Volume 12 — Mississippi Reports

In error, from the Lawrence circuit court. The president, directors and company of the Planters Bank of the state of Mississippi, on the 11th day of October, Anno Domini, 1841, filed their declaration in ,the circuit court oí Lawrence county, against Thomas L. Sharp, Edward Engelhard, and Henry Hampton Bridges, to recover the amount of a note made by the defendants to the plaintiffs for one thousand dollars.

In error, from the Franklin circuit court. The plaintiff in error, Peler, a slave, the property of James Harrington, was indictéd for the murder, on the 14th of April, 1837, of one Samuel Harvey. The case was tried before the circuit court of Lawrence county, and the jury not agreeing, were discharged; the presiding judge, at a subsequent term of the court, having been of counsel in the cause, the venue by consent was changed to Copiah county.

In error, from the Leake circuit court. John Doe, on the demise of Tish-ho-mah, alias Tish-ha-ho-ma, a Choctaw Indian, sued Richard Roe… Held: claimed, or enjoyed by those persons called Indian's and their descendants, and which are held by virtue of any form of policy, usage or custom existing among said 'persons, not particularly recognized and established' by the common law or statutes of the state of Mississippi,” be “ wholly abolished and taken away.” Tide 1st sec. of…

The pleadings are clearly stated in the opinion of the court. No evidence was adduced on behalf of the complainant.

This was an action of ejectment, brought in the circuit court of Adams county, to recover a lot in Natchez. Held: that where the plaintiff sets out a joint demise, he must prove it as laid.

In error from the Lawrence circuit court. The record in this case shows that an action of assumpsit was instituted in the ordinary form by the bank against the defendants, on their promissory note for $467, dated March 14, 1840, at twelve months, in the circuit court of Lawrence county, and defendants pleaded the general issue. Upon the trial, the plaintiffs read the note in evidence, and there rested the case.

<p>At any term of the probate court, if the report of the commissioners, appointed to audit claims against an estate previously declared insolvent, has been received and approved, it is too late to open it.</p>

This was an action of assumpsit, brought by the appellant against the appellees, in the court below, upon a promissory note, made payable to the appellant.

The plaintiffs, in the circuit court, brought their action of assumpsit against the plaintiff in error to the May term, 1841.

At the March term, 1842, of the probate court of Claiborne county, Richard T. Archer and' William Eggleston, guardians of Stephen Edward Archer, filed their petition in that court, exhibiting the… Held: that the wife’s share of the residue of the personal estate, could not be considered sufficiently reduced into possession, so as to prevent its surviving to her upon the husband’s decease.

This was an action for an unlawful detainer. The application and warrant are in the name of Wadlington P. Mills and Charlotte F. A. Mills, his wife, late Charlotte F. A. Thompson, against Stephen Holt; and charges, that he, “unlawfully, and against their, or either of their consent, holds them out of possession of a certain tenement of land, with its appurtenances, containing, by estimation, one hundred and sixty acres,” &c. The jury were sworn “the truth to speak, whether…

In error, from the Adams circuit court. The action in this case was originally instituted upon the indorsement of a promissory note, against Alexander Montgomery and Jane M. Neeley, late Jane M. King, the administrator and administratrix of William King, the indorser, and John G. Neeley, who had, after the grant of letters to Montgomery and Jane M. King, who was the widow of the estate, intermarried with the widow, and who was therefore made defendant in right of his wife.

This was a trial of the title to property levied on by virtue of a writ of fieri facias, issued on a judgment on a forfeited forthcoming… Held: that the levy did not change the property of the defendant taken on fi. fa. until the sale is made by the sheriff, and that the fieri facias, until the sale, is not executed, and writ of error is a supersedeas, at any time before sale ; and that if the sheriff return a fi. fa., “property on hand for want of buyers,” the property is…

In error from the Madison circuit court.' James H. Foster and George S. Easton, under the firm or style of Foster & Easton, made their motion in the Madison circuit court, against Samuel Hamblin, as sheriff of Madison county, and the other defendants as his sureties, for failing to pay to the plaintiffs money by him collected on execution. The bill of exceptions shows that on the trial of the motion, the following facts appeared.

In error, from the Madison circuit court. This was a suit for the trial of the right of property in two slaves, Abraham and Rheno, in the court below, between the plaintiff in error, claimant, and the defendants in error, who were the plaintiff in the execution. In May, 1838, Gilmer & Webb recovered a judgment, in the Madison circuit court, against Samuel Thornhill, for $548 04|.

In error, from the Holmes circuit court. The defendants in error sued the plaintiffs in error, William H. Johnson, Sidley M. Lynch, and Thomas T. Lahd, upon the following note : $9000. Vicksburg, March 19, 1838.

This was an ordinary action of assumpsit, brought by William P. Brooks against Calvin Miller, to the May term, 1841, of the circuit court of Panola county. The defendant pleaded non assumpsit, under oath, and payment. The plea of payment, after the usual conclusion, with a verification, contains these words: “ And he herewith files his bill of particulars, and will insist upon them, as an offset.” No bill of particulars, or account of any kind, was filed by the defendant.

In error, from the Adams circuit court. This was an action of assumpsit, on defendant’s indorsement of a bill of exchange, drawn by Sprague & Howell, on Joseph Hoxie & Co., New York, for $5000, and indorsed by Noah Barlow, the defendant, and Thomas Henderson, cashier.

In error from the Tishemingo circuit court. Chisley D. Key and Ezekiel Key, partners in trade under the firm and style of C. D. & E. Key, brought their action of debt for the use of E. Key, in the Tishemingo circuit court, against William Rushing, the plaintiff in error, as assignee of J. C. Griner, on two writings obligatory for $ 100 each'. Both notes are declared upon in the same count.

In error, from the circuit court of Adams county. Walter H. Finnall, at the May term, 1841, of the circuit court of Adams county, obtained a judgment against John Baynton, and others, for $1,521, and made oath that the defendants therein had no visible property upon which a levy could be made to satisfy the judgment. Whereupon he suggested that Ricé Ballard was indebted to the defendant, John Baynton, and a writ of garnishment issued accordingly.

In error, from the Lowndes circuit court. This was an action of assumpsit upon the following award: “ A difficulty between the corporation of Columbus, Mississippi, and Messrs.

In error, from the Madison circuit court. This was an action of debt, on a bond, in the penalty of $20,000, with conditions, brought by the defendant in error against the plaintiifs in error. Neither the bond nor conditions are set out in the record. Yarious errors are assigned; the one upon which the case was decided, is the only one it is deemed necessary to notice.

John B. Conger, Isaac W. Conger, and George W. Summers, filed in the superior court of chancery, a petition setting forth that at the December term, 1838, of that court, Joseph H. Robinson, as administrator of the estate of R. W. Simington, deceased, obtained a decree for the foreclosure of a mortgage in a suit in which one William G. Hann was defendant, whereby thirty-five slaves, naming them, were directed to be sold by the sheriff of the counties in which the slaves might…

On appeal, from the Hinds circuit court. Held: “ that it could not be set aside as fraudulent, in chancery, unless it was fraudulent in a court of laxo, and an act of bankruptcy.” In the case of Slader v. de Mattos, fyc., Lord Mansfield says : “ The indemnity, which is the consideration of the deed in question, I allow to be a good, valuable, and true consideration.

Reference is made to the opinion of the court for the facts. The first position assumed in this cause is, that the court below erred, in dismissing the bill of review of complainants, upon defendant coming in with answer denying the allegations contained in the bill of complainants, without awarding time to make proofs. All of which is fully shown by the state of the pleadings. See-How. and Hutch. Dig., 472, secs. 17 and 18.

