Volume 16 — Mississippi Reports

In error from the circuit court of Scott county; Hon. A. G. Brown, judge. The Commercial Bank of Natchez sued, to the December term, 1840, of the circuit court, John M. Chambers, James J. Chambers, Thomas M. Pettey, Littleton Turner, and Jeremiah B. White, as joint makers of a note dated on the seventh day of June, 1839, at Brandon, payable twelve months after date to the plaintiff or order, at the plaintiff’s banking-house, in Brandon, for six hundred and fifty dollars.

<p>Appeal from the superior court of chancery ; Hon. Robert H. Buckner, chancellor.</p> <p>On the 12th day of September, 1840, John S. Grafton, Llewellyn T. Lobdell and Eliza Ann Lobdell his wife, filed their bill in the superior court of chancery, against James Grafton, charging that Daniel Grafton, Senior, died, seized and possessed of a tract of about six hundred acres of land, lying in Adams county, near the city of Natchez, which descended to his children and heirs, to wit: Thomas, Daniel, John B., Elizabeth, Mary and James, who being of age, made a division thereof, each taking possession of his part in severalty. That in 1815, shortly after the division John B. Grafton died, leaving complainants, John and Eliza, his only heirs. That James Grafton, the defendant, pretending that he had purchased John B. Grafton’s share, which joined his own, and being at the same time administrator of John B. Grafton’s estate, which he represented as insolvent, took possession of the tract of land received by John B. Grafton, as his share of his father’s estate, and on — day of January, 1817, sold it to A. Campbell, with his own share, which together amounted to one hundred and sixty-three acres, for $2400, one-half of which belonged of right to complainants. That complainants were very young, and a general impression among their friends and relatives, that their father left no property, prevented a guardian being appointed for them, or any investigation of the condition of the property being made. That Campbell has cultivated the land, and wasted the timber, and the land is now worn out, and worth little or nothing. That complainants are willing to confirm the sale to Campbell, on being paid their proportion of the price, received for the same. The bill prayed a discovery, and account, and a decree for one-half the purchase-money received by defendant.</p> <p>The answer of James Grafton, stated that Daniel Grafton, senior, died in 1802, seized of the tract of land described in the bill, containing about five hundred and seventy acres; that he left seven children and heirs at law, instead of six, as charged in the bill, among whom, were John B. and respondent; that the heirs by consent employed a surveyor, who divided the land into seven shares, of about eighty-one and a half acres each, the heirs drew lots, and each took immediate possession of his share in severalty; that Sarah Grafton, one of the heirs, died in 1805, leaving her share to respondent; that John B. Grafton, died in August, 1814, instead of 1815, as stated in the bill, and respondent believed the complainants were his only children, and heirs at law. Respondent averred, that in the beginning of the year 1812, John B. Grafton, sold his share of the land to respondent, and received the purchase-money in full; that great confusion and excitement at that time prevailed throughout the country, on account of the war between the United States and Great Britain, and the making of titles was postponed; that a written memorandum of the sale, by John B. Grafton to respondent, however, was made at the time, in which John B. Grafton agreed to make respondent a title to the land, whenever it should be called for; which memorandum respondent had carefully searched for, but could not find, and he believed it was lost or mislaid ; the sale, however, from John B. Grafton to respondent was a matter of notoriety at the time. Respondent stated that he took possession of John B. Grafton’s share immediately after his purchase, and continued in the full and uninterrupted possession and enjoyment thereof, till the time of John B. Grafton’s death, about two years and a half thereafter, and afterwards, until he sold to Anthony Campbell; that in 1813, John B. Grafton was compelled, by high water, to leave his residence on the Mississippi river, and he came to the house of respondent, who was then living on the land he sold to respondent, and staid there some months, without ever once making any claim or pretence of title to any portion of the land; that John B. Grafton, from the time of his sale to respondent, until his death, never exercised any ownership over, nor claimed any right or title whatever to his share, but the same has been held by respondent, adversely to John B. Grafton, and as his own property. Respondent further stated, that, in the beginning of the year 1817, he sold to Anthony Campbell the share of the land given him by his sister Sarah, and the share he purchased from John B. Grafton, the whole containing about one hundred and sixty-three acres, for the sum of twenty-four hundred dollars, payable in three annual instalments of eight hundred dollars each, without interest. Respondent further stated, that, in 1814, he returned from the army on furlough, and, being requested by the other creditors of his then deceased brother, John B. Grafton, and being himself the largest creditor, he administered upon his estate, and immediately returned to the army, leaving his brother Thomas fully authorized to have the property of John B. Grafton’s estate appraised and sold, and the appraisement and sale were made during his absence; that when he got back home, he found the estate insolvent, and had it so declared by the court; that the estate paid a dividend of only about fifty-six cents in the dollar, and had the whole proceeds of the land, purchased from John B. Grafton, been applied to the payment of the debts of the estate, it would have still been insolvent; that a number of the near relatives of John B. Grafton, and among them his father-in-law, and his brother Thomas, were creditors of his estate, and the fact of the sale by John B. Grafton to the respondent, was so well known to all of them, that no attempt was made by any of them, to have his share of the land, subjected to the payment of his debts; and they all received their dividends, without any objection on that ground. Respondent stated that complainant, John S. Grafton, was twenty-five or twenty-six years of age, and Eliza Ann Lobdell, was older than her brother, John S. Grafton. Respondent insisted, that his possession of the land, and that of those claiming under him, had been adverse to the title of John B. Grafton, ever since his purchase in 1812, and that his title and the title of those claiming under him, by the lapse of time had ripened into a full and complete title at law, and in equity, and he relied upon the statute of limitations as a defence.</p> <p>Samuel Gustine, a witness, on behalf of the defendant, deposed, that he knew John B. Grafton in his lifetime, and attended him in his last illness, that he died in 1814, and lived at the time of his death, about twelve miles from Natchez, in the Pine Ridge Settlement; deponent and his brother were prac-tising physicians in the families of James, Daniel, and Thomas Grafton; that he did not know of his own knowledge, that James Grafton owned the land on which he resided, but believed him to do so, both from the fact of his residing on it, and from general reputation. About 1813, deponent and his brother bought a tract of land from John B. Grafton, lying in Louisiana, on the Mississippi river, and he knew that John B. Grafton was very much embarrassed at that time, and deponent did not believe that he then owned any part of the Grafton tract, as he and his brother had to pay a judgment or judgments with which the property they purchased was encumbered. That in 1813, John B. Grafton resided on the tract deponent and his brother purchased, and that his removal was owing to high water; that he did not know of any claim or pretence of claim set up by John B. Grafton to the land in question; he did not recollect of any notoriety about the matter, but his impression had long been, that James Grafton owned the Grafton tract of land, and he had an indistinct recollection that he purchased a part of it from some of the heirs. Deponent believed John B. Grafton told him, after he sold out in Louisiana, that he owned no other landed property.</p> <p>Caleb Stowers testified, that John B. Grafton died in 1814, and lived, at the time of his death, on Pine Ridge, in Adams county, twelve miles from Natchez. That John Stowers, the father of witness, and the father-in-law of John B. Grafton, purchased the land on which John B. Grafton died, for him to reside on ; and, in consequence of the embarrassments of John B. Grafton, John Stowers took the title to the land in his own name, and, after John B. Grafton’s death, he gave it to his daughter, the widow of John B. Grafton ; that it was rumored in the family, that John B. Grafton had let Daniel, or James Grafton have his share of his father’s estate.</p> <p>Allen Grafton corroborated the evidence of the other witnesses, as to the place of John B. Grafton’s residence, and the time of his death; and he further testified, that he understood that James Grafton took possession of the land, as a purchaser from John B. Grafton, but he did not know it of his own knowledge; that after John B. Grafton’s removal from the Mississippi river, on account of the high water, he went to live for a short time at his brother James Grafton’s place, and from thence he removed to Pine Ridge, where he died; that he had frequently heard it stated in conversations amongst the heirs and other relations of the family, that James Grafton had purchased John B. Grafton’s share of his father’s estate.</p> <p>This being all the evidence, the chancellor, on the 12th day of June, 1844, rendered a final decree in favor of the complainants, for the sum of three thousand and thirty dollars, to be paid upon their executing to the defendant a release of all their interest in the land. From which decree the defendant appealed to this court.</p> <p>The complainants seek to recover the money received by the defendant below on the sale of the land, upon the assumption that they have title to the land. If, therefore, at the time of filing the bill in this case, their right of action for the land was barred at law, then, upon the principle of the statute of limitations, their right to the money is barred in equity.</p> <p>This case does not belong to that class of trusts to which the statute of limitations does not apply. The rule is thus stated : “ Direct trusts, such as are created and acknowledged by the parties, are not barred by lapse of time ; but possible, or eventual trusts, which occur where a party took possession in. his own right, and was, prima fade, the owner, but is afterwards converted into a trustee by evidence, are barred,” &c. Fonbl. Eq. 246, and cases cited.</p> <p>Wherever there is concurrent jurisdiction of law and equity, the statute maybe pleaded in either court. Kane v. Bloodgood, 7 Johns. Gh. R. 90.</p> <p>In this case no “direct trust” was created, but the party is sought to be “converted into a trustee by evidence.” The jurisdiction of law and equity is convenient, for the complainants have the same right to the land at law, as to the money i,n equity.