Volume 15 — Mississippi Reports

In error from the Hinds circuit court; Hon, John H. Rollins, judge. Washington Dorsey sued Joseph Bullard and Philip Myers in an action of assumpsit on a note in these words : “$476. On or before the first day of January, A. D. 1840, I promise to pay David Ellison or bearer, four hundred and seventy-six dollars, for value received. August 13, 1838. Joseph Bullard.

Henry Dickinson, vice-chancellor. James Money filed his bill in the vice-chancery court at Car-rollton, charging that, in December, 1837, he purchased of Marcus Pierce the east half of the north-west quarter of Section No. 18, Township No. 19, of Range 4, east, except about four acres, which had been previously sold off of the south-east and southwest corners thereof, lying and being in the county of Carroll; for which he agreed to pay the sum of three thousand dollars; that…

In error from the Tishamingo circuit court; Hon. Stephen Adams, judge. William Garvin and others, partners under the style of Gar-vin, Carson, & Co. sued Robert Lowry, in March, A. D. 1843, in an action of debt upon a judgment record from Tennessee. The defendant plead payment, and offered as evidence, in support of his plea to the jury, six receipts from Micajah Bullock, who was the attorney, who recovered the judgment in Tennessee.

In error from the circuit court of Yalabusha county ; Hon. Benjamin F. Carnthers, judge. The Northern Bank of Mississippi sued Benjamin Williams, Hugh Torrance, Sterling Harrison, Josiah Deloach, and Harvey H. Means, the former as drawer, and the latter as indorsers of a protested bill of exchange.

George Holly, judge. Bernard Benoit, jr., averring himself to be a free man of color, filed his petition in the probate court of Harrison county, in July, 1844, setting forth that Bernard Benoit, sen., who was a free man of color, died intestate, in said county, sometime in December, 1841, and without legal heirs. That at his death he was possessed of a considerable estate, consisting of negroes and other personal property.

In error from the circuit court of Madison county; Hon. John H. Rollins, judge. The defendant in error, made the following motion in the court below against the plaintiffs in error, viz. : “ James E. White, by his attorney, moves for judgment against A. B. Robinson and Edwin Moody, for debt, $203.25, and damages, the interest on that sum from the 17th day of November, 1843, until judgment rendered.

In error, from the circuit court of Hancock county; Hon. Y. T. Crawford, judge. Julius C. Monet sued James Graves, in detinue, for the slave Lorant. Yarious pleas were filed, and issues taken; and the cause was submitted to a jury, who found for the plaintiff below.

In error, from the circuit court of Madison county; Hon. John H. Rollins, judge. William Wade sued Lydia A. Barrow, administratrix, &c. of William Barrow, deceased, on a writing obligatory, made by William Barrow and Samuel Barrow. The defendant plead two pleas; first, payment made by the intestate, in his lifetime ; and second, payment by his obligor, since the death of her intestate.

Robert H. Buckner, chancellor. Richard M. Gaines and Augustus E. Addison, administrators of Samuel Hunter, exhibited their bill of complaint in the superior court of chancery, stating that Samuel Hunter removed from Ireland into this state in 1824, obtained letters of naturalization, and married Susannah, the daughter of John and Susannah Bisland, who then resided in Adams county in this state; that Mrs. Hunter died in 1825, leaving only one child, Catharine Ann, the issue…

Error from the circuit court of Hinds county; Hon. John H. Rollins, judge. This was an indictment found by the grand jury of Hinds county, against Peter G. Johnston.

ErroR, from the circuit court of Carroll county; Hon. Benjamin F. Caruthers, judge. This was an action of assumpsit brought by Amos S. Foy to the April term, 1845, of the circuit court of Carroll county, against Elizabeth M. Davis and Calvin Davis, founded on their joint and several promissory note for the sum of one thousand and twenty dollars, dated the 21st day of November, 1843, and payable on the first day of January, 1845.

Henry Dickinson, vice-chancellor. The bill states, that in 1843, Jane Doyle purchased from Peter Gee & Co. a large amount of merchandise, comprising articles necessary for a plantation and household purposes. That on February 3,1844, she, with W. G. Doyle, executed a note for $31411, payable one day after date, to said Gee & Co. in payment for said articles.

<p>Under the act of 1839, with reference to married women, it being provided that the slaves owned by a feme covert, under the provisions of that act, “might he sold by the joint deed of the husband and wife, executed, proved and recorded, agreeably to the laws now in force in regard to the conveyance of the real estate of feme coverts, and not otherwiseit was held that a married woman could not charge her separate personal estate owned under the provisions of that statute, with any debt or liability, in any other mode than that pointed out in the statute ; where therefore a married woman owning slaves, under that act, executed a forthcoming bond jointly with her husband as sureties for a third party, which was forfeited, her slaves are not liable to be sold under execution on such bond; and a court of chancery will enjoin their sale.</p> <p>It seems by the common law to be now settled that a feme covert, is not liable personally for any debt, nor is her separate property in general liable in equity for the payment of her general debts, or her general personal engagements; yet the fact that the debt has been contracted during coverture, either as a principal or as a surety for her husband, or jointly with him, seems ordinarily to he held prima facie evidence to charge her separate estate without any proof of a positive agreement, or intention to do so.</p>

ERROR, from the circuit court of Adams county; Hon. Charles C. Cage, judge. This was an action of covenant brought by Thomas Smith and Richard Bigelow, partners under the name and style of Thomas Smith & Co., against Thomas 0. Enos, to the May term, 1840, of the circuit court of Adams county.

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

Error from the circuit court of Smith county ; Hon. Thomas A. Willis, judge. This was an action of assumpsit, by Milton H. Carson and Owen W. Saxon, partners, doing business under the firm and style of Carson & Saxon, for the use of William B. Dozier, against William H. Flowers, founded on a promissory note for the sum of $156 67. The defendant, by plea, under oath, denied the execution of the note.

EekoR from the circuit court of Choctaw county; Hon. Hend-ley S. Bennett, judge. This was an action of assumpsit, brought to the September term, 1844, of the circuit court of Choctaw county, by Mi-cajah Bennett and Josiah Bennett, as executors of Stephen Bennett, deceased, for the use of Duncan S. Morris, against John Prewitt; founded on a promissory note for five hundred and ninety-two dollars, dated July 27th, 1819, and payable one day after date.

William M. Randolph, judge. The record in this case shows the following facts, to wit: that the estate of Eleazer W. Haring was declared insolvent, and commissioners appointed to audit claims against it; that the commissioners made a report refusing to allow the claims of Thomas Stone; that Stone filed exceptions to their report, and his claims were referred to referees, who reported in favor of allowing his claims, to the amount of $4488, which report was received and…

Error from the circuit court of De Soto county ; Hon. James M. Howrey, judge. This was an action of debt brought by Erastus T. Collins and Andrew Campbell, partners, under the name and style of A. Campbell, & Co., for the use of John R. Chester, against Robert J. Sandford, for $900.81|, founded on two bills single, the one for $811.99, and the other for $53.80 ; one promissory note for $25.62!, and an °Pen account for goods sold amounting to $9.40.

Morgan L. Fitch, judge. On the third of March, 1843, John Doe, on the demise of Robert W. James and Ann M. James his wife, sued Francis Harmon and Samuel Walker, who were made defendants in the ejectment, to recover the undivided half of lot 238, in the town of Yazoo city, formerly Manchester. The rule entered into was a special one, confessing only the lease and entry; there was no joinder in the issue tendered by the defendant, contained in the record.

Henry G. Johnston, judge. In December, 1843, Jesse A. Mims, on behalf of his wife Eliza, one of the heirs and distributees of the estate of John Dobbs, deceased, filed his petition against George W. Ross, executor of the last will and testament of Dobbs.

Error, from the circuit court of Yalabusha county; Hon. James M. Howrey, judge. This was an action of assumpsit, brought by Alfred S. Brown against Rowland T. Bryarly and Ralph CofFman on a promissory note for six thousand four hundred and forty-five dollars, to the May term, 1842, of the circuit court of Yalabusha county.

