Volume 13 — Mississippi Reports

In error, from the circuit court of Carroll county, from the chancery side of the court.

In error from the Pike circuit court. William A. Stone, suing for the use of Charles W. Adams, brought an action of assumpsit against Thomas Ellzey, Noah R. Sparkman, and John Ellzey, upon a promissory note made by them payable to Stone. The plea was non assumpsit. A trial was had and the jury found a verdict for the plaintiff below. The defendants made a motion for a new trial, which was overruled, whereupon they embodied the testimony in a bill of exceptions.

On appeal, from the probate court of Madison county. A bill was filed in the probate court of Madison county by the appellant, John I).

In error from the Adams circuit court. This was an action of assumpsit, brought by the Commercial Bank of Natchez, against John M. Maury and Joseph W. Sessions,' makers, and Frederic Stanton, indorser, of two promissory notes.

In error, from the Adams circuit court. John Odenheimer and James Tennent, sued James J. Rowan and Lydia Dowell, in the circuit court of Adams county, upon a note of which the following is a copy; viz. $642 40. Natchez, April 24, 1840.

In error, from the Warren circuit court. Held: that where the indorser made a subsequent promise to pay, a previous demand on the drawer and due notice were to be presumed, and need not be proved,” that is, proved by positive testimony.

In error from the probate court of Yazoo county. Ezekiel Wright and others, trading in partnership, under the firm of Harris, Wright & Co.-, Robert E. Mitchell and George P. Bierne and George W. House, partners, under the firm of Bierne & House, at the January term, 1843, of the probate court of Yazoo county, filed their bill of complaint against Beverly R. Grayson, George Fisher and Nancy A..

On appeal, from the probate court of Jefferson county. John J. Cowden filed a petition in the probate court of Jefferson county, státing that James Cowden died on the 23d day of January, 1832, and on the 4th Monday of January, of the same year, administration was granted to his widow, Ann H. Cowden, who was now deceased; that at the April term, 1832, of ■the court, a will was produced and probated by the court, and letters testamentary granted thereon, to Mrs. Cowden, named…

Hugh Connell, administrator of Kinchen Holliman, deceased, filed his bill in the superior court of chancery, impleading William St. John Elliott, and Hugh M. Keary, Patrick F. Keary, and William Y.… Held: even in cases of ordinary sales of land, that if a third person purchases it, with notice of the original vendor’s lien, such lien will remain good against such purchaser with notice; 15 Yes.

In error from the Marshall circuit court. At the November term, 1841, of the court, Joseph H. Tal-bert sued A. Henderson, R. W. Thomas, and W. V. Taylor, in an action of debt on two bills single, of one of which, the following is a copy; viz.: $1087.

On appeal, from the probate court of Yalabusha county. The Farmers and Merchants Bank of Memphis, Tennessee, and George W. Smith, filed a bill of review to the August Term, 1844, of the probate court of Yalabusha county, for the purpose of reviewing the decree of that court made upon the petition of Edmund S. Tappan and Sarah E. Tappan his wife, at the March term, A. D. 1844, allotting to them dower in certain lands alleged to have been owned by Andrew R. Govan, deceased ;…

This cause is brought by appeal, from the decree of the chancellor of the state. Held: not as stated accounts, but as conclusive adjudications, then the last hopes of the widows and orphans of the country are swept away.

Hamer against John B. Nevit, administrator of Thomas Nixon, deceased.

In error, from the circuit court of Marshall county. Willis M. Lea sued Roger Barton, as maker, and Joseph Brunson, as indorser, upon a promissory note, in a joint action under the act of 1837.

Samuel K. Montgomery, and his wife Mary Ann, filed their bill in the superior court of chancery of this state against William G. Millikin and Isabella his wife, John P. Walworth, trustee, and Samuel McAlister, administrator, with the will annexed, of David Alexander, deceased.

In error from the Claiborne circuit court. Edward K. Chaplain, administrator of William R. Chaplain, sued Parmenas Briscoe in the Claiborne circuit court, to its May term, 1842, on two notes, dated February 8, 1832, and due January 1, 1838, in favor of J. B. Conger; one made by Parmenas Briscoe and Thomas Briscoe, for $609, and the other by Thomas Briscoe and Parmenas Briscoe, for $366 66. The defendant pleaded non assumpsit.

In error from the circuit court of Panola county. Leonard A. Weisinger and Thomas Lockhart, forming the firm of L. A. Weisinger & Co., sued Thomas M. Wright in an action of debt, founded upon a judgment of the county court of the county of Perry, in the state of Alabama, in favor of the plaintiffs against the defendant, for the sum of $62 64, together with the costs. The record of the judgment of the court in Alabama was filed with the declaration.

Thomas Anderson filed his bill against Edward Exum and James W. Exum, and H. R. W. Hill.

In error from the Madison circuit court. On the 18th of March, 1840, James Black, administrator of the goods of Thomas M. Black, deceased, sued Robert Y. Davis upon a note for $546 46, dated February 20, 1888, payable to William Gartley, on the 1st day of January, 1839. The declaration alleged, that Gartley had indorsed the note to Lewis M. Garrett, who had indorsed and delivered it to the plaintiff’s intestate, since which period it had been lost.

In error from the circuit court of Jefferson county. William W. Wilkins, who sued for the use of Andrew Go-bear, brought his action upon the following note and indorsement, viz.: “ $562 50. Held: that where a note was specially indorsed, suit must be brought in the name of the indorser. See also in the case of Dugan et al., Executors of Clark, v. United States, 5 Wheat. 173.

In error from the Madison circuit court. Michael J. McKie obtained judgment in the circuit court, against M. T. Moore, and had his execution levied upon four slaves, which Mrs. Mary E. Moore, the wife of the defendant in the execution, made formal claim to by affidavit and bond and an issue to try the right of property was regularly made up between the parties, and the cause submitted to a jury.

On appeal, from the probate court of Hancock county. The appellee, Green J. Wooten, filed a petition in the probate court of Hancock county, stating that the appellant, David R. Wingate, was the administrator of Jordan Morgan, deceased ; that the bonds given by the administrator; for his faithful administration, were legálly defective ; that he had removed four of the negroes, belonging to the estate of Morgan, out of this state; and that the petitioner was a creditor of the…

This cause is brought into this court by an appeal from the probate court of Hancock county. ■ , The defendant in error, Elias Wallis, in behalf of himself and others, heirs of Thomas Wheat, deceased, petitioned the probate court of Hancock county, stating that they were heirs of Thomas Wheat; that Jordan Morgan had been the administrator of Thomas Wheat; that Morgan died without settling his accounts, and making distribution, and that the estate of Wheat was worth $20,000 ;…

In error, from the Simpson circuit court. Duncan L. Sinclair, the defendant in error, instituted his action of assumpsit, on an open account, against John Price, the plaintiff in error, to the May term, 1842. At that term there was a plea of non assumpsit by the plaintiff in error, and the cause was continued till the November term, 1842.

In error from the Adams circuit court. Zeide Foster sued William R. Collins and William Ferguson to the November term, 1842, of the circuit court, upon a note for $108. At the return term, the defendant Collins, having been served with process, appeared and pleaded non assumpsit; and an alias writ was ordered for Ferguson, to the May term, 1843, which was served upon him.

On appeal, from the circuit court of Yazoo county. Held: that if an attorney employed intrust the collection to another, and that other fails, the original will be liable to the principal. So in 8 Marlin’s La. R., N. S. 464, it is held, that a factor who employs an agent to sell goods, without the authority of his principal, is responsible for his agent..

In error, from the circuit court of Itawamba county. Nathaniel Terry sued Jeptha Robins and Malakiah Cummings in the circuit court, in an action of trespass, for taking away from the close of the plaintiff a certain still. A trial was had, and the jury found for the plaintiff the sum of one hundred and twenty-five dollars damages.

In error from the Warren circuit court; Hon. George Coalter, judge. Matthew Watson sued Stephen S. Booth as the maker, and Mark Valentine as the indorser, of a promissory note, for the sum of $ 12,792, dated June 1, 1836, and payable on the fourth day of December, 1838, at the Planters Bank at Vicksburg.

In error from the circuit court of Yalabusha county, Hon* B. F. Caruthers, judge. John Balfour sued Jeremiah T. Talbert, Richard Hodges, Sterling Harrison, Hillary Talbert, Nathaniel Howard, Benjamin Williams, and Landin C. Maclin, as obligors in an injunction bond, executed to obtain an injunction at law.

In error from the Carroll circuit court; Hon. Benjamin F. Caruthers, judge. Samuel Moore sued John T. Turner'and Tredwell S. Ayres, upon a note, of which the following is a copy, viz.: “ On the first day of January next we, or either of us, promise to pay Marsh & Ayres eighty dollars, value received, this 11th September, A. D. 1839. John 0. Turner.” On the back of the note was indorsed, T. S. & F. Ayres.