</p> <p>This point was not controverted below, and the case turned entirely upon the question whether the facts disclosed an adverse possession in James Grafton, and those claiming under him for twenty years previous to this suit.</p> <p>On this subject the chancellor held the following language: “I think, from the testimony in the case, there is no pretext for saying that the defendant entered with claim of right and color of title to the land. . . . A party who relies upon adverse possession as a defence must show that it commenced and continued under some color of title which he at the time believed to be good. It is not necessary that he should show a good indefeasible title, but such a one as would raise the belief that he honestly considered himself entitled to enter under it. And these facts must be made out by clear and positive proof, and not by mere inference. These general principles are believed to be sustained by the following cases: 2 Caines, 183; 9 Johns. 163; 1 lb. 156; 8 lb. 270; 12 lb. 368; 5 Cowen, 346. In this latter case C. J. Savage carried the doctrine to the extent of holding that to constitute an adverse possession the party must show that he entered under “ such a title as the law would prima facie consider a good title.”</p> <p>It is very true that the doctrine of adverse possession is to be taken strictly; that it is to be made out not by inference, but by clear and positive proof, — and that the presumption is in favor of possession in subordination to the title of the true owner. The cases cited by the chancellor teach this doctrine, and they teach with equal clearness this proposition, to wit:</p> <p>That whenever possession is taken under pretence or claim of a right, which, if it really existed, might, in law, be a good right, such possession will be adverse to all other rights. See the cases above cited. In the case of Jackson v. Waters, 12 Johns. 365, the possession was held not to be adverse, because taken under a grant from a foreign government, which the court said was not a “legitimate source of title.” This case illustrates what is meant by C. J. Savage, in 5 Cowen, 351, where, he says, the title must be “such as the law will prima facie consider a good title.” Not, as the chancellor seemed to think, that the party must actually prove a good prima facie title, but the title which he pretends or claims. to have, must be such, if he explains it, as would be, prima facie, a good title ; that is, derived from a legitimate source.</p> <p>The case of Jackson v. Wheat, 18 Johns. 40, gives a clear definition of an adverse possession. The court said, “ that possession under a claim of title by purchase, was sufficient; and that it was not necessary to produce the deed, though called for. That if the deed was lost, or defective, it could not alter the effect of the defendant’s possession. That after a continued possession for twenty years, under a pretence or claim of right, the actual possession ripened into a right of possession, which will toll an entry. That there need not be a rightful title. That whenever this defence’ was set up, the idea of right was excluded, and that the fact of possession, and the quo animo, were the only tests.” See also 9 Johns. 180; 18 lb. 360; 8 Cowen, 589, and 9 Cowen, 530, 553; to the same effect, 2 Hawks, 233. Also, 16 Johns. 293, and 1 Johns. 159; the latter case being strongly in point in this case.</p> <p>A right of entry is barred after twenty years. How. & Hutch. 568, sec. 89.</p> <p>When the statute begins to run no subsequently intervening disability can prevent it from continuing to run. 1 Johns. 165; 16 lb. 210; 18 lb. 40; 5 Cow. 74; 12 Wend. 602; Ang. on Lim. 146; Ballant. 60, 64, 175, 186; 4 How. 31.</p> <p>The question remains, whether James Grafton, and those claiming under him, have had such an adverse possession of the land in controversy, for twenty years before the filing of this bill, which was in 1840.</p> <p>The chancellor says, there is no pretext for saying this, and yet the fact is plainly avérred by the complainants themselves, in their bill. They state, that “ James Grafton, pretending to have purchased John B. Grafton’s share, and being administrator of his estate, took possession of said share, and in the beginning of the year 1817, sold it to Anthony Campbell.” The bill also states thjit all the heirs were of age at the division, which had previously been made.</p> <p>Here then is a distinct allegation that the appellant took possession of the land under pretence of a purchase from John B. Grafton. Now a purchase from John B. Grafton would have given him a good title in fact. He therefore took possession under pretence and claim of a title, which the law would consider prima facie a good title; and the fact of possession, and the quo animo, both concur to render the possession adverse, and these are the “ only tests.”</p> <p>The answer admits that the possession commenced under this pretence of purchase, and avers that such a purchase was in fact made, and the money paid, the evidence of which is lost. It is not necessary to make proof of the purchase. If the possession commenced, and has continued for twenty years, under pretence of it, the law presumes that it was made, and dispenses with the proof. See Davis v. Minor et al. 1 How. 191.</p> <p>The bill carefully avoids saying anything positively as to the time when James Grafton’s possession commenced, but insinuates that it was after John B. Grafton’s death. This is implied from the words, “and being administrator of his estate.” The answer denies this, and alleges that the possession commenced before his death, to wit, in 1812. No proof is taken in support of the bill, and the answer should therefore be taken as true.</p> <p>An answer responsive to a bill is evidence, and two witnesses, or one witness, with corroborating circumstances, will be required to outweigh an answer asserting a fact responsive to the' bill. Hart v. Ten Eyck, 2 Johns. Ch. R. 62 ; Russell v. Clark's Executors, 7 Cranch, 69; 2 Cond. R. 424; Clark’s Executors v. Van Riemsdyk, 9 Cranch, 153, 3 Cond. R. 325.</p> <p>But the depositions of Samuel Gustine, Caleb Stowers, and Allen Grafton, taken on behalf of appellant, fully show that John B. Grafton died in 1814; that James Grafton’s possession commenced in 1811, or 1812, and that he took possession as a purchaser from John B. Grafton, claiming title and holding in his own right.</p> <p>The chancellor made another point, as follows, to wit: “ Moreover, all the authorities agree that a claim, based upon such a possession, must be confined to the actual inclosure, or possessiopedis of the tenant, and cannot be extended to the metes and bounds of the tract. Ang. on Lim. 73; 3 Wash. C. C. R. 475.”</p> <p>There is no difficulty on this point. The bill alleges that, after the division, James Grafton took possession of John B. Grafton’s share, pretending that he had purchased it. This of course means the whole share, extending to the metes and bounds, the same that he afterwards sold to Campbell, and-which complainants are now seeking to get pay for.</p> <p>From the statements in the bill, admissions in the answers, and testimony on file, we think these facts are clearly established.</p> <p>1. That John B. Grafton, in his- lifetime, was the owner of about eighty acres of land, part of his father’s estate..</p> <p>2. That there were no tenements on the land; but it was part of a plantation, and was cultivated by James Grafton, who owned the adjoining land.</p> <p>3. That John B. Grafton died some time in 1814.</p> <p>4. That defendant was his administrator, and represented his estate insolvent, and the account of administration is filed, showing a small balance in his hands.</p> <p>5. That James Grafton, in 1817, sold the land as his own, together with his share, to A. Campbell, for $2400, being $1200 for John B. Grafton’s tract.</p> <p>6. That complainants are the legitimate heirs of John B. Grafto'n. Eliza Ann Lobdell was born December 5, 1811, and John S. Grafton was bom December, 1814, or 1815, and died August, 1841.</p> <p>The defendant sets up that he purchased the land of John B. Grafton, in his life time, and had a written agreement for a title, and'that he had paid the purchase-money to John B. Grafton, and held adversely to him in his lifetime.</p> <p>The proof on this subject is mere rumor, and no witness has been found willing to say, that either John or James mentioned such contract in the lifetime of John B. The deposition of Allen Grafton is strongest, and we object to that as mere rumor, weaker than ordinary hearsay.</p> <p>He states he understood James Grafton went into possession as a purchaser. True, to the sixth interrogatory, he says James held the land as a purchaser, but his answer to the second interrogatory is contradictory of this, and explains that it was mere hearsay. The answer to the seventh amounts to nothing, for it only speaks of family conversations, without so much as giving the time; and if they were worth anything, for aught that appears, they may have occurred aftér James sold to Campbell. He never heard John say he had sold.</p> <p>Gustine’s deposition on this point is still more objectionable; he speaks from general reputation alone. I| was his own impression that James owned the land, and purchased from some of the heirs. Has no distinct recollection, but thinks John told him, after selling out in Louisiana, he had no other land.</p> <p>Stowers’s deposition is still more unsatisfactory. He speaks of rumors in the family, without date, or names of persons, or any other fact.</p> <p>This is all the evidence on this point; and we think it wholly fails to establish, either that the. defendant was a purchaser, or that he held adversely, in the lifetime of the deceased, John B. Grafton.</p> <p>The law always presumes the tenant in possession holds in accordance with the legal title; and an adverse possession must be proved. It must be under color of title which is adverse in its character. If the tenant enter under the legal title, with consent of the owner, he is presumed to hold under the legal title; until he manifests clearly that he holds adversely. 9 Johns. 174; IS lb. 40, 355; 3 Johns. Ch. R. 124; 8 Johns. 220; 9 lb. 163; 4 lb. 230; 12 lb. 365; 16 lb. 293; 1 Cow. 276; 5 lb. 74,346; 9 1b. 530.</p> <p>The defendant must be considered in the light of a voluntary, self-constituted guardian, or trustee; and as such he is liable to the same extent as a regular guardian. And having executed the trust for the benefit of the heirs of John B. Grafton, rvithout their knowledge at the time, they may affirm it and enforce him to account.' 1 Johns. Ca. 205.</p> <p>The manner of sale by a guardian is immaterial; if it be merely a verbal contract, and he receives the money, and the heirs are willing to confirm the sale, the guardian will be ac^ countable. 1 Dana’s R. 367.</p> <p>Another ground of relief is, that a court of equity will seek out the party ultimately liable, and subject him to the burden in the first instance. Story’s Eq. Plead. 162, 163; 5 Cranch, 329, 330.</p> <p>If the heirs had sued for the land in the first instance, and recovered, the vendee could resort to his vendor for the purchase-money ; either on the warranty in his deed, or for fraud in selling when he knew he had no title. And as he would be ultimately liable, it is but equitable that he should pay it to the heirs, on their affirming the sale.</p>

