Volume 14 — Mississippi Reports

<p>In error from the Choctaw county circuit court; Hon. Benjamin F. Caruthers, judge.</p> <p>. William Bingham sued Isaac B. Sessions, Elberd Neal and William Sperlin, upon a note for $1879 98, dated January 3, 1842, and due twelve months after to Edward Johnson or bearer, and by Johnson transferred to the plaintiff; on the note a credit of $1656-30, was indorsed on the 6th September, 1842.</p> <p>The defendants appeared and plead, 1. payment; 2. that the plaintiff was not the lawful holder, owner or bearer of said note when the suit was instituted, but that the note then and still was the property of another person ; 3, that the note in the declaration mentioned, was obtained from the defendants by the said Edward Johnson, the payee, by duress; that at and before the time the note was executed, Johnson, as sheriff of Choctaw county, held in his hands two writs of fi.fa., one in favor of said Elberd Neal, for the sum of thirty-two hundred and seventy-seven dollars, or thereabouts, on a judgment rendered in his favor against William Sperlin, on the 27th day of September, A. D. 1841, in the circuit court of Choctaw county; the other in favor of Isaac B. Sessions, for the sum of twenty-one hundred and seven dollars or thereabouts, on a judgment rendered in favor of said Sessions against said William Sperlin, on the 27th day of September, A. D. 1841, in the circuit court aforesaid; which executions were issued on the 8th day of November, 1841; that after these executions were levied on the personal and real estate of said Sperlin, and the same duly advertised for sale, on the day when the personal property being eight likely negroes, besides other property, was to be sold, to wit, on the 3d day of January, A. D. 1842, Johnson, a sheriff, corruptly and illegally procured to be issued from the circuit clerk’s office of that county, an execution on a judgment in favor of Milton T. Caperton against said Sperlin, Elias Spencer, John G. Neal and said Elberd Neal, which judgment Johnson well knew at that time, had long before that time been fully satisfied and paid off to him, the said Johnson, as sheriff as aforesaid, under other executions that had previously been issued thereon, for the express and avowed purpose of procuring and compelling said defendants to execute the note sued upon ; that Johnson, as sheriff, for the purpose of more effectually accomplishing this illegal, corrupt and fraudulent purpose, did have the execution in favor of Caperton falsely ante dated so as to bear date on the 23d day of December, A. D. 1841, when in fact and in truth it was issued on the 3d day of January, 1842; that for the further purpose of injuring, defrauding and oppressing the defendants, and depriving them of their rights, Johnson, as sheriff, falsely and fraudulently indorsed on the execution in favor of Caperton, that he had received the same on the 23d day of December, A. D. 1841, when in fact he did not receive the same until the 3d day of January, A. D. 1842; that Johnson, as sheriff, for the further purpose of defrauding the defendants, levied said execution on the negroes, which had been previously levied upon by the aforesaid executions in favor of Sessions and Neal, and did then and there, on the said 3d day of January, A. D. 1842, being the sale day of said negroes, and before the same were sold, threaten said defendants that unless they executed the said note, he would sell said negroes and other personal property under the execution in favor of Caper-ton, and appropriate the money to Caperton’s execution, and by that means prevent Sessions and Neal from obtaining any part of the money due on their executions; that Johnson, as sheriff, as aforesaid, the more certainly to effect his fraudulent purposes, falsely indorsed on the execution in favor of Caperton, that it had been on the 24lh day of December, A. D. 1841, levied on the said negroes, when in fact, if a levy was ever made, it was made on the 3d of January, 1842; that Sessions and Neal, fearing that if the sale was made as threatened by Johnson, the negroes would be purchased in by him-and his minions at ruinous prices, and be borne off beyond the jurisdiction of the court, and that they would thereby thus lose their debt; executed while thus under duress said note for the sole purpose of protecting their rights and interests, and for no other purpose or consideration whatever; that said Sperlin, knowing that said Caper-ton’s execution had long before that time been fully paid off and satisfied in full, and fearing that said Edward Johnson would, by carrying said threat into execution, make way with the whole of his personal property, at the most ruinous sacrifices, and by that means leave the said executions in favor of Neal and Sessions and other just claims, unsatisfied and hanging over him, consented, while thus under duress, to execute, and did, under the influence of said threat and while thus under duress of Johnson, execute the note, and for no other consideration.</p> <p>Issue was taken on the first plea; the second and third pleas were demurred to; the second, on the ground that it was uncertain, and amounted to the general issue; the third, on the ground that it was uncertain, double, sought to put in issue irrelevant facts, and did not make out a case of duress.</p> <p>The court below overruled the demurrer, and gave judgment for the defendants ; from which the plaintiff prosecutes this writ of error.</p> <p>1. The second plea states that the note sued on was the property of a different person from the plaintiff.</p> <p>1st. The plea does not aver in whom is vested the property, if the note and payment to the holder, who is prima facie the owner, would be a satisfaction without notice to the payee, that the property was in some other person, and if notice was given, then the payee should aver and prove who the owner was, and not compel the plaintiff to join in an uncertain issue.</p> <p>2d. The plea neither traverses nor confesses, and avoids the declaration, and gives no color of title to plaintiff, and is therefore defective. Stephen on Pleading, 421.</p> <p>3d. It amounts to the general issue, being an argumentative denial of the whole contract, which is not allowed. Stephen on Pleading, 419; 6 Adol. & Ellis, 31 C. L. Rep. 309.</p> <p>2. The gravamen of the third plea is the duress complained of, by force of which the defendants were compelled to give their note, although the plea does not show any duress of the goods of the defendants, Sessions and Neal.</p> <p>And though it did show duress, if they^ would plead’ it in avoidance of a contract, the duress must be of the person, and cannot be of the goods. 2 Stark, on Ev. 287; Chitty on Con. 168, and notes.</p> <p>There are two cases in Bay’s South Carolina Reports which support a contrary doctrine, but they are unsustained by the authorities referred to, and cited to be overruled wherever insisted on as authority.</p> <p>The first position assumed by the counsel for the appellant, that, the second plea of the appellees is defective, because it does not aver in whom was vested the property of the note, is neither sustainable upon principle nor supported by precedent.</p> <p>In the case of Bryant v. Owen, 2 Stewart & Porter’s R. 134, in which a plea, precisely similar to the one in question, was filed, it was expressly declared, “ that the court considered the plaintiff’s right of recovery to depend on the truth of the fact whether or not he was the owner of the note, and notwithstanding the legal presumption of ownership, it was subject to be rebutted ; and if successfully done, the plaintiff must fail in his action.”</p> <p>In the case cited the plea of non assumpsit was also filed by the defendant — which was not done in the suit at bar, which renders the authority doubly strong in favor of the appellees, who relied alone on special pleas.</p> <p>The second objection of the counsel for the appellant is not better taken, for the plea not only admits the execution of the note as described in the declaration, but sets up a sufficient legal defence against the plaintiff’s right of action.</p> <p>The third objection, that the plea amounts to the general issue, is equally untenable. “ That matter is specially pleaded which may be available under the general issue is not cause for demurrer.” Brown v. Jones, 3 Porter’s R. 429.</p> <p>At common law a party might plead non est factum and' escroto together, though evidence allowable under the latter might be given under the former. Tindal v. Bright, Alab. R. 103. And in the case of Dunham et al. v. Ridgel, 2 Stewart & Porter, 402 - 4, the court, in commenting upon the effect of a statute similar to ours upon the subject of pleadings, said, “ the statute entitles the defendant to as many several pleas as he may deem necessary to his defence; therefore, it is no objection to a legitimate special plea, that the same matter of defence would be available under the general issue.”</p> <p>The exceptions taken by the counsel for the appellant to the third plea of the appellees, are equally untenable.</p> <p>“ The defendant is not precluded from introducing several matters into his plea, if they be constituent parts of the same entire defence, and form one connected proposition.” 1 Chitty’s Pleadings, 456-7, 5th Am. ed.; Ellis v. Martin, use, &¡'c., 2 .S. & M. 189.</p> <p>But the counsel for the appellant contends, that the plea is defective, because duress must be of the person, and not of the goods of the defendant.</p> <p>The authorities relied upon by the appellant have long since been overruled. In the case of Foshay v. Ferguson, 5 Hill’s R. 154, the chief justice says : “ I entertain no doubt that a contract procured by threats, and the fear of battery or the destruction of property, may be avoided on the ground of duress.” The plea of duress in the case at bar alleges that, the appellant threatened to deprive the defendants, by illegal means, of their property, which brings the case within the rule laid down in the authority just cited — and judging it by that test constitutes it a good plea.</p> <p>A note or bond executed by a party while under the apprehension of injury, in the absence of threatening language, will be avoided on the ground of duress. Evans v. Huey and Franklin, 1 Bay’s R. 13. And the benefit of the plea enures to the surety. 1 Bay’s R. 13.</p> <p>So duress of goods will avoid a man’s act. Sasportas v. Jennings and Woodrop, 1 Bay’s R. 470; Nelson v. Suddarlh, 1 Hen. & Mun. 350.</p> <p>Again. In a case not dissimilar to the one at bar, it was expressly declared, “ that duress of goods or negroes is a good plea to a bond given to procure their release under hard and pressing circumstances, which are very proper for the consideration of a jury.” 2 Bay’s R. 211; 2 Powell on Contracts, 159.</p> <p>Even, if the facts stated in the plea do not amount to what in legal contemplation is deemed duress, still it is a good plea and cannot be reached by a demurrer.</p> <p>No principle is better settled than that a contract, to be valid and binding, must not only be made by parties who are able but who willingly and voluntarily agree to the same. In the case at bar, there was nothing but the form of a contract without the substance, for the appellees were compelled under hard and oppressive, and illegal.circumstances, to execute the note now sought to be avoided.</p> <p>The errors relied on are, that the court erred in overruling the demurrer to the second and third pleas. The demurrer assigns for cause, as to the second plea, that the same amounts to the general issue, and ought not to be pleaded; and also that it is uncertain. As to the first cause of objection, it will be sufficient to examine the plea itself, in order to expose the fallacy of this position. It does not amount to the general issue. What does this general issue amount to, and what could be given in evidence under it 1 At the common law any thing could be given in evidence under the general issue which went to prove that the plaintiff had no cause of action. If the plea pleaded amount to the general issue it must be equal to it, and must cover as broad ground of defence as the general issue itself. Could then any defence be made out under this plea which by the common law could be made out under the general issue 1 Clearly not. Fraud might be proved under the general issue. Total want of consideration, and by the common law entire payment might be given in evidence under that plea; none of which defences could be made out under this. And there is likewise a plain distinction to be drawn between the rules of practice in England in reference to pleadings, and those which prevail under our statute. There a defendant could (except by leave of the court) plead but one plea; here he may plead as many as he thinks fit. This is a matter of right, secured to a defendant under our statutory law. See H. & H. 589, 597. It has never been held an objection to the pleas of fraud, failure of consideration, or want of consideration,- that the same were allowable in evidence under the general issue, whenever the same have been pleaded, unless the general issue had been at the same time pleaded with them. Nor would it then be a good objection under our statute. The other objection that the plea is uncertain, is equally untenable. It advises the plaintiff that the defence relied on is his want of title, and this he knows better than any one else how to avoid. Being cognizant of how, and from whom he derived it, he came prepared with the necessary proof to sustain his title. The defendant might not know in whom the title vested',' although he might have heard the plaintiff confess that he himself had no title. The want of title of the plaintiff is the real defence set up, and this is averred with sufficient certainty.</p> <p>As to the objection taken to the third and last plea it seems tobe intended at the outset as a plea of duress; but contains substantially such facts as would make it good as a defence upon the ground of fraud,- even admitting it not to be good as a plea of duress. The plaintiff, by his demurrer, admits such facts as would unquestionably avoid his note, if the same have been properly pleaded. What is the object of pleading? It is unquestionably to bring to the notice of the court, in a certain and definite manner, such matters of fact, or of law, as would avoid in whole or in part, the cause of action. If this has been done with sufficient certainty it is sufficient, and the end of the law has been attained. A plea is not doubted, if it consist of numerous facts or matters of law, all tending to establish the same defence. The rule is, that two different matters of avoidance, each of which constitutes, or would constitute a defence, should not be pleaded in the same plea; but it has always been held that when the facts stated, however numerous they may be, all tend to establish but one matter of defence, the plea containing them will not be bad on account of duplicity. This principle is too well settled to require authority to be cited in support of it.</p> <p>But, is the plea not substantially good as a plea of duress ? Many respectable authorities can be found sustaining the plea as a valid plea of duress. See 1 Bay’s R. 13; Ibid. 470.</p>