<p>In error from the circuit court of Adams county; Hon. C. C. Cage, judge.</p> <p>John Doe, on the demise of James M. Reynolds, sued Richard Sessions and others, in ejectment for a tract of land in Adams county; to which, on the common order being entered into, the defendants plead not guilty.</p> <p>On the trial, the plaintiff read, in evidence to the jury, a regularly executed Spanish grant for two thousand arpens of land in favor of Ezekiel Forman, dated the 1st. of June, 1792 ; and a certificate of the survey of the lands therein granted by Carlos Trudeau, the then Spanish surveyor; this patent recited that the lands therein granted are the same before granted to Jane Rumsey; he then read, in evidence, a copy of the certificate of the board of commissioners west of Pearl River, established by act of congress, regulating the grants of land, and providing for the disposal of the lands of the United States south of the state of Tennessee, confirming to the legal representatives of David Forman the two thousand arpens granted by the Spanish government to Ezekiel Forman; this confirmation was dated on the 27th of February, 1806; the plaintiff then read to the jury a quit-claim deed from the legal heirs of David Forman, deceased, to James M. Reynolds, the lessor of the plaintiff, dated March 13, 1834; he read also the certificate of the register of the land office at Washington in Adams county, that William Gordon Forman had, on the 30th of March, 1804, as the surviving executor of the last will and testament of David Forman, filed his notice of his claim to the two thousand arpens, under the grant to Ezekiel Forman, and a deed from the executors of Ezekiel to' David Forman; and that this claim, on the 30th of November, 1804, was laid before the board of commissioners, with the proper documents in its support, and on the 27th of February, 1806, was allowed and confirmed.</p> <p>The plaintiff then read, in evidence, an order of survey, and a survey made for Jane Rumsey in 1786, and a complete Spanish grant to her, dated the 8th day of October, 1787, to the same two thousand arpens granted to Ezekiel Forman. He then read a certificate of confirmation by the board of commissioners,, similar to confirmation of Forman’s grant, dated the 3d day of July, 1805 ; at the foot of this confirmation was this attestation: “ I hereby certify that the within certificate is truly copied from, the records in this office. Given under my hand the 12th July, 1839. Thomas W. Newman, register of the land office.” The defendant excepted, because the court below permitted this copy to be read without proving the loss of or accounting for the original.</p> <p>The plaintiff then read this deed : “ This indenture, made-this 18th day of December, A. D. 1806, between Lacy Rumsey,. of the county of Jefferson, in the Mississippi territory, of the one part, and William Gordon Forman, of the city of Natchez, of the other part, witnesseth that the said Rumsey, for and in consideration of the sum of two thousand dollars to him in hand paid by the said Forman, the receipt whereof is hereby acknowledged, hath remised, released, and forever quit-claimed, and by these presents doth remise, release, and forever quit-claim unto the said Forman, his heirs and assigns forever, all the right, title, interest and claim; whatsoever, both at law and in equity, of him the said Rumsey, of, in and to the following tract of land, (the deed here described the two thousand arpens of land, patented to Jane Rumsey, deceased, and which the grantor claimed as her heir at law,) to have and to hold the above described tract or parcel of land, with all the privileges and appurtenances thereto belonging, or in anywise appertaining to the only proper use, benefit, and behoof of him, the said William Gordon Forman, his heirs and assigns forever. In witness, &c.”</p> <p>This deed was acknowledged by one of the subscribing witnesses on the 30th day of November, 1807, before Thomas Rodney, Esq., one of the superior judges for the Mississippi territory, and was filed for record in the probate clerk’s office, on the 10th day of March, 1841.</p> <p>The defendants objected to the introduction of this deed, without further proof, atrd in support of their objection, read to the court the patent from the United States, under which they claimed, dated in 1823; the objection was, however, overruled, and exceptions taken.</p> <p>The plaintiff then read a deed from William Gordon Forman, who was admitted not to be an heir of David Forman, deceased, to George Salkeld, dated the 1st of March, 1811, for one moiety of the land included in the grant to Ezekiel Forman, and another deed from the same to the same, dated July 3, 1811; he also read a deed from George Salkeld to Thomas B. Barclay, George P. Barclay and Frederick M. Barclay to the same land, dated May 6, 1820; he then offered a paper purporting to be a power of attorney, from Thomas B., George P., and Frederick M. Barclay, of England, to Robert Lyons, dated 26th September, 1827, authorizing Lyons, to sell and convey this land ; this power of attorney, after being duly signed and sealed by the makers, was attested, and certified as follows: viz. “Witnesses to the signature of Thomas Brockhurst Barclay, G. W. Crooke, R. Gladslock. Witnesses to the signature of George Pearkes Barclay and Frederick Maud Barclay, F. J. Manillier, John Shakspeare, Jr.</p> <p>“ London, to wit:</p> <p>“ Frederick John Manillier, of Little Trinity Lane, gentleman, maketh oath, and saith that he, this deponent, together with John Shakspeare the younger, was present, and did see George Pearkes Barclay and Frederick Maud Barclay, two of the constituents named in the letter of attorney hereto, duly sign, seal, and as and for their acts and deeds in due form of law deliver the said letter of attorney to and for the uses and purposes therein mentioned ; and this deponent further saith, that he, together with the said John Shakspeare the younger, also present, did see the said George Pearkes Barclay. and Frederick Maud Barclay sign the schedule annexed to the said letter of attorney, and that the names or signatures, ‘ George P. Barclay and Frederick M. Barclay,’ thereto set and subscribed as the parties executing the said letter of attorney and signing the said schedule, are of their proper handwriting, and that the signatures, F. J. Manillier and John Shakspeare, Jr. thereto set and subscribed as the witnesses to the due execution thereof, are of the proper handwriting of this deponent and the said John Shakspeare the younger.</p> <p>“ Sworn at the Mansion House, London, this 2d of October, 1827, before A. Brown, Mayor. F. J. ManillieR.”</p> <p>Appended to this certificate was the certificate of Thomas As-pinwall, consul of the United States at London, that the signature A. Brown, mayor, was that of the Hon. Anthony Brown, lord mayor and chief magistrate of the city of London, and that the seal thereto affixed was that of the mayoralty of the city.</p> <p>There was, in addition, a full certificate of the majmr, under the corporate seal, of the oath taken by F. J. Manillier before him, and the contents of that oath, as set forth above.</p> <p>Robert Gladstone, Jr. appeared before Thomas Littledale, mayor of Liverpool, and made oath of the signing of the power of attorney by Thomas Brockhurst Barclay, similar to that taken before the mayor of London. The signature to the affidavit was in these words : !t Sworn at Liverpool aforesaid, the 6th day of October, 1827, before me, Thomas Littledale, mayor.” Then followed a certificate of Gladstone’s having made the oath as stated; the certificate was similar to that of the mayor of London in its recitals, and commenced as follows, viz.:</p> <p>“ To all to whom these presents shall come :</p> <p>“ I, Thomas Littledale, Esq., mayor of the borough and town of Liverpool, in the county palatine of Lancaster, and kingdom of Great Britain, &c. do hereby certify that on the day of the date hereof, personally appeared before me Robert Gladstone the younger, of, &c.”</p> <p>It concluded in this way, viz.: “In faith and testimony whereof, I the said mayor have caused the said seal of mayoralty of the said borough and town to be hereunto put and affixed, <fcc. dated at Liverpool the 6th day of October, in the eighth, year of the reign of our sovereign lord George the Fourth, by the grace of God king, &c.; in the year of our Lord, 1827.</p> <p>“ By order of the mayor,</p> <p>[l. s.] “ Statham, Town Cleric.”</p> <p>There was also a certificate by the consul of the United States at Liverpool, that Thomas Littledale was the mayor of Liverpool. To the introduction of this power of attorney the defendants objected, and offered to prove, in support of their objection, that it was not authenticated according to the usages of the city of London; that the mayor of London usually certified under his official seal. The objection was overruled, and the proof excluded and exceptions taken.</p> <p>The plaintiffs then read a deed from Lyons, as agent and attorney in part for the three Barclays, to the lessor of the plaintiff, of the land in controversy, dated in May, 1828.</p> <p>The plaintiff then offered a copy of a map of a survey made by George Davis, D. S. of the Lacy Rumsey certificate, which was certified as follows, viz.:</p> <p>“ I certify that the foregoing is a true copy of the survey of Lacy Rumsey’s claim, as on record in this office.</p> <p>“Yolney E. Howakd,</p> <p>“ Surveyor General of Public Lands South of Tennessee.</p> <p>“ Surveyor’s Office, Jackson, Miss.”</p> <p>To the introduction of this map the defendants objected, and proved, in support of their objection, by Thomas W. Newman, register of the land-office at Washington, Miss., and late a clerk in the surveyor-general’s office, that by the rules of the survey- or-general’s office, no plat made by a deputy surveyor was complete without the approval of the surveyor-general marked on it; that Freeman was surveyor-general, while Davis acted as deputy surveyor; that there was no such paper as the one offered in evidence among the records of the register’s office at Washington; but on the contrary, a materially different survey and plat, approved by Thomas Freeman, the surveyor-general, was of record in that office; the court below overruled these objections and permitted the survey and plat to be read to the jury, to which exceptions were taken.</p> <p>The bill of exceptions then recites, that various and conflicting testimony was then introduced in relation to the eastern limit of said Forman and Rumsey tracts, by which the plaintiff attempted to prove that the said grants, or at least one of them, included the tract in dispute, and admitted to be in possession of the defendants, It was also proven that a portion of the lands in dispute were and still are forest, and the whole tract not surrounded by any fence or enclosure, but that a portion was under fence and in cultivation by the defendants or. those claiming under the same title, ever since 1832, and that the plaintiff and the said Barclays and Salkeld, under whom he claimed, had for many years a plantation in cultivation on the part of the said Forman and Rumsey grants; but it did not appear that, with these exceptions, either party had previously actual occupation by enclosures of the whole of said disputed lands.”</p> <p>Other testimony on the part of the defendants was introduced, touching the question of boundary, which it is not deemed requisite to notice further.</p> <p>Ten instructions were asked for by the plaintiff’s counsel, and given; it is deemed necessary to notice only the following:</p> <p>1. “ The plaintiffs have shown a complete legal title emanating from the Spanish government, in two grants, one to Jane Rumsey, the other to Ezekiel Forman; and if the land in controversy is embraced by either of said grants, the plaintiff is entitled to recover, unless the defendants have shown a superior title.</p> <p>2. “ Adverse possession to defeat a deed for maintenance, must be a possession by actual visible boundaries and occupancy ; or by exercising acts of ownership.’’</p> <p>The defendants asked the court to instruct the jury : 1. That if the jury find that at the time of the execution of the deed from the heirs of Gen. David Forman to James M. Reynolds, the defendants, or those under whom they claim, were in notorious possession of the land in controversy, under an adverse title, such as a patent from the United States, said conveyance of so much of the land thus conveyed was void, and no title passed thereby.</p> <p>2. That if the jury find that at the time of the conveyance from Forman’s heirs to Reynolds, the defendants, or those under whom they claim, were in actual adverse possession of a part of the land in controversy, and claiming adversely the whole tract, the conveyance as to so much of the land thus claimed was void.</p> <p>These instructions were refused; and the whole case embodied by the defendants in a bill of exceptions.</p> <p>The jury found for the plaintiffs below, and the defendants sued out this writ of error.</p> <p>They now assign for error:</p> <p>1. The admission of the certificate of confirmation of the Rumsey grant.</p> <p>2. The admission of the deed of release of Rumsey to For-man.</p> <p>3. .The admission of the power of attorney of the Barclays, and the exclusion of the proof touching the custom of the mayor of London.</p> <p>4. In admitting the plat and survey from the records of the surveyor-general’s office.</p> <p>5. In giving the plaintiffs’ charges to the jury.</p> <p>6. In refusing the defendants charges.