<p>P. filed a bill to enjoin perpetually a judgment recovered against him by D. & L., as surety on a bond to try the right of property in two slaves, levied on under an execution, which issued on a judgment in favor of D. & L.; the bill alleged, that there was not a full and fair trial of the right of property, in consequence of unavoidable accident, and that the complainant could establish by papers made exhibits to'his bill, that the slaves were not subject to the execution of D. & L., having been conveyed away by deed of trust before the rendition of the judgment, in satisfaction of which they were taken; upon the bill an injunction was granted; the answer of D. & L. denied the identity of one of the slaves named in the deed of trust, with that taken under the execution, and there was no proof in the cause; the vice-chancellor dissolved the injunction to the extent of the value of that particular slave ; held, that under the circumstances, the vice-chancellor could not possibly have done less, and the decree must be affirmed.</p>

In error from the circuit court of Lowndes county; Hon. Francis M. Rodgers, judge. Benjamin Sherrod sued Henry W. Rhodes, to the April term, 1844, of the circuit court, in an action of debt, on a writing obligatory, made by Rhodes and a number of others, for the payment of fifty thousand dollars, on which were various credits. The defendant plead, in substance: 1.

' In error from the Claiborne circuit court; Hon. George Coalter, judge. Isaac Turney was indicted in the circuit court of Warren county, on the 28th day of May, A. D. 1845, for the alleged commission of a rape on the person of Mary Folkes, on the first day of September, 1844.