In error from the Adams circuit court; before the Hon. C. C. Cage, judge. John Doe, on the separate demises of Anna M’Comas, and of Peter Little, sued Richard Roe, in ejectment, in the circuit court. Held: a deed from A. to the grantor must be produced. Parol' evidence not admissible.” Jackson v. Parkhurst, 4 Wend. 369.

In error from the circuit court of Tallahatcbee county, Benj. F. Caruthers, judge. This action of slander was commenced by Allen Weatherby in the circuit court of Yalabusha county against Charles Cock. The declaration contained five counts. The first count charged the defendant below, Cock, with saying in the presence of many good citizens, &c. to Weath-erby, plaintiff below, “ You (meaning said plaintiff) are a damned rogue.

Hon. Benjamín F. Caruthers, judge. Nancy Ann Alvis, a minor, under the age of eighteen years, residing in the county of Shelby, in the state of Tennessee, by her next friend, Zacharias C. Alvis, filed a petition before the Hon. B. F. Caruthers, judge of the second judicial district of the state, setting forth, that on the 4th of February, A. D. 1843, at night, James Nations and Joseph Nations, by stratagem, seduced certain slaves out of the petitioner’s possession, and…

In error from the circuit court of Tallahatchee county, before the Hon. Benjamin F. Caruthers, judge.

M. D. Kim-braugh, judge. The appellant, William G. Herring, filed in the court of probate of Carroll county, on the 5th of March, 1844, his petition, alleging therein, that on the 22d of March, 1838, he executed, as security for Thomas Rhodes,' a bill single for the sum of $625, payable to James Meek, administrator; that Thomas Rhodes, the principal obligor, died the 2d of November, 1839, and at January term, 1840, James Wellons was appointed administrator on his estate, and…

In error from the circuit court of Warren county. Hon. George Coulter, judge. This was an action of assumpsit, founded on the promissory note of the defendant for $468 10, dated April 21, 1839, payable nine months after date, to the order of Street & Mitchell, in the currency of the state of Mississippi, payable and negotiable at the Commercial Bank of Natchez, and by said Street &. Mitchell indorsed to the plaintiff.

In error, to the circuit court of Amite county, before the Hon. Van Tromp Crawford. William Kain and Robert Pitts, partners, under the firm of William Kain & Co. brought their action of assumpsit on two promissory notes against the defendants, Philip May and H. G. Street, by filing their declaration in the clerk’s office, and causing a writ to issue against the defendants thereon, upon the 12th day of July, 1842.

_ In error from the circuit court of Copiah county ; before the Hon. A. G. Brown, judge.