<p>A mere voluntary engagement to indulge the principal debtor will not discharge the surety.</p> <p>There must he a positive and binding agreement between the creditor and principal debtor, based upon some new and valuable consideration, sufficient to tie up the creditor, and prevent him from asserting any remedy, during the time for which the indulgence has been given, against the principal, in order to effect a release of the surety.</p> <p>L. being indebted to the Commercial Bank, in various notes, upon which he was liable, either as indorser or maker, and on which other persons were sureties for him, to reduce his liability to a single amount, proposed to the cashier of the bank to execute his individual note for the sum total due the hank, and confess a judgment, in Louisiana, on the note thus made, which judgment should bind all his property, and be in discharge of the notes on which he was liable; the cashier, on consultation with several of the directors, agreed to the arrangement, to be consummated when L. had, at his own expense, carried the arrangement into effect, and exhibited to the bank satisfactory evidence of it. L. after this agreement, and before he confessed the judgment, sold all of his property in Louisiana which the judgment was to bind, to B., and then executed his note for the sum total, payable to the bank, and confessed the judgment, as agreed upon : Held, that the agreement of the bank, being purely conditional, and that condition not being complied with by L., the bank might disregard the arrangement with L. and sue upon the original notes against all the parties to them.</p> <p>A creditor who takes collateral security for his debt, is bound to hold it impartially and justly; and if it be lost by his negligence or improper conduct, the surety on such debt may bar the creditor of so much of his demand as he might have received from such collateral.</p> <p>L. being indebted to a bank on sundry notes, as maker or indorser, on some of which notes other persons were bound as sureties for him, proposed an arrangement to the bank for their adjustment, by the substitution of his individual separate note for the.sum total, to be secured by confession of judgment to bind his property in Louisiana, to which proposal the hank acceded ; to be complete when proper evidence of its consummation was given to the bank. Previous to this proposal L. had deposited with the bank two hundred shares of bank stock as collateral security for the payment of these notes. L., having first sold his property in Louisiana, executed his note, and confessed the judgment in favor of the bank, without notifying the bank, or the bank’s ratifying it; execution issued on this judgment, and the sheriff, to whose hands it came in Louisiana, sold the bank stock for $2200, to B., and gave B. an order on the bank for the stock, which delivered it to B.; the bank never received the proceeds of the sale of the bank stock, nor did it appear what had become of them: Held, in a suit by the bank on the original notes, that the parties to them were not entitled to a credit thereon for the amount of said stock ; as the security of the stock had not been lost; for if the sheriff’s sale changed the title, its proceeds would be within their reach, and if the sale had not changed the title the stock would be subject to their order.</p> <p>Where in an action by a bank against the parties to a note held by it, it appeared in proof that the cashier of the bank had made an agreement which, if carried out, would have discharged all the parties to the note but one; and that he had made that agreement after consulting with two or more of the directors, and the court instructed the jury that the cashier of the bank had no authority to bind the bank by any contract that would release parties, but that if he acted on consultation with two or more of the directors, then' his acts would be binding on the bank; held, that the entire instruction, taken together, and applied to the facts, would not be erroneous in its conclusion.</p>