<p>On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.</p> <p>The bill, in this case, was filed by Jonathan Smith, John Webb, Gabriel G. Smith, and'William Smith, the two last partners, under the firm of W. & G. 0. Smith, against James Walker and-Bradley, executors of Andrew C. Hays, deceased, and states, that in March, 1837, in Tennessee, W. & G. C. Smith borrowed of A. C. Hays, $2400, and agreed to pay, as interest therefor, fifteen per cent, per annum; and they gave their note, with indorsers, for $2814, at twelve months, for the principal and usurious interest, at the end of which time- they gave another note, in renewal of the first, at four months, under the same calculation of fifteen per cent, interest. This last note was twice afterwards renewed, on each renewal the same usurious interest being included ; that in August, 1839, the interest was calculated upon the debt, at the same rate, and the Smiths paid $250, and for the residue, gave two notes, one for $2118 40, and the other for $1884 09, due the first of May, 1840; these notes included interest at twelve and a half per cent. only. The note for $2118 40, was sued upon, and judgment obtained, in Tennessee, which was paid ; and judgment was rendered, at the November term, 1843, of the Madison circuit court, on the other note, for $1818 50. That defendants, Walker and Bradley, are executors of Hays, and this judgment, although in the name of Walker alone, and individually, is for the benefit of Hays’s estate; but the note was indorsed by Hays, in his lifetime, in blank, for the purpose of collection ; that this judgment was not for as much as purported to be due on the note, by about $300, which was deducted, in consequence of a provision in Hays’s will, reducing the amount claimed to $1500; that if the sum really borrowed were calculated at legal interest, it had been fully paid, provided the $300, credited in the will, should be allowed; but if not allowed, the defendants in the judgment were indebted about $240, which they were ready to pay, if this court determined that they were not entitled to the provision in the will, and credit for the usurious interest also.</p> <p>That, although they filed a plea of non-assumpsit to the suit at law, they withdrew it on the final call of the cause, and made no defence at law, and “ that, owing to the numerous renewals of the note, and the complicated nature of the transaction, they had no adequate remedy at law.”</p> <p>That six per cent, is, and was the legal interest of Tennessee, and that contracts reserving a greater rate of interest are, by the statute of that state, made void, as to the excess.</p> <p>The prayer was for perpetual injunction, for a decree, in favor of complainants, for the excess paid over the legal interest, allowing them the benefit of the provision of the will, or for general relief.</p> <p>Walker, in his answer, states, that he had no knowledge, in relation to the alleged loan, and usurious contract, and the renewals of the notes. He admitted, that judgment was rendered, in Tennessee, on the note for $2118 40, and had been satisfied, but did not know whether it originated, as stated in the bill, or not, or whether or not it was tainted with usury; admitted that judgment was rendered, in Madison circuit court, at November term, 1843, for $1818 50, founded on the note for ■$1884 09, and that it was for the benefit of Hays’s estate; that the abatement, in the judgment, from the amount due as appeared by the face of the note, arose in this manner: When Hays was <?n his death-bed, he called on defendant Walker to write his will, and among other things, stated, that in moneyed transactions between himself .and Smith, he had charged him usurious interest, and his conscience prompted him to refund it; that to reduce the note for $1884 09, to $1500, would be about right, and by his direction, this defendant inserted the clause in his will reducing the note to $1500; that after the death of Hays, he made known to Smith the provision in the will, and the reason that led to it, and Smith expressed himself entirely satisfied with its justice and correctness, and agreed with defendant, in writing, that when the suit which had been brought on the note was reached on the docket, judgment should be rendered for the amount for which it was subsequently rendered ; which was the sum agreed to be due. An agreement to that effect was exhibited with the answer. When the suit was reached, Smith and others endeavored to defeat it, on the ground set up in the bill, and failing therein, the plea was withdrawn, and judgment rendered according to Hays’s will. He denied that there was anything alleged in the complainants’ bill that was not competent to have been relieved against at law; that the suit was instituted to the spring term, 1841, and judgment was not rendered till November term, 1843, during which time, the complainants delayed taking any steps to defend the suit, till the eve of the trial, and finally withdrew their plea; which, it was insisted, precluded the complainants from relief in equity; and defendant claimed the benefit thereof, as if set up by way of formal plea or demurrer.</p> <p>The defendant Bradley made no answer.</p> <p>Upon this state of pleading, the cause was submitted to the chancellor, on amotion to dissolve the injunction. The chancellor sustained the motion, and the complainants appealed.</p> <p>The injunction should have been retained in this case by the chancellor.</p> <p>1. It is well settled, that where a party has not a plain and adequate remedy at law, equity will relieve. See 1 Story’s Ec[. 96. It follows, that a party will not be compelled to defend at law, unless his defence is plain and certain. If the nature of the proof, or of the transaction, is so complicated, as to be likely to embarrass the defence at law, then equity should interfere, as in matters of account, &c. No one can read the bill in this case, without seeing the great difficulty and uncertainty of a defence at law. The bill states, that, owing to the complicated nature of the transaction, the appellants had no adequate remedy at law, and this is apparent.</p> <p>2. The suit at law was prosecuted in the name of Walker, but was really for the benefit of the estate of Hays. A discovery of this fact, from Walker, was necessary, and the appellants had to resort to a bill, to procure it, as well as to establish the usury. Walker is a resident of the state of Tennessee, and the appellants could not coerce from him, by bill, a discovery in aid of their defence at law. Will it be insisted that they could have enjoined the suit at law, till discovery was made; and that this was the only remedy they had 1 I think this doctrine absurd. Let me suppose a case to prove it so. A non-resident sues a citizen on a plain note, which was given on an illegal consideration, and is void, which fact can be proved by the plaintiff only. The defendant files his bill for a discovery, and enjoins the suit at law till it is made; the plaintiff fails to answer, and not being within the jurisdiction of the court, cannot be compelled to do so; and so the matter rests until he dies. The suit for discovery abates, the defence at law fails, and his representatives recover the debt. Could such a defendant be said to have a remedy at law? As the appellants could not obtain a discovery to aid the defence at law, the court of chancery had-jurisdiction, and ought to grant relief after a trial at law.</p> <p>3. A few words upon the agreement of the parties, (set up in the answer,) that judgment should be rendered for $1500, which the chancellor regarded as a virtual confession of judgment. He then adds, that “ neither a court of equity, nor any other tribunal, proposes to relieve against a judgment by confession, unless the party was seduced into it by the fraud of the opposite party, or by a mistake of his own.” Now I labor under a great mistake, in common with the leading authors' who have written on the subject, if usury is not regarded as fraudulent. It is classed under the head of constructive fraud. Public policy is deeply concerned in its suppression. To close the courts against its suppression, on flimsy pretexts, would bring into action the most grovelling passion, exerted upon the most helpless victims.</p> <p>4. I think the excuse set up in the bill for not defending at law is sufficient, but if the court should be of a different opinion, still I think, on another ground, the chancery court ought to grant relief. It is admitted that this transaction took place in the state of Tennessee. The laws of that state, as held by its supreme court, should govern it. That court has held that when usurious interest has been paid, it may be recovered back in a court of equity; if so, it follows that the courts there would restrain the collection of it at any time before payment. The rule there ought to follow the contract, and prevail here. If the appellants are compelled to pay the usurious interest, they will have a right to return to that state and recover it back; and will the courts here drive them to this unnecessary litigation 1</p> <p>5. It certainly cannot be successfully contended that the answer in this case contains such a denial of the allegations of the bill as to justify a dissolution of the injunction. A general denial, however positive, is not sufficient, where the defendant admits, or it is apparent that he “ could not have been personally cognizant of the facts.” MeGvjjie v. The Planters Bank, 1 Freem. Ch. R. 383; Roberts and Boyd v. Anderson, 2 Johns. Oh. R. 204. Here the party disclaims all knowledge on the subject, in one part of his answer, and in another admits that Hays told him on his death bed, that he had charged Smith usurious interest. Nor is it pretended that he stated that the reduction of the note to $1500 would cover the unlawful interest.</p> <p>Besides, Bradley, the other defendant, did not answer, although a discovery was prayed from him. It cannot be neces sary to dwell on this point.</p> <p>6. A word more as to the paper filed with the answer, agreeing to the amount for which judgment was to be rendered. It is at best but matter of avoidance, and the well known rule required that it should have been proved.</p> <p>1. The bill shows that the complainants are not entitled to relief in equity. The ground of relief set up is usury, and yet the bill distinctly states that a proper plea to the action at law was filed, but withdrawn at the trial, and that no defence was made. Their remedy being ample at law, their own neglect will preclude them from relief in equity. 6 Howard, 569; Thomas v. Phillips, 4 S. & M. 358. This case is even stronger than the one cited; -for there the parties merely failed to make any defence, whereas here, after having placed themselves in an attitude to make the defence by filing an appropriate plea, they abandoned it. No sufficient reason is shown by the bill for pursuing this course. The only pretence for it is the “numerous renewals of the note, and the complicated nature of the transaction.” But it is manifest that all this was as susceptible of proof at law as in equity. It is not alleged or pretended that they are driven into equity for discovery as to these matters; and no reason at all is assigned for their failure to adduce the testimony, if it consisted in other witnesses. If capable of being proved in this court by other witnesses, it was equally susceptible of proof by the same witnesses at law, for certainly the several alleged renewals of the notes were matters that, when proved, a court and jury could easily understand. But if the bill is sought to be maintained on the ground of discovery, we insist that no such distinct ground is set up in the bill, either by allegation made with that distinctness and certainty necessary to support a bill for discovery, or by prayer. Nor does it contain that indispensable requisite of a bill of discovery, an allegation that the facts set up cannot be proved without the discovery of the defendants. Mitford’s PL 191; Wigram on Discov. 213; 1 Madd. Ch. R, (3d Am. edit.) 198. Again, a court of chancery will aid a defendant in obtaining discovery before trial at law, but not afterwards. 4 Johns. R. 510.</p> <p>2. The answer shows that the defendant, Walker, the plaintiff at law, has no knowledge of the alleged usury, and that no discovery can be obtained, the party who made the usurious contract being dead; so that, even if the bill was properly one for discovery, that object could never be attained, and the bill must be dismissed.</p> <p>3. It appears by the answer that the suit at law was pending upwards of two years and a half before the trial. That the complainants should for this long period, fail to make any efforts to substantiate their defence, is certainly such negligence as will debar them of any favor in equity.</p> <p>4. The facts stated in the answer go very far to destroy the allegations of the bill, as to usury. 1st. The declarations of Hays, undei; the solemn circumstances attending them, show that they were founded in honesty and truth. 2d. Smith’s expressing himself entirely satisfied with the justice and correctness of the provision of the will, is entirely irreconcilable with the statements of the bill, and goes far to establish the truth of Hays’s declarations. And 3d, The written agreement made between Smith and Walker, on the one part, that the note should be reduced to $1500, at maturity, and on the other, that judgment should be rendered when the suit was reached, and this too after suit was brought, either convicts Smith of the most culpable negligence and the worst faith, or destroys the allegations of the bill. In view of these circumstances his attitude cannot commend him to the favor of a court of equity.</p>