<p>In error, from the Hinds circuit court: before the Hon. John H. Rollins, judge.</p> <p>sued Elijah Cook, the plaintiff, in the Hinds circuit court, as a copartner in the Real Estate Banking Company, of Hinds county, on certain notes made by that company, and on a draff drawn by them on the New York Banking Company. The notes are all precisely similar, except as .to dates, amounts, names of payees, &c. The following are copies of one of the notes, and of the draft:</p> <p>“ Clinton, March &th¡ 1839.</p> <p>“On demand, five months after date, the Real Estate Banking Company, of Hinds county, will pay one hundred dollars to J. F. Jack, or bearer, at their banking-house, in Clinton.</p> <p>• “ Cowles Mead, President.</p> <p>“ J. Davenpoet, Cashier.”</p> <p>“C. B. C. 804. Real Estate Banking Company,</p> <p>“ Clinton Missi. July 23d, 1839. No. 87.</p> <p>“ Cashier of the New York Banking Company, New York. Pay to the order o! G W. Gibbs, two hundred and seventy dollars, four months after 7- <.e, waiving acceptance.</p> <p>“Cowles Mead, President.”</p> <p>The declaration contained a special count on each, note, and ■" i and also the common count for money had and re-'■’•'id. The special counts are as follow: “For that said J- ’ ..dam, together with others, not sued in this action, co-pará' >-s, by their copartnership name of the Real Estate Banking Company of Hinds county, heretofore, to wit, on the 4th day of March, 1839, in said county, mad.e their certain promissory note, of that date, signed 'Cowles Mead, president,’ and countersigned ‘ J. Davenport, cashier,’ No. , and thereby, then and there promised, on demand, five months after date, to pay to J. F. Jack, or bearer, one hundred dollars, at their banking-house in Clinton, to wit, in said county, and then and there delivered said promissory note to said Jack, who, afterwards, and before the payment of the money therein specifiéd, to wit: on the day and year last aforesaid, at, to wit, in the county aforesaid, transferred and delivered said note to said plaintiff, ■who thereby, then and there, became, and still is the lawful holder and bearer thereof, and entitled to demand and receive payment of the same.”</p> <p>At the close of the special counts on the several notes, the declaration contains an averment of demand of payment of said notes at the banking-house of the said company at Clinton, and of non-payment.</p> <p>The special count on the draft was in these words: “And for that also, afterwards, to wit, on the 23d day of July, 1839, at Clinton, Miss., to wit, in said county, the said defendant, together with others, not sued in this action, copartners, in the name of the Real Estate Banking Company of Hinds county, by Cowles Mead, then their agent in that behalf, who uses the signature of Cowles Mead, President, made therein certain check or draft, bearing date the day and year last aforesaid, and then and there directed the said draft to a certain company, called the New York Banking Company, in New York, a place in the state of New York, and without the state of Mississippi, and thereby, then and there required the said New York Banking Company to pay to the order of G. W. Gibbs the sum of two hundred and seventy dollars, four months after the date of said draft, waiving acceptance thereof, and then and there delivered said draft to said Gibbs, who, afterwards, and before the payment of the sum of money therein specified, to wit: on the day and year last aforesaid, at, to wit, in the county aforesaid, indorsed said draft, by the'name of Geo. W. Gibbs, by which indorsement he then and there ordered and appointed the sum of money therein specified to be paid to the plaintiff, and then and there delivered the said draft, so indorsed, to said plaintiff, who thereby, then and there became, and still is the lawful holder thereof, and entitled to demand and receive payment of the same. And afterwards, to wit, on the 26th day of November, A. D. 1839, when said draft became due, according to the tenor and effect thereof, at the bank of said New York Banking Company, in New York aforesaid, to wit, in said county, the said draft was duly presented and shown to the teller of said New York Banking Company for payment, and payment thereof then and there demanded, according to the tenor and effect of said draft, but the said teller of said New York Banking Company did not, nor would, at the time when said draft was so presented and shown for payment, as aforesaid, or at any time before or since, pay the sum of money therein specified, or any part thereof, of all of which the said defendant, afterwards, to wit, on the day and year last aforesaid, to wit, in the county aforesaid, had notice. And the said plaintiff avers, that at the time of the making of said draft, and from thence until the time the same was so presented and shown for payment as aforesaid, said New York Banking Company had not in their hands, any effects of the said defendant, or of the said copartnership, of which he was and is a member as aforesaid, to wit, the Real Estate Banking Company of Hinds county, nor had the said New York Banking Company received any consideration from him or them, for the payment of said draft, nor has said defendant, or said Real Estate Banking Company, sustained any damage by reason of his or their not having had notice of the non-payment, as aforesaid, of said draft. Of all of which said several premises the said defendant, afterwards, to wit: on the day and year last aforesaid, at, to wit, in the county aforesaid, had notice; by means whereof the said defendant then and there became liable to pay to the said plaintiff the said sum of money in said draft specified, when requested, and being so liable the said defendant, in consideration thereof, afterwards, to wit: on the day and year last aforesaid, at, to wit: in the county aforesaid, undertook, and then and there promised said plaintiff, to pay him said sum of money in said draft specified, when thereunto requested.</p> <p>Then follows in the declaration the common count, and the breach, in usual form.</p> <p>The defendant, by his attorney, H. Stuart Foote, Esq., plead non assumpsit, in the usual form, without affidavit of its truth.</p> <p>At the trial, Amos R. Johnston, on behalf of the plaintiff below, proved that he had heard Cook, the defendant, state in conversation, that his connexion with the Real Estate Banking Company of Hinds county, had ruined him.</p> <p>He further testified that he iinderstood, from general report, and believed, that Cowles Mead was the president of that company; though he had never been present at any appointment of him; that he knew Cowles Mead’s handwriting, and that the signature to the draft sued on was in his handwriting. Upon which the court permitted the draft to be read to the jury, to which exception was taken.</p> <p>The deposition of William Anderson, a citizen of New Orleans, was then offered, taken under a commission a,nd interrogatories, issued on the 7th day of December, 1842. The interrogatories and notice were filed on the 6th of December, and were indorsed in these words : “A copy of the above interrogatories having been served on me, I waive the propounding of any on the part of defendant. December 6, 1842.</p> <p>H. StuaRt Foote.”</p> <p>The defendant objected to the reading of the deposition, because the commission under which it was taken issued within ten days from the date of service of the interrogatories; the court overruled the objection; the defendant then objected to the deposition, because the words “ original number eighty-seven; two hundred and seventy dollars, J. B. E. G. B. K.,” written across the face of the original draft, and the words “ Geo. W. Gibbs,” indorsed on the back, were not on the copy of the draft accompanying the interrogatories, with reference to which the witness testified. This objection was also overruled, and exceptions signed.</p> <p>The deposition was then read. The witness proved that he had no distinct recollection of the draft described in the interrogatories; he only knew that such drafts were drawn by the 'Real Estate Banking Company ; that he was in the employ of that company, in the capacity of teller, at the time the draft was drawn, and had been in that office for about a year before, and the same length of time afterwards; that the company had no funds in the hands of the drawees, to meet the drafts of the character sued on; they were expected to be provided for by negotiations, to be made by the cashier in New York, who did not succeed in making the expected arrangements, in consequence of which the drafts were protested.</p> <p>A motion was made in the court below to exclude the answer of this witness to the fourth interrogatory propounded to him, because his answer did not confine itself to the question asked. The interrogatory was this: “Had the Real Estate Banking Company any effects in the hands of the drawee when said draft was drawn, or had they any when said draft became due, or between its date and maturity?” The answer was that given above, that the company had no funds, but expected to provide them by negotiations, which failed. This objection was overruled.</p> <p>The defendant then objected to the whole deposition, because no evidence was given that the witness Anderson “was absent from, or resided out of this state at that‘time; or was dead, or by reason of age, sickness, or bodily infirmity, or any other cause whatsoever, was then unable to attend that court.” This objection met the same fate, and exceptions were taken.</p> <p>The handwriting of Mead and Davenport to each of the notes sued on,, was proved, and the defendant’s objections to their introduction overruled, and they were read to the jury; which was all the testimony in the case.</p> <p>The defendant asked the court to charge the jury, 1. The plaintiff in this action, under the declaration, is bound to prove that the defendant sustained no damage, by want of notice of non-payment of the bill of exchange in the declaration mentioned, and if the plaintiff has not made such proof to the satisfaction of the jury he is not entitled to recover on the draft.</p> <p>2. The plaintiff in this case is bound to prove demand at the banking-house in Clinton for payment of the notes sued on in this case, before he can maintain his action on the notes.</p> <p>3. In order to entitle the plaintiff to recover he must prove that Cowles Mead, by whom the notes and draft sued on were signed, was the authorized agent of the defendant to sign said notes and draft, at the time of the dates thereof. Which instructions were all refused by the court, and a bill of exceptions signed and enrolled, and a writ of error prosecuted.</p> <p>The following errors are assigned as existing in the action of the court below.</p> <p>1. In the admission as evidence to the jury of the draft, as set forth in the bill of exceptions.</p> <p>2. In admitting the deposition of William Anderson, and overruling the objection made thereto, because of the premature issuance of the commission to take the same.</p> <p>3. In not excluding the said deposition because of the omissions in the copy of said draft, as incorporated in the interrogatories.</p> <p>4. In not excluding the answer of said Anderson to the fourth interrogatory, because it was not responsive thereto, nor confined to the inquiry, and for other' reasons.</p> <p>5. For not rejecting the whole deposition for the want of proof at the trial that the deponent was at that time absent, or otherwise so circumstanced as that his testimony ore tenus could not be had.</p> <p>6. In not rej'eeting the notes offered in evidence to support counts in the declaration.</p> <p>7. In refusing to give the first charge to the jury, as moved for by the said Elijah’s counsel, as stated in the bill of exceptions.</p> <p>8. In refusing to give the second charge, moved for by him, as therein also stated.</p> <p>9. In refusing to give the third charge moved by him, as also therein set forth.</p> <p>10. Because in each count of the plaintiff’s declaration on a note of the Real Estate Banking Company of Hinds county, there is no cause of action; the notes respectively being payable on demand at the counting room of the said company at Clinton, and there being no averment of demand of payment thereof there prior to this suit; and.because there was no admissible evidence to support the recovery on the last count.</p> <p>11. Because there was no evidence of any such demand on either or any of said notes.</p> <p>12. Because there is no cause of action in any of the special counts.</p> <p>1. 6, 9. Errors considered together —being the motions to exclude the notes and draft — and the motion for instruction that without proof that Mead was the authorized agent of the company, the plaintiff could not recover.</p> <p>At common law, the partnership alleged, as well as agency of Mead should have been proved. Our act, H. & H. 695, act 36, did not embrace the character of Mead as agent.</p> <p>2. Premature issuance of commission to take Anderson’s deposition. H. & H. 602, § 16.</p> <p>3. Deposition ought to have been excluded because the draft pretended to be copied in the interrogatories was not the same, but different.</p> <p>4. Not sustainable.</p> <p>5. Not shown at trial that Anderson, whose deposition was offered, was absent, &c. H. & H. 603, § 18.</p> <p>7. No proof of absence of injury to defendant for want of notice. It was proved that when the draft was drawn, there was a reasonable expectation of funds being in the drawee’s hands; so there should have been counteracting proof — else notice was necessary. French v. Bank of Columbia, 2 Cond. R. 58. A reasonable expectation of funds entitles drawer to notice.</p> <p>8, 10, 11. These exceptions, and the errors assigned on them, all amount to this, that demand of payment of the notes at the counting house of the bank was necessary, and being omitted, the refusal to charge that it was necessary, &c. is error. When a note is payable on demand, at a particular place, there is no cause of action until demand is made at that place. Wallace v. Me Connel, 13 Peters, 147.</p> <p>1. The 1st, 6th and 7th errors assigned are in effect the same, and are substantially this, that the court below erred in not rejecting the several notes and draft offered in evidence under the several counts in the declaration. The statute of 1836 (see How. & Hutch. Dig. 595, sec. 30,) provides, “ that in all suits founded on promises, agreements, or contracts, in writing, made by two or more persons, as copartners, and signed by any one or more of them, or by any person as agent in their behalf, whether the several names of such copartners be signed at length or abbreviated, or whether the name of any firm be used at length or abbreviated, it shall be lawful and sufficient to declare, or complain against any one or more of them, either severally or as copartners, alleging the liability of him or them each to arise by his or their promise, agreement, or contract in writing, signed or executed by such signature as the writing in fact imports : ” “ and to sustain such averments of liability,” the statute further provides that it shall only be necessary to exhibit in evidence, the written agreement, promise, &c. executed in the manner averred. In the face of the notes exhibited in evidence, the Real Estate Banking Company of Hinds county are the promisors; the plaintiff in error is alleged to be a member of that company, and liable as such. The plea of the defendant was not sworn to. The notes offered in evidence were therefore, under the special counts at least, sufficient evidence of the liability of the defendant below, without proof, of his membership, aliunde, or of the signature or agency of Mead. The same rule of pleading and evidence, established by the statute referred to, will apply to the draft offered in evidence under the special count. The signatures of Mead and Davenport to the notes, and the signature of the former to the draft, are proven to be genuine by the testimony of Johnston: the testimony of Anderson in reference to the draft in conjunction with the statements of Johnston, establish sufficiently, I conceive, the agency of Mead, and therefore submit that the declaration is sustained as to the common count. The liability also of Cook as a copart-ner, is sustained by the testimony of Johnston.</p> <p>2.- .The 3d and 5th errors assigned, go to the admission of Anderson’s deposition; the 4th to the admission of his answer to the 4th interrogatory. The object of copying the draft in the interrogatories, it will be seen, was to call the attention of the deponent to its date and time of maturity. The copy was complete for that purpose. In reference to the answer of Anderson to the 4th question, I deem the objection made too frivolous to merit a reply. The statute of 1837 (see Laws of Mississippi, 760,) provides, that commissions to take the depositions of witnesses residing out of this state, may issue without an affidavit of the non-residence or materiality of such witness. Provided, interrogatories be filed, and a copy be served on the opposite party or his attorney, &c. Anderson was a non-resident witness, and I conceive that the provisions of the law have been substantially complied with. The object of filing interrogatories, and serving the opposite party or his counsel, with a copy ten days at least before the issuance of the commission, is obviously to- afford an opportunity of filing cross-interrogatories, which the opposite party has,a right to do. An express waiver of that right, however, is certainly a waiver of everything necessary to a consummation of that right. The attorney of Cook was served with a copy of the interrogatories filed, who expressly waived the propounding of any on behalf of said Cook; the commission issued on the day following, any further delay being useless.</p> <p>The second objection made to the admissibility of the deposition in evidence, applies only to depositions taken de bene esse, because the witness may, at the time of trial, be within the reach of process, and able to appear in court. But, in the case of a non-resident witness, the presumption is, that he continues to reside beyond the limits of the state. Besides, the deposition here in question was taken in the city of New Orleans, on the 15th of December, and was read in evidence on the 9th of January following, and therefore, furnished of itself as conclusive evidence of the continued absence of the witness, as any that could possibly be adduced.</p> <p>3d. In Bickerdike v. Ballman, 1 Term R. 405, it was held, that where the drawer had no effects in the hands of the drawee at the time of drawing the bill, nor at its-maturity or any .intermediate period, notice of non-payment was not necessary to fix the liability of the drawer. The same rule was adhered to in Rogers v. Stephens, 2 Term R. 713; Hoffman v. Smith, 1 Cains, 157, and numerous other cases. See also Bailey on Bills, 302. I admit that the application of the rule has been somewhat restricted, 'as in Rucker v. Hiller, 2 Camp. 217; 16 East, 43; 3 Camp. 334: 20 John. R. 146 ; 2 Nott & McCord, 257, where it is held, that when the drawer has a bona fide reasonable expectation of having effects in the hands of the drawee, or when he has some funds, though limited in amount, and there is a fluctuating balance between him and the drawer, there demand and notice will be necessary. Such bona fide reasonable expectation can only be based on active steps taken by the drawer himself, to place funds in the drawee’s hands, without a knowledge of failure, as where he has shipped goods to meet the draft and they are on the way, but no bills of lading had' been remitted. Here, however, the drawers had no such reason to believe they had effects in the hands of the New York Banking Company ; on the contrary, they relied only on negotiations to be made through their own cashier, with said company. The cashier of course knew he had failed in arranging for the payment of the draft, and notice to him was notice to the drawers. Besides, it is not pretended that funds of any kind had been transmitted by the drawers.</p> <p>4th. The declaration, it is true, contains an averment of a demand of payment of the notes suéd on previous to the commencement of the action ; this I contend was impertinent, and proof of the averment was unnecessary.</p> <p>To entitle the holder to sue the maker of a note payable on a particular day, and at a particular place, no demand of payment is necessary. Bailey on Bills, 203; Nichols v. Bowes, 2 Camp. N. P. 498; Lyon v. Sundius, 1 Camp. N. P. R. 423; 3 Esp. Cas. 246; Fenton v. Goundy, 13 East R. 459; Ruggles v. Potter, 8 Mass. R. 4S0; 4 J. R. 183; 17 J. R. 248 ; 8 Cow. R. 271. In Haxtun v. Bishop, 3' Wend. 21, Chief Justice Spencer held that, in an action on a note payable on demand, and at a particular place, no averment or proof of demand was necessary. This is his language. “In relation to promissory notes, it is well settled that in an action on a note payable on demand, generally no demand need be proved; the commencement of the suit is a demand. So also in an action on a note payable at a particular place, on a particular day, it is not necessary to aver or prove a demand at the time and place ; but the readiness of the defendant is a matter of defence. It seems to follow, that in an action on a note payable on demand, at a particular place, no demand need be averred or proved; but if the defendant pleads that when the demand was made, that is when the suit was commenced, he was ready at the place mentioned in the note to make payment, and brings the money into court, he discharges himself from the interest and costs.”</p> <p>But these notes were not payable on demand. A bill or note payable on demand, is payable immediately upon presentment. Bailey on Bills, 221. No days of grace are allowed on a note payable on demand, but a suit may be brought against the maker on the very day it is given without previous demand. Bailey on Bills, 234; Cummer v. Harrison, 2 McCord, 246. Another incident peculiar to a note payable on demand, is this, the statute of limitation begins to run from its date. Bailey on Bills, 26; 4 Yernon R. 458. A post note has none of the characteristics of a note payable on demand. The notes here sued on were post notes, payable at a future day. I therefore confidently insist, that the averment of demand of payment at the banking house of the copartnership in Clinton, contained in the declaration, was an .impertinent averment, and according to the rule recognized in Thrasher v. Ely, 2 S. & M. 150, it was not necessary on the trial to prove the truth of that averment.</p>