In error, from the Madison circuit court. This was an agreed case in the court below, upon which the court there rendered judgment for the defendant. The agreement exhibited the following state of facts. 1.

On appeal, from the prohate court of Adams county. Jesse Hart, and Mary M. Hart, his wife, filed their petition in the probate court of Adams county, in which they stated that John Foster died in the year 1832, having previously published his last will and testament, by which he appointed Joseph Dunbar the executor thereof, who qualified in the year 1835.

William Dye filed his bill in the district chancery court, ■charging that he purchased, on the 23d day of June, 1838, of James M. Ross, a tract of land, lying in Marshall county, at $7500, and took from Ross a deed in fee simple, with covenants of warranty, which was duly recorded, on the 25th day of June, 1838; that $2500 of the purchase-money had been paid by him, and his two promissory notes, one for $3000, due the 1st day of January, 1839, and the other for $2250, due…

In error from the district .chancery court held at Holly Springs, before the Hon. Henry Dickinson, Vice-Chancellor.

In error, from the Marshall circuit court. William Gardley sued William Bogard, in the circuit court of Marshall county, in an action of. detinue for two slaves, named Milly and Julia the daughter^ of Milly.

In error from the Yalobusha circuit court. William W. Munford, suing for the use of John Fountain, brought an action of assumpsit, in the circuit court, against Nathan Howard, Ralph Coffman, William Royall, Roland T. Bryarly, Levin Lake, Thomas Flack, Albert G. Anderson, Robert M. Spicer, Merrick Bacon, David M. Beck, James M. Howard, Howell N. Edmunds, David E. Cuyler, William Lake, George K. Morton, John C. Abbott, Benjamin D. Smith, John Gibbs, James Y. Blocker, Jeremiah…

Oscar Hope, the complainant, filed his bill, alleging, that in the year 1836, he purchased of Evans a large quantity of lands and a number of slaves by one entire and undivided contract, for which he agreed to pay said Evans the sum of thirty-six thousand dollars; that, to secure the payment of notes given by him for this sum, he conveyed the same real and personal estate to the defendants, Pope and Hamer, in trust, to sell the same, on certain terms, in case of his default,…

<p>An administrator has no right or power to file a petition in the probate court to obtain directions from the court as to the mode of administering the estate.</p> <p>M. died indebted to a bank, whose notes were greatly depreciated ; M.’s estate was declared insolvent, and commissioners appoined* thereon ; the bank to which M. was in his life time indebted, had made a general assignment of its effects to assignees ; M.’s administrators, pending the commission of insolvency, filed a petition in the probate court, impleading the assignees, impeaching the assignment as fraudulent, and praying that the assignees might be compelled to receive their distributive share in the notes of t^ie bank j Held . that the probate court had no jurisdiction of such a petition.'</p> <p>Where an insolvent estate is indebted to a bank, whose notes are below par, and the administrator seeks to pay the debt in the notes of the bank, a mode of reaching the object, is to except to the report of the commissioners of insolvency, and have the claim of the bank referred to referees, to whose report the exception, raising the point, might be taken.</p> <p>Another mode of attaining the same end would be, for the administrator to have required a suit at law upon such claim, and frame the pleadings therein, so as to reach the point at issue.</p> <p>Whether such an end could be attained by the administrator permitting himself to be sued on his bond for a devastavit, and making a set-off to the debt due to the bank, of its own notes ? Quere ?</p>

This was an indictment found at the November term, 1844, of the circuit court of Jasper county, against Virgil A. Randal, for stealing a negro man named Sam, a slave for life, the property of William Bridges. The defendant plead not guilty.

<p>The circuit court, upon motion, allowed the names of the parties, for whose use the suit was instituted, and who had no interest in the note sued upon, to be struck out of the writ and declaration. IIeld) that it was an exercise of the discretion given to the circuit courts, under the statute authorizing amendments, which will not be reviewed by this court.</p>

On appeal, from the decision of the superior court of chancery. Held: that if a contract is void, as against public policy, the court of appeals is bound to notice it, although not pleaded in the court below. See also Mulholland v. Voorhies, 3 Martin, N. S. 46.

The officers of the circuit court of Claiborne county, having issued eighty-nine executions against the Bank of Port Gibson, for costs jn cases returned “no property found,” wherein the bank was plaintiff, the bank petitioned the judge of the first judicial district for a writ of error coram nobis and supersedeas.

<p>An information in the nature of a quo warranto, filed by a district attorney of this state in one of the circuit courts thereof, under the provisions of the act • of 1843, (Sheet act, p. 52,) which makes it the duty of any district attorney who shall have reason to believe that any bank in this state has been guilty of a violation of its charter, or upon affidavit of one or more credible persons to that effect, forthwith to file such information, is a civil and not a criminal proceeding.</p> <p>The provision in the act prescribing the mode of proceeding against incorporated banks for a violation of their charter, which authorizes upon the filing of an information against any bank, an injunction to issue restraining all persons from the collection of any demands claimed by such bank or their agents or assignees or other persons, does not impair the obligation of any contract between such bank and the state, and is not a violation of the constitution of the United States.</p> <p>The provision in the sixth section of the act of 1843, directing the mode of proceeding against banks for a violation of their charter, which makes it the duty of the clerk of the circuit court, upon the filing of any information against a bank, to issue as a matter of right on the part of the state, an injunction to restrain all persons from the collection of any demands claimed by said bank or its agents, or assignees or officers, is not a violation of the constitution of this state and does not confer judicial power upon the clerks of the circuit courts whose duty it is made to issue the injunction. Sharkey, C. J., dissenting.</p>

<p>The record stated that “ on the 3d day of April, 1844, 'the following entry was made on the minutes of the court, to wit; The grand jurors returned into court an indictment against William S. Goodwyn, indorsed thereon a true bill, William M. C. Mims, foreman of the grand jury, and returned to consider of further presentments. Said indictment is in the words and figures as follows, to wit, ” &c. Held, these words show that an indictment was returned into court by the grand jury, and that the accused had been indicted in due form.</p> <p>The omission to state, in the minutes of the court, the character of the offence charged in the indictment, is no ground of error, especially if the omission be supplied by other parts of the record. It is a well settled rule that if there be an uncertainty in any part of the record, it may be explained by any other part of the record.</p> <p>The court was asked by the defendant to charge the jury “ that if they believed, from the evidence, that the deceased came to his death by means of the shot aforesaid,” it being in evidence that the deceased came to his death by means of the discharge by the accused of a shot gun loaded with duck shot, “ and not by one leaden bullet discharged from said shot gun, as alleged in the bill of indictment, they must find a verdict for the accused Which charge the court refused, but charged the jury, “ that the said proof was sufficient to sustain the said bill as alleged in the indictment.” Heldy that the charge asked was properly refused, and the charge given referred solely to the proof of the contents of the shot gun, and was not erroneous.</p>

<p>If the judgment upon which a forthcoming bond purports to be founded is void, by'reason of the want of jurisdiction in the court over the subject-matter, or over the parties, the forthcoming bond, and the judgment consequent upon its forfeiture, are likewise void.</p> <p>A garnishee summons, issued before the writ of attachment against the absconding debtor, and a final judgment taken thereon against the garnishee, without a judgment nisi having been first rendered, give the court no jurisdiction over such garnishee ; and a forthcoming bond executed by him, to effect the delivery of property levied on under execution on such final judgment, will be absolutely void, and may be quashed at any time, even after the return term of the execution under which it was taken.</p> <p>If the judgment upon a forthcoming bond is merely erroneous, the court cannot, at the term subsequent to the return term, quash it} but if the judgment be absolutely void, the court may quash it at any time.</p> <p>Whether a forthcoming bond, taken by the sheriff of one county, requiring the property levied on to be delivered at the court house of another county, can ■ lay the foundation of a statutory judgment on the bond % Query ?</p>

In error from the Lowndes circuit court. At the October term, 1838, of the Lowndes circuit court, the Tombigbee Railroad Company recovered judgment against Henry Bell, Charles E. Taliaferro, and Thomas Bell, for $4,207 59; on the 4th of December, 1838, a fieri facias issued on this judgment, was levied on ten negroes, a forthcoming bond taken and forfeited on the 4th of March, 1839, and so returned.