Henry Dickinson, vice-chancellor. William Fanning filed his bill, alleging, that for the purpose of assisting one George W. Johnson in business, he signed two or three pieces of paper as second indorser, (Morgan McAfee being first indorser,) which were blank as to amount, and were delivered to Johnson, to fill up to the amount, in all, of four or five thousand dollars, and no more; these blanks Johnson took to the Farmers and Merchants Bank of Memphis, and instead of raising…

<p>On the trial of a man, under the statute for selling liquors to a slave without permission of his master, it was in proof that several persons suspecting the defendant of a violation of the statute, went in the night near to his house, and sent a negro belonging to one of them with money and a jug, and told him to get some whiskey, and the defendant sold him the whiskey; upon which the court instructed the jury, “ that permission to the slave to buy liquor of any one, did not satisfy the statute, which required permission to the seller; ” this instruction was held to be erroneous, as a permission to the slave to buy implied a permission to the vender to sell; the facts should have been left to the jury to say, whether his master gave the slave permission to buy, or whether the slave was sent to ascertain and fix the fact that the vendor would sell without permission, and did so sell; if the jury believe the former, they should find for the defendant; if the latter, against him.</p> <p>The master’s delivery of money to a slave, with instructions to buy whiskey with it from a person whom the master suspects of having sold whiskey in violation of the statute to his slaves, for the purpose of detecting the offender if guilty, does not excuse the sale to the slave of whiskey for such money; it is not such permission to the slave to purchase as the statute contemplates.</p>

<p>It is now the settled law, that an inquiry into á violation of its charter by a bank or other corporation, can only be had in a direct proceeding, instituted for the purpose, by the government; and not in a collateral way, by individuals.</p> <p>If, therefore, a bank or other corporation, makes'a contract with individuals, which it is prohibited from making by, or which is contrary to, and in violation of, its charter, the contract is not thereby void, as between the corporation and the other partiesj; nor can they set up in their defence, when sued upon the contract, a want of power in the bank to make it; such de-fence involves the question of violation of charter, and into that the state alone can inquire, and alone can punish it.</p> <p>If a bank or corporation takes more interest on a contract for a loan of money than by its charter it is authorized to take, or if it is prohibited by its charter from taking more than a specified rate, and it exceeds that rate, the whole contract is not void; the general law of usury which prevails in this state, and which, in case of the taking of usurious interest, avoids only the interest, legal as well as illegal, will apply to a corporation violating the rate of interest fixed by its charter : and thus only the interest, and not the whole contract, wall be avoided ; and this will be the law, whether the rate of interest which the corporation is prohibited from transcending, be less than the interest allowed by the general statute or not; and whether the corporation, in exceeding the rate allowed, transcend the limit allowed by the general statutes of usury or not.</p> <p>The charter of the Grand Gulf Bank prohibited it from taking more than seven per cent, on a certain class of loans; the general statutes of usury provided that no person should take more than eight dollars for forbearance of one hundred dollars for one year, except on bona fide contracts for loan of money, where, if expressed in writing, ten dollars might be taken ; in either case the penalty of exceeding the rate was a forfeiture of the entire interest; the bank took more than seven per cent, usuriously; it was held, that she thereby only forfeited the interest, and could recover for the principal ; that the charter only altered the^general law of usury, so far as to provide a different rate of interest for the bank, but it did not alter the effect or consequences of violating that rate; and that the penalty for such violation would therefore remain as fixed by the general law, and be a forfeiture merely of the interest;</p> <p>If a corporation makes a contract, valid in part, and invalid as to the residue for a want of power in the corporation to make the entire contract, even if such question can be collaterally inquired into, the whole contract will not be void. The contract will be valid as to the extent of the power, but void as to the excess.</p> <p>By the first section of the general statute regulating usury, it was provided that “no person or persons whomsoever, shall take, directly or indirectly, for any contract, bond or note for the payment of money, founded on any bargain, sale or loan of wares and merchandise, goods and chattels, lands and tenements, or any use or occupation thereof, more than eight dollars for the forbearance or giving day of payment of one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or- shorter time.” For a violation of this statute the penalty was, “ that no interest or premium whatever should be allowed or recovered, but the principal sum only.” By the second section it was provided that “the rate of ten dollars for the forbearance or giving day of payment of one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time, may be taken, allowed, and recovered on all contracts, bonds or notes in writing, signed by the debtor for the bona fide loan of money, expressing therein the rate of interest fairly agreed on between the parties, for the use of the money so loaned.” The penalty for violating this statute, was the forfeiture of the interest, and that “ the principal sum only should be recovered.” By the third section, “ the rate of eight dollars for the forbearance or giving day of payment of one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time, may be taken, allowed and recovered, on all contracts, bonds, and notes, in writing, signed by the debtor, orders, bills of exchange, and accounts stated, which ascertain the sum due, after the same is due and payable and it also provides for the rate of interest on judgments and decrees. These are all the general statutes on the subject of usury, and were passed in the year 1822. By the law of 1805, upon usury being taken, no interest was recoverable. By the constitution of 1817 it was provided that, prior to the year 1821, parties might make contracts for the loan of money, at any rate of interest, and that the legislature should not interfere before that time. In view of the law of 1822, and the law as it stood previous thereto, it was held to be the true construction of the three sections of the law of 1822, that a contract for the loan of money, where the rate of interest was not reduced to writing, and exceeded eight per cent., was not wholly void, but that the interest reserved merely was forfeited ; that such a contract was as much within the meaning and object of the first two sections of the statute as any other contract, and was embraced by it; and that the third section was intended to apply merely to contracts, where there was no agreement at' all for interest.</p> <p>Mr. Justice Thacher dissented from the foregoing conclusions, and .held that the case of a contract for the loan of money, where the rate of interest reserved was not expressed in the contract, was not included in the general law of usury; and that the penalty of total forfeiture of the contract, principal and interest, being the penalty prescribed in the common law, was affixed to and governed such contracts; and holding also, that where the charter of a hank fixed the rate of interest to be charged by the bank to a sum less than that allowed by the general law of usury, it took it entirely out of the general law of usury, and that the penalty affixed by that law did not therefore apply to a violation of the special law of the bank, (its charter,) and that therefore the common law penalty of a total forfeiture of the whole contract, principal and interest, was the only penalty for an excessive charge of interest by the bank; and holding also, that where the charter of a bank prohibited its taking more than a certain rate of interest, and it took more than that rate, the whole contract was void, both for principal and interest, for the want of right in the bank to make the contract.</p> <p>Where a bank in this state, on discounting a note for the makers, took from them, as collateral security, cotton, to be shipped either to the north,.or Liverpool, on account of and at the expense of the makers, and at their risk; and also stipulated that the bank should have the benefit of the domestic exchange between this state and the north, where the cotton, or the sterling bills drawn on England, might be sold; and at the time the discount and agreement were made, the rate of exchange between this state and the north was from three to five per cent, against this state, in specie, and from fifteen to thirty per cent, in Mississippi currency, and the note was discounted in the latter currency, and it was in proof that the bank actually reaped that amount of profit, (that is, from three to five per cent.) from the exchange ; and the question was submitted to the jury on the facts, to say whether the reservation of the domestic exchange by the bank was made usuriously, and as a cover for the taking of more than seven per cent, which was the extent of interest allowed the bank by its charter; or whether it was taken only in the light of compensation, for the trouble of the receipt and sale of the cotton ; and the jury found for the makers of the note, that the reservation was usurious; it was held, that the questions were proper for the consideration of the jury, their verdict was justified by the facts proved, and would not be disturbed by the high court of errors and appeals, on that account.*</p>