</p> <p>1. The grant to Ezekiel Forman, by the Spanish government, is utterly void. These identical lands had previously, in 1787, been granted to Jane Rumsey. Neither the sovereign power of a country, nor- an individual, can make a second grant for the same land. In such case the last grant will be utterly void. We have been informed that this point has been thus decided by this court, and so are the authorities.</p> <p>2. The conveyance, of the heirs of David Forman, who resided in New Jersey, was made March 13, 1834. At this time the defendants were in possession, under a patent from the United States, and it does not appear from the record that the heirs of David Forman were ever in possession of the disputed premises. A conveyance made by a disseised party, of lands held adversely by another, conveys no title. Bradstreet v. Huntington, 5 Pet. R. 434; 3 Mass. 675; Bledsoe v. Little, 4 How. 24; Weart v. Brown, 7 Ibid. 181; 11 Mass. 554.</p> <p>3. It cannot be said that the defendants had not such adverse possession as would entitle them to set up this defence. In 1832, it appears, they were cultivating a portion of the land included in their patent, and claiming the whole, according to the United States survey. If the whole was not actually possessed and occupied, by inclosure, still, in law, their possession extended to the whole area covered by the patent. The public records of the land-office notoriously showed the extent of the patent, and their claims. The adjustment of the surveys belonged to the United States land-offices, and the sale to Joseph Sessions was made according to the surveys in the land-office, recorded and approved. This survey showed that the land in possession of defendants, and now in controversy, was clearly included within the patent to Sessions. A pedis possessio, or an occupation of every part of the tract, by boundaries, is not, therefore, necessary, to establish the adverse possession. 5 Pet.-319, 402 ; 10 Ibid. 414; 4 How. R. 24; 7 Ibid. 181.</p> <p>4. The quit-claim, or release, of Lacy Rumsey to W. G. For-man, contains no words of grant, or conveyance of title. The words are, remised, release, and quit-claim. These words may perfect a title in one having a claim of title ; but of themselves they convey no estate whatever. No title will pass by a release, when neither party has possession. Mayo v. Libby, 12 Mass. 347; Warren v. Childs, 11 Ibid. 222; Porter v. Perkins, 3 Ibid. 237.</p> <p>5. If, however, we are mistaken in the operation of this release, we insist that the instrument was improperly admitted in evidence. 5 Pet. R. 344. There was no proof of its execution, and it was not recorded at the time of the demise laid, or even at the date of the institution of the suit. The defendants were purchasers, for a valuable consideration, without notice. As to them this release was unrecorded, and void. It was also improperly recorded, in 1841.</p> <p>6. Again, no title to the Rumsey grant passed by the deed of William Gordon Forman to G. Salkeld, in 1811. They purport only to convey the “lands granted by the Spanish government to Ezekiel Forman.”</p> <p>7. We think it is evident that the paper admitted in evidence, purporting to be a duly authenticated power, should have been rejected upon the proof offered. Independently of our statute, it would have been necessary to prove this instrument, by the usual rules of evidence. In departing from these the statute must be strictly pursued. It provides (How. & Hutch. 346, § 14,) that the acknowledgment, or proof, “ shall be certified by such foreign court, mayor, or magistrate, in the manner such acts are usually authenticated by them.” This power of attorney is not certified by the mayor of London, or Liverpool. The name of neither of these magistrates is appended to the certificate, and the court refused to receive proof that the certificate was not made in the manner such acts are usually authenticated.</p> <p>8. The first and tenth instructions, given for the plaintiff, must be held bad, if we have shown that but one of the titles set up was imperfect. For instance, if the Forman grant is void, it was error in the court to instruct the jury that both titles were complete, and that if they found the lat\d in controversy not embraced in the valid title, but included in the void grant, still, the plaintiff would be entitled to recover. These instructions are so broad that, if either of the Spanish grants should be held invalid, or if the chain of title under either is not perfect, there is palpable and fatal error in the instruction.</p> <p>9. For the purpose of showing that the Rumney grant extended over the tracts in dispute, the plaintiffs offered the plat, signed George Davis, D. S. This paper was objected to, but admitted. In this the court erred,</p> <p>1st. Because the certificate of Yolney Howard has no date, and it does not appear to have been made by him while surveyor- general.</p> <p>2d. Because it never was approved by the surveyor-general,</p> <p>3d. Because it was not made in conformity to law, or the practice of the land-office.</p> <p>4th. Because it appears that another and materially different survey of that grant, was approved, and remains of record.</p> <p>It has been decided that Spanish grants of lands in Adams county had no intrinsic validity. That their validity arises entirely out of the articles of agreement and cession with Georgia, and the subsequent acts of congress. These also provide for the ascertaining and locating of these grants, and we contend that their location by the authorities of the United States should be conclusive. In this case the plaintiff did not show any location but that made under the United States; and certainly it was erroneous in the court to admit a plat, or a copy of a plat, which was proven to be incorrect, and in conflict with the plats which were approved and filed in the register’s office, as a guide to those entrusted with the sale of the public lands.</p> <p>10. The grant to Forman was specifically for the same identical land previously granted to Rumsey. If, therefore, the surveyor, in running out the Forman grant, had embraced within the lines of the survey lands not contained in the Rumsey grant, it would be but an error in the surveyor; such excess of lands could not pass by the grant. Again, if the grant on its face is for lands previously granted, it is void in toto.</p> <p>11. The court clearly erred in refusing the instructions asked for by defendants, as an inspection of the cases above referred to will show, and we consider these questions arising out of these instructions settled by this court, in the cases of Bledsoe v. Lillie, and Weart v. Brown, above cited.</p> <p>1. Where there are two grants for the same thing to different grantees, they cannot both be valid. A deed of gift conveys all that it purports to convey from the grantor. If it be absolute, his rights in the subject are all gone from the time of sealing arid delivering the deed, and his own act cannot revoke it. The same principle applies to governments as to individuals. A government cannot revoke its own grants, but the grantee acquires a conclusive title against the grantor.</p> <p>2. The claim of title from the Ezekiel Forman Spanish grant is not complete without the quit-claim deed from the heirs of David Forman, made in 1834. W. G. Forman, to whom the plaintiff traces his title, was not an heir of David Forman, and his deed to Salkeld in 1811 was a disseisin of those who claimed title under the Ezekiel Forman grant.</p> <p>3. We contend that the quit-claim deed from the heirs of Da-rnel Forman gave no title to the plaintiff; 1. Because the grant to Ezekiel Forman and the confirmation by the commissi ners, were void, as has been seen, the grant and confirmation to Rumsey being prior in date; and if they had no title they could give none. In a quit-claim deed, the grantor does nothing more than to acquit the grantee from any title or right in action which the grantee may have. 2 How. 60, 609. A release is giving or discharging of a right or action which a man hath against another, or that which is his ; or it is the conveyance of a man’s interest or right which he hath unto a thing, to another who has the possession. 1 Sheppard, 320. 2. The deed is void as to the defendants in this action; because the plaintiff was holding the lands adversely to them, and their release to him only acquitted him of their right to what he had in possession. An estate in lands cannot pass by quit-claim. Ibid. 320 ; 4 Coke, 25.</p> <p>The right to a freehold in presentí or in futuro maybe released, l. To the tenant of the freehold in deed or in law; 2. To him in remainder; 3. To him in reversion; but not to a mere stranger. A distinction is made between the grant or assignment of choses in action to a stranger and a release of rights to the terre-tenant. lb. 322. Again ; in all cases of a release of a bare right of freehold in lands, he to whom the release is made must have, at the time of making the release, the freehold in possession, remainder, or reversion ; for rights of entry and actions and the like are not transferable to strangers but are thus to be released. Ib. 327. The whole extent and meaning of releases is to quiet claims; not to transfer rights of action and entry. They cannot create estates, but perfect imperfect ones. 5 Mason C. C. R. 16; 4 Cruise Dig. ch. 6.</p> <p>It is a general rule of law, that a deed made by a person out of possession at the time, though he have the legal right, is void. The law will not suffer a man to sell a quarrel, or as it is commonly called, a pretended title. Such conveyance is an offence at common law and by statute of 39 Hen. VIII. 2 How. 347; 5 Mass. 236, 237; 11 Mass. 554.</p> <p>Lord Coke, in speaking of this statute, says, A man may make a pretended title in two ways. 1. When it is merely a pretence, and nothing in verity; 2. Where it is a good title and right in verity, and made pretenced by act of the party ; and both are within the statute. 3 Thomas’s Coke, 426, 427 ; Tenn. Rep. 101.</p> <p>“The deed of one disseised is utterly void. His freehold is then held to be out of him, and his title is converted into a right of action, and, as such, no more subject of transfer than an ordinary chose in action.” 5 Peters, 436; 3 Mass. 573 ; 7 Law Library, 170.</p> <p>4. The necessity of possession, actual or legal, on the part of the vendor of land, in order to make a valid conveyance, is imperative. A deed to land held adversely is void. See further on this point 8 Johns. Rep. 220; 1 N. Car. Rep. 114; 4 Kent, 446; 3 Johns. Chan. Cases, 101; 24 Wend. 8, 587; 1 Peters’s C. C. R. 49; 1 Munf. 162, 163; 3 Call, 411; 5 Peters, 436; 1 Inst. 214; 2 Hilliard’s Dig. 130; Pertle’s Dig. 154; 4 How. 24; and the case of Brown v. Neast, reported in 7 How. These authorities are conclusive on the point, and the decisions of our own court go as far as any of them.</p> <p>5. The next question is, whether the proof for the defendants in the cause was sufficient to entitle them to this defence. In the case of Prescott v. Nevers, 4 Mason C. C. R. 326, it is said that when a party enters into possession under an unrecorded deed claiming title to the entirety, and exercising acts of ownership, it is a disseisin of all persons who claim title to the same land to the extent of the boundaries of the deed. “ When a person enters under a deed or title, his possession is coextensive with his deed or title. And although the deed may turn out to be deceptive or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title. This, however, is subject to some qualification ; for if the true owner be at the same time in possession of part of the land, —■ that is, in the disseisor’s deed,— claiming title to the whole, then his seisin extends by construction of law to all the land which is not in the actual possession by an enclosure or other-wise of the party claiming under a defective title or deed.” 5 Peters, 319 ; 4 Peters, 418.</p> <p>Again, an entry into possession of a tract of land under a deed containing specific metes and bounds, gives a constructive possession of the whole tract, if not in adverse possession, although there be no fence or enclosure around the ambit of the tract, and actual residence on only a part of it. To constitute actual possession it is not necessary that there should be any fence or enclosure round the land. 10 Peters, 414. Again, when there has been an entry under color of title by deed, although the actual settlement and improvement were only on a small part of the tract only; in such case when there is no adverse possession, the law construes the entry to be coextensive with the grant to the party, upon the ground that it is the clear intention to assert such possession. 10 Peters, 414 ; Bledsoe v. Little, 4 How. 24.</p> <p>6. We contend, that there is a fatal breach in this chain of title, and the plaintiff has no rights under the Rumsey grant. 1st. The release was utterly void, and vested mo estate in For-man, and his deed to Salkeld conveyed no right, for he had none. 2d. Our statute provides that an executor shall make no profit by or from his decedent’s estate. And it is well settled that if a trustee, executor or agent, buy debts due his. cestue que trust, testator or principal, the profit in the purchase belongs to the person or estate for whom he acted. Prevost v. Gratz, 1 Peters C. C. R. 364.