In error from the circuit court of Monroe county, Hon. Stephen Adams, judge. ■ This was an action of assumpsit, founded on the promissory note of the defendant. The declaration was in the usual form, and the defendant pleaded non assumpsit. On the trial the plaintiff read to the jury the note sued on, and rested his case.

In error from the circuit court of Lowndes county, Hon. Hendley S. Bennett, judge. The President, Directors and Company of the Bank of Alabama sued William Hemphill on the following note, namely: September 30, 1837, Marengo county, Ala. Twenty-four months after date, we John M. C. Walker as principal, Wm.

In error from the Lafayette circuit court; Hon. James M. Howrey, judge.

<p>In error from the circuit court of Hinds county, Hon. Morgan L. Fitch, presiding judge.</p> <p>Thomas Harney brought his action for assault and battery against William S. Parham, founded on the alleged battery and mutilation of the person and left hand of the plaintiff by the defendant, on the 11th day of June, 1838; the damages were laid at twenty-five thousand dollars.</p> <p>The defendant pleaded not guilty, and son assault demesne; on the first of which the plaintiff took issue, and to the second replied that the defendant committed the trespass in his own wrong. Afterwards the plaintiff had leave to withdraw his replications, and replied to the second plea, that the defendant had used more force and violence than was requisite to repel the plaintiff’s assault; this plea concluded with a verification; to which no issue was tendered by the defendant.</p> <p>At the June term, 1842, a trial was had, which resulted in a verdict for the plaintiff, for $3,602 50. The defendant moved for a new trial, which was refused. On the trial of the motion, the defendant offered certain affidavits, from which the following facts appear:</p> <p>J. W. Dougherty, a deputy sheriff, made oath that after the jury retired to their room, it was proposed by one of the jury,. F. H.. Robinson, that each juror should put down in figures the amount of the damages that he thought the plaintiff entitled to, to be placed in a hat and drawn out; and that the aggregate amount should be divided by twelve; that this proposition was made and agreed to before the jurors had stated to each other the amount of damages which the jurors respectively thought the plaintiff entitled to; that the jurors proceeded and placed in the hat their several amounts, and when drawn out, there were four tickets for $300 each ; one for $30 ; one for $10,000 ; and he thinks one for $20,000; that each juror acted separately from the others in making out his ticket with the amount of damages thereon. There were three deputies in the room with the jury. Immediately after going up to the jury room and before all of the jurors had got up stairs, one of the jurors asked for some water, and the witness immediately retired to the court room and took a pitcher of water to the jury, and when he arrived there he heard the proposition made by Robinson; that it was acted upon, and the sum thus obtained was the same as the verdict of the jury.</p> <p>I. B. Fairchild, also a deputy sheriff, testified in substance the same with Dougherty, with this addition; that he saw no paper read by the jury; heard one of them remark that it was the only mode in which the jury could come to a conclusion; that the computation and verdict were made out on a bench standing at the door of the jury room, and some of the jurors holding their hats before a window that was broken, to keep the candle from being blown out, and the others standing about, some out of, and others in the room.</p> <p>Patrick Magee proved that Robinson wrote out the verdict of the jury.</p> <p>L. B. Seaton, a deputy sheriff, proved that, about an hour after the jury had rendered their verdict, he went into the room which the jury had occupied when they made out their verdict, and he found upon a bench, about three feet from the door of the jury room, outside of the room, twelve pieces of paper, with amounts in figures upon them; one with $10,000; one of $5000; one or two of $2000; one of $1000; four of $500 each; one of $800, or $850 ; one of $750, or $700; and one of $30, or $36.</p> <p>The'defendant also offered the affidavits of two of the jury who tried the cause; and which, in substance, established the same facts that the other witnesses deposed to. The introduction of these various affidavits, on the motion for a new trial, was objected to by the plaintiff, and the objection sustained by the court, to which exceptions were taken.</p> <p>The errors assigned were: 1. The permission of the court below to file a new replication, and withdraw the old.</p> <p>2. The refusal to grant a new trial.</p> <p>3. The jury were sworn to try the issue joined, when there was no issue joined.</p> <p>4. If there was an issue the verdict should have been set aside, as not responsive to that issue.</p> <p>5. The court erred in rejecting the affidavits of the jurors.</p> <p>[The arguments of counsel on the assignments of error not passed upon by the court, are omitted.]</p> <p>1. The court erred in not granting the new trial, on the affidavits of Dougherty, Fairchild, Magee, and Seaton.</p> <p>If the jury agree that each shall put down a sum and divide the aggregate by twelve, the quotient to be the verdict, it shall be set aside. Smith v. Chetham, 3 Caines, 53; Harvey v. Richett, 15 John. R. 87; Roberts v. Fails, 1 Cówen, 238; Warner v. Robinson, 1 Root, 194: Ellege v. Todd, 1 Humph. R. 44; Bennett v. Baker, Ibid. 399.</p> <p>If, however, after each of the jurors has conscientiously declared his amount of damages, they agree that the sums shall be added, and divided by twelve, as the average of their opinions, it will not be cause to set aside the verdict. Dana v. Tucker, 4 Johns. R. 482; Grinnell v. Phillips, 1 Mass. R. 541; Shobe v. Bell, 1 Rand. 39 ; Cowperthwait v. Jones, 2 Dallas, 55. The case at bar does not come within this distinction. And it also plainly appears that some one of the jury, at least, acted fraudulently by putting down $10,000, and also from the evidence of Seaton, there can be no doubt but that the sum thus improperly produced was doubled by the juror who made the calculation, and the jurors thereby were deluded into a verdict for double the amount produced by the mode improperly agreed on.</p> <p>2. The court erred in rejecting the affidavits of the jurors. The ancient law and practice were to receive the. affidavits of jurors. As late as the 8th of George II., in Phillips v. Fowler, 1 Barnes, 441, the affidavits of the jurors were received as of course. In Parr v. Seames, 1 Barnes, 438, judgment was stayed to allow the affidavit of jurors. In Aylett v. Jewell, 2 W. Black. 1299, it was taken for granted, that the jurors’ affidavit should be produced. In Smith v. Chetham, 3 Caines, 57, Spencer, J. says : “ On examining the English authorities prior to the revolution, it appears to me that the information of jurors as to what passed, may be received. The only decision to the contrary, is in Keble, (Price v. Powers, 1 Keb. 811,) but it is a very unintelligible and illy reported case. The determinations in Bunberry and Barnes, (Bellish v. Arnold, Bunb. 51, and Phillips v. Fowler, Barnes, 441,) show that the information of jurors may be received, and I cannot see any principle of law invaded by it.”</p> <p>The rule of law as it existed in England prior to the revolution, has been adopted, and yet prevails in several of the states.</p> <p>In Warner v. Robinson, 4 Root, 194, the affidavits of jurors were received. So in Grinnell v. Phillips, 1 Mass. R. 541. So also in Shobe v. Bell, 1 Rand. 39. The point was expressly made in Elledge v. Todd. 1 Humph. 44, and decided that the jurors’ affidavit was admissible.</p> <p>That this was the settled law of England up to the Revolution, cannot be controverted. That no statute has changed it we all know. It however seems now to be settled in England, and in many of thejStates of this confederacy, that such affidavits shall not be admitted. How has this change been produced 1</p> <p>The foundation of the overthrow of this ancient rule seems to be the opinion, or rather the legislation of Lord Mansfield, in Vaise v. Delaval, 1 Term Reports 11, which has been adopted and followed by many of the States. Lord Mansfield and the American courts who have followed him, proceed upon what they conceive to be the impolicy of admitting such evidence. Now what is or is not sound policy, is a question for the legislature, not for the judiciary. And the ancient law having been settled, and up to the Revolution held to admit the affidavits of jurors, the changing of this rule by the courts was clearly an act of usurpation. The iine between the legislative and judicial power should be clearly defined and constantly kept in view, to guard against that dangerous uncertainty that ever must arise from the invasion of the office of legislation by the judiciary. Let it not be forgotten that we adopted the common law of England, and never did adopt the opinions or resolutions of Lord Mansfield or of any of the courts of the States of this Union, where they are plainly against that law as settled and held before and up to our separation from England.</p> <p>But if the courts will, upon their views of policy, invade the province of the legislature, and instead of expounding and applying the law as it is, change or make law, still the apprehended evils which led to this judge-made law as it is now held in England and many of the States, do not apply to this case. Whatever evils we may apprehend from receiving the affidavits of jurors to impeach their verdicts when they stand alone, these evils cannot arise when the affidavits of jurors are produced merely to corroborate and support the affidavits of other witnesses, as in the present case.</p> <p>1. On the question as to the refusal to grant a new trial on the ground of misbehavior on the part of the jury, cited the following authorities: 4 Binney, 155; Rex v. Almon, 5 Burr. 2687; 15 Johns. 309 ;. Cogan v. Eledoti, 1 Burr. 383; Smith v. Cheatham,, 3 Gaines, 61; Copperthwait v. Jones, 2 Dallas, 55 ; 3 Caines R. 57; Executor of Breedon v.Breedon, 1 Bos. &Pull. 329 ; Cluggage v. Swan, 4 Binn. 150; Shobe v. Bell, 1 Rand. 39; Martha v. Bailey, 1 Exch. R. 9.</p> <p>2. On the question whether the affidavits of jurors, seeking to impeach their verdicts, are admissible testimony, he cited the following authorities: Friar v. The State, 3 How. 422; Rex v. Almon, 5 Burr. 2687; Vaise v. Delaval, 1 Durnf. & East, 11; Pierce, Executor v. Warren, Executor, 1 H. & Munf. 385; Cochran v. Street, 1 Wash. 105; Cluggage v. Swan, 4 Binn. 150; Martha v. Bailey, 1 Exch. R. 9; Jackson v. Dickenson, 15 Johns. 309; Crawford v. The State, 2 Yerg. 60.</p>