<p>In ERROR from the Adams circuit court; Hon. 0. 0. Cage, judge.</p> <p>John Doe, on the demise of John N. Helm, sued Richard Roe, i. e. The Natchez Insurance Company, defendants in ejectment. The usual consent rule having been entered into and plea filed, a jury was empanelled, who found for the defendants.</p> <p>It appears, from the bill of exceptions, that on the trial it was admitted that the defendants were in possession of the premises in controversy ; and that the plaintiff then offered to read to the jury the record of a judgment for $16,212 50 obtained by Stanton, Buckner & Co. against the Natchez Insurance Company, the defendants in the ejectment, on the 14th of December, 1841, and at the same time offered to read a writ of fieri facias which issued on the 8th of April, 1842, upon this judgment, and the return of the sheriff thereon. The writ was in the ordinary form. The return of the sheriff, made on the 21st of May, 1842, was in substance that he levied the execution upon the following property of the defendants, “ to wit, all that lot of ground commencing on the corner of Pearl and Market streets, and running thence,” &c,, describing the land and tenement in controversy.</p> <p>That the sheriff was notified by defendants that they claimed to have the same appraised according to the provisions of the act on that subject.</p> <p>That Lemuel Pitcher was appointed appraiser on the part of defendants; John Knight on the part of Stanton, Buckner & Co.; and William K. Henry on the part of the sheriff, who each took the oath required, on the 25th of May, 1842.</p> <p>On the 30th May, 1842, they certified under their hands and seals, as to the land and tenement in controversy, their appraisement, as follows, viz. :</p> <p>“ We, the undersigned, appointed as appraisers for the purposes contained in our affidavit, having been duly sworn, have examined the property levied on, and appraise the same as follows, to wit. The brick premises between Bank alley and Market street, occupied by defendants and others, at the sum of $10,842. This valuation is made after deducting the sum of $8,158, which amount is for the executions, one at the suit of R. Parker, and the other of the Planters Bank against same defendants, made up in cash to this date; said executions having been levied on this same property, and returned under the valuation law to November term, A. D. 1841, per statement herewith filed, furnished by the sheriff, which makes the valuation above stated, free of all iucumbrances.”</p> <p>The sheriff’s statement consisted of a venditioni exponas to November term, 1841, in favor of Rhasa Parker, on a judgment for $3,561, with interest and costs, amounting to $4,055, against the defendants, — and a venditioni exponas in favor of the Planters Bank on a judgment of June 23d, 1841, for $3,742 45, amounting, interest and costs, to $4,103, also against the same defendants. The sheriff adding underneath the statement the following, viz.:</p> <p>“ The above amount in cash this day has been formally levied on the brick premises on Pearl street belonging to the defendants, May 30th, 1842, say eight thousand one hundred and fifty-eight dollars. Attest. S. B. Newman, Sheriff.”</p> <p>The return further sets forth the mode of notice of sale, and the sale; the latter as follows, to wit:</p> <p>“Said property was offered by me at public auction at the door of the court house, within the hours prescribed by law, to the highest bidder for cash, on this day, and sold as follows, to wit: The brick premises between Bank alley and Market street, on Pearl street, occupied by defendants and others (sold subject to the lien of the other executions, as stated in the ap-praisement, which executions amount to $8,158,) to John Helm for seven thousand two hundred and twenty-eight dollars; which sale was for two-thirds of the appraised value. 30th May, 1842.”</p> <p>Under the sheriff’s return is indorsed a letter from Stanton, Buckner & Co., dated 30th May, 1842, directing the sheriff to make a deed to Helm, as he had arranged the amount of the purchase-money satisfactorily with them.</p> <p>The plaintiffs at the same time offered to read the deed from the sheriff who made the sale to the purchaser. This deed is in the ordinary form, and recites the payment of the bid by the purchaser to the sheriff as the consideration of the deed. It was at the same time admitted by the defendants, that due and legal notice of the time and place of the sale, mentioned in the returns and deed, had been given by the sheriff, and that they referred to the tenements in question. “ Upon objection being made by the defendants’ attorneys,” says the bill of exceptions, “ to the introduction of said documents as evidence of the title of the lessor of the plaintiff, the court ruled out said judgment, writ and other documents as insufficient evidence of title, arid refused to permit the same, or any part thereof to be read to the jury as such evidence of title.” To this opinion the exceptions were taken; and upon the verdict for defendants being rendered, the plaintiff below, sued out'this writ of error.</p> <p>1. That the incumbrances were properly deducted; and that the defendants should have objected in. the court below : they cited act of 1840, p. 25; 17 John. R. 167; 2 Saund. R. 68; Cro. Jac, 246, 1 Cow. 644.</p> <p>2. That the valuation law was unconstitutional. Green v. Biddle, 8 Wheat. 1 — 84; Bronson v. Kinzie, 1 How. S. C. R. 311; 4 Cow. Dig. 132; 9 Mass. 89; lb. 92; 3 Yeates, 405; 2 Yeates, 148.</p> <p>1. 6 Wheat. 119; 4 Cranch, 403; 4 Wheat. 77; Coke Lit. § 434, 2586, note, $ 526; 13 Tes. 586; 11 Wend. 434, 435, 425; 1 Cow. 629; 7 Cow. 90; 4 Munf. 431; 4 Rand. 585; 5 Day, 162; 6 Conn. 373; 10 Conn. 77; 3 Conn. 406; 9 Conn. 9 — 14; 8 Idem, 536, 2 S. & M. 529; 1 How. 561; 3 How. 39; 1 Mass. 88; 2 Idem, 154, 118; 9 Idem, 96 — 99; 10 lb. 315; 11 lb. 165, 166; 14 lb. 20; 7 Pick. 551 — 556; 15 Idem, 28 ; 17 Idem, 440; 18 Idem, 495 ; 13 Mass. 483 ; 7 Mass. 392, GrosvenorY. Little; 7 Greenl. 376; Eastman v. Curtis, 4 Verm. 616; 5 S. & R. 332.</p> <p>The above authorities are cited to establish the common law rule, that any officer or individual, selling the land of another under the authority of a statute, must pursue his authority where it is merely a naked power to sell not coupled with an interest; and that if he does not pursue his authority by complying with all the pre-requisites of the statute, his sale is void.