</p> <p>But suppose that the quit-claim divested from Rumsey, the grantor, all of his rights, and that it be intended by law that W. J. Forman took under it as executor of David For-man, and for the benefit of the heirs. In this view of the case the plaintiff’s title is no better, for it is not pretended that he made title to the lands in his representative capacity. He acted as if he had the right in him, and in direct opposition to the law. It is well settled in this state and in all the books, that an administrator, or executor, must comply with the directions of the statute in the sale of real estate of his decedent. See statute of Mississippi on this subject. 2 Peters, 492.</p> <p>But we deny that this deed could effect the interest and rights of the defendants in this cause, even if it had been properly made and were valid between the parties.</p> <p>1st. The first section of the registry act of 1803, amended by the act of 1807, provides that any deed, or conveyance of lands then made, or to be made thereafter (to 1803) shall be acknowledged by the grantor, or proved before a judge of the supreme court, or a justice of the peace, by one or more of the subscribing witnesses. See Turner’s Digest, 76.</p> <p>The 2d section provides that no such conveyance shall be admitted to record without such proof, ibid. And the 7th section provides that every deed not so recorded and proved (within twelve months) after sealing and delivery, shall be void against subsequent purchasers for a valuable consideration, but shall be valid between the parties to the deed. Ibid. 77.</p> <p>7. The court below erred in admitting the power of attorney, made by the Barclays in England, to Lyons, in 1827, and in refusing to permit the defendants to show that the certification or authentication was not according to the custom of London. •If the authentication was informal or incorrect, the defendants certainly had a right to show it. Also the defendants’ ancestor was in possession of the land in dispute at the time of this deed from Lyon’s attorney to the plaintiff, and even if it conveyed the land in dispute by name, it would be void for maintenance on the same ground as the other.</p> <p>8. The court below erred in allowing the maps from the surveyor-general’s office to be read as~ evidence to the jury. It has not the requisites of a record; in objecting to its introduction the defendants showed that the custom of the office was not to record such plats, or surveys made by deputy-surveyors were not complete until approved by the surveyor-general ; and the return of the deputy should show the authority under which he acted. That, until the survey is, duly approved it may be amended, and it was the constant custom of Thomas Freeman to have errors in surveys corrected ; that according to these rules the plat in question is improperly of record.</p> <p>When a record is introduced as evidence, it must all be before the court, or it should not be received. If it be imperfect and does not comply with the requisitions of the law under which it is made, it should not be admitted. See How. & Hutch. 744, § 5 ; 748, $ 11; 753, $ 5 ; 769, § 11, as to the power and acts of the surveyor-general of lands.</p> <p>9. The court below erred in giving all of the instructions asked by the plaintiffs, though some of them may be good law. In the first, the court instructs the jury that the plaintiff have proved title, &c., the very thing they were to find.</p> <p>10. And the refusal to give the instructions asked by the defendants was equally erroneous. The law in regard to the principles contained in these instructions is clearly laid down in instructions already referred to, and need not be repeated.</p> <p>The certificate of confirmation in favor of Lacy Rumsey, was admissible under the statute of this ' state, which provides that copies of all the records of the land offices, in this state, duly authenticated, shall be read as evidence, subject to the same rules as in cases of records of court. How. & Hutch. 605, sec. 24.</p> <p>The first objection which may be raised to this evidence, is, that it is not a record appertaining to the register’s office. But this objection is fully met by the act of congress, regulating grants of land, &c. which, after providing for the granting certificates of confirmation, declares, that the certificate being recorded by the register of the land office, whose duty it shall be to record the same, shall be a relinquishment of the title of the United States. How. & Hutch. 745, sec. 6.</p> <p>Another objection is, that the original was not produced nor accounted for. In addition to the position above taken, that the original would not be evidence, we contend that a fair construction of the act of the legislature makes a copy evidence, without accounting for the original. The language is, that the copies “ shall be admitted ” “without further or other proof,” “ in the same manner and with the same effect, and subject to the same rules and regulations as in cases of certified copies of records of any court of this state.”</p> <p>2. The next point, was an objection to the admissibility of the deed from Rumsey to Forman.</p> <p>The first objection to its admissibility is, that it was not proved and recorded according to the act of the legislature. As it was not recorded until after this suit was commenced, there may be some doubt of its admissibility, under the act of 1822; * but as that question is unimportant, we will not discuss it, but content ourselves with referring to the act of the legislature of 1803, “ respecting conveyances; ” the first section of which provides for the acknowledgment or proof of deeds, and concludes thus : “ Then every deed or conveyance so acknowledged or proved, and certified, shall be received in evidence in any court of this territory, as if the .same were then and there produced and proved.” The proof was made before, and certified by a judge of the superior court of the territory, and the certificate contains all the requisites of the statute.</p> <p>The next objection is, that the defendants were subsequent purchasers from the United States, for a valuable consideration without notice. It has been decided, that as between persons claiming under different grantors, priority of registry has no legal effect. Registry is constructive notice, only as between purchasers from one grantor. Tyler v. Hammond, 11 Pick. R. 193 ; Tracy v. Jenks, 15 Pick. R. 465.</p> <p>3. When the power of attorney to Lyons was offered, an objection was taken that it was not properly authenticated.</p> <p>The act of the legislature, under which this is offered as evidence, provides that all deeds and other instruments in writing, made between persons residing in a foreign kingdom, proved by the requisite number of witnesses, before the mayor of a city in which the parties shall, dwell, certified by the mayor, in the manner such acts are usually authenticated by him, shall be evidence in all courts of record. How. & Hutch. 605.</p> <p>The same rule is prescribed for the authentication of deeds. Ib. 346.</p> <p>Where an officer is authorized to give certificates, such certificates are evidence without further proof, because it is part of the laws of the land, which courts are bound to notice. Gilb. Ev. 22-26; Peake’s Ev. 60, 61.</p> <p>When the law appoints a person for any purpose, the law must trust him as far as he acts under authority. Bul. N. P. 229.</p> <p>The statements in the certificate are prima facie evidence of the facts, when the deed is recorded by the proper officer. 13 Peters R. 21; 1 McLean R. 620.</p> <p>From these authorities we conceive the doctrine that the court is bound, of its own knowledge, to determine whether the certificate of the mayor of London is in the manner such acts are usually authenticated; and that having been done by an officer appointed by the law for that purpose, the court must give him credit for having done his duty, and cannot at least hear parol evidence that his authentication is in proper form, and is fairly deduced.</p> <p>4. Again, as it is admitted the plaintiff had possession under the deed, or otherwise, of the land authorized to be conveyed by the power, and in virtue of a deed made by the attorney therein constituted, a legal acknowledgment might be presumed. Con-nelly v. Boucie, 6 Har. & John. 141.</p> <p>5. The next objection was as to the admissibility of a copy of the map of Jane Rumsey’s survey, certified by Y. Howard, surveyor-general. The first objection to it, was that it had not been approved by the surveyor-general, according to the usage of the office, and proof of the usage was offered, which was rejected by the court. To this objection we answer, that usage cannot alter the law, and the certificate conformed to the law making it evidence. The act of congress which provides for the surveying the lands in this country, adopts the regulations previously adopted for the surveying the lands of the United States in the North-Western Territory. Laws &c. relating to Public lands, 488, § 11, of act 1803, and the act regulating the survey of the land in the North-Western Territory, after directing the manner of surveying &c.., prescribes that maps of such surveys shall be made and recorded in books to be kept for that purpose. Ib. 421.</p> <p>Our own statute before recited, making copies of all papers appertaining to any of the land-offices in this state, evidence, embraced the map in question, and it was therefore admissible on .its face, and as the law does not require any other evidence of its having been approved by the surveyor-general, it was not competent for the court to annex that condition to its admissibility as evidence on proof of a custom adopted by the officer.</p> <p>The law requires the principal surveyor to record surveys; these and other matters required to be recorded, must be read as conclusive evidence ; and parol evidence cannot be received to invalidate them, unless fraud be shown. 4 Pet. 346.</p> <p>6. As to the first instruction we conceive there can be no doubt. It appears from the testimony, that shortly after the confirmation of the Rumsey and Forman grants, that W. G. Forman, who was acting as executor of D. Forman, and who as executor, petitioned for the confirmation of the grant to E. Forman, became the purchaser of the title to Rumsey, and the title from him is complete, if all the evidence was properly admitted. And Reynolds had subsequently, and before suit brought, purchased the title of the heirs of D. Forman, therefore he was the legal holder of both grants, and was entitled to all the land granted by either. But admitting that the conveyance from W. G. Forman were not properly admitted, still we contend that Reynolds shew a clear title to the land in both grants. For when W. G. Forman acquired the title to the Rumsey grant, he was acting as executor of George D. Forman, and had prosecuted in that character the claim to the land under the grant to E. Forman. Now it is well settled that an executor cannot acquire a title adverse to the devisees, whose interest he .represents, and consequently the outstanding title purchased by him enured to the benefit of the heirs of D. For-man, subject to a charge for the money paid by the executor for the purchase of it. 5 Johns. G. R. 338.</p> <p>But it is admitted in the record that both grants embrace the same land, and therefore the first and second and tenth instructions, if erroneous, were innocent, and could not have affected the verdict.</p> <p>7. The second instruction is sustained by the decision of this court in the case of Nevittv. Beaumont et al., not reported.</p> <p>The fourth, fifth, sixth aud seventh, are fully sustained by the decisions in Martin v. King’s heirs, and Newman v. Foster.</p> <p>8. There must be a real, substantial enclosure, an actual occupancy, a possessio pedis, which is definite, positive, and notorious to constitute an adverse possession, when that is the only defence, and is to countervail a legal title. 2 Johns. R. 230.</p> <p>9. The ninth instruction is equally well sustained. When a boundary is ancient, reputation is admissible to establish it. 2 Litt. 159; 2 Marsh. 158; 3 lb. 226. Boundaries may be proved by hearsay evidence. 6 Pet. 341; 4 Hawk. 116 ; 1 lb. 45; 10 Johns. 377; 4 Day, 265; 4 Dev. 342; 6 Litt. 7.</p> <p>The instructions moved for by defendant and refused by the court, are ingeniously drawn, and require critical examination. The term notorious possession is used to avoid the requisitions of the authorities, that the land must be enclosed by visible boundaries. Now a party may be in possession of land, and such possession may be notorious, although he has neither pos-sessio pedis nor actual habitation, nor enclosure designating the extent to which the party claims. The terms notorious possession would be satisfied by the ordinary act of ownership, of going on the land and taking timber off it, &c., which does not constitute such an adverse possession as will avoid a deed for champerty. 8 Johns. R. 220.</p> <p>10. The last instruction asked was clearly not law, as actual adverse possession would not avoid the deed for all the land claimed by the party in possession, but only to the extent of possession designated by actual boundaries enclosed.</p> <p>11. But it appears clearly from the record, that both instructions were abstract points of law, as the record states that the proof was that the land in dispute was not enclosed, but that a part had been fenced and cultivated by the defendant, and those under whom he claimed, until 1832. The deed from D. For-man’s heirs was not made until 1834, at which time it was not pretended that there was such adverse, possession as is contemplated by the authorities.</p>