<p>Where a cause was called for trial the defendant offered a bill of discovery against the plaintiff, and prayed for a continuance of the cause to procure an answer to the bill from the plaintiff, the court below refused to allow the bill of discovery to be filed : Held, that the allowance of the bill of discovery was a matter in the discretion of the circuit court-, and that in this case it had been properly exercised.</p>

<p>An attachment is not vitiated, because the signature of the creditor is not placed to the affidavit of the indebtedness of the defendant and his non residence.</p> <p>Upon a judgment after inquiry of damages, in an attachment suit, it will be no objection to the validity of the proceedings'subsequent to the judgment, that the attachment was partly for unliquidated damages, and the declaration was in trover; such objections will be cured by the statute of jeofails.</p> <p>It will be no objection to a verdict and judgment, that the record does not give the names of the individuals composing the jury.</p> <p>If it appear in the record that “ a jury” passed upon the issue, it will be construed to mean twelve men duly qualified, unless the record itself show the contrary.</p> <p>Where the sheriff levies an attachment upon real estate, and returns the writ of attachment “ executed,” without setting forth the manner of its service, or showing that he pursued the directions pointed out by the statute, it will be presumed that the attachment was regularly executed.</p> <p>An attachment upon land, is a lien from the time of its levy.</p> <p>In a controversy, between a purchaser under an attachment sale and an execution sale, of real estate of the defendant in the respective proceedings, as to the title to the realty thus sold, the purchaser at the attachment sale will take it, if the levy in the attachment was anterior to the judgment under which the execution purchaser bought, even though the judgment in the attachment he junior.</p>

<p>As a general rule, the answer of one defendant is not evidence against his eodefendant ; nor does the failure of one to answer, and a pro confesso against him, entitle the complainant to take the allegations of the bill as true, as against one who does answer.</p> <p>If a vendee, who purchases land on a credit, and takes a bond for title when he pays the purchase money, fail to pay according to the terms stipulated, the vendor may consider the contract at an end, and may lawfully sell to a third person.</p> <p>M. filed a bill, charging that in 1838 R. purchased a lot of the commissioners of the town of H. S., and took a bond for title on the payment of the purchase money; R. died, and one of his brothers got possession of the title bond, and fraudulently sold said lot to E., and by fraud and combination with E. procured a deed from said commissioners to him ; that E. afterwards sold and conveyed the lot to M., who purchased without any knowledge of the above facts, and paid part of the purchase money, and gave his bond for the balance ; on which he had been sued, and judgment obtained against him for the use of H. ; that H. had no interest, in fact, in the judgment, his name having only been colorably used ; that E. was insolvent, and had gone to Texas.; that the title to the lot was still in the heirs of R., being eight in number, who were threatening to institute suit for it, and prayed for a rescission of the contract with E., and an injunction against the judgment in favor of H. &c. H. answered, denying all fraud, combination, &c., and insisting that he was an innocent purchaser, for a valuable consideration, of the bond sued on for his use. A pro confesso was taken against E. Meld, that the pro confesso against E. did not entitle the complainant to take the allegations of the bill as true against H. ; and that in the absence of proof of fraud, E.’s title to the lot is not defective, and the bill should be dismissed.</p>