<p>On appeal from the probate court of Lafayette county; before the Hon. P. H. McCutchen, judge.</p> <p>On the 12th of October, 1840, letters of administration upon the estate of Samuel Mitchell, deceased, were granted to Yan-cey Wiley, by the probate court of Lafayette county; at the April term, 1841,'the estate was declared insolvent, and three commissioners of insolvency appointed. At the October term, 1844, two of the commissioners reported, and stated in their report, that E. G. Reed, trustee of John or Madison McMurray, who was at that time, and at the time of presentation of his. claims, a citizen of North Carolina, presented before them, at their regular meeting, in April, 1843, two notes, one for $8350, and the other for $1700, properly probated for allowance; which claims they retained for examination, until December, 1843, when they rejected them. At the January term, 1S44, on the application of Reed and McMurray, the rejected claims were referred to referees, to make report to the March term of the court, at which term, the referees reported, rejecting again the claims. At the May term of the court, after having taken the report of the referees under advisement, on the motion of Reed and McMurray to reject their report and award, the court entered an order, approving the award of the referees, and rejected the claims.</p> <p>At the June term, 1844, the following order was entered of record: “ The case of McMurray v. Samuel Mitchell's estate, in which E. G. Reed is trustee, having been decided at the May term of this court agaiust the plaintiff, upon the report of the referees, appointed to examine into the claims, it is agreed by the counsel for both sides, that the claims be referred back to the same referees, with instruction to report on the same on the 29th of this instant, at which time a special' term of this court is to be held.” At the special term the cause was continued till the July term, when this order was made : “ It is ordered by the court that this case be continued until the September term of this court next, and that both parties have leave to take depositions generally.”</p> <p>In the record immediately following this order, is a commission to take the deposition of James Webb, of North Carolina, with the notices duly executed; the deposition itself then follows. Webb proves that he was agent for the Bank of Cape Fear, in North Carolina, in the year 1837, and before and since that McMurray owed a debt to the branch of the bank in Orange county, díte on the’ 30th of September, 1835, of $8000; on the 8th of March, 1836, Mitchell paid $2200 of that debt, leaving a balance due of $5800 dollars, which Mitchell paid by changing the debt to the name of McMurray & Mitchell, and adding $4700 to it, making the debt of McMurray & Mitchell to the bank, on the 26th of August, 1836, $10,500, which new debt was paid by Mitchell, as follows : $800, on the 8th of May, 1837, and the balance, viz. $10,179 70, was paid by Mitchell, by submitting his own note for that of McMurray & Mitchell, for that sum, on the 27th of June, 1837.</p> <p>The note for $8350 of Mitchell, held by Reed, was credited with the following sums : “ Received two hundred and eighty-one dollars, 15th August, 1838, of John M. Norflat, executor of. Nath. Norflat, deceased.” September 18,1838, a like receipt for $233; a similar one for $280, on the 25th of October, 1838; a similar one for $540, on the 18th of June, 1S39; and the following: “29th July, 1839, received one thousand dollars of D. H. McAdams;” “Received, 13th March, 1840, of James Perkins, in New Orleans, eight hundred and forty dollars, in part of the within.” “ Received, 13th May, 1840, three hundred and twenty-one dollars thirty-seven cents of John M. Nor-flat, executor of Nath. Norflat, as per receipt given, indorsed on C. Davis’s receipt.” “ March 14, 1840, received of the within two hundred and seventy-six dollars, ($276.)” “June 24, 1840, received of within five hundred and sixty-six dollars and eighty-three cents, ($566 83.)” “ December 25, 1840, received of within eighteen hundred dollars of Robert Jenkins, it being for sale of Mitchell’s interest in Bennett Smith and wife’s interest in Reuben Smith’s estate, sold to said Jenkins by J. Barrett about 6th July, 1840.”</p> <p>The note for §1700 had no credits of any kind indorsed upon it.</p> <p>The following receipts were read before the referees: “ Received of Madison McMurray three thousand two hundred and seventy dollars, January 5, 1837. Samuel Mitchell.” “ Received of Madison McMurray ninety-two dollars, June 15, 1837. Samuel Mitchell.”</p> <p>A letter from Mitchell, dated “Mississippi, June 9, 1840,” directed to “ Madison McMurray, McMurray’s store, North Carolina,” was read, in which Mitchell says, after reciting his efforts and their failure to collect two debts due to McMurray, in conclusion of his letter, “ after all, there is about three thousand dollars of the old debts to collect yet, which I am in hopes will come in after a while.”</p> <p>Another letter, dated* Lafayette, Miss., April 13,1838, to the same person, from Mitchell, was also read, in which Mitchell undertakes to give McMurray a history of their transactions in Mississippi, and enumerates various debts due McMurray & Mitchell, in suit and in progress of collection, and states the prospects in each case of collecting the money; mentions the collection of §155, of a debt due to McMurray individually, and speaks confidently of collecting large sums of the joint debts at the ensuing courts; promising, if delayed in these debts, to send'him “funds by some means or other,” stating that he “ had been for some time endeavoring to procure eastern funds, to send on for your debt in Raleigh; ” and the letter continued, that, in case the banks did not check in May, the writer would have'to buy cotton, and send it to New York, and draw on it through his merchants at New Orleans.</p> <p>Another letter from Mitchell to McMurray, dated Lafayette, Miss., July 9, 1838, was read, in which Mitchell expresses his regrets that he had not yet succeeded in getting their mpney exchanged. In this letter he says: “ My collections have been tolerable. I have collected for the concern of McMurray & Mitchell $11,572 72, and my expenses have been §307 up to this time. There were about §5000 more that I could have had in Brandon money, which I thought proper not to receive. The balance of the firm, debts I will receive so soon as the Union Bank goes into operation.”</p> <p>This was all the testimony spread out in the record. No bill of exceptions was filed.</p> <p>The referees appointed under the consent-order, reported to September, 1844, of the court, rejecting the claims presented by McMurray, on the ground, that, since the execution of the notes held by McMurray, Mitchell had paid, i. e. in June, 1837, over $10,000, of the debt of McMurray, which they considered a good offset against the claims McMurray was attempting to enforce.</p> <p>The court received and confirmed this report; whereupon Reed, the trustee of McMurray, appealed.</p> <p>Three errors were assigned for reversing the decree.</p> <p>1. Because the set-off allowed was not sustained by the testimony.</p> <p>2. Because the alleged payments were made before the execution of the notes in controversy.</p> <p>3. Because the subsequent payments by Mitchell rebutted the presumption of prior payment.</p> <p>In this case I will first notice the points raised by the counsel for the appellee. It is contended, that the first order of confirmation by the court below was final; and that it was beyond the power of counsel to set it aside by consent. This position is not sustained by the authorities. There is no case precisely in point; but there are many, showing, by analogy, that the act done was fairly within the general scope of an attorney’s authority. It has been ruled, that an attorney’s agreement to refer a suit to arbitrators binds his client. 1 Dali. R. 164; 7 Cranch R. 449. In Kentucky it has been decided, that it is essential to the progress and conduct of a cause, that the client should be bound by the admissions of fact by his counsel; and that an attorney has authority to confess a judgment for his client. 4 Monroe, 377. Upon an' affidavit to set aside an order of reference made by consent of counsel, by a party who denied the attorney’s authority to refer, Mansfield, C.' J. refused, saying, it would lead to confusion and fraud. 3 Taunt. 486. An attorney may waive a judgment by default, and go to trial upon the merits, against the express orders of his client, (Lord Holt, 1 Salk. R. 86,) and remit part; and if part, the whole of a judgment for damages, ibid. 88. If then, as appears, an attorney may confess a judgment for his client, remit part or the whole of his judgment, and agree to the setting aside of a judgment in his favor, both upon reason and authority, he may consent to the setting aside of a simple order of court. Besides, the counsel may have had good reasons for his conduct; e. g. he may have thought the order erroneous and reversible upon appeal, and that it might bring costs upon his client to insist on it. This objection will not hold.</p> <p>The position stated as to awards, and the authorities cited, are not questioned. The report of the referees is not an award in its technical sense. It is not the act of the parties, but the result of a general, statutory provision, that brought it into existence. The referees are quasi officers of court, and their proceedings subject to its control and supervision, like a master or commissioner in chancery, whose acts are passed upon by the chancellor, and his decision also subject to revision in a higher tribunal. The cases cited by appellee’s counsel all go upon this distinction of a voluntary submission by the parties. In 4 Porter, 70, the court say, when “ the parties constitute a tribunal of their own choice, by a selection of persons to settle the matter of difference, they cannot impugn the decision for extraneous causes.” Here was constituted no tribunal by the voluntary act of the parties; but the court, in obedience to the statute, made the reference. The court, and not the appellant, selected the persons. In 8 Cow. Rep. 136, this distinction is shown to be a sound one; there the parties agreed to refer the matter in dispute to two, instead of three, as required by the statute; and the court was asked to set aside the award, but refused, saying, the subject of controversy having been referred to two by the parties, instead of three, as the statute required, it was an award, and the court would not interfere. See, also, 1 Wash. R. 197. ■</p> <p>But'if we admit the report to be in the nature of an award, the record shows that it is in a condition to be reversed upon legal principles. If the ground of the award is stated, and it shows that there has been mistake or error, the court will reverse it. I Wash. R. 197. The deposition of Webb is stated as the ground of the report, and made by its terms the basis on which it is to rest; and this very deposition shows the report to be erroneous, as I will hereafter make evident to the court. If the report on its face shows ignorance of the law, or mistake of fact, it may be impeached. 4 Porter R. 70 ; 2 Hen. & Mun. R. 408 - 413. If the grounds of the report are set out, it may be set aside. 1 Hen. & Mun. R. 67. .The deposition is the ground in this case, and shows palpable error by specific dates and conclusions of law therefrom, and even viewed as an award, the case is in our favor.</p> <p>But counsel says the last order of the probate court, confirming the report of the referees, is good on its face; 'and there is no .evidence placed on the record in an authentic form to invalidate it. This is truly the last resort in a desperate case. The appeal was regularly granted. The statute H. & H. Code, ch. 39, p. 473, provides, that upon an appeal front the probate court, that all the testimony shall be reduced to writing. This was unnecessary; for in this case, as there was no oral testimony, all the evidence had been previously reduced to writing; and it further provides that a transcript of the whole proceedings, relating immediately to the matter, shall be made out by the register, and certified by him, under seal, and transmitted to the appellate court. All of which has been done, and the case is before the court upon the transcript.