C. C. Cage, judge. This was an information, in the nature of a quo warranto, under the act of 26th July, 1843, chapter 3.* The affidavit, on which the information was filed, contained three charges.… Held: that “suffering an act to be done, which destroys the end and object for which a corporation was instituted, is equivalent to a surrender of its corporate rights; as where an incorporated bank becomes insolvent.”

Robert H. Buckner, chancellor; John Knight states in his bill, that before the 18th July, 1840, he received $>406^ in post notes of the Union Bank, for the use of Thomas Organ, and with his knowledge and consent; that on that day he was garnisheed by Mark Izod, a creditor of Organ, to which he answered on the 9th June, and expressed his willingness to bring the post notes into the circuit court, and did actually deposit them with the clerk; that on the 19th May, 1840, he had…

Appeal, from the superior court of chancery ; Hon. Robert H. Buckner, judge. The bill alleges, that on the 24th day of May, 1838, the defendant Crowder, recovered a judgment against the complainant Benton, in the circuit court of Warren county, for the sum of ^3265^, besides costs. That a fi. fa. upon this judgment has been levied upon the land of complainant.

Error, from the circuit'court of Claiborne county; Hon. George Coalter, judge.

In error from the Yazoo circuit court; Hon. Morgan L. Fitch, judge. Held: will not be sufficient. In fact, it would be a repeal of the rule. The evidence necessary to constitute such assent, is to be found in the case of Wilson v. Williams, 14 Wend. R. 146. I suppose that the only error relied on by the plaintiff in error is the finding of the jury, and the refusal of the court to grant a new trial.

William M. Randolph, judge. From the record in this case, the following facts appear, to wit: That the attorney of Daniel Green presented to the commissioners appointed by the probate court of Claiborne county to receive and audit claims against the estate of Amos Whiting, deceased, which had been regularly declared insolvent, a claim amounting to sixty thousand dollars; and the commissioners rejected it, because in their opinion there was no evidence to support it; that…

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

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

Henry Dickinson, vice-chancellor. Robert H. Hughes and others, complainants, allege in their bill, that Thomas Hughes, the father of same, and grandfather of the rest of complainants, died in Alabama, in 1814, leaving considerable personal property and valuable real estate; and that his widow, Nancy Hughes, was appointed administratrix of the estate, and guardian of the children, and took into possession all the real and personal estate, and enjoyed the rents and profits of…

In error from the Adams circuit court; Hon. C. C. Gage, judge. On the 12th of May, 1842, George Frazier filed his petition, under the mechanic’s lien law of 1840, to recover the amount of $970, from Thomas N. Falconer, for labor and materials furnished by him, as the petition alleges, and placed on property described in the petition as belonging to Falconer.