</p> <p>2. By the forty-eighth section of the valuation law, the sheriff has no authority to make a deed, conveying the land, until he has sold according to the provisions of the act, by virtue of his execution; nor until payment of the purchase-money also; and it does not appear, 1st. ^hat any of the purchase-money was paid by Helm ; nor 2d. That he sold the land according to the provisions of the act.</p> <p>1st. It does not appear that the money was paid. 6 Wheat. 119; 4 Wheat. 77; Shepherd’s Touchstone, 76, chap. 5, recitals 3, note 2; Oomyn’s Dig.; Testmoique on Evidence, B. 5 ; Weyand v. Tipton, 5 S. & R. 332.</p> <p>2d. The land was not sold according to the provisions of the act of 1840; 1st. It was levied on under two former executions, and not liable to be sold under any other writ, until after the lapse of twelve months from the appraisement under those executions. 2d. The valuation of the property levied on was not according to the provisions of the act, which required the appraisers to examine the property itself, and appraise it; they had no right to deduct the incumbrances. 3d. A copy of .the valuation made, was not furnished the defendants by the sheriff, as required by the second section of the act.</p> <p>3. The question as to the constitutionality of the appraisement law cannot be made, in its application to this case, because, 1st. It is a question between the plaintiff and defendant in the execution, with which the purchaser has nothing to do. 2d. Both parties have acquiesced in it, and therefore neither can now object to it. Tooley v. Gridley, 3 S. & M. 493. 3d. If the law was unconstitutional, the sale being made under its provisions would be void.</p> <p>4. But the law itself does not impair the obligation of any contract in this case, and is constitutional; it is wholly a remedial law; and the legislature may change the remedy. Pearsall v. Dwightj 2 Mass. Rep. 89; 4 Peters, 662, 663; Sturges v. Crowningshield, 4 Wheat. 197 — 200; 8 Wheat. 1 — 84; lb. 92; 12 Wheat. 378; 13 Mass. 15 — 17; Mc-Cracken v. Hayward, 2 How. S. C. Rep. 608; Middleton v. Croft, Hardwick’s R. 122, 123.</p> <p>1. That the power in the sheriff to sell under the acts of the legislature, was a naked power, uncoupled with an interest, and must be strictly pursued. Williams v. Peyton, 4 Wheat. 77; Litchfield v. Cudworth, 15 Pick. 28; Burton v. Pond, 5 Day, 162; Coe v. Stow, 8 Conn. R. 536; Thatcher v. Poto ell, 6 Wheat. 119 ; Allen v. Thayer, 17 Mass. 299.</p> <p>2. That where appraisers deduct from the actual value of laud levied upon the supposed amount of an incumbrance, and the sheriff sells for two-thirds of such appraisement, the sale is void. Barnard v. Fisher, 7 Mass. 71; White v. Bond, 16 Mass. 402 ; Mechanics Bank v. Williams, 17 Pick. 438; Warren v. Childs, 11 Mass. 226.</p> <p>3. But it appears, upon the record in this case, that the very land was not subject to be sold under the execution, and the sheriff had no authority to sell the same. The same land was levied upon under previous executions, and the sale postponed, as provided by the appraisement law of 1840, for twelve months, which time had not elapsed when this land was sold. This land then was exempted from sale under execution by law, at the time it was sold, as appears by the proofs in the cause, and the sheriff’s deed conveyed no title in this case.</p> <p>The following is the substance of the sections of the statute law commented on in the arguments, and referred to in the opinion :</p> <p>By the 48th section of the act of 1822, relating to.executions and insolvent debtors, in How. & Hutch. 644, it is provided that,</p> <p>“ When lands and tenements shall be sold, according to the provisions of this act, by virtue of any writ oí fieri facias, capias ad satisfaciendum, or venditioni exponas, or other legal process, it shall be the duty of the sheriff, or other officer, by whom such sale shall be made, on the. payment of the purchase-money, to execute to the purchaser or purchasers, such deed or deeds of conveyance as may be necessary and proper, to vest in the purchaser or purchasers, all the right, title, interest, claim and demand of the debtor, or defendant, which he had in and to the lands and tenements so sold, either in law or equity.”</p> <p>The act passed 21st February, 1840, commonly called the “ valuation law,” is in substance as follows, viz.:</p> <p>Sec. 1. That whenever the sheriff shall levy an execution on personal or real property, the person whose property is levied on may notify the sheriff in writing, that he claims to have the same appraised according to the provisions of the act; whereupon three persons, entirely disinterested, and unconnected, either by consanguinity or affinity, shall be chosen as'appraisers, one by the defendants, one by the plaintiff, or his agent, if present, if not by the sheriff, and a third by the sheriff.</p> <p>Sec. 2. These appraisers, having first made oath before some judge or justice of the peace, well and impartially to perform the duties imposed on them, shall proceed to examine the property required to be appraised, and shall appraise the same; and the appraisement, when made, shall transmit, under their hands and seals,'to the sheriff, within a reasonable time before the day designated by the sheriff, as the day of sale of such property so appraised; a copy of which valuation, so made, shall be furnished the defendant or defendants, by the sheriff</p> <p>Sec. 3. It shall be the duty of the sheriff, to proceed on the designated sale day, to offer at public sale to the highest bidder, the property so levied on. And should the same not sell for two-thirds of its appraised value, the sheriff shall announce that there is no sale; and such sheriff shall return on the first day of the return term of the writ of execution, for the satisfaction of which such property was intended to be sold, the same, together with the certificate of appraisement, and that the property offered would not sell for two-thirds of the appraised value; and, thereafter, no other writ of execution, or other process, for the sale of such unsold appraised property, shall issue, until the expiration.of twelve months from the time when such execution shall have been returned, as hereinbefore required.</p> <p>Sec. 4. After the expiration of’twelve months from the term at which said writ is returned, the clerk shall issue a writ of venditioni exponas, directed to the sheriff, who shall proceed to re-advertise the property; and in the manner, and at the place provided by law, reoffer and sell the same, peremptorily and absolutely; and every such last sale shall create a total divestiture of all the right, title, and interest of the person, whose property has been sold.</p>