</p> <p>It would seem the part of wisdom for counsel to attempt to prevent an examination of the facts of the case by these preliminary objections; for every fact on the record is against ■them, and unless they can succeed in that their cause is a hopeless one. The claims' against the estate of Mitchell' (which constitute the5 foundation of this suit) consist of two notes — one for $8350, dated 29th of Nov. 1836, due on the 15th January, 1837; and the other note.for $1700, dated 1st of December, 1836, and due one day after date. • These claims were allowed by the court below; but a counter claim was allowed as a set-ofF of more than ten thousand dollars, which the appellee attempts to- show, by Webb’s deposition, Mitchell paid to the Cape Fear Bank in North Carolina, at Hillsboro1: viz., $2200 on the 8th of March, 1836 ; $800 on the 8th of May, 1837; adding himself $4700 to the balance, and settling the whole by his individual note to the bank for $10,179, on the 27th of June, 1837. Upon the larger note, sought to be recovered from the estate of Mitchell, there are ten credits; the first credit is in August,. 1838, long after the payment sought to be used as a set-off was made to the bank by Mitchell ; and the last credit on the note is dated December 25th, 1840. The notes, which the counsel for the appellee attempts to show were liquidated by the payment in bank, in 1837, remained in the possession of McMurray for near four years before Mitchell’s death and after he made the payment to the bank; and various payments were made on one of them, as will appear upon examination of the record; the first payment commencing after the 27th of June, 1837, the time it is alleged Mitchell paid the $10,179 in the Cape Fear Bank for the use of McMurray, and continuing at intervals until Mitchell’s death in 1840.</p> <p>It is true, that an indorsement of the receipt of money on the back of a note, is only -prima facie evidence of a payment, and may be rebutted by evidence; yet the numerous payments made in this case, taken in Connection with the fact that near four years elapsed from the period it is said Mitchell made the payment in bank for the use of McMurray, and the time when Mitchell died, and leaving the notes in the possession of McMur-ray, and making frequent payments on one of them until his death, shows, most conclusively, that the payment alleged to have been made by Mitchell in bank, was not intended as a liquidation of these two notes now held by Reed as trustee, otherwise they would have been taken up by Mitchell before his death, and he would not have continued to make payments on them after he had once paid them. The credits on one of the notes are admitted to have been made by Mitchell or by his direction; and presents strong evidence to the court that these claims have not been satisfied, as the payment of interest is equivalent to an acknowledgment of a debt outstanding. 17 Serg. & Rawle R. 53. And by analogy the principle is laid dovin in a case of the statute of limitations, that any act which the jury may consider as an acknowledgment of an account remaining open, is sufficient to take a case out of the statute. 15 Yes. 190. Upon this statement of. facts, is it possible for the court to allow the set-off? It certainly would be unreasonable and contrary to law.</p> <p>'• It appears, by the evidence, (Mitchell’s letters to McMurray) that Mitchell and McMurray were partners in an extensive slave trade in the South-West; and by Mitchell’s receipts it appears, that on the 15th of June, 1837, in the course of the business, he was indebted to McMurray, in another transaction, in the sum of $3362; and, by his letters written to McMurray in July, 1838, he had collected for the firm of Mitchell & Mc-Murray $11,572 72, and he could have received $5000 more in Brandon money. Mitchell’s payment to the bank is subsequent to the date of the receipt for $3362, and the acknowledgment of the $11,572 72, collected for the firm, follows close after. The presumption will naturally arise from the proof, and the conclusion is inevitable, that Mitchell was settling a debt due by him to the firm, as he first pays part, and gives the firm a note for a large balance, with an increase added to it of his own debt; and finally closes the whole by substituting his own note. Thereby, doubtless, settling for a large amount of the cash of the firm, which at that time it appears he held. This presumption is reasonable and legal; and explains the strange anomaly of a man over-paying a debt due from him; and still continuing to repay the same debt regularly for near four years afterwards, up to his-death.</p> <p>The referees erred in their report in allowing the set-off to the notes, and the court below then manifestly erred in the presumption, law and fact in confirming the report. I feel confident, then, this court will reverse the decision. The statute H. & H. 410, says the report, when approved by the court, shall be final and conclusive, and does not make it compulsory on the court to approve the acts of the referees as asserted by counsel; and, further, gives an appeal from the order of approval, which presumes the right of reversal by this court of the acts of the court below. The record shows gross and striking error in the whole proceedings of the court below.</p> <p>It is assigned for error, in this case, that the court below confirmed the report of the referees when the proof was not sufficient to sustain or authorize the report.</p> <p>To a decision upon the question thus raised, it is necessary for this court to examine the report, and the evidence as presented by the record. The first report of the referees is general, rejecting the claims of the appellant without an assignment of the reasons which influenced the referees, or a statement of the evidence upon which they acted.. This report was confirmed by the court. And the record does not show that any evidence was laid before the court, prior to the confirmation of the report, for the purpose of establishing either error or misconduct on the part of the referees. The report being unexceptionable on its face, it was, in the absence of any such reason for rejecting it, affirmed or approved, as a matter of course. We insist that counsel had no power to consent, and the probate court no power, even by consent, to set aside this order of confirmation at a subsequent term, and refer the claims a second time. The powers of counsel, it is well known, do not extend so far, nor could such consent confer the power upon the court.</p> <p>If this position be correct, the first report of the referees and its confirmation preclude all controversy between the parties, and the record, reference, report and order of confirmation are simple nullities.</p> <p>But even supposing that I am wrong in this' no imputation of error can be cast upon the order of the court approving the second report. In the first place, the report upon its face is free from objection. The referees state a fact as proven, and found their report upon that fact. But they do not submit the proofs, with their report, to the court. They refer to the deposition of Webb, but do not lay that deposition before the court; nor does it appear, by the record, that this or any other proof was before the court when the order of confirmation was made. True, we find in the'transcript sent up by the clerk, what purports to be the deposition of Webb, and a great variety of receipts, letters, and other instruments. But none of them are made part of the record in any authentic or recognized way. This court cannot know that any of these instruments were either before the referees or the court below.</p> <p>But even though the deposition, had been laid before the court below, it rather sustains than detracts from the propriety of the report. It unquestionably establishes the indebtedness of McMurray to Mitchell, which was allowed as a set-off or counter claim; and if it had been before, in any manner, adjusted, the onus probandi was certainly with appellant. Taking this view of the subject, the record discovers no reason why the report should not have been confirmed.</p> <p>I apprehend, however, that the referees are to be regarded as arbitrators. If so, then their award could only have been assailed for some error apparent on its face; 2 Hay. R. 30; or by proof of corruption, partiality, or gross misconduct in the arbitrators. 4 Porter R. 65; 1 Johns. Ch. R. 101; 2 Ibid. 550.</p> <p>No calculation or ground of award not incorporated in it, or annexed to it at the time of delivery, could be received as reasons for its rejection. 1 Hen. & Mun. 66.</p> <p>Viewed as an award, then, the report of the referees was necessarily confirmed.</p> <p>The errors assigned not being visible in the record the judgment below must be affirmed.</p> <p>This case was twice submitted to referees in the court below, under our statute, and was each time decided against the claim of plaintiff. The court-confirmed the award at each report, to which plaintiff objected. It is contended, by defendant, that the award of the referees is final and conclusive, and could not be examined into anew. The principle of law governing awards is well settled to be, that an award, when made in conformity with the order of submission, is conclusive, unless the arbitrators, in making their award, were guilty of fraud, corruption or mistake. The object of reference to arbitrators is, that the matter submitted to them may be finally settled. If all the matters so submitted to them can be examined into anew, on the coming in of the report of the commissioners, with their award, nothing by it has been gained. The court will have to make the same examination into, and adjudication on, the claims of the litigants, as if no reference had been made. It would lead to endless litigation, if the award of arbitrators could be set aside in the manner proposed in this case, at the mere suggestion of either party who is displeased at the judgment of the arbitrators. The true rule is to let the party dissatisfied with the award, make his objections; and let them be legal, such as corruption, fraud or mistake. The supreme court of New York, in the case of Sheppard v. Merril, 2 Johns. Oh. R. 276, makes this decision: “In case of an award, this court will not interpose unless there has been fraud, imposition or mistake; if there is no corruption or partiality in the arbitrators, nor any misconduct during the hearing, nor any fraud prac-tised by either party, the award is binding and conclusive, however unreasonable or unjust it may appear. In Watson on Arbitration, (Law Lib. sec. 1,) it is held, that submissions to arbitration are either by the consent of the parties, with the interposition of the court, or by the agreement of the parties without such interposition; and the subject is there fully discussed, making no difference between the two kinds of submission — the rule of law governing awards applies equally to both. By the same authority, p. 39, “ The arbitrators are both judges of the law and the facts of the case. And even if the arbitrators reject a competent witness for incompetency, yet the parties are bound by-their award.” The same authority further remarks, “It'is apprehended that an objection could not be raised against an award, on account of the admission of the evidence of a witness, who, by the rules of law, would be incompetent. Other authorities might be introduced, showing the conclusiveness of awards; but it is too general,a principle.in the books to require the production of others. In this case the referees made their award, and that against the claims of plaintiff. The statute law of this state provides, that the award, when made, shall be approved by the court. This certainly does not impose the duty on the court to examine into the whole matter again, and see whether the referees made such an award as the court would have done upon the law and the facts of the case. If such were the duty of the court, or if such a course were permitted by the law, in almost every case the award would be set aside, and the case examined into anew by the court, as the party against whom the record was made would desire a rehearing before the court.</p> <p>The referees in the court below, being judges of the law and the facts, their award was final and conclusive, and the court was bound to approve it, unless plaintiff had shown that the referees had acted fraudulently, or that there was imposition or mistake. McMurray made no such showing, but being dissatisfied because his claim was rejected, opposed the confirming of the award by the court, and brings the case by appeal into this court.</p>