In error from the Adams circuit court; Hon. C. C. Gage, judge. John O. Donnell filed his' declaration in the court below, against Robert 0. Heaverin, as acceptor of a bill of exchange.

In error from the Lowndes circuit court; Hon. Hendley S. Bennett, judge. Richard F. Francher had a warrant issued from a justice of the peace against Robert Hairston, to recover damages for obstructing a public highway; the justice gave judgment against Hairston for three days’ obstruction, six dollars and costs, which amounted to $43 50. Hairston appealed to the circuit court, where a trial before a jury was had, who found a verdict also against Hairston.

Robert H. Buckner, chancellor. William Vick states, in his bill, that in the year 1838, he purchased of one Thomas G. Percy, then of the state of Alabama, a tract of land in Bolivar county, known as the 4th section of township No. 21, of range No. 8 west, containing 812 acres, and in payment gave him 480 acres of land in Washington county, valued at fifteen dollars per acre, and three notes of six thousand dollars each, payable in one, two, and three years from date; that he…

Error, from the circuit court of Yalabusha county; Hon. Benjamin F. Caruthers, judge. This was an action of debt, brought by Jordan Williams against George A. Thompson, Phebe Pitts, and Isaac Thompson, to the May term, 1841, of the circuit court of Yalabusha county. The declaration was founded on an injunction-bond, and in the usual form.

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

Thomas Fletcher, judge. Charles G. Dahlgren, as administrator de bonis non of Joseph Neibert, deceased, represented his intestate’s estate to be insolvent to the probate court of Adams county, in which his letter of administration had been granted.

On appeal, from the probate court of Adams county, Hon. Charles L. Dubuisson, judge.

On appeal, from the Marion circuit court; Pión. Yan Tromp Crawford, judge. James Atkinson sued John W. Fortinberry, before a justice of the peace, on a promissory note for seven dollars and thirty-one cents. The justice of the peace gave judgment for the plaintiff, and the defendant appealed to the circuit court of Marion .county. At the October term of the court, 1843, the plaintiff formally declared upon the note, and the defendant plead.

IN error, from the circuit court of Smith county; Hon. Thomas A. Willis, judge. Uriah Millsaps entered a motion against Joseph D. W. Duck-worth, sheriff of Smith county, and his sureties on his official bond, for voluntarily and without authority omitting and neglecting to make the money on a fieri facias which issued on a judgment in favor of Millsaps against Richard Flower, and came to the hands of Duckworth as sheriff.

In error from the circuit court of Carroll county ; Hon. James M. Howrey, judge.

In error from the probate court of Harrison count}/-; Hon. George Holly, judge.

In error, from the circuit court of Harrison county; Hon. V. T. Crawford, judge. John Doe, on the demise of Louis A. Caillaret, brought an action of ejectment, and served the notice on William Jourdan, the tenant in possession of the premises.

Robert H. Buckner, chancellor. John Lane and John A. Lane, partners, under the style of J. & J. A. Lane, filed their bill in the superior court of chancery, against James B. Truly, Richard Harrison, Philip O. Hughes, and Thomas Hinds; charging that in the latter part of 1833 or early part of 1834, they were the holders by in-dorsement of a note for nine hundred and eight dollars, made by Truly, Harrison, John W. Piper, Philip O. Hughes, Thomas Hinds and Abraham Maybury,…

EkRou from the circuit court of Adams county; Hon. C. C. Cage, judge. This was an attachment sued out by Lydia Dowell, before a justice of the peace, on the 6th day of September, 1843, against John D. James as a non-resident of Mississippi, for $927.

In error, from the circuit court of Marshall county; Hon. James M. Howrey, judge. On the 10th August, 1842, William Peques sued Joseph Mosby and Robert G. Kyle upon two promissory notes, for $1280 each, dated the 13th December, 1838, one due the first January, 1840, and the other first January, 1841; the defendants plead non assumpsit; a trial was had and verdict rendered for them. Several bills of exception were sealed during the progress of the-trial.

Ereok, from the circuit court of Pike county; Hon. Van Tromp Crawford, judge. William Simmons sued William P. Leggett, to the October term, 1843, of the circuit court of Pike county, in an action of trespass, to recover the value of a negro man, named Solomon, the property of the plaintiff, alleged to have been killed by a negro man, named Moses, the property of the defendant.

Error from the circuit court of Yalabusha county; Hon. Hendley S. Bennett, judge. Dyer Pearl sued William E. Conley and Francis E. Willis, as administrators of William T. Willis, in the circuit court of Yalabusha county, to the November term, 1842, in an action of assumpsit. The declaration was founded on a bill of exchange for twenty-five hundred dollars, drawn by William T. Willis in his lifetime, and was in the usual form. The defendants pleaded the general issue.

In error from the circuit court of Jasper county; Hon-.. Stephen Adams, judge. John Doe, on the demise of Hit-tuk-ho-mi, and of John Johnston, jr. sued Jared Watts, Isaac Garey and Alfred Brown, in ejectment.