<p>In error, from the Adams circuit court.</p> <p>John Doe, on the demise of William J. Minor, brought an action of ejectment in the circuit court of Adams county to the May term, 1842, thereof. The notice was served on the president and selectmen of the city of Natchez, who appeared, entered into the consent rule, and plead not guilty.</p> <p>•A jury was empanelled, and the lessor of the plaintiff offered to read to the jury the record of a judgment in the United States circuit court for the southern district of Mississippi, at the suit of Reuben M. Strother, a.citizen of the state of Missouri, who sued for the use of S. H. Leverick, and ten citizens of the state of Louisiana, against the said president and selectmen of the city of Natchez; by which it appeared that the plaintiff therein, Strother, had, on the 22d day of November, 1839, recovered a judgment against the said president and selectmen in that court, for the sum of $6507 99, the debt in the declaration mentioned, and $371 for damages; that an execution of fieri facias issued on this judgment, directed to the marshal of the said southern district of Mississippi, who returned the same with the following indorsement, viz.:</p> <p>“ Levied this execution upon the property described in the advertisement hereto annexed, on the 26th February, 1840, and before the day of sale, received a supersedeas, which prevented the sale. W. M. Gwin, Marshal.</p> <p>By Aug. Lynch, Deputy.”</p> <p>The property described in the levy was the city-hall and the market-house. On the 25th day of November, 1841, a writ of venditioni exponas issued from the court, upon which the marshal made the following return: “The piece of ground described in the body of the within execution, I offered for sale at public auction, at the court-house door of the county of Adams, in the city of Natchez, between the hours of eleven and one o’clock, this day, January 17, 1842; legal notice of which sale I had given in the public newspaper called the ‘ Courier,’ published in the city of Natchez, county of Adams, state of Mississippi. William J. Minor bid $8,500, whose bid being the highest and best bid I was offered for said property, I declare him the purchaser. Anderson Miller, Marshal.</p> <p>By his deputy, W. H. Miller.”</p> <p>Upon this execution was also indorsed, by the marshal, a receipt in full of the purchase-money from William J. Minor. The defendant below objected to the introduction before the jury of the marshal’s return on the venditioni exponas. The objection was sustained, and the return excluded, and exceptions were taken.</p> <p>The lessor of the plaintiff then offered to read the marshal’s deed for the lands purchased at the marshal’s sale; in which deed the marshal recites the judgment, the levy, and states, “ That the said marshal, having given thirty days previous notice that the above described property would be sold at public auction, by virtue of said writ of venditioni exponas, on the seventeenth day of January, between the hours of eleven o’clock, A. M., and five o’clock, P. M. of said day, at the courthouse of Adams county, did, at the time and place, offer said premises for sale, at public auction; and the said William J. Minor then and there appeared and bid for the premises the sum of $8,500, which said sum was more than any other person offered or bid for the same. Whereupon the said property was struck off to the said William J. Minor, being the highest and best bidder therefor.” The deed was in other respects an ordinary sheriff’s deed.</p> <p>The defendant objected to the introduction of the deed; the objection was sustained,'and the plaintiff suffered a judgment to be rendered in favor of the defendant, and prosecuted this writ of error.</p> <p>The following rule was read on the trial of the case in this court:</p> <p>“ United States of America, ( Circuit Court U. S.</p> <p>Southern District of Miss, ¿ November Term,, 1841.</p> <p>Copy of Rule adopted by said Court on 8th Dec. 1841.</p> <p>“ Ordered by the court, that hereafter it shall be the duty of the marshal of this district to advertise all sales of property to be made under any process, decree, or order of this court, by putting up notice of such sale in at least three public places in the county where such sale is to be made, one of which shall be at the court-house, in case of real estate, thirty days, and sales of personal property, ten days before said sale. But where the defendant or defendants shall request the marshal to give any such notice of sale by publication, as heretofore, in some public newspaper, the marshal shall give such notice and no other, by such publication, provided the request be made before notice of such sale has been posted up as above directed. In case of publication the^cost shall be taxed in the bill of costs.</p> <p>“ I, William H. Brown, clerk of said court, do hereby certify that the foregoing is a true copy of the rule adopted by said .court, at the November term, in the year of our Lord one thousand eight hundred and forty-one, as the same now remains of record in my office. In testimony whereof, I have hereunto ■set my hand, and affixed the seal of said court, at Jackson, this 10th day of December, A. D. 1842. W. H. Brown, Clerk.</p> <p>By George W. Miller, Deputy Clerk.”</p> <p>The following are the errors assigned.</p> <p>1st. The court erred in sustaining the defendants’ objection to the admission of the marshal’s return as evidence on the trial, as appears by second bill of exceptions.</p> <p>3d. The court erred in sustaining the defendants’ objection to the admission of the deed from A. Miller to W. J. Minor as evidence to the jury, as stated in the second bill of exceptions, and other errors.</p> <p>The marshal’s return was certainly evidence of the levy and sale, although of itself it is no evidence of title without a deed. And even if the return was defective, in showing that in fact, no notice of the sale had been given, or that the notice which was given, was not such as the law required, that did n.ot render the sale void ; and the judgment, (fee. was therefore evidence for the plaintiff. 5 How. 253.</p> <p>In general the purchaser is not bound or affected by the irregular acts of the officer or plaintiff, in which he did not participate. 1 Bibb, 155; 2 lb. 202, 518, 401 ; 3 lb. 21,6 ; 3 J, J. Marsh. 439; 6 Mon. 110; 4 How. R. 267.</p> <p>Where it was apparent, from the evidence, that the sheriff, if he had advertised the property for sale at all, had not done it ip such manner as the statute required, on a .court dqy, or if he did, he must have given more than twenty or less than ten days notice of the time of the sale,, and in either case the directions of the law are not fulfilled ; and of which the .purchaser must ’have been cognizant; yet the sheriff and purchaser may have had no corrupt motive, and if they did not intend a fraud upon the debtor, the sale was valid. For this -is the criterion. The purchaser may be apprized that the officer has not performed his duty properly, yet if he purchase without turpitude of motive, the sale will be valid. 6 Mon. 110.</p> <p>A fair purchaser under a sheriff’s s.ale, without knowledge of •any improper conduct on the part of the officer, acquires a valid title to the property purchased, and the remedy of the party injured is by action at law for damages against the .sheriff. 4 Rand. 427.</p> <p>The title of the purchaser under a Ji. fa. is derived from the sale and the sheriff’s deed, and is not affected by an incorrect return. 1 Johns. Cases, 153,155 ; 1 Johns. R. 454; Col. & Caines Ca. 350; 1 Har. & Gill, 174; 6 Gill & Johns. 503.</p> <p>A sale under execution is not effected by an irregularity in th ejudgment or execution, or on the ground that the levy was not made until after the return day. 13 Johns. R. 97.</p> <p>A sale of land is valid although the sheriff fail to advertise in the gazette, agreeably to statute. If any damage results, the defendant has his remedy against the sheriff. 1 Nott and McCord, 11, 408.</p> <p>A purchaser at sheriff’s sale is not affected by any irregularity in the sale, 1 Hill R. 239, 3S0.</p> <p>From these authorities it would appear the irregularity of the marshal in advertising the sale of the real estate levied on, would not affect the title of the purchaser; but even if the advertisement of the sale in a peculiar manner were essential to the validity of the sale, it would not be a valid objection to reading the marshal’s return, because the proper advertisement may be proved by other evidence than the marshal’s return, and proof of an advertisement different from that stated in the return, would not contradict the return, but would be cumulative merely.</p> <p>But even if the return were properly ruled out, there appears no reason for ruling out the deed. It is in proper form, recites the judgment, execution, sale, and payment of the sum bid for the land. The same authorities before recited, show that the sale would be valid although there was no advertisement, and no reason can be offered against the deed stronger than those offered against reading the return.</p> <p>By the marshal’s return it appeared to the court that the course of the statute had not been pursued in giving the notices of sale required, and the sale and conveyance being therefore illegal and void, the court below ruled out the plaintiff’s evidénce of title.</p> <p>Was the return upon the execution and deed of the marshal properly ruled out! In other words, -does the return of the marshal show an illegal and void sale !</p> <p>The return as to the notice is as follows, to wit: “ Legal notice of which sale, I had given in the public newspaper called the Courier, published in the city of Natchez, county of Adams.”</p> <p>The execution was issued 25th November, 1841, and the sale took place 17th January, 1842.</p> <p>By an act of the state, of Mississippi, approved January 25th, 1841, the 1st section declares, “ That all laws and parts of laws requiring sheriffs or other officers to advertise in any public newspaper the sale of any property taken or surrendered in virtue of any writ of execution, attachment, or tax claim, be and the same are hereby repealed; and in lieu thereof such officers shall give notice of such sale, in cases of real estate, thirty days, and of personal property ten days, by posting up such notice in at least five public places in the county, one of which shall be the court-house door. Sec. 3d. That the provisions of this act shall not extend to, or prohibit the publication of any such sale in any newspaper, when the defendant may request such publication; and provided further, that such request is made at the time of levying the execution. Sec. 4th. That this act shall be in force from and after its passage.”</p> <p>This law was substantially adopted as a rule of the circuit court, at November term, 1841. See certified copy of said rule. But this rule of the court was wholly unnecessary.</p> <p>By the facts (as to the giving the notice) returned by the sheriff, it appears he gave the notices in a public newspaper. This the law prohibited, and required the notices to be given by posting up at five public places in the county, &c.</p> <p>It is true these requirements of the law in giving notice might be dispensed with, and the notices given in a public newspaper, at the request of the defendant, if made at the time of the levy, but no such request was made, no such facts are returned.</p> <p>The court must take the facts to be as returned by the marshal, and cannot add to or take from, or presume the state of facts to be otherwise than as returned. The plaintiff, if he had offered to do so, would perhaps have had a right to prove a regular notice, notwithstanding the return. But he made no such offer. That the sale and conveyance under it were void, upon the notice given by the marshal, as shown by his return, is clear by all the authorities.</p> <p>In the case of Thatcher, et al. v. Powell, 6 Wheat. 119, the court say, “ That no individual or public officer can sell and convey a good title to the land of another, unless authorized so to do by express law, is one of those self-evident propositions, to which the mind assents without hesitation, and that the person invested with such a power, must pursue with precision the course prescribed by law, or his act is invalid,” &e.