In error, from the circuit court of Wilkinson county. Hon. Tan Tromp Crawford, judge. William Iler and Phereby Iler sued Pulaski Cage, executor of George E. Frazier, deceased, in the circuit court, upon an injunction bond, executed jointly, by Daniel H. Prosser, Preston W. Farrar, and George E. Frazier, executed on the 28th of October, 1839, in the penalty of ten thousand seven hundred and eleven dollars.

Thotnas Sampson, judge. On the 5th of March, 1834, John Huddleston was appointed guardian of Paul Hendricks, by the probate court of Warren county.

In error, from the circuit court of Adams county; the Hon. C. C. Cage presiding.

In error from the Adams circuit court. Hon. C. 0. Cage, judge. The two cases of Jefferson J. Hughes against Peter M. Lapice, and of Peter M. Lapice against Jefferson J. Hughes, upon the same record, were tried together.

In error from the circuit court of Wilkinson county; the Hon. 0. 0. Cage, judge.

In error, from the Yazoo circuit court; before the Hon. Morr gan L. Fitch.

In error, from the circuit court of Warren county. Hon. George Coalter, judge. Three cases, between the same parties, were all submitted, in this court, together. The trial below was had before the Hon. George Coalter. Horace Pagaud was indicted in the circuit court of Hinds county, in this state, for the alleged forgery of three different auditor’s warrants. Separate indictments in each case were found; they were all, however, by consent, tried at the same time.

In error, from the circuit court of Tippah county. Hon. Stephen Adams, judge. Held: to Kyle, and directed Kyle to make the deed to Thompson, who alleged, that owing to the condition of the title, the lot was not subject to execution.

In error, from the circuit court of Lowndes county. Hon. Hendley S. Bennett, judge. This was an action of assumpsit, brought by Pryor M. Grant, sheriff of Lowndes county, against John H. bland and John Huddleston, to the April term, 1841, of the circuit court of Lowndes county. The declaration contained three counts; the first was founded on a memorandum, in writing, and the second and third were common counts. The defendants pleaded the general issue.

In error, from the circuit court of Adams county. Hon. C. C. Cage, judge.