<p>Error, from the circuit courtof Adams county; Hon. Charles C. Cage, judge.</p> <p>This was a petition filed in the circuit courtof Adams county, to the May term, 1S42, by Charles Payne against Charles F. Merrick and Helen M. Merrick, minor heirs of Phineas F. Merrick, deceased, and William A. Stone, their guardian. The petition states that William A. Stone as guardian of the said minors, applied to the probate court of Adams county, for permission to erect a building for said minors on their lot in Natchez, which was granted by said court at the November term thereof, 1840. A copy of the order of the probate court granting said permission, is filed as an exhibit to said petition, and is in the following words, to wit: “ It is ordered by the court, that William A. and Hannah M. Stone, guardians of Charles F. and Helen M. Merrick, have permission to erect, out of the funds of said wards, a building upon a lot belonging to their estate under the hill, of such dimensions and quality as may suit the interest of said wards.” The petition further states that William A. Stone, guardian of said minor heirs, in pursuance of said order of the probate court, erected a brick house on land belonging to the estate of said heirs, and employed Charles Payne to do the carpenter’s work thereon ; that Payne completed the carpenter’s work, and Stone, as guardian of said heirs, owed him therefor the sum of $3197 67, with interest, and would not pay it; petitioner therefore prayed that the lot and house be sold for the payment of said debt. The guardian and his wards are all made defendants to the petition. The counsel for the minor heirs demurred to the petition on the ground that William A. Stone was not lawfully authorized to make any contract whatever, which could create a lien on their inheritance, and that no contract by him as their guardian is obligatory on them. The court sustained the demurrer, and dismissed the petition, whereupon the petitioner brought the case to this court by writ of error.</p> <p>The first point to which we would call the attention of the court in the discussion of this case, is the power of the probate court of Adams county to grant the order to Stone as guardian, to rebuild the houses, upon which the plaintiff seeks to enforce his lien.</p> <p>It has been decided repeatedly by this court, that the probate courts of this state, in matters over which it has jurisdiction, has a power equal to the superior court of chancery. 2 How. 861; 3 lb. 252, &c. The laws of this state give the probate courts jurisdiction over all guardians and wards. Then it follows that whatever the superior court of chancery is empowered to do in all matters relating to the powers or duties of guardian, &c. can be done by tbe probate courts of this state. We are well aware that courts of chancery will not sanction any extravagant expenditure by the guardian, of his ward’s money, nor will they sanction any unnecessary improvement of a minor’s estate. But that they would not only countenance, but enforce all contracts made by the guardian for the necessary improvements, there can be no doubt. If a fence be blown down or otherwise destroyed, or if any building necessary for the good or preservation of the interests of the estate of the ward be destroyed, the guardian has certainly the power to rebuild them, if not compelled so to do. In this case the houses belonging to the minor heirs of Merrick, of whom Stone was guardian, were burnt down, and the rent of those buildings being the principal if not the only means of their support, it was the duty of the guardian, in order to protect their interests, to rebuild, and certainly it was left to the discretion of the judge of probate whether it was necessary, and if upon the representation of the guardian he deemed it so, the only question left for this court is his power to grant the order to rebuild. In the case of Roberts v. Wilson, 2 Bibb, 597, it was held that equity will compel the performance of a contract by an infant when made by his guardian for his benefit, and to save an estate otherwise in danger of being lost, and in the opinion of this court they reason thus : Thus it is declared that a court of chancery, which in these cases acts upon principles of substantial justice and natural equity, on whom the custody of infants officially devolves, has frequently interposed and held infants to their contracts in cases where at law they would not have been bound. The principle upon which that court proceeds seems to be this, that on one hand, if advantageous contracts were not binding upon the persons contracting with infants, the protection which was intended as a privilege would in that event become a prejudice ; soon the other hand, if no agreements would bind infants either in law or equity, that privilege, at the same time that it protected them from prejudice, would debar them from the possibility of reaping any advantage by contracts, as none would treat with those whom they knew could not be bound. Equity then considers the intrinsic nature of the contract; with what view it is entered into ; whether the friends advise and consent to it; who are parties to it; the extent of its influence, and in what degree it has been executed, and directs the conscience of the infant according as these circumstances affect the agreement, thereby giving to such transactions their just efficiency. See Pow. on Con. Such is the view taken by courts of equity of cases similar in character to the one before the court. Whatever a guardian can do, a probate can order him to do if necessary to protect the interests of the ward. In the case of Borvell’s Heirs v. Buckley, 1 Brock. 356, it is decided that it is within the general powers of a guardian to make a lease of the lands of his ward, and remove in-cumbrances therefrom; and if a guardian convey certain lands of his wards in trust to secure a debt for which other lands are bound by an elegit, and thus discharge the latter from the incum-brance, a court of equity will sanction the contract, especially •if it appears to have been beneficial to his ward. A guardian is bound to rent his ward’s lands, &c. Jones v. Ward, 10 Yerg. 161.</p> <p>If then the guardian could rebuild, and the probate court had the power to grant him an order for that purpose, that order must be carried into effect according to the existing laws of the land. This case is a much stronger one than the one referred to in 2 Bibb. There the court sustained a guardian for making a contract subject to a custom only ; here it is a law. The mechanic’s lien law gives the mechanic a lien upon the buildings he erects, and the lot upon which he builds; no building can be erected unless subject to this lien, and the mechanic, if his •employer be in possession of the lot, has a right to its benefits. An innkeeper has a lien upon a horse for his keeping, it matters not to whom he belongs ; and a seaman upon a ship for his wages, whoever may be its owner.</p> <p>Taking this view of the case, we certainly are right in thinking that the court below erred in sustaining the demurrer. It is a case of peculiar hardship upon the poor mechanic, if he ■can be thus defrauded out of his hard earnings, and that too in work which he was employed to do under an order of a court of competent jurisdiction. He stands alone, the infants are entrenched behind the bond which their guardian gave for the faithful performance of his trust; if injured, they can have recourse against him and sureties. But the mechanic stands or falls by this decision; which, then, shall be the sufferer, we leave to the wisdom of this court.</p> <p>The plaintiff in error filed a petition in the circuit court of Adams county, to enforce the mechanic’s lien on a lot of land in the city of Natchez, belonging to Charles F. Merrick and Helen M. Merrick, infant heirs of P. F. Merrick, deceased. William A. Stone and these minors, his wards, are the defendants to the petition.</p> <p>The basis of the claim is an instrument under seal, signed by Stone and the petitioner, Payne, in which Payne agrees to do certain work, and Stone “doth for himself, his executors, administrators, covenant and promise to and with the said Charles Payne, his executors, administrators and assigns, well and truly to pay,” &c.</p> <p>The petition also contained an additional claim for extra work, as provided for in the agreement.</p> <p>In addition to this written agreement, the petition set forth and relied upon an order of the probate court of Adams county, made anterior to the date of this agreement, and is as follows :</p> <p>“ It is ordered by the court, that William A. Stone, and Hannah M. Stone, guardian of Charles F. and Helen M. Merrick, have permission to erect, out of the funds of said wards, a building upon a lot belonging to their estate, under the hill, of such dimensions and quality as may suit the interests of said wards.”</p> <p>This was the whole case, so far as it is now necessary to notice it. The two minors appeared, and demurred to the petition; and on argument and consideration, their demurrer was sustained, and a judgment entered against petitioner for costs. No judgment was entered on the demurrer dismissing the petition. And the issue as to Stone, who had appeared and filed a general denial of the petition, remained wholly undisposed of.</p> <p>For the defendants in error, we insist, there was no final judgment or decree in the case; and that no appeal or writ of error could be prosecuted till the whole case, as to all of the defendants was disposed of. After such a decree, any one of them could appeal, and they need not all join; but before, no appeal lies.</p> <p>2. This was merely a judgment for costs, no judgment went on the demurrer, and however erroneous it may have been, an appellate court even allows or regards an appeal on a judgment for costs alone. No appeal or writ of error lies on a judgment for costs.</p> <p>3. The decision on the demurrer was correct. In the first place, Stone’s contract was a personal one, and all his covenants were so. In the next place, it was not in his power to create a lien or encumbrance on the real estate of his wards. The probate court could not give him the authority; and in the order referred to by the petitioner, it is manifest no such authority was intended to be given. The court did not attempt to go further than to authorize an investment of the “funds of the wards.” This was probably an excess of power, but at all events, was quite a different thing from an authority to mortgage, or otherwise encumber the estate of these infants.</p>

Error from the circuit court of Lowndes county; Hon. Hendley S. Bennett, judge. This was an action of assumpsit, brought by Daniel W. Du-laney and Thomas W. Dulaney, partners, trading under the' name and style of Daniel W. Dulaney & Son, against Peter B.. Starke and Samuel F. Butterworth, partners, under the name and style of Starke & Butterworth, to recover tolls alleged to be-due the plaintiffs, for the passage of the defendant’s stages over a turnpike road.

In error from the vice-chancery court at Columbus • Hon. Henry Dickinson, vice-chancellor. Held: If A. is indebted to B. on a contract forbidden by law, and pays the money to C. for B., B. can recover it of C. Eyre said that plaintiffs demand arose simply from the circumstance that money was put in the hands of C. for his use, C. having had no connection with the illegal transaction. 3.

ERROR from the circuit court of Monroe county; Hon. Stephen Adams, judge.

In error from the Yalabusha circuit court; Hon. Benjamin F. Caruthers, judge. Jerome W. Bondurant sued James N. Harper in an action of debt on a bill single, made by the defendant and James Foster. The defendant plead, 1. Non estfactum; 2. That the defendant was a surety for Foster, and the plaintiff had refused tp sue Foster until he had become insolvent, and gone beyond the jurisdiction of the court. 3.

Henry Dickinson, vice-chancellor. Marcus Pierce states in his bill, that in April, 1837, he,, with one Camp P. Newell, executed their joint note to the order of Washington Dorsey, the consideration of which was. a preexisting debt due from Dorsey and Newell to Ballard and Franklin by their joint note, and for which Ballard and Franklin had agreed to give longer time if the complainant would sign it as additional security ; upon which the note was drawn as stated, and…

In error from the circuit court of Clark county; Hon. Yan Tromp Crawford, judge. On the 3d of November, A. D. 1842, William A. Lang sued John D. Fatheree, John G. McRae, and Ransom D. 'McCann, in assumpsit, upon a note made by them, dated on the 1st day of January, 1838, and payable on the 1st day of January, 1839. The plaintiff discontinued his suit as to Fatheree, when the other defendants plead : 1. Non assumpsit. 2.

John A. Quitman, special chancellor. The bill in this case was filed by William S. Scott, Thomas Scott, and Robert Scott, and states that William Scott, of Claiborne county, died seized and possessed of a tract of land, containing seven hundred and twelve acres, in that county. That the complainants are his heirs.

In error from the circuit court of Smith county: Hon. Thomas A. Willis, judge.

In error, from the Yazoo circuit court; Hon. Morgan L. Fitch, judge. Samuel Collins, .a minor, by William BattaiJe his guardian, brought an action of replevin against Henry F. Carradine, under the act of 1842, for two slaves. On the plea of not guilty,- plead by Carradine, a trial was had, and verdict was rendered in favor of Collins.

In error from the Jasper circuit court; Hon. Yan Tromp Crawford, judge. The Mississippi Union Bank sued Joseph Heyfron, Asa Hartfield, Seymour White, and Elias Brown, in assumpsit upon a promissory note. The declaration, besides the count on the note, contained the common counts. The process was served on all the defendants but White; the other three defendants plead: I. Non assumpsit; 2. To first count in the declaration, a plea of usury; 3.

In error from the circuit court of Adams county; Hon. C. C. Cage, judge. The commissioners of the sinking fund sued Perry Cohea and others upon a note made by Charles C. Mayson as principal, and the defendants as his sureties. The defendants plead non assumpsit and the following plea, viz.: “ That the said note in said declaration mentioned and set forth, was, at the time of the making thereof, signed also by one Charles C. Mayson, by the name ofCh.

Error from the circuit court of the county of Octibbeha county; Hon. Benjamin F. Caruthers, judge. This was an action of assumpsit brought by the Commercial Bank of Columbus, use of the Planters and Merchants Bank of Mobile, in the circuit court of Octibbeha county, against John Thompson, William Montgomery and Robert Bell, founded on their joint and several promissory note, in favor of the Commercial Bank of Columbus, for the sum of $4611 46.

In error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge.

Robert H. Buckner, chancellor. The bill in this case, filed by William F. Walker, as sole complainant, charges that on the 23d of November, 1840, Samuel Gilbert and others, partners under the style of Gilbert, Bailey and Draper, who were the sole defendants, obtained judgment by default against the complainant, in the circuit court of Madison county, as surety for George R. Fall and Samuel M. Puckett, against whom also judgment was rendered for about $900; that an execution…

EeRoe from the circuit court of Jefferson county; Hon. Charles C. Cage, judge. This was a motion made at the November term, 1843, of the circuit court of Jefferson county, by John Anketell against George Torrey, as sheriff, and Philip 0.