<p>In a suit in chancery against both adult and infant defendants, a decree rendered in favor of the complainants against all the defendants upon pro confesso against the adult defendants, and the answer of guardians ad litem for the infants, without any proof, will be erroneous as to the infants, even though time be reserved in the decree to the infants, after they come of age, to show cause against it.</p> <p>Taking a case for confessed in equity, entitles the complainant to a decree only against the party as to whom the bill has been taken for confessed ; not against the others; and if the defendant against whom no pro confesso is taken, disprove the bill, the whole will be dismissed.</p> <p>A pro confesso against an infant will not authorize a decree against him ; there must be proof; and a reservation of a right to show cause against the decree, after the infant attains majority, does not cure the error.</p> <p>Whether the reservation of a right in an infant to show cause against the'deeree after he attains majority, extends only to defects and errors in the decree itself, and is barred by a sale under the decree— Quiere.</p> <p>Where a decree has been rendered in the chancery courts in a suit against adults and infants on pro confesso against the former, without proof, and this court on that account reverse the decree, the pro confesso as to the adults will not thereby be set aside. The cause will proceed as if no decree had been pronounced.</p>

In error from the circuit qourt of Hinds county ; Hon. M. L. Fitch, presiding judge. Robert H. Buckner, who, as the declaration stated, sued for the use of Levin R. Marshall, instituted an action of detinue in the court below, on the 28th day of April, 1838, against Thomas Hundley, to recover a negro woman, named Maria. Hundley plead non detinet. A trial was had at the June term, 1842, and a verdict rendered for the plaintiff below, and the usual judgment entered.

In error from the Jefferson circuit court; Hon. C. O. Cage, judge. William G. Renaud and David Grissom, for the use of L. W. Baldwin, brought suit to the November term, 1841, of the Jefferson circuit court, against William S. Read, John G. Fleming, and Philip O. Hughes, upon their joint and several promissory notes payable to the said Renaud and Grissom.

In error from the Hinds circuit court; Hon. George Coalter, judge. The Commercial Bank of Rodney sued James M. Smith, James Payne, and Daniel Frisbe, in assumpsit, upon a note payable to the plaintiffs by their alleged corporate name. The defendants, Smith and Frisbe, at the return term, plead non assumpsit, under oath, and eight special pleas; all of which were sworn to be true in substance, and in fact.

In error, from the Pike circuit court; Hon. Y. T. Crawford, judge.