</p> <p>This opinion of the supreme court of the United States was not hastily formed, without a due consideration of the entire law. On the contrary, the principles and rules of the common law, upon which it was founded, had been most fully investigated and deliberately considered and settled by that most intellectual and enlightened tribunal in two former cases. See 4 Cranch, 403, or 2 Gond. R. 151, and 4 Wheat. 77, or Cond. R. 395.</p> <p>In the latter case, Williams, et al. v. Peyton's Lessee, the principles of the decision in 6 Wheaton are explained by the court.</p> <p>The court below instructed the jury, “ That the purchaser, under the sale of lands for the non-payment of the direct tax, to make out title, must show that the collector had advertised the land, and performed the other requisites of the law of congress, in that case provided, otherwise he made out no title.”</p> <p>The defendant then requested the court to charge the jury, “ That the deed, and other evidences produced by them, and herein mentioned, was prima facie evidence, that the said land had been advertised, and the other requisites of the law, in that respect, had been complied with,” which charge the court below refused.</p> <p>The supreme court say, “ It is a naked power, not coupled with an interest; and in all such cases the law requires that every prerequisite to the exercise of that power must precede its exercise; that the agent must pursue the power, or his act will not be sustained by it.”</p> <p>This general proposition has not been contested; but the plaintiffs in error contend, that a deed executed by a public officer, is prima facie evidence, that every act which ought to precede that deed, had preceded it. That this conveyance is good unless the party contesting it can show that the officer failed to perform his duty.</p> <p>It is a general principle, that the party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act “ in pais," the party claiming under that deed is as much bound to prove the performance of the act, as he would be bound to prove any matter of record on which its validity might depend. It forms a part of his title; it is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve. These facts should be examined by him before he becomes a purchaser, and the evidence should be preserved as a necessary muniment of title. If this be true in the general, is there anything which will render the principle inapplicable to the case of lands sold for the non-payment of taxes ? In the act of congress, there is no declaration, that these conveyances shall be deemed prima facie evidence of the validity of the sale.</p> <p>If the duties of the officer be examined, they will be found to be susceptible of complete proof on the part of the officer, and consequently on the part of the parchaser, who ought to pre serve the evidencé of them at least for a reasonable time. Their chief object is, to give full notice to the. proprietor, and furnish him with every facility for the voluntary payment of the tax, before resort should be had to coercive means.</p> <p>In some instances the proprietor would find it extremely difficult to prove that the officer had neglected to give him the notice required by law.</p> <p>By our statute the defendant has a right to tender personal property before the sale in discharge of his land.</p> <p>These decisions establish the rules, that when any officer has by statute a mere naked power, without any interest in the land, to sell and convey, that such officer must give the notice required by the statute, and pursue the power by observing all the requisites, or the sale will be invalid; and that it will not be presumed from the deed that the officer has done his duty by giving the requisite notice; but that when such requirements are acts in pais, they are as necessary to be proved as links in the chain of title, as any matter of record.</p> <p>These rules apply to sheriffs, collectors, administrators, executors, or guardians selling lands under the statutes of the state, all of whom have but a naked power, not coupled with an interest.</p> <p>It is easy for the purchaser to prove by the sheriff or marshal, that notices were posted up at four different public places in the county for thirty days before the sale. But it would be impossible for the defendant to prove they were not so posted up. It would not be competent for him to prove it by the marshal, because he would not be allowed to give evidence to invalidate his own deed to the purchaser, and that he had not performed his duty as an officer. How, then, could he possibly prove the notices had not been given as required by law? If he brought in twenty witnesses to say they had not seen the notices, it would not prove they were not posted up as required by law.</p> <p>The case in Yerger, where it is decided that it will be presumed from the deed that the officer has done his duty in complying with the requisites of the statute, is in direct opposition to these cases, and is founded on a case in New York, in 1 Johnson’s Cases. But in New York there is an express provision of the statute, declaring that the sale shall not be invalid for want of notice. Which is best authority, as evidence of the common law, the decision in Yerger, founded upon the New York case, where a statute has changed the common law rule, that a naked power to sell not coupled with an interest must be strictly pursued, and that the compliance must be proved by the plaintiff as a link in his title, when it consists of acts in pais, as much so as when it consists of acts of record; or the decisions of the supreme court of the United States?</p> <p>In Jackson v. Roberts, 11 Wend. 434, the senator says : “If the deed is to be evidence only of part of the necessary facts, is it of those which show the regularity of the sheriff’s proceedings, or of those which disclose his authority to sell ? Of the former, it may be that the deed is evidence, but this rests not upon the principles upon which the supreme court have based their decisions in this case, but upon the statute which declares that the want of this regularity shall not affect the validity of the sale. 1 Rev. Laws of 1813, 505, § 13. Were it not for this statute, a mere deviation from the form in which a sale is to be conducted by the sheriff would probably render the sale void. 1 Cow. 629; 4 Crancb, 403; 4 Wheat. 77. It must be borne in mind that this is a naked power in the sheriff, not coupled with an interest; and the law, in such cases, requires that every prerequisite to the exercise of that power must precede its exercise. Jackson v. Shepherd, 7 Cow. 90. It is so in regard to a collect- or’s deed for taxes. If he must recite anything in his deed, it must be those prerequisites which give him authority to sell; yet it has been held, and I think very properly, that the recitals in such a deed are not evidence of the existence of such prerequisites.” Again, at page 435, of the same case, 11 Wendell, the same judge says: “A sale by a sheriff is analogous to a sale by a collector of taxes, and I have not discovered any reason why the same principles should not govern them both.” And see what he says further to the same point, on the next page.</p> <p>In this case, and in 2d and 7th Cowen, referred to, the rules laid down by the supreme court are fully recognized, and in conformity therewith it is decided that a mere recital of a compliance with the prerequisites in the sheriff’s deed is not evidence that the course of the statute has been pursued.</p> <p>In Massachusetts these doctrines are recognized by numerous authorities, and in sales on valuation to judgment creditors by extent, it is there settled that the return of the officer is a necessary part of the title, and must show a strict compliance with the requirements of the statute, and that the return must set out the facts, in order that the court may judge whether the sale is legal and according to the course of the statute. Bott v. Burnell, 11 Mass. 165, 166; 18 Pick. 495; Porter v. Millet, 9 Mass. 101; 8 Conn. 536 ; Bottv. Burnell, 9 Mass. 96 ; 15 Pick. 28; Estabrook v. Hapgood, 10 Mass. 315; 17 Ibid. 299; 13 Ibid. 483; 7 Pick. 551; 14 Mass. 28; 2 Ibid. 154; Lancaster v. Pope, 1 Mass. 88; 17 Pick. 440; Eddy v. Knapp, 2 Mass. 154; Amory v. Williams, 14 Ibid. 20. So, too, on sales on execution at public auction of equities of redemption by the sheriff. Whitaker v. Sumner, 7 Pick. 556; Wellington v. Gale, 13 Mass. 483; Davis v. Maynard, 9 Mass. 236; and bn sales by distress, 2 Mass. 154, execution sale under G. 2, s. 6; Purington v. Loring, 7 Mass. 392; Chamberlain v. Doty, 18 Pick. 495. And the court there decide that the facts must be returned, and the return cannot be altered, added to, varied, or contradicted by parol. Bott v. Burnell, 11 Mass. 165, 166; Lancaster v. Pope, 1 Ibid. 88; Eddy v. Knapp, 2 Ibid. 153; Eddy v. Knapp, 2 Ibid. 118, 154; Porter v. Mallet, 9 Ibid. 99 ; Davis v. Maynard, Ibid. 236 ; Bott v. Burnell, 9 Ibid. 96; Estabrook v. Hapgood, 10 Ibid. 315, 319; Bean v. Parker, 17 Ibid. 591; Lawrence v. Pond, Ibid. 433.</p> <p>In 3 Howard’s Reports, 39, this court say, upon a return, “Executed by leaving a copy at the boarding place, October 7th, 1836 : ” “ The sheriff, in the present case, has not returned simply ‘ executed,’ but states the manner of execution. The question then is, whether the manner of executing the process is such an one as the statute sustains. We think not.” And see 1 Mass. 88; 2 Ibid. 154, above cited, and page 118. In 7 Greenleaf’s Maine Reports, 376, (case of Grosvenor v. Little,) the court say, “ When an equity of redemption is seized on execution, the officer is required to give public notice of the time and place of sale, by posting up notifications thereof in two or more public places, in the town or plantation where the mortgaged estate is situated. The sale operates a statute transfer of the interest, and it is essential to the title of the purchaser that the requisites of the statute should be complied with. The officer posted up a notification in but one place in Poland. The omission to do it in two places, we are satisfied is fatal to the title of the purchaser.” See, too, Eastman v. Curtis, 4 Ter. R. 616. In Cable v. Martin fy Bell, 1 How. 561, and in Worton v. Howard, 2 S. & M. 529, even in a sale of personal property, where the power to sell is coupled with an interest, this court say that an administrator’s sale of a slave at private sale is void under our statute, which only authorizes a sale at public auction. If a sheriff may sell without giving notice, why may he not make a private sale of land levied on 1</p> <p>In Tirginia, too, the same rules are recognized in Christy v. Minor, 4 Munf. 431, and Nalle v. Fenwick, 4 Rand. 585. See, too, in Connecticut, Burton v. Pond, 5 Day, 162; Coe v. Stow, 3 Conn. R. (2d series,) 536; Wattles v. Hyde, 9 Conn. R. 10 -14; Lockwood v. Sturievant, 6 Ibid. 373; Watson v. Water, 10 Ibid. 77; Metcalf v. Gillett, 5 Ibid. 405 ; 3 Ibid. 406.</p> <p>On examination it will be found that most, if not all, the cases in the states where it has been decided, either that it is unnecessary to the validity of a purchaser’s title to land that the sheriff shall have pursued the directions of the statute in giving notice, or that such notice may be presumed in favor of the officer, or that the recitals in his deed are evidence of notice, that they refer to a case in 1 Johnson’s Cases, in New York, or to Wheaton v. Sexton, 4 Wheat.</p> <p>In New York, by statute, the failure to give notice shall not affect the purchaser’s title; but for this we have shown, by the most respectable New York authorities, that it would be requisite to the validity of the sale, and must be proved like all other links in the chain.</p> <p>In the case of Wheaton v. Sexton, the only question decided by the court was, that a sale under a levy made after the return-day of the execution, did not invalidate the sale. And although Judge Johnson says, “ The purchaser depends on the judgment, the levy and the deed, all other questions are between the parties to the judgment and the marshal.” This is said in reference to the question before the court, as is shown by the very next sentence in his opinion, to wit: Whether the marshal sells before or after the return; whether he makes a correct return, or any return at all to the writ is immaterial to the purchaser, provided the writ was duly issued and the levy made before the return.” He does not mean to say, nor does he say, whether any notice is given or not, or whether the sale is by public auction or by private sale, or whether there is any evidence of these facts or not, is immaterial to the purchaser, provided the writ was duly issued, and the levy made before the return. All he meant, and all he said was, that the validity of the sale did not depend on the return. If no return were made, or an incorrect return, the purchaser might prove by parol that the sale was at public auction, and that notices were given pursuant to the statute.