In error, from the district chancery court held at Golumbus, Hon. Henry Dickinson, Yice Chancellor. Held: that he believed t,he signature to the deed was Millicati’s. Maurice McCarthy proved that he was familiar, from having lived three and a half years with Milliean, with his handwriting, and he believed the signature to the deed to Barrett, to be Millican’s. James T. Harrison testified, that while in partnership with Evans, they were…

Hon. Robert R. Thomas, judge. Jemima Holloman, the appellant, filed her petition on the 17th of January, 1844, for dower in certain land and slaves. The petition as to the slaves was contested by John Holloman, the appellee, who filed a counter petition, setting up his claim on the ground that he purchased them on the 21st of July, A. D. 1837, from Nathaniel Holloman, deceased, the husband of petitioner, and took a bill of sale.

In error from the circuit court of Tallahatchee county, Hon. Benjamin F. Caruthers, judge. This was an action of assumpsit brought to the May term, 1843, of the circuit court of Tallahatchee county, by Jonathan Morris against William A. Davidson, on a promissory note for one hundred and seventy dollars and seven and a half cents, dated the 29th day of April, 1834, and payable twelve months after date. The defendant pleaded the statute of limitations and payment.

Tn error, from the circuit court of Jeiferson county. Hon. Charles C. Cage, judge. This was an action of assumpsit, brought to the May term, 1842, of the circuit court of Jefferson county, by John Halsey and Richard K. Haight, merchants, doing business under the firm and style of Halsey & Haight, for the use of James Brewster, against Warren G. Henry and Edward Hoyle, partners, under the name and style of Henry & Hoyle, and Samuel N. Robb.

In error from the probate court of Warren county, Hon. Benjamin Springer, judge. The record in this case, presents this state of fact.: On the 26th of November, 1838, letters of administration were granted to Levi E. Gibson, upon the estate of Joseph Harrison, deceased.

In error, from the circuit court of Carroll county, sitting in chancery, Hon. Benjamin F. Carruthers, judge. On the 5th day of January, 1843, Rufus K. Bean filed a bill on the chancery side of the circuit court of Carroll county, against Wilson L. Roberts, Darby Ryan, and Treadwell S. Ayres.

Thomas B. Woodward, judge. This was a bill, filed in the probate court of Yazoo county, by A. W. Washburn and his wife Leanora, Joseph Martin and Adaline Martin, infants, by their guardian, Washington Dorsey, and William E. Pugh, administrator of Rhoda Martin, the only heirs and distributees of the intestate, John Martin, against William Phillips, administrator de bonis non of John Martin, praying the court to review and reverse the several settlements made by Phillips with…

In error from the circuit court of Hinds county, Hon. Albert G. Brown, judge. This was an action of assumpsit, to the November term, 1839, of the circuit court of Hinds county, by the Mississippi and Alabama Railroad Company, for the use of John Martin, against David M. Ballard, Baldwin H. Beauchamp, William K. McDonald, Robert Miller, and Joseph A. Miller, founded on a joint and several promissory note for eight hundred dollars. The defendants pleaded non assumpsit.

John H. Rollins, judge. Richard Tho'rnton sued William 0. Demoss in the court below to its October term, 1839, in an action of assumpsit.

In error, from the Adams circuit court. Hon. G. C. Cage, judge. Daniel G. Benbrook sued John Fletcher, to the October term, 1838, of the circuit court, in an action of assumpsit, upon an open account, for the sum of $1823 75, for medical services rendered to him and his servants, and medicines furnished. The defendant pleaded payment, and filed an account, amounting to $4396 33.

In error from the circuit court of Hinds county, Hon. John H. Rollins, judge. This was an attachment sued out by George W. House, Joseph A. McRaven and Archibald L. Y|rser, who were partners under the name and firm of House, McRaven & Oo. against George ,P. Bierne, returnable to the April term, 1839.

<p>If a person, who is not the payee, put his name on the back of a note, at the time it was made, according to a promise to become originally and directly responsible ; or, if he participated in the consideration for which the note was given, he must be treated as a joint maker : Yet, if his indorsement was nwix subsequent to the making of the note, and he had nothing to do with the original consideration, but put his name on it to add to the security he will be regarded as a guarantor.</p> <p>J. & D. sued T. & E. & 0. as joint-makers of a note payable to J. & D.; the note was signed by E. &. 0. in the usual way ; but the name of T. was written on the back, the note being the only evidence introduced. T. asked the court to instruct the jury “ that the evidence given was not sufficient to support the action against him, and in the absence of other proof they ought to presume he put his name on the back of the note as indorser, and not as a joint-makerand the court refused to give the instruction; held, that the instruction was awfc-improperly refused ; and that the plaintiffs failed to make out their case.</p>

<p>Where by statute, the term of office of the clerk of the superior court of chancery, -who by law, was appointed by the chancellor, was limited to four years, and the statute did not prescribe the period of the commencement or termination of the term, upon the office being filled, the incumbent will have a right to the office for the full term of four years from the date of his appointment.</p> <p>Where an incumbent of an office, the term of which is fixed by statute, but the period of the commencement and termination of the term is not fixed, resigns or forfeits the office before the term is expired, and the office is filled by a new appointment, the new appointee will hold the office for the full term, and not for the unexpired term of the former incumbent.</p> <p>In March, 1833, by act of the legislature, the chancellor of the state was authorized to appoint his own clerk, but no tenure of office was fixed by the act; in December, 1833, by a general law, the tenure of all offices, not otherwise fixed, was limited to four years ; on the 9th of December, 1844-, Hughes was commissioned by Chancellor Buckner, clerk of the chancery court, for four years; on the 8th of January, 1846, Buckingham was commissioned clerk of the same court for four years, by Chancellor Cocke, on the ground that the term of office of clerk of the chancery court, commencing in December, 1833, continued for successive periods of four years each, and expired in December, 1845, leaving the office vacant. Held, by this court, that the law did not fix the commencement or end of the term of office of the clerk of the chancery court; that Hughes, the incumbent, was entitled to his office for four years from the date of his appointment, and could not be ousted therefrom; and that the appointment of Buckingham was inoperative.</p>

<p>A mortgage, duly recorded, is notice to the administrator of the mortgagor, of the debt secured by the mortgage.</p> <p>A mortgage upon land, the mortgagor being dead, may be enforced against the legal representatives of the mortgagor, even though the mortgagee has never presented the claim secured by the mortgage to the administrator of the mortgagor within the eighteen months prescribed by the statute for the presentation of claims to save their bar.</p> <p>A party having two remedies, one of which is barred by statute, and the other not, may proceed to the enforcement of his claim by that which is not barred.</p> <p>The statute of this state, regulating the presentation of claims against deceased persons, to the executor or administrator, and providing that those not presented within the time prescribed, shall be forever barred, and the estate of the testator or intestate thereafter discharged from such claim or claims is, in substance, but a statute of limitations, and will be construed as such.</p> <p>The knowledge, by an executor or administrator, of the existence of a debt of the testator or intestate, will be as effectual as a presentation to prevent the bar of the statute.</p>

<p>Where a grand jury was empanelled, of which, twelve persons were taken from the regular venire, and that being then exhausted, two other persons were taken from bystanders summoned by the sheriff; held, that the grand jury was properly organized. Sharkey, C. J. dissenting.</p> <p>Whether objections to the personal qualifications of grand jurors, or to the legality of the returns, can affect any indictments found by them, after such indictments have been received and filed by the court. Query ?</p> <p>Where bystanders have been summoned by the sheriff to complete the panel of the grand jury in the absence of a sufficient number of the regular venire, and the record does not affirm that such bystanders had the requisite qualifications, the law will presume, until the contrary be made to appear, that they had the proper qualifications.</p> <p>The statute, (How. & Hutch. 674, sec. 46,) which limits the number of peremptory challenges in capital cases, on the part of the prisoner, to twelve, is not an infringement of the clause in the constitution which provides “ that the right of trial by jury shall remain inviolate.”</p> <p>The trial by jury is by twelve free and lawful men, who are not of kin to either party, for the purpose of establishing, by their verdict, the truth of the matter which is in issue between the parties ; any legislation, therefore, which merely points out the mode of arriving at this object, but does not rob it of any of its •’ essential ingredients, cannot be considered an infringement of the right.</p> <p>D. being indicted, and on trial for the murder of a slave, and it being proved that D. was acting in the capacity of overseer for B., a witness on the part of the state was permitted, notwithstanding objections on the part of the prisoner, to testify as to the prisoner’s general habit, as overseer, in punishing slaves upon the plantation of the owner of the slave killed ; held, by this court, that such evidence was inadmissible, being calculated to prejudice the jury against the prisoner, and not being responsive to any charge made. //</p>