Francis Gildart, judge. On the seventh of August, 1845, Eleanor Leech filed her petition in the probate court of Wilkinson county, representing herself to be one of the heirs and distributees of James Leech, deceased, who departed this life on the 4th of March, 1836, without children, or descendants of them; that she was a sister of his, and that according to petitioner’s recollection there were three other sisters and three brothers of Leech; that her brother left a last…

Robert H. Buckner, chancellor. Edwin Moody states in his bill that in August, 1839, he purchased at sheriff’s sale under executions from the circuit court of Hinds county against John Shields, a lot in the city of Jackson, to which the sheriff executed to him a deed. That Geo.

In error, from the Leake county circuit court; Hon. Morgan L. Fitch, judge. John Doe, on the demise of Robert Huntington, sued Martin S. Carson, in an action of ejectment, to recover the possession of some lands in Leake county. As the decision of the court turned on a single point, the facts with reference to that will only be stated.

In error from the Tippah circuit court; Hon. Stephen Adams, judge. Orlando Davis applied for a rule against Samuel N. Pryor, the sheriff of the county, to show cause why a mandamus should not issue against him to compel him to make title to certain real estate, bought at his sheriff’s sale by Davis, as the property of the Mississippi Union Bank.

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

In error from the Adams circuit court; Hon. Charles C. Cage, presiding judge. Thomas MeCargo sued William K. Collins and Douglass H. Cooper on a writing obligatory, for $3030. The defendants pleaded two pleas. 1.

In error from the circuit court of Jasper county; Hon. Henry Mounger, judge. John J. McRae, who sued for the use of Simeon R. Adams, sued Joshua Terral in an action of assumpsit, to recover the cost of printing advertisements of sheriff’s sales for Terral, in the newspaper called the “ Eastern Clarion,” belonging to McRae. The defendant plead non assumpsit and payment.

On appeal, from the district chancery court at Carrolton; Hon. Henry Dickinson, vice chancellor.

In error from the circuit court of Hancock county; Hon. Van Tromp Crawford, judge. At the September term, 1843, of the probate court of Hancock county, an issue was made up and directed to the circuit court of that county, to ascertain if Elias Wallace and others were the legal heirs and distributees of Jourdan Morgan’s estate; they asserting that they were, while David R. Wingate, the administrator of the estate, denied it.

In error from the circuit court of Jasper county; Hon. Henry Mounger, judge.

In error, from the Jefferson Circuit Court; Hon. Charles C. Cage, judge. Ann Lee sued in assumpsit in the court below, to its November term, 1839, the makers of the following note : $3882,20 Rodney, Miss. May 3, 1838. Twelve months after date, we, or either of us, promise to pay Messrs. Stuart & Smith, three thousand eight hundred and eighty-two ^ dollars, for value received, payable and negotiable in the Commercial Bank of Rodney.

In error, from the Carroll circuit court; Hon. Benjamin F. Caruthers, judge. Richardson D. Ransom sued William Cothran and Galbraith F. Neill, attorneys at law, practising in partnership, in an action of assumpsit. It will be requisite, to the proper understanding of the case, to state at some length the pleadings. There were four counts in the declaration.

In error from the Hinds circuit court; Hon. John H. Rollins, judge. The Mississippi and Alabama Railroad Company, suing for the use of James Bradley, on the 23d of April, 1839, sued in assumpsit William F. Smith, Nathan Bryant and Hugh Campbell, on a note made by the defendants for $10,926 28, dated the 29th of March, 1838, and payable to the plaintiffs, ninety days after date, at their banking house in Brandon.

In error from the Adams circuit court; Hon. O. C. Cage, judge.

In error from the Adams circuit court; Hon. C. C. Cage, judge. Susan Calmes recovered a judgment against Horace Gridley in the circuit court for $738 90, on the 1st day of May, 1837. An execution issued on this judgment on the 19th day of December, 1840; and on that day was levied on a negro woman, and five casks of cheese, and three half-barrels of whisky, as the property of Gridley; which were advertised by the sheriff for sale on the 4th day of January, A. D. 1841.

Robert Duncan, judge. At the February term, 1844, of the Jefferson probate court, Richard Compton and Smith Hubbard filed their petition, setting forth, that at the preceding December term of that court, letters of administration ad colligendum on the estate of Stephen Compton, had been granted jointly to them and William H. Compton; that appraisers had been appointed, and that petitioners had exhibited to the appraisers all the personal property of the deceased, which had…

In error, from the circuit court of Franklin county; Hon. Y. T. Crawford, judge. George Holloway sued Sutton Byrd and Ira E. Byrd, upon their joint note for one thousand two hundred and forty-three jog dollars, dated May 4, 1842, in favor of George Holloway.

Error from the circuit court of De Soto county; Hon. James M. Howrey, judge. This was an action of debt, on a writing obligatory, brought by David Irvine, for the' use of John R. Fentress, against Charles J. Humphreys and Howes H. Coleman, administrators of Perry W. Humphreys. The defendants filed a plea of payment, upon which issue was taken.

Thomas Fletcher, judge. At the May term, 1840, of the probate court of Adams county, Bazille Guyot filed his petition, representing that his wife, Francoise Leroux, was the sister and sole heir of Joseph Leroux, deceased, and prayed that Alexander O. Henderson, administrator of Leroux, be ordered to pay over to him, as heir in right of his wife, of said Leroux, all the estate (which was in money) of said deceased, and which was at the time of filing said petition, or would…

In error, from the circuit court of Hinds county; Hon. George Coalter, judge. Augustus and Edward Bonnaffe, partners, under the firm of Bonnaffe & Co. brought an action of assumpsit in the court below, upon this note: “$3375. Clinton, Mis. December 13, 1838.

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.

In error, from the circuit court of Hinds county; Hon. John H. Rollins, judge.

On appeal, from the Panola circuit court; Hon. James M.' Howrey, judge. Uriah Tyson filed in the clerk’s office, an affidavit that Robert Anderson and John Simmons wrongfully detained from his possession, five bales of cotton, to the possession of which he was legally entitled, and his right of action for which had accrued within a year.

On appeal, from the probate court of Madison county; William S. Bailey, judge.

In error from Panola circuit court; Ho? judge. The President and Directors of the Bank of the State of Alabama, sued Little Berry Wright, Michael Wright, and Jesse C. Wright, in an action of debt founded on a judgment of the county court of Tuscaloosa county, in the state of Alabama. The defendants plead, 1. Nul tiel record. 2.

In error from the circuit court of Madison county; Hon. John H. Rollins, judge..

In error from the circuit court of Jefferson county ; Hon. C. C.,Cage, judge. Shem Thompson brought his action of assumpsit to the June term, 1839, of the Jefferson circuit court, against Laughman, Hinds, and Farley, upon the following promissory note: $4,380.

In error from the circuit court of Marion county; Hon. Thomas A. Willis, judge.

In error from the Lowndes circuit court; Hon. Hendley S. Bennett, judge.