</p> <p>The case of Williams, et al. v. Peyton’s Lessee, reported in the same volume, had been delivered at the same term of the court, with Judge Johnson on the bench, it is presumed nemine dissentients.</p> <p>In that case the court said, “ in all cases of a naked power, not coupled with an interest, the law requires that every prerequisite to the exercise of that power, must precede its exercise ; that the agent must pursue the power, or his act will not be sustained by it.”</p> <p>In all cases. The sheriff is one case, in which the agent of the law has a naked power, not coupled with an interest; and surely Judge Johnson, and much more the court, ought not to be understood at the same term to directly contradict this opinion in Wheaton v. Sexton, when no such question was before them.</p> <p>In Coke on Littleton, section 434, 2586, note, Coke says : “ Regularly, it is true, that when a man doth less than the commandment or authority committed to him, there (the commandment or authority not being pursued,) the act is void.”</p> <p>And in section 66, 52, b: “ If a man be disseised of black acre and white acre, and a warrant of attorney is made to enter into both, and make livery, there, if the attorney enter into black acre only, and makes livery secundum formam cartai, there the livery of seisin is void, because he doth less than his warrant. F.or the estate of the disseisor in white acre cannot be divested without an entry. But there is a diversity between an authority coupled with an interest and a bare authority. For example, a custom, &c. But he that hath a bare authority, as he that hath a warrant of attorney, must pursue his authority, (as hath been said,) and if he do less, it is void.” .</p> <p>Such is the principle of the common law, as to powers given by individuals; and the same principle applies equally to powers derived from a statute or court. Attorney General v. Griffith, 13 Yes. 586. 11 Wend. 425. 4 Wheat. 77.</p> <p>This is also the doctrine of the civil law in Louisiana, or substantially so. Delogny v. Smith, 3 Mill. La. R. 418, 421. 4 Mart. La. R. 513. 11 lb. 606, 711.</p> <p>In the case now before the court, it is clear the sheriff, or marshal, derives all his authority to levy on lands, and sell and convey title, from the statutes of the state; that no such authority exists at common law, and that he has a mere naked authority to sell and convey.</p> <p>That such a power must be strictly pursued, that the prerequisites to the execution of the power must be complied with, and the course pointed out by the statute be followed, or the sale and deed under it are void, is evidenced to be the rule of the law by such weighty and learned authorities, both ancient and modern, as can hardly be overthrown by a few hastily considered scattering authorities to the contrary, to be found in some of the books.</p> <p>And that compliance with such prerequisites, whether they be acts in pais or acts by matter of record, must be affirmatively shown by the purchaser, in making out his title, and are not to be presumed in favor of a public officer, or from loose general recitals in his deed or return, but that the facts in pais must be proved as much as facts of record, is equally well established. The existence of the judgment and execution, acts of record, cannot be proved by a recital in the deed, nor that the sale was at public auction, and not a private sale, which must be shown by the return ; neither can the facts of giving public notice, as required by statute, acts in pais, equally as essential to be proved, as links in the title, in order to support its continuity. These facts should be shown by the return, or at least proved by other evidence than recital in the deed. Jackson v. Shepard, 7 Cow. 90. 11 Wend. 433, cases there cited. 5 Serg. & Rawle, 332. 4 Wheat. 77.</p> <p>By the sheriff’s return it is shown he did not pursue the course pointed out by the statute ; he has returned the facts, and those facts do not correspond with the requirements of the statute.</p> <p>No question arises here, whether notwithstanding the return, the purchaser might not have introduced proof that the proper notices were given. No such proof was offered, and no such question was raised in the court below; but notwithstanding his return showed, upon the facts therein stated, that the sale was void, plaintiff’s counsel insisted upon his right to offer the deed, upon the ground that the purchaser’s title was unaffected by the want of notice. This was the sole question raised in the court below, and is the only question presented by the record here. Was it error in the court below, upon the facts stated in the return, to rule out the execution and deed, because upon the return the sale appeared to be void ? The marshal was in court, and might have been examined by plaintiff, to prove the notices had been regular, if such were the fact, though not by the defendant, to destroy his (the sheriff’s) own deed, by proving them irregular. Plaintiff did not choose to examine him, because he would have proved that the notice was given only in the public newspaper, without the request of defendants, and only ten days, instead of thirty, before the sale.</p> <p>But the only question here is, was it error to rule out the evidences of plaintiff’s title, upon the facts returned by the marshal, when no other evidence of a legal notice was offered, and when the facts, as returned, clearly showed that the sale and deed under it were void 1 Clearly not.</p> <p>Plaintiff first offered the judgment, the execution, and return, as evidence of an authority to sell, and a legal sale under the authority. It was objected to, because the return showed an illegal and void sale, and the objection sustained. Plaintiff then offered the deed, which was also objected to, because the sale being shown by the return to be invalid, the deed under it was also void.</p> <p>The sheriff had returned “the manner” of his giving the “ legal notice ; ” and in the language of this court, in 3 How. 39, “ the question then is, whether the manner of giving the notice is such an one as the statute sustains?”</p> <p>In the case of Drake v. Collins, 5 How. 253, the court remark, that the case was not argued at bar, or by brief, and a brief was furnished on one side only. The court based its decision, that the law will presume an officer did his duty, upon a general return “ that he had given notice according to law.” Upon the case in 3 Yerg. 308, in a sale of personal property, where the power to sell is coupled with an interest, and where, therefore, the requirement of the statute to give notice, is merely directory, and whether given or not does not affect the validity of the sale, the decision is, doubtless,, correct. It is so decided in 2 Bibb, 401, upon a sale of negroes, referred to by plaintiff’s counsel.</p> <p>But the rule is different, where the notice required must be given to make the sale a valid one, and where the fact of notice is a necessary link in the chain of the purchaser’s title, which is the case of a sale of lands under the statute. Either the court in 3 Yerger are wrong, or the decisions in 4 Wheaton, 7 Cowen, 4 Randolph, 4 Munford, and all the cases referred to in Massachusetts, Yermont, New Hampshire, and Connecticut, are not evidence of the correct rule of law. Davis v. Maynard, 9 Mass. 242. 1 lb. 88. 2 lb. 154, 118.</p> <p>But in the case now before the court, it is unnecessary to decide whether notice may be proved by a general return, or by recitals in the deed, upon the legal presumption, that officers have done their duty, in complying with the directions of the law.</p> <p>Take the return of the marshal and the recitals in the deed together, and what do they show? Do they show a compliance with the requirements of the law, in giving notice ? Did the marshal, in selling under his bare power, pursue the course of the statute strictly, or, in the language of Coke, did he do less than his authority required ?</p> <p>He has made a special return of what he did, and in his deed he recites, that he levied a writ of venditioni exponas on the land, and “ having given thirty days previous notice, that the above described property would be sold at public auction.” Upon the recitals in the deed, his deed was clearly void, because it shows a total want of authority ; for the sheriff has no authority, under a venditioni exponas, to levy on lands. True, this recital is shown to be false by the venditioni exponas itself. But “ falsum in uno,falsum in toto.” What confidence is to be put in the recitals of a deed, when one material recital, the very authority itself, is false?</p> <p>Then as to the notice; did the court below err in concluding, upon all the facts returned on the execution and recited in the deed, that the notice required by the statute was not the notice which, according to the evidence contained in the marshal’s return and deed, had been given ?</p> <p>The cases in 3 How. 39, and 5 How. 662, are an answer. Upon the faets specially returned, and recited on the writ and in the deed, the marshal gave “ legal notice in the public newspaper, thirty days previous ” to the sale. According to the facts here specially returned, is this legal notiee, taking his return and his recitals to be true ?</p> <p>If the court below, upon the facts before them, as shown by the return and the recitals on the deed, did not err in ruling out the deed and the return, as evidence of title in the plaintiff, then the judgment of the court below must be.affirmed, even if he erred in not allowing plaintiff’s challenge to the juror, as the plaintiff was not injured by the error.</p> <p>All the cases cited by plaintiff’s counsel, of sales of personal property without notice, or of sales of real property under erroneous judgments, or irregular and amendable process, are wholly inapplicable to this case.</p> <p>If a party suffers his property to be sold under irregular process, or an erroneous judgment, before he applies to set aside the process, or have the judgment reversed, it is his own fault. But these questions have nothing to do with the question, whether the sheriff must pursue his statutory authority under an execution, by giving notice as the law requires. If the judgment or execution be void, he has no authority.</p> <p>It is asked, how is the purchaser to know whether the marshal was requested to publish in the public newspaper 1 The answer is, by inquiring of the marshal, who is bound to inform him truly, and if he answers falsely, it will be a fraudulent sale. He can prove the facts, too, by the marshal.</p> <p>But, in the language of Chief Justice Marshall, how is the proprietor to prove the notice was not given 1 In this very case the only contest is, whether the plaintiff shall recover upon the sufficiency of the return and the recitals of the deed, as evidence of notice, although it is true, and admitted by the marshal out of doors, that he gave but ten days’ notice, and was not requested by defendant to give notice in the newspaper. If sent back, plaintiff must recover; because not required to prove a compliance with the statute, and defendant cannot prove a non-compliance by any one but the marshal, and he is inadmissible to invalidate his title. But if the decision of the court below is sustained, and a new ejectment brought, plaintiff can prove a compliance with the statute by the marshal, if he did comply. But no second ejectment will be brought.</p> <p>But this is an argument of convenience, or policy, and is no answer to the law, that a sheriff, having a naked power, must pursue it. It is said, too, defendant has remedy, by moving to quash the execution. But if the sale was valid before, quashing the execution would not invalidate. .Question is, without notice pursuant to the statute, was the sale valid 1 It is not a question of authority, but a question of pursuing the authority in the execution of the authority.</p>