In error, from the Wilkinson circuit court; Hon. Thomas A. Willis, judge. John Dominges having been indicted for the murder of James H. Holmes, was tried and found guilty, at the April term, 1845, of the court.

In error from the circuit court of Amite county; Hon. Van Tromp Crawford, judge. William H. Dillingham sued William Montgomery and. William Jenkins in an action of debt upon a bill single for $5000. A trial was had, and verdict rendered for Dillingham for $4052 48, and judgment given accordingly; that judgment, however, was reversed. A full report of the case and of the facts elicited on the first trial will be found in 3 S. & M. 647.

Robert H. Buckner, chancellor. Benjamin Williams, filed his bill, setting forth that in November, 1836, being about to intermarry with Jane Hoggatt, they mutually united in a deed of marriage settlement.

Robert H. Buckner, chancellor. John D. Scott, administrator de bonis non of the estate of Johnson Silverberg, filed a bill in the superior court of chancery, against Charles J. Searles, William Laughlin, Sarah Silverberg, Thomas Jones, William G. Meredith, and his wife Martha Meredith, Margaret Stovall, William C. Stovall, Newton Stovall, Sarah Jane Stovall, Jasper Stovall, Brittain Stovall, and Henry Stovall, the .said William C., Newton, Sarah Jane, Jasper, Brit-tain and…

In error, from the circuit court of Hinds county; Hon. John, H. Rollins, judge. Held: that as the word “ weight” had two meanings, gross and nett, this was such a latent ambiguity as to warrant the introduction of parol testimony. Or in Livingston v. Ten BroeJc, 16 Johns.

On appeal, from the decree of the vice-chancery court, at Holly Springs ; Hon. Henry Dickinson, vice-chancellor.

ErkoR, from the circuit court of Carroll county; Hon. Morgan L. Fitch, judge.

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

Henry Dickinson, vice-chancellor. On the 20th day of September, 1842, Edward D. Edwards filed a bill in the vice-chancery court at Carrollton, stating that on the 15th day of July, 1836, Coleman M. Roberts, designing to deceive and defraud him, proposed to sell him a tract of land containing about five hundred and twenty acres, described as follows, to wit: The south-east quarter and the east half of the south-west quarter of section No. 7, and the north-east quarter and the…

Robert H. Buckner, chancellor. John Montgomery filed a bill in the superior court of chancery, alleging that he was the surety of John W. P. McGimp-sey on various notes for large sums of money in favor of Briggs, Lacoste & Co. and others; and to indemnify and save him harmless against loss, McGimpsey, on the 22d day of November, 1839, executed to him a mortgage on fifteen hundred and sixty acres of land, lying in the county of Madison, in the probate court of which county…

Robert H. Buckner, chancellor. On the 27th day of February, 1841, the Raymond Railroad Company filed their bill in the superior court of chancery, alleging that when their road was commenced the farm of John Stewart was held afid owned by John W. ’Covington, to whom Stewart had previously sold it, and upon which Coving-ton had executed a deed of trust to secure the payment of the purchase-money; that on the 24th day of September, 1838, while Covington was in possession, he…

Henry Dickinson, vice-chancellor. On the 18th day of April, 1844, Allen Jenkins filed his bill in the vice-chancery court, at Carrollton, against William W. Whitehead, charging that William W. Whitehead, as president of the board of trustees of the 16th section of school lands, of township 18, of range 5 east, leased to his brother, Edmund G. Whitehead, for ninety-nine years, to commence on the 21st day of November, 1836, a certain tract of land for the sum of $1403 20, to…

Error from the circuit court of Pontotoc county • Hon. Nathaniel S. Price, judge.

Error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge. This was an action brought by the President, Directors and Company of the Agricultural Bank of Mississippi, against the Commercial Bank of Manchester, to recover the amount of a note for eight thousand dollars, deposited by the former with the latter for collection.

ErRor from the district chancery court at Carrollton ; Hon. Joseph W. Chalmers, vice-chancellor.

William M. Randolph, judge. On the 24th day of October, 1843, Lewis F. Moreland and Emily J. Moreland, administrator and administratrix of Josiah Willis, deceased, presented to the probate court of Claiborne county, their report of the sale of the personal estate of their intestate, showing an aggregate amount of two thousand two hundred and six dollars and sixty-two and a half cents. The report was received and ordered to be continued for further proceedings.

Error, from the district chancery court at Columbus; Hon. Joseph W. Chalrfiers, vice-chancellor.

<p>A bill to set aside a sale of land, under execution, making the several purchasers at the sale, though they bought different and distinct interests, and the plaintiffs in the execution, under which the sale was made, all defendants, is not multifarious, on account of an improper joinder of parties.</p> <p>Inadequacy of price, without fraud, is not a sufficient ground for setting aside a sale of land under execution.</p> <p>The interest of a party in land, who holds only a bond for title when the purchase-money is paid, and who has paid only a part of the purchase-money, is not subject to sale under an execution at law.</p>

Ekkor from the circuit court of Madison county; Hon. John H. Rollins, judge. This was an action of debt, brought by A. G. McNutt, governor, &c., for the use of David G. Moore, and Robert Moore, co-partners under the name and style of “ D. G. & R. Moore, against Samuel D. Livingston, clerk of the circuit court of Madison county, and William L. Balfour, James S. Erving and William Gartley, as sureties on his official bond.

Error, from the district chancery court of Holly Springs ; Hon. Henry Dickinson, vice-chancellor.

Robert H. Buckner, chancellor. On the 19th day of November, 1842, the American Colonization Society, filed a bill in the superior court of chancery, against Isaac R. Wade, James P. Parker, Elias Ogden, and John B. Coleman, executors of Isaac Ross, deceased, alleging that complainants were duly and legally incorporated, and located in Washington city, and in the state of Maryland; that the late Captain Isaac Ross, who resided in Jefferson county, in the state of Mississippi,…

ErroR, from the superior court of chancery; Hon. Robert H. Buckner, chancellor. On the 1st day of February, 1837, George Poindexter, Thomas 0.

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

Robert H. Buckner, chancellor. On the 22d day of May, 1840, James M. Allen, Richard H. Allen, and James I. Robson, who were co-partners under the name and firm of Robson & Allen, filed their bill in the superior court of chancery, alleging that, on the 7th day of December, 1839, they recovered a judgment, in the circuit court of Yazoo county, against the Benton and Manchester Railroad and Banking Company, for the sum of fifteen hundred and seventy-three dollars and…

Error, from the probate court of Amite county. Amelia Maria Whitney and Penelope Angelina Whitney, minors, under the age of twenty-one years, by their next friend, Robert Stewart, junior, filed their petition in the probate court of Amite county, stating that their maternal grandfather, William Lowry, by his last will bequeathed to their mother daring her life, three slaves, named Chancy, John, and Zelia, to be equally divided at her death between the heirs of her body ;…

Robert H. Buckner, chancellor. William B. Ross filed his bill in the superior court of chancery, charging that on the 1st day of March, 1838, the firm of Brown, Woods, & Co., being indebted to him, Andrew Woods, a member of the firm, gave him their promissory note for the sum of six thousand and sixty-seven dollars and seventy-two cents, payable on the 1st day of March, 1839, at the office of the Mississippi The deposition of Thomas B. Wadlington, read on behalf of the…

ERROR from the district chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor.

Robert H. Buckner, chancellor. On the 23d day of October, 1843, Garrett Keirn filed in the superior court of chancery his bill against Morgan McAfee, Madison McAfee, John H. McAfee, Jesse McAfee, Margaret Colbert, Joseph McAfee, John G. Parker, and Elizabeth his wife, Lazarus B. Ragan and Minerva his wife, Joseph Lott, Sarah Lott, Morgan Lott, William Lott, Thomas Lott, Margaret Lott, Absalom Powell and Angeliue his wife, William M. Jayne, Joseph M. Jayne, Joseph Colbert,…

Buckner, chancellor. On the 3d day of July, 1843, John M. Chilton filed his bill in the superior court of chancery, against Nathaniel Cox, administrator of Samuel B. Slocumb, deceased, alleging, that on the 25th of March, 1843, John S. Brien, then of Warren county, conveyed to him in trust, to secure to Kirkman, a note of John S. Brien for $6628 94, bearing even date with the deed of trust, and payable on the 1st of February, 1843, Abernathy, and Hanna, Nat, Israel, Jerry…

Henry Dickinson, vice chancellor. James T. Renich, William H. Renich, and Rufus Renich exhibited their bill against John D. Carroll and others, in which they aver that they were the full brothers, by the mother’s side, of Rachel Renich; that in 1828 the family were residing in Hardeman county, Tennessee, and in January of that year their sister Rachel intermarried with John D. Carroll; having previously entered into a marriage contract with him.