In error, from the district chancery court, held at Holly Springs; Hon. Henry Dickinson, vice-chancellor. . .On. the 25th of April, 1844, Wilson T. Caruthers filed his bill in the vice-cháncery court, in which he alleged that Arthur M. M. Upshaw and himself entered into a written agreement on the 18th of December, 1839, in these words, viz. “ Whereas Wilson T. Caruthers, of Holly Springs, Miss., has this day executed to Ann Hamilton Upshaw and her heirs, his deed for two…

In error from the Adams circuit court; Hon. Charles C. Cage, judge. Pearce Noland sued John Hazlip and Charlotte Galtney, administrator and administratrix óf the estate of Joseph Galtney, deceased, upon four notes, one for $350, and the others for $1066 each, dated January 1, 1840, and due in four consecutive years ; and also upon an open account. The defendants plead non assumpsit by their intestate. The case was submitted to a jury, who found for the plaintiff.

In error, from the circuit court of Monroe county; Hon. Stephen Adams, judge. James V. Taylor sued Caleb S. Manley, for the-price of brick work done by the former for the latter: A trial was had, and the jury found for the defendant.

In error from the probate court of Pike county; Hon. Christian Hoover, judge. Jane Whaley filed her petition in the probate court of Pike county, for an allotment of dower out of certain lands; representing herself as the widow of George Whaley, who died seised thereof.

Error, from the circuit court of Madison county ; Hon. John H. Rollins, judge. This was an action of assumpsit, brought by the Mississippi Union Bank, against Lawson F. Henderson et ah, to the November term, 1840, of the circuit court of Madison county. The declaration was founded on a- promissory note for five thousand dollars, and in the usual form. The defendants pleaded nul tiel corporation, which was sworn to, and non assumpsit.

<p>Where to an action on a bond, the defendant pleaded that the bond was given for the hire of a negro for a year, and the negro was taken out of the defendant’s possession on a certain day, before the expiration of the hire by the payee of the bond ; to which the plain tiff replied, in substance, that the contract of hire was, that the plaintiff might, at any time, take possession of the negro by deducting twelve dollars per month for the unexpired time, and possession had been accordingly taken ; to which replication the defendant demurred, and the court overruled the demurrer, and gave judgment final against the defendants for the amount due upon the bond, after deducting the period of the negro’s absence ; held, that the judgment final was erroneous ; the court should have awarded a judgment with a writ of inquiry.</p> <p>To a declaration on a bond for payment of money, the defendant plead that the bond was executed for the hire of a negro by the plaintiff to the defendant, from January 1, 1841, to January 1, 1842, and that the negro, during that period, should not be removed from the defendant’s possession ; yet the plaintiff did, on the 3d of May, 1841, take the negro out of the defendant’s possession, by which the consideration of the writing obligatory had failed the plaintiff replied, that when the negro was hired it was agreed between the plaintiff and defendant, that if the plaintiff should want the negro before the first day of January, 1842, the defendant should give her up, deducting twelve dollars per month for the unexpired time ; and that the defendant had the negro until the 3d of June, 1841, without this that the plaintiff agreed that the negro should stay the whole year as averred by the defendant held, on demurrer, that the plea was good in substance and form.</p> <p>If the action be founded on a note, and in the pleadings the word “ note ” is used, without words of identification, it will be understood of the note mentioned in the previous pleadings.</p>

In error, from the probate court of Franklin county; Hon. James M. Jones, judge.

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

In error, from the circuit court of Jasper county ; Hon. Yan Tromp Crawford, judge. The Mississippi Union Bank sued James McDugald and two others, upon a note payable to the bank.

In error, from the circuit court of Marshall county; Hon. James M. Howrey, judge. John B. Perry sued Whitwell S. Randolph and Kenneth Dye,. as partners, for the sum of sixty-five dollars, for work done by Perry on a race-course, belonging to Randolph and Dye. Randolph plead non assumpsit, under oath, and payment. The plaintiff dismissed his suit as to Dye; and upon trial the jury found for the defendant.

Henry Dickinson, vice chancellor. Richard J. Wilty states in his bill that on the 21st of December, 1840, he purchased of Joshua Hightower a tract of land in Choctaw county, for the price of three hundred dollars; for which Hightower on that day executed and delivered to him a deed in fee simple with full covenants of warranty ; that High-tower, at or before the purchase, assured him that he had a good title and was fully empowered to sell; that Hightower, in fact, had no…

In error, from the Rankin circuit court; Hon. John H. Rollins, judge. George W. Henderson, at the May term, 1842, of the circuit court of Madison county, sued Henry R. W. Hill, executor of the last will and testament of Francis Tidwell, deceased, on a note alleged to have been made by Tidwell, for $500.

. In error, from the Jefferson circuit court; Hotí. C. C. Cage, judge. ' Hugh W. Cunningham, and James M. Lazams, in right of his wife, late Sarah May, and his said wife, filed their declaration in assumspit to the May term, 1843, of the Jefferson circuit court, against Abraham H. Buckels and William D. Buckels, upon their joint and several promissory note for $825, dated January 18, 1840, and payable nine months after date to H. W. Cunningham and Sarah May, administrators…

In error, from the Adams circuit court; Hon. Charles C. Cage, judge. Held: “ In case of a special agent, who is one constituted for a particular purpose, and under a limited authority, his principal is not bound if he exceed his authority.” Also in the case of Fox v. Fisk, 6 How. 345, it is held, “The principle of law is a familiar one, that an agent cannot bind his principal beyond the extent of his…

In error, from the vice chancery court at Columbus; Hon. Henry Dickinson, vice chancellor. The bill in this case was filed in the chancery court at Co-' lumbus, on the 14th day of December, 1841, by William Massingill against Bernard McKiernan, William D. Stone, and William Gray.

On appeal, from the circuit court of Hinds county; Hon. John H. Rollins, judge. Joseph Dennis and Moses Granberry, administrators of Stephen Granberry, deceased, • on the 9th day of February, 1S42, obtained judgment in the circuit court of Hinds county against Elias Tickers, for $676 08. On the 12th day of February, 1842, Augustus I. Jennings and-Drone in the same court recovered judgment against the same person for $1465 39.

Tn error, from the Rankin circuit court. The record in this case exhibits the following statement of facts, viz.: The record of a judgment in favor of Thomas Graves, who sued for the use of Thomas Lyne against John Shields, Samuel M. Puckett, and William H. Shelton, for $1755 54, rendered on the 17th of April, 1838.

On appeal, from the probate court of Jefferson county; Hon. Robert Duncan, judge.

On appeal, from the Holmes circuit court; Hon. Morgan L. Fitch, judge. In January, 1844, Hugh H. Fultz brought an action of replevin against John F. House, to recover possession of the slaves Silas, Nancy, Ann, Levi, Mary and her infant child. House gave bond for the forthcoming of the slaves, and a trial being had as upon issue joined, though no plea appeared in the record, a verdict was rendered for the defendant.

In error, from the circuit court of Lafayette county; Hon. James M. Howry, judge.

In error from the Madison circuit court; Hon John H. Rollins, judge. Thomas B. Hoover sued William D. Henry in assumpsit upon a note.

