sued the defendant in err'd^lffire Lafayette circuit court, at the November term, 1840,*on ,hi’s warranty of the soundness of a negro slave, before that time sold by him. The plea of not guilty was filed. A verdict and judgment thereon, were given for the defendant at the May term, 1843.

In error from the Carroll circuit court. . James Brown sued Hardy Wooten in an action of assumpsit, for work and labor. Brown died before trial, and the suit was revived.. The declaration contains an account in indebitatus assumpsit, and one of quantum meruit. The amount sued for was $147.58. The verdict was in favor of the plaintiff below, and judgment was entered accordingly. Motion for new trial was made, and overruled, andexceptions taken.

In eilror,,from the district chancery court, held at the town of Holly Springs, Marshall county, before the Hon. Joseph W. Chalmers, vice-chancellor of the state. The defendant in error, Orne, filed his bill in chancery, against plaintiff in error, Dollahite, setting out that he had sold Dollahite a tract of land, taken two notes for' the purchase-money, and given a title bond, to make title when they 'were paid.

In error from the circuit court of Yalobusha county. ' The defendants in error, Robert Patterson & Co. obtained a judgment in the circuit court of Yalobusha county, against Morgan M’Afee, William W. Mitchell, and John Colbert, partners, under the style of M’Afee, Mitchell & Co. on the 10th September, 1838, for $1009 55. On the 16th February, 1841, they sued out a scire facias on that judgment, which was duly served on M’Afee, and returned not found as to the other defendants.

In error, from the Lafayette circuit court. The declaration was filed, by Mary H. Smith, in assumpsit upon an open account, for two hundred and eighty-two dollars.

In error, from the Yalobusha circuit court. The facts in this case are as follows : Stern Simmons, as'the security of Thomas N. Waul, in a forthcoming bond, given upon an execution on a judgment in favor of the plaintiffs in error against Waul, sued out a writ of audita querela, to be discharged, as such security, from the plaintiffs’ judgment.

On appeal, from the circuit court of Monroe county. This is an action of assumpsit on a bill of exchange. The facts presented by the record are these : The defendant’s testator, in his lifetime, was indebted to the Union Bank of Mississippi.

' On appeal from the probate court of Washington county. The record presents these facts : John A. Rowan being a citizen of the state of Virginia, and domiciled therein, departed this life in the year 1843, having previously made his will.

In error, from the Adams circuit court. This cause was, at a former term, before this court, and the decision of the court is reported in 3 Howard, 259. The defendant in error was the indorser of a note, made by Benjamin Williams, dated Madisonville, May 1, 1836, and made payable nine months after date, for $5350x9aV It was protested for nonpayment on the 4th of February, 1837.

The argument of counsel ánd the opinion of the court contain the facts of this case.