<p>In a controversy between the creditors of N. and his mother, about the ownership of slaves levied on in. the possession of N., in whose possession they had been placed by his mother, it was held, that, by placing the negroes in possession of her son, the law presumed she intended to make a gift of them to the son.</p> <p>Where a mother has placed slaves in the possession of her son, the law presumes it to be a gift, and it is incumbent on her to show that a loan only was intended, in order to rebut this legal presumption.</p> <p>In a controversy between the judgment creditors of a son and his mother, whether the possession by the son of slaves, was under a loan or a gift from his mother, the verdict of a jury that the possession was under a gift, will not be disturbed unless greatly against the preponderance of the testimony.</p> <p>In a controversy between the representatives of a mother and the creditors of her son, about the ownership of slaves, the following circumstances were held to be sufficient, in the absence of positive proof of a loan, to uphold the verdict of a jury that the possession of the son was under a gift from his mother, to wit: 1. The delivery of the negroes by the mother to the son in Mississippi, in 1837; the removal of mother and son to Tennessee, soon after the re-removal of the son alone to Mississippi, with the negroes, and keeping them till levied on for his debts, in 1841, without paying hire, or any agreement to pay hire. 2. The possession of the son being held, without any promise on his part to re-deliver, or limitation as to the length of his possession. 3. The silence of the mother, in her will, as to any disposition of these slaves, though her other property was disposed of. 4. A direction by the mother to the son to sell two of the slaves thus delivered, to pay a debt of his, upon which she was surety. 5. The failure to make out and put of record, some instrument of writing, stating the nature of the title by which the son held. 6. The failure to produce such an instrument, when one was alleged to have been made.</p> <p>It is the policy of the law, in this state, to construe all possession of property to be under the ownership of the party possessing ; and where a controversy arises, between creditors of the possessor and the alleged owner, as to whether the possession is under a gift or a loan, and the evidence is conflicting, and there is no positive documentary evidence of title in the claimant, the presumptions of law operate to regard the possession as under a gift, with all their force.</p>

<p>Where the vendor of real estate gives a bond for title on payment of the pur-* chase-money, and afterwards executes a deed to the vendee, on his promise to give personal security for the purchase-money, which he fails to do, the vendor will still be entitled to his equitable lien, as between himself and the vendee, for the purchase-money.</p> <p>Where the vendee of real estate who has not paid the purchase-money, executes a deed of trust or mortgage, upon the premises purchased, to one having no notice of the unpaid purchase-money, to secure a debt contracted by the vendee since his purchase, the cestui que trust, or mortgagee would hold the property discharged from the vendor’s equitable lien.</p> <p>It seems a different rule would prevail, if the deed of trust or mortgage were executed to secure a debt due by the vendee prior to his purchase ; in such case the vendor’s equitable lien would prevail.</p> <p>The judgment creditor of the vendee of real estate, the purchase-money of which has not been paid, cannot subject the land to his judgment to the exclusion of the vendor’s equitable lien.</p> <p>A judgment is a lien only upon the actual interest the judgment debtor has in the property upon which it is attempted to enforce the judgment; and is sub* ject to all the equities which exist at the time in favor of third persons.</p> <p>The purchaser for a valuable consideration, without notice of real estate, the purchase-money of which is not yet paid, holds the same acquitted from the vendor’s equitable lien for such unpaid purchase-money. ■</p>

<p>An award must always be in strict accordance with the submission, and not extend to subjects not submitted, nor to strangers to the submission; and it must be certain and mutual. An award lacking any of these requisites is void.</p> <p>An award containing illegal matter, will yet be upheld as to the matter actually submitted, provided the part which is good can be separated from and exist independently of that which is bad.</p> <p>An award which is good in part and void as to the rest, cannot be enforced, if either party can object to the performance of his part, on account of the want of a remedy to enforce on the other the performance of that part which is void.</p> <p>Gibson, holding two notes of Harmon Powell, Henry Powell, and Henry C. Bennett, for the sum of $3595 each, subject to certain credits, and a controversy arising about them, it was agreed to submit the matters in dispute to three arbitrators ; the submission, signed by Gibson, H. Powell, and H. C. Bennett, merely reciting the controversy to be about two notes held by Gibson, and made by the others, without describing the notes or naming the arbitrators, and containing an agreement to abide by the award; the award described the notes in full, with the credits on them, with the interest, showing the balance due by the makers to be $6667 97; and directed that James Powell (not a party to the award,) should make a deed to Gibson to certain property, and the notes therefore be credited with $3983; that of the balance due, Harmon Powell was to pay 1790, andH. C. Bennett $895 ; that certain lumber and hogs were to be divided between Harmon Powell and Bennett, and that Powell and Bennett should confess judgment with stay of execution. Held, that the award was wholly void.</p> <p>Where a declaration contains a count upon a special contract, and also the common counts, and the plaintiff fails wholly in his right to recover on the special count, he may recover on the common counts, provided the case be such that if there had been no special contract, he might still have recovered under the common counts.</p> <p>G. brought an action against H. P. upon an award, the declaration containing a special count upon the award, by which, among other things, H. P. was directed to pay G. $1790. The declaration also contained another count, that H. P. in consideration that G. would deliver to him two notes made by H. P. and others, and owned by G., he H. P., would pay G. $1790, with the averment of the delivery of the notes to H. P. Held, that even though G. should fail in his count upon the award, on the ground that the award was void, he might still recover on the second count, if it was sustained by the proof.</p> <p>Where no offset is claimed by the defendant in his pleadings, one cannot be allowed by the jury.</p> <p>G. sued H. P. for $1790, in assumpsit; H. P. plead the general issue ; it was proved that H. P. admitted that he owed G. that sum; it was also proved that H. P. executed bis note for $600 to G., in part payment of it, and that at that time, G. owed H. P. about $600; the jury found a verdict for G. to the amount of $637. Held, that the verdict was erroneous ; and G. entitled to a new trial.</p>

<p>The interest in real estate of the vendee thereof, who ba|^ciiH£ a bond for title when the purchase-money is paid, and who has paid eSJpa part of the purchase-money, is not subject to seizure and sale under execution at law. .</p> <p>A. sold a lot of land to M. and gave M. a bond to make title when the purchase-money was paid : for which M. gave two notes payable in one and two years ; on the maturity of the first note M. was sued thereon by A. at law, and judgment was obtained. The lot bought by M. of A. was levied on under execution on this judgment, sold and bought by G., who filed a bill against A. & M. demanding a title to the lot; held, that G. was not entitled to the relief asked, and that his bill must be dismissed.</p> <p>Whether a purchaser of real estate under execution against the vendee thereof, founded on a judgment in favor of the vendor for the purchase-money, the vendee having only a bond for title, when the purchase-money is paid, is entitled to be substituted to the rights of the vendor, to the extent of his bid at the sale under the execution. Query ?</p>

<p>W. filed his petition in the prohate court, for a partition of a lot of land ; alleging that he had intermarried with one of several persons to whom the land had been jointly conveyed ; the other persons alleged to he interested in the land, answered the petition, and denied that W. had any right, title, or interest in the land or any part thereof; and W. offered no evidence in support of his petition ; Held, that the petition does not present a prima facie case of title in the petitioner, and the answer denying all title in him, and he failing to establish his title by competent proof, his petition must be dismissed.</p>

In error from the probate court of Wilkinson county, Hon. Francis Gildart, judge.

<p>Where a wife’s distributive share in her father’s estate accrued after her marriage, it inures to the husband alone, and he can sue for it, without joining his wife.</p> <p>Where the distributee of an estate is also indebted to that estate for property purchased at the sale of its effects, which indebtedness has been reduced to judgment, the probate court will order the distributive portion of such indebted distributee, to be credited on such indebtedness.</p> <p>G., prior to the passage of the act for the preservation of the rights of married women, married F■, who was the daughter of D. F.; D. F. died after her marriage, and G. applied to the probate court, in his own name, for his wife’s distributive share in her father’s estate ; G.’s wife filed a counter petition, claiming the distributive fund in her own right, and averring the insolvency of her husband: held, that G. was entitled to the fund, in his own right, to the exclusion of his wife.</p>

In error from the circuit court of Clairborne county, Hon. George Coalter, judge. The record in this case is very imperfect. Held: in such case, that his executor may, within the equity of the 4th section, bring anew action. 2 Salk. 425; 1 Lut. 260. So if a feme sole sue, and the six years expire pending the action, and then she marries, by which the suit abates, she and her husband may, within the equity of the same section, bring a new action. Willes R. 259.

In error, from the circuit court of Hinds county, Hon. John H. Rollins, judge. John Long sued Sherman E. Goddard, Samuel B. Marsh, and Samuel T. King, to the fall term, 1839, of the circuit court of Hinds county, in an action of debt, upon a bond, with a collateral condition.

In error, from the circuit court of Warren county, Hon. George Coalter, judge. This was an action of assumpsit, brought by William M. Pinckard, against Henry G. Foster, George W. Foster, Admiral W. Warren, David J. Rariden, and Walter R. Puckett, as maker and indorsers of a promissory note. The defendants pleaded the general issue, and payment.