Error from the circuit court of Warren county; Hon. George Coalter, judge. This was an action of assumpsit, brought by James R. McDowell against James W. Cook, on a bill of exchange drawn by James Bland on J. W. Cook & Co., and by them accepted, in favor of Church & Robb, and by them indorsed to the plaintiff. The declaration was in the usual form, and the defendant pleaded non assumpsit.

<p>On appeal from the probate court of Yazoo county; Hon-. James R. Burrus, judge.</p> <p>Asahel W. Washburn and wife Leonora, and William E. Pugh, administrator of Rhoda Martin, deceased, filed their bill stating, that in 1837 Moultree Martin died intestate, possessed of a large amount of personal property, leaving surviving him Susan Martin, his wife, Leonora Martin, who has since intermarried with the complainant Washburn, Rhoda Martin, who has since died intestate, upon whose estate the complainant Pugh had administered, and Joseph and Adeline Martin, minors, for whom Washington Dorsey was guardian. That at the December term, 1837, of Yazoo probate court, letters of administration on the estate of the said Moultree were granted to Susan Martin and Williafti Phillips, who took into their possession the personal estate of the said Moultree. That at the January term, 1839, of said probate court, Phillips surrendered his letters of administration, and left Susan Martin sole administratrix, and in possession of the property.</p> <p>That some time in the year 1838 or 1839, the said Susan intermarried with one David Barber; that neither the said Phillips and Susan, while joint administrators, or the said Susan, while sole administratrix, nor Barber, after he married the said' Susan, had accounted with the probate court, or any person for the personal estate of the said Moultree Martin, but had appropriated the same to their own use. That since the intermarriage of the said Susan with Barber, they had removed from the state, leaving none of the personal property of the said Moultree behind them; that the said Susan gave as securities on her administration bond the said Phillips, Alexander H. Murphy and Andrew Gibbs; that complainants are distributees of said estate, and that they are remediless unless through that court.</p> <p>The hill prays that Barber and jwife, Phillips, Murphy and Gibbs, and the said Joseph and Adeline, by their guardian, be made parties defendants; that Barber and wife be compelled to account for all of the personal estate of the said Moultree, which came to the hands of the said Susan while sole administratrix, and for all which came to the hands of the said Barber after the marriage; and that the court will render a decree for what sum may be found due the estate, and will appropriate the same to the distributees as they are entitled by law, and will declare the bond of the said Susan, as administratrix as aforesaid, forfeited, and order the same in suit and for general relief.</p> <p>To this bill the defendant, Phillips, one of the sureties oh the administration-bond of the said Susan, pleads in substance as follows : That prior to the filing of this bill, to wit, on the 27th February, 1843, the said complainants, with Joseph and Adeline Martin, by their guardian, did file their bill or petition in said probate court, for the same matter and to the same effect as the said bill now does set forth ; to which bill the defendant did put in his answer, denying that he was in any manner liable as administrator of Moultree, Martin, &c.; and avers that such proceedings were thereupon had in said suit that afterwards the said cause came on to be heard before the said court, upon final hearing, and was heard upon its merits; and that the said court determined that the defendant was not in any way liable as the administrator of said Moultree, or upon the administration-bond executed by him and others as set forth in the pleadings, which bond was the same set forth in this bill; and further avers, that the court, by its detiree, did finally dismiss the aforesaid bill or petition, which decree is still in force, and therefore he pleads the said former bill, answer, proceedings, and decree in bar of the said complainants’ present bill, &c., prays judgment, &c. To which plea the complainants replied, that the material allegations and averments, set forth in the plea of the said Phillips, are not true as set forth in said plea, and this they are ready to verify by the record, &c.</p> <p>The bill which is plead in bar is spread out in the record, and is in substance as follows:</p> <p>A. W. Washburn and wife Leonora, Joseph Martin and Adeline Martin, by their guardian Washington Dorsey, and William E. Pugh, administrator of Rhoda Martin, allege, that in 1837 Moultree Martin died, leaving surviving him the complainants and Susan C. Martin, (who has since married David Barber,) his wife, his heirs at law. That at the December term, 1837, of Yazoo probate court, letters of administration on the estate of the said Moultree were granted to the said Susan Martin, now Susan Barber, and William Phillips, who gave bond with A. H. Murphy and Andrew Gibbs, their sureties; that they took into their possession the personal estate of the said Moultree, and the said Phillips made an inventory, for which he has in no manner accounted; that at the January term, 1839, said Phillips made his final settlement, in which he shows that he had paid debts to the amount of $2195 31, and that he had received of the rights and credits $1688 65.</p> <p>The bill then prays that the said bond may be declared forfeited, and ordered to be put in suit for the benefit of all concerned ; and that the court will compel the said William Phillips to account for all the property, of every kind whatsoever, which came to his hands as administrator of the said Moultree Martin, and that the court would enter up a decree against the said William Phillips, as aforesaid, &c., and for general relief.</p> <p>To which bill the said William Phillips filed his answer, in substance as follows : He admits the death of Moultree Martin, as stated, and that the complainants and Susan E. Martin, now Barber, are his heirs at law; admits the granting of letters of administration on said estate to the said Susan and himself as staled, but does not recollect that he ever rendered any inventory of said estate, but says the paper filed and called an inventory was an appraisement; does not know who filed this paper in court; has no recollection he did, and insists on proof; admits the property mentioned in it was the property of Moultree Martin, but denies he took it into possession, unless the following facts constitute possession : —At the death of said Moultree, his widow before administration had all the property in her possession ; after the grant of letters to the widow and himself, she still retained the same in her possession; never had it in his individual possession, nor under his control; that he never considered himself responsible for said property; that he considered his co-administratrix as much entitled to possession as he was, and that each was liable for his own acts. Under this belief he ' presented his accounts for settlement, as stated in said bill, and the said court passed upon and allowed them. That upon said final settlement, he was discharged from his office as administrator, and he has had nothing to do with said estate since, nor after that was he entitled to the possession of said slaves and other property mentioned in said appraisement, but the same was then in the possession of his co-administratrix and her husband, Barber, and being in possession, said Barber removed said property to parts unknown, and what has become of it this respondent does not know. He relied as a bar to said petition upon the order and decree of said probate court as aforesaid, and insists that the same is final and conclusive. He submits whether he is responsible for the acts of Barber and wife, since his discharge aforesaid from his administration, and for the acts of said Susan before her marriage with the said Barber; and whether said final settlement and discharge is not conclusive that he is not liable to complainants, &c., and prays to be dismissed.</p> <p>Upon this answer and proofs, the court dismissed this bill with costs, and made the following order :</p> <p>“ A. W. Washburn and wife Leonora, Joseph and Adeline Martin, by Washington Dorsey, guardian, William E. Pugh, administrator of Rhoda Martin, against William Phillips, administrator of Moultree Martin: —</p> <p>This cause coming on, &c. it is ordered, adjudged and decreed, that the bill or petition of petitioners be dismissed; and it is further ordered, that the defendant recover his costs, &c.”</p> <p>On the trial of the present cause upon this plea of the defendant, the court below sustained the plea and dismissed the bill as to Phillips, the security, and directed the clerk to take an account of the transactions of Barber and wife, and ordered the bond forfeited as to the others.</p> <p>An order of publication was made against Barber and wife, and the proof of publication filed; but the bill was not taken for confessed either as against them or the other defendants who did not answer. The complainants prosecute this appeal.</p> <p>The only question which arises for the consideration of this court is, was the dismissal of the bill filed by Washburn et als. against William Phillips, as administrator of Moultree Martin, a bar to the recovery on the bill filed by complainants against Barber and wife, as administrators of Moultree Martin ? Most clearly not.</p> <p>Phillips and Susan Martin administered on the estate of Moultree Martin. Susan married Barber, and Phillips resigned his letters. The complainants filed their bill to compel Phillips to acéount; he show's that he had accounted, and if he ever had the negroes in his possession, he delivered them over to Barber in right of his wife, who was administratrix, and thus discharges himself from responsibility; upon which showing, the court dismisses the bill. The complainants, finding that Phillips had paid over to Barber and wife, or Susan Martin, administratrix, files their bill against them, and makes the securities to the bond of Susan Martin (now Barber) parties defendants, among whom William Phillips, the former administrator, happens to be one of the securities. Phillips comes in and pleads a former judgment in bar. Upon the inspection of the former record, which is plead in bar, Phillips alone is sued as administrator, and not Barber and wife, and Phillips only notified as a security on her bond. Upon the facts in this canse I cannot see any pretence upon which to sustain the judgment of the court below, and feel confident this court will not hesitate to reverse it.</p> <p>In this case, the issue having been found on the plea of former decree, as it was obliged to be, from the record of the previous proceeding, I see no reason why this court should reverse the decree. If the former decree was wrong or erroneous, they might have brought it up for revision, but they did not; it still is in full force and effect, and being so, was properly pleaded.</p> <p>Whether the first case was or was not correctly decided, cannot now be examined; the question was settled. The case was however decided right. The case in Hopkins’s Reports is clear, and the act of assembly authorizing the discharge of company administrators, &c. shows such to be the- law of Mississippi. H. & H. 416, sec. 106.</p>