<p>P., J. & Co. brought an action of assumpsit against F. as indorser of a bill of exchange, and proved, by the deposition of the notary, the demand, protest, and notice, of a bill payable five days after sight, which corresponded in date, amount, parties, and in all other respects with the bill sued on j the copy of the bill, however, as indorsed on the interrogatories to the notary, was payable five months after sight, instead of five days, which discrepancy the notary points out, and sets out in his deposition a correct copy of the bill sued on. The plaintiffs proved every other fact necessary to entitle them to recover. The jury found for the defendant, and the circuit court refused to grant a new trial r Held, that the misdescription of the bill indorsed on the interrogatories, was a mere clerical mistake, which the jury might have disregarded. And a new trial should have been granted.</p>

<p>A slave belonging to D. was sold under a judgment against him, and purchased by the friends of D.’s wife, who had the title made to her ; M. afterwards obtained judgment against D., and had the slave sold under it, which was purchased by W.; D. and wife filed a bill, impleading W. and M., asserting the wife’s title to the slave, and praying for a delivery of the slave to her, and that the judgment in favor of W. might be declared void and inoperative, as to the slave : Held, that the bill was multifarious as to M., who had no interest in the controversy, as to the title to the slave, and should not have been made a party.</p>

In error, from the circuit court of Hinds county. On the 15th of March, 1841, John E. Fitzpatrick filed a petition in the circuit court of Hinds for writ of certiorari with supersedeas, to remove from the justice’s court of A. L. Dabney, Esq. at Raymond, Miss, a judgment obtained before him, against the petitioner, by John Ray, upon an open account, for articles furnished by Ray to Benjamin Williams, an agent for the petitioner to carry on the Mississippi Springs for him,…

In error ; from the circuit court of Franklin county. Matthias Fulcord, at the May term, 1842, of the circuit court of Franklin county, entered a motion against Samuel Hamberlin, the sheriff of Madison county, and James S. Prichard, Nathan B. Whitehead, and John B. Moore, his sureties in his official bond, to pay to the plaintiff in the motion, the amount of a judgment in his favor, rendered in the Franklin circuit court, at the October term, 1838, against John G. Middleton,…

Error, from the circuit court of Yalabusha county. This action was an action of assumpsit, instituted to the September term, 1839, of Yalabusha circuit court.

In error: from the Hinds circuit court. This was an action of assumpsit in favor of Joseph & L. Brewster, on an open account against Alexander Coleman and William C. Demoss, who are alleged to have been late partners under the firm of “ A. Coleman & Co.” The writ is directed “to the coroner of Hinds county.” It is indorsed “Received October, 20, 1838, L. Lusk, Cor. of H. C.”— Returned, “ executed on A. Coleman & Co. October 27, 1838.

On the 4th day of November, 1S44, the record of the suit pending in the superior court of chancery, in the name of Isaac M. Wade v. The American Colonization Society, was filed and docketed in this court, as an appeal from an interlocutory decree of the said superior court of chancery, in which appeal Isaac R. Wade was appellant, and the American Colonization Society was appellee.

In error, from tbe Hinds county circuit court. The facts appear sufficiently in the opinion of the court. cited and relied on How. & Hutch. 548, sec. 11; Oldham v. Ledbetter, 1 How. 45-49; 2 lb. 652.