Hendley S. Bennett, judge. James O. Rupert sued Reuben H. Grant and Thomas D. Wooldridge, upon two bills of exchange drawn by Grant in favor of and indorsed by Wooldridge, upon and accepted by Andrews & Purvis. They were indorsed to H. B. Gwathney, who had indorsed them to the plaintiff. The defendants plead non assumpsit, and upon the trial the jury found for the plaintiff as against Grant, but found for the defendant Wooldridge.

In error, from the circuit court of Wilkinson county; Hon. C. C. Cage, judge. On the 20th November, 1833, Cornelius Vanhouten recovered judgment, in the circuit court of Wilkinson county, against John G. Reily and Henry Cage, administrators of Samuel Reily, deceased, for the sum of $829 60.

Matthew B. Cannon, judge. At the January term, 1845, of the court, Joseph W. Pendleton filed his petition, stating that Samuel Prestige, late administrator of Zebulon E. Pendleton, deceased, had departed this life, leaving the estate of his intestate without administration, and prayed that letters of administration de bonis non might be granted to John H. Oates and himself.

On appeal, from the Choctaw circuit court; Hon. James A. Kennedy, judge. At the December term, 1844, of the probate court of this county, Pleasant C. Muirhead, by petition, prayed for the grant of letters of administration on the estate of Charles Muirhead, his father, who, the petition stated, had departed this life on the 28th November, A. D. 1844, intestate.

In error from the Tallahatchee circuit court; Hon. Benjamin F. Caruthers, judge.

In error, from the Warren circuit court; Hon. George Coalter, judge. - Ransoti D. Crowder sued William S. Bodley as the maker, and Jilson P. Harrison as the indorser of a promissory note, in these words, viz.: “ Vicksburg, January 5, 1839. “Twelve months after the 5th day of January, 1839, I promise to pay J. P. Harrison, or order, the sum of four thousand dollars without defalcation, for value received, negotiable and payable at the Commercial and Railroad Bank of…

In error, from the Franklin circuit court; Hon. Thomas A. Willis, judge. Patrick Burke sued Robert Anderson in assumpsit, for the sum of four hundred and fifty' dollars due to him as overseer for the latter.

In error from the Lawrence circuit court; Hon. Thomas A. Willis, judge.

In error, from the circuit court of Adams county; Hon. C. C. Cage, judge. John Doe, on'the demise of Richard L. Smith and Margaret Smith, his wife, sued Richard Roe, i. e. Joseph A. Bradley and others, in ejectment for Section seventy-five, in Township seven, of Range three, west, in Adams county. A trial was had and verdict rendered for the defendants.

On appeal, from the decision of the superior court of chancery; Hon. Robert H. Buckner, chancellor.

On appeal, from the vice chancery court at Fulton ; Hon. Henry Dickinson, vice chancellor.

In error from the circuit court of Pontotoc county ; Nathaniel S. Price, judge. Collin S. Tarpley, in September, 1842, sued Charles Anderson, in assumpsit, for the sum of $249 65, for attorney’s fees, and money expended in the collection of claims due Anderson. Anderson plead non assumpsit and payment; the jury brought in a verdict for Tarpley of $275 86.

The Bank of Port Gibson having, on the 15th day of May, A. D. 1841, obtained judgment at law against John B. Nevitt, he, on the 1st day of May, A. D. 1844, filed his bill in the superior court of chancery, to enjoin it. The injunction having been granted on the bill was, on final hearing, dissolved by the chancellor; and Nevitt appealed to the high court of errors and appeals.

On appeal, from the circuit court of Adams county; Hon. C. C. Cage, judge.

G. O. Cage, judge. The state of Mississippi, under the act of the legislature of 1843, entitled, “ an act to prescribe the mode of proceeding against incorporated banks for a violation of their corporate franchises, and against persons pretending to exercise corporate privileges, under acts of incorporation, and for other purposes;”* instituted proceedings in the circuit court of Adams county against the president, directors, and company of the Planters Bank of the state of…

In error, from the circuit court of Lowndes county; Hon. H. S. Bennett, judge. This was an action of assumpsit, brought by Robert D. Sale against Harden Hariston. The declaration contained three counts.

In error from the Marshall circuit court; Hon. Stephen Adams, judge. John Trigg and John K.Chester as assignees of William II. Bayliss sued William L. Lanier and Ransom H. Byrn upon the following bond: “ $500. Holly Springs, 23d Jan’y. 1840. Four months afterdate we or either of us promise to pay W. H. Bayliss, or order, five hundred dollars, value received, with interest from date. Witness our hands and seals.

On appeal, from the superior court of chancery; Hon. Robert H. Buckner, chancellor.

Error, from the circuit court of Adams county; Hon. C. C. Cage, sitting in chancery.

Error from the circuit court of Adams county; Hon. Charles C. Cage, judge.

James Finlay, judge. Louisa Washington, as the widow of William H. Washington, claimed by petition her right of dower in four lots in the town of Brandon, in this state, to which she avers that her husband in his life-time acquired a paramount equitable ownership. She states that his estate was insolvent, and that the lots in question had been sold at marshaPs sale prior to his death.