<p>The absence from the record of the petition for a writ of error, where that writ ■ has been, under the statute, issued by the circuit clerk, will not be sufficient ground to dismiss the writ of error from this court. The presumption is, that the clerk acted correctly.</p> <p>A writ of error may issue from the circuit clerk’s office without a bond previously executed, where no supersedeas is sought.</p> <p>Where a forthcoming bond has been quashed, and a Writ of error issued to revise the original judgment, and the writ of error recites as parties to the record, as well the sureties in the forthcoming bond, as the defendants in the original judgment; held, that the writ of error sufficiently identified the record.</p> <p>Where the record contained an entry of satisfaction of the judgment, the propriety of which entry the plaintiff therein sought to revise; held, that that entry would not, of itself, be sufficient ground to dismiss the writ of error.</p>

A motion was made, in this case, to dismiss the appeal, because there was in fact no such question involved between the parties, as the record presented.

This is an appeal from the probate court of Claiborne county. The record sets forth that at the May term of the probate court for said county, in the year 1840, the appellant, as the administrator of said Earring, made an exhibit to said court, showing the said estate to be insolvent, and the court thereupon ordered the exhibit to be recorded, and appointed commissioners of insolvency on the same for six months.

In error from Rankin county circuit court. It was suggested by motion in this case, and in the regular mode, that the record before the court contained matter not in the record in the court below, and a certiorari, to bring a true record before the court, was prayed.

<p>By the statute of 1836, declaring the contracts of partners to be joint and several, the rule of pleading, with reference thereto, is materially changed. It is not necessary, in suing in assumpsit upon such a contract, to allege a a partnership ; and the plaintiff may declare against any one or more of the partners.</p> <p>Where a note was indorsed in the partnership name, and one of the partners wrote at the foot of the note an agreement, to acknowledge notice at a particular place, and notice was given according to the agreement; l\d&> that such notice was sufficient to bind the other partners, in a suit against them.</p>

Error, 'from the circuit court of Madison county. The facts are stated in the argument of counsel and the opinion of the court. Henderson, one of the firm of Motts & Henderson, sued out an attachment in his own name, on the 27th of August, 1838, against Charles A. Ely, and garnishment issued against Whitehead and others.

The bill in this case was filed by John Farve and others, the heirs and devisees of Simon Farve, deceased, against Isaac Graves and Celeste Graves, his wife, formerly Celeste Farve, the widow of Simon Farve, deceased, and against Richard Garrison.

In error, from the circuit court of Yazoo county. The record presents the following case: At the April term, 1838, of the circuit court, the plaintiffs in the court below brought suit against John S. Sandes and David Sandes, partners, &c., in assumpsit, on the following note, namely: Benton, January 2, 1838. One day after date, we promise to pay Dillahunty & Davis, or order, two hundred and twenty-three dollars and twenty-eight cents, for value received. J. S. &. D. Sandes.

<p>Where a judgment is rendered against F., who gives a forthcoming bond with M. as his surety therein, which is forfeited, and execution issues upon that forfeited bond, and is levied upon the property of M. who filed his petition for, and obtained a supersedeas on the ground that F. had sufficient property to pay the judgment; and the court below, without inquiry into the facts or answer to the petition, dismissed the petition, and quashed the supersedeas ; held, to be error, and that the allegations of the petition should be investigated, and if true that the surety should be entitled to the relief asked.</p> <p>Where the fact of suretyship appears on the face of the execution in the hands of the sheriff, it is not necessary for the surety to make affidavit of his being such, to compel the sheriff to proceed first against the property of the principal.</p> <p>Where the sheriff was peremptorily required by the statute to levy executions in his hands upon the property of the principal before that of the surety, and the sheriff, upon application of the surety, refused to do so, but levied on that of the surety; held, that it was not a matter within the discretion of the sheriff, but that he could upon proper application be compelled to discharge his duty.</p>

<p>This court has the right, after the term at which a cause has been decided, to grant a rehearing ; and in a case of peculiar hardship, where irremediable injury might otherwise be done, a rehearing will be granted.</p>

Error from the circuit court of Madison county. This was an action of assumpsit brought by Etherton Wilson against Thomas Sanders, Thomas J. Smith, Lawson F. Henderson, and Archibald Clark. During the progress of the trial several exceptions were taken, none of which, however, need be noticed, as the merits of the case were not considered by this court.

<p>Where one of two defendants sues out a writ of error, in which the other does not join, it ought to be dismissed.</p> <p>The defendant who did not join in prosecuting the writ of error, was no party to the record in this court, and his death could not, therefore, affect the cause.</p> <p>A judgment was rendered against J. P. & P. P., the latter prosecuted a writ of error, which was dismissed by this court for want of prosecution. P. P. then sued out a writ of error coram nobis, and asked to have the judgment of dismissal reversed, and the cause reinstated, on the ground that J. P. died before the judgment of dismissal was rendered: Held, that J. P. not having joined in the writ of error, was not a party in- this court, and his death could not affect the cause ; and the writ of error was therefore properly dismissed.</p>

<p>Where several persons are sued at law, and the process is served on all but one, who neither appears nor pleads, and those served plead, and upon their plea the case was submitted to the jury, who found for the plaintiff below, and judgment of the court was rendered thereon against all of the defendants; held, that there being no discontinuance as to the party not served, the judgment was erroneous and must be reversed.</p>

In' error from the circuit court of Jefferson county. There were four records filed in this court between the same parties; the condition of the records in the several cases is very similar, and the opinion delivered in each case is nearly a transcript of the opinion in each of the others. One case only therefore is reported. The opinion of the court is referred to for the facts of the case.

In error, from the Hinds circuit court. - A motion was made to dismiss the record^ Writ of error in this case, for want of due service of the citation. The suit below was upon a note, made by James C. Mitchell, for $13,033, and indorsed by Henry Calhoun, Mitchell Calhoun, and A. G. McNutt. James C. Mitchell, the maker of the note, was a member of the bar, and filed a plea for himself and for the Messrs. Calhoun. W. H. and A. M. Paxton plead for A. G.'McNutt.

A motion was made in this court to dismiss this appeal, for two reasons : 1. Because the appeal bond was not in conformity with the statute; its condition not being to perform the decree of the Chancellor, but to pay the judgment rendered at law, and which had been enjoined, in case of an affirmance. 2. Because the requisite number of sureties, required by the order of the Chancellor, are not parties to the bond.

In error, to the circuit court of Hinds county. This was an action of assumpsit brought by Harmon Stidger against A. L. Dabney, as administrator of tl^e estate of Benjamin F. Dabney, deceased, founded on Thomas & Dabney’s indorsement of Thomas J. Harper’s promissory note for $11,100.

<p>Any one of the judges of the high court of errors and appeals, or all of them, as individuals, have full jurisdiction over the writ of habeas corpus; but they have not power as a court, to act thereon, in the first resort.</p> <p>So much of the common law as is strictly in accordance with the constitution of the state, upon the adoption of that constitution, and before the enactment of any statutory law, became a portion of the law of the state.</p> <p>The power to punish by fine and imprisonment, for consequential or constructive contempt, such as a newspaper publication, reflecting upon the courts, is at war with the constitution of this state.</p> <p>The statute of this state, (How. & Hutch.*436,) prescribing the mode of punishing contempts, limits the power of the courts to the punishment of contempt of the character defined in the statute, and in the mode, and to the extent established by the statute.</p> <p>A newspaper article, published during the session of a court, pending the trial before that court of a prisoner indicted for murder, charging the judge presiding over the court with being an abettor of the murderer, is not a contempt of the court, but a mere libel upon the functionary.</p> <p>The governor of this state has power, under the constitution of the States, conferring upon him “power to grant reprieves and pardons, and to remit fines in all criminal and penal eases, except in those of treason and impeachmeut,” to pardon a contempt committed against a circuit court, and to release and remit the sentence of fine and imprisonment, inflicted upon the offender.</p>