In error from the circuit court of Choctaw county; Hon. Benjamin F. Caruthers, judge. This was an action of replevin commenced by Pleasant C. Muirhead against Catharine Muirhead, in which judgment was rendered for defendant. During progress of the trial a bill of exceptions was taken, which in substance states that, on the trial of the cause, the plaintiff proved that letters of administration were granted him by the court of probate on Charles Muirhead’s estate.

Thomas B. Woodward, judge. A. W. Washburn filed a bill against Washington Dorsey in the court below, in which he alleges that in 1841 letters of administration de bonis non were granted to him by the probate court of Yazoo county on the estate of John Martin. That he took into his possession the personal estate, and found the estate greatly embarrassed; a number of suits depending against it, and large pretended debts outstanding against it.

. In error from the circuit court of Rankin county; Hon. John H. Rollins, judge. Held: that an action would lie against the church, as a corporation, on a note executed by its officers. 1 Pick. 372. See also 11 Serg. & Rawle, 129.

<p>In error from the probate court of Claiborne county;. Hon. William M. Randolph, judge.</p> <p>R. T. Archer and William Eggleston, guardians of Stephen E. Archer, filed their petition to the March term, 1842, of the Claiborne probate court, stating that in the year 1827, Edward F. Barnes, of said county, died seized and possessed of certain real and personal property, leaving a widow (now Mrs. Catherine C. Harper,) and one child, Eliza F. Barnes; that the said Eliza F. inherited from her father, one half of certain negroes and other personal property, in said petition specified; that no division of said property was ever made; that in the month of J uly 1835, Eliza F. Barnes died unmarried and intestate: that Stephen E. Archer is the brother of the half blood of the said Eliza F., and was born on the first day of March 1836 ; that the said Stephen E. Archer is consequently the heir of the said Eliza F., and entitled to her portion of said property.</p> <p>They then pray for an order making division of said property, and for citations, «fee.</p> <p>. At the April term 1842 of said court, Robert W. Harper and Catherine C. Harper his wife, filed their answer to the foregoing petition, admitting that Edward F. Barnes died in 1827, seized and possessed of the property in the petition specified; that he left a widow, now respondent Catherine C. Harper, and only one child the said Eliza F. daughter of the said Catherine C.; that the said Eliza F., inherited one half of the property in the petition mentioned; that no division of said property was ever made, and that it is still the undivided estate of Edward F. Barnes; that the said Eliza F. died unmarried and intestate (aged about eight years,) on the ninth of July 1835 ; and that Stephen E. Archer son of respondent Catherine was born on the first day of March 1836. But they do not admit that the said Stephen E. Archer is or ever was the half brother of the said Eliza F. Barnes, entitled as such to inherit from her, inasmuch as the "said Eliza F. had been dead seven months and twenty-one days before the birth of the said Stephen E. And whether the said Stephen E. is or ever was the half brother of the said Eliza F.; they deny that as such he is entitled to her portion of the property mentioned in the petition. They allege that said estate remains to be distributed as the estate of Edward F. Barnes, and that as such no part can be distributed to the said Stephen E. nor to the representatives of Stephen C. Archer deceased.</p> <p>They allege and claim that the distributive share of said Catherine in the personal estate of Edward F. Barnes, has survived to her as his widow ; and if distribution of said property should be ordered, they pray that the distributive share of the said Catherine in' the estate of said Edward F. Barnes may be set apart and assigned to her.</p> <p>At the June term, 1842, of the court, the cause was submitted upon petition and answer, and by argument of counsel taken under advisement of the court.</p> <p>At the August term, 1842, the court decreed that division of said personal property should be made, between the administrator of Stephen C. Archer deceased, and Stephen E. Archer according to the prayer of the petition; and appointed commissioners to make the division; from which decision this appeal was taken.</p> <p>The appeal having been dismissed in this court, the case is now brought up by writ of error sued out by R. W. Harper as administrator of Mrs. Catherine C. Harper; who died after the decision in the court below.</p> <p>It was admitted as part of the facts of the case, that Stephen C. Archer was married to Mrs. Harper, and resided on the plantation of Edward P. Barnes, deceased, with his wife, the widow of Barnes; that he managed for a time the undivided estate of Barnes and died before any division took place.</p> <p>This case was before this court on appeal from the probate court of Claiborne county, at the March term, 1842, and was fully argued, decided, and reported in 4 S. & M. 99. The merits of the case were examined by the court, and settled in the opinion therein reported, but the appeal bond was informal, being made payable to the parties, instead of the judge of probate, and for this reason the cause was dismissed, and a writ of error sued out to bring up the same record, in which attitude it now appears in this court, on the same record and state of proceedings, «fee. See the case reported fully, with brief of counsel, in 4 S. «fe M. 99.</p> <p>The court is asked, in this case, therefore, to give the judgment of distribution, which the probate court ought to have given.</p> <p>Two questions arise in this case. ' The first, whether S. E. Archer was capable of inheriting from his half-sister, and entitled to her share of the estate of Barnes, was settled in the case in 4 S. & M. 99. The second, whether Harper is entitled to the interest of his wife in the estate of Barnes, by right of survivorship, in preference to S. E. Archer, will depend upon the principles settled in the case of Wade v. Grimes, 7 How. R. 425. If the facts admitted on the record in this case, constitute a reduction to possession by S. C. Archer, of the interest of his wife in the personal estate of Barnes during her life, Harper is not entitled to that interest as survivor, either as administrator of his wife, or individually, as survivor. On this point we refer to Cable's Heirs v. Martin and Bell, I How. R. 558, and Loiory v. Houston, 3 How. R. 394.</p>

Robert H. Buckner, chancellor. Kitturah Bryan filed her bill in the court below, stating that on, and sometime previous to the 22d of December, IS06, she and her brother Thomas were sole heirs at law and legal representatives of Gideon Matlock theretofore deceased, — and entitled to a right of preemption and of preference in becoming the purchasers from the United States of the land in controversy, at the price at which the other lands of the United States, in the territory…

Robert H. Buckner, chancellor. Jo'hn D. Scott, administrator of Johnson Silverberg, deceased, states in his bill, that Silverberg was for a short time before .his death engaged in a mercantile partnership with Charles J. Searles, under the style of J. Silverberg & Co.; by mutual consent this partnership was dissolved about the first of the year 1838; Silverberg died in November of that year; the entire capital of the firm was advanced by and belonged to Silverberg; by the…

<p>Weit of error from the probate court of Choctaw county; Hon. H. A. Snow, judge.</p> <p>From the record in this case, which is very voluminous and involved, the following facts appear :</p> <p>Daniel Cox having died in the county of Choctaw, in the year 1842', at the April term of that year of the probate court of the county, letters of administration in chief were granted to John B. Deen, who gave bond as required, and appraisers were appointed.</p> <p>At the May term, 1842, one month afterwards, the last will of Daniel Cox was presented to the court, and established by‘the oaths of two of the attesting witnesses, and ordered for record, and recorded. By this will the real and personal estate of the testator was disposed of in various portions to his widow and children; provision made for Nancy Cox, the widow, and Elisha Cox constituted his’ executor, with directions to sell portions of his estate on terms prescribed, and power to make titles.</p> <p>At the same term, the letters granted in April to Deen were revoked; and Nancy Cox renounced the provision made for her in the will by petition ; and on the same day, letters of administration in chief in the ordinary form were granted to Elisha Cox (the one named sole executor in the.will,) and Nancy Cox, the widow, who gave bond and received the letters of administration in the usual form; no notice in the order, bond or letters being taken of the will.</p> <p>At the same term, immediately after the grant'of letters of administration, it was “ordered by the court, that the last will and testament of Daniel Cox, deceased, be set aside, and that an equal distribution of the property, both real and personal, be made between the widow-of said deceased and the heirs of said estate.”</p> <p>At whose instance, and on what ground this order was made, does not appear in the record.</p> <p>Appraisers were appointed at the same term, who proceeded in discharge of their duty, and reported to the June term, 1842 ; and their report was received, allowed and recorded.</p> <p>At the July term, 1842, the administrator and administratrix were ordered to sell all the personal property on the terms prescribed. Certain persons were appointed to allot one year’s provisions to the widow ; and the administrator and administra-trix ordered to publish notice to creditors to present their claims.</p> <p>At the September term, 1842, other appraisers were appointed to appraise a portion of the personal estate brought by Elisha Cox, -the administrator, from Alabama, under an order of the court.</p> <p>At this term, Levi Childres was appointed guardian of the children of Daniel Cox.</p> <p>And at the October term, 1842, Childres by petition represented to the court, that Elisha Cox was a non-resident, and his sureties on his administration bond insufficient, and prayed his removal from the administration.</p> <p>At this term, Elisha and Nancy Cox made their report of the sale of the personalty of the deceased, which was allowed and recorded. Nancy Cox applied for dower in her husband’s realty, and the court appointed the November term next of the court, to try the right of Elisha Cox to administration, and ordered subpoenas to be issued as might be directed ; and, on motion of Childres, citations were ordered both for Elisha and Nancy Cox to appear at the November court, to show their right to administration, and perfect their sureties; and also for Elisha Cox individually, to show cause why he should not be removed because he was a non-resident.</p> <p>The reports of the appraisers on the additional property, and of the persons to allot the widow’s provision for the year, were also made to the October term, 1842, and allowed.</p> <p>Both citations issued to the November term against Elisha Cox, were returned executed ; and at that term another was ordered for him to appear at the December term, for the same causes; this last citation was also executed, and at the December term, 1842, the court revoked the letters of administration granted to Elisha Cox.</p> <p>At this term, Nancy Cox applied for an order to have her dower allowed in the realty of the deceased, and publication was ordered.</p> <p>At the January term, 1843, the court being satisfied that publication had been made, directed the ’ writ to set apart the widow’s dower, to be issued.</p> <p>At this term, Nancy Cox filed her petition, stating the vacancy in the administration of the estate, and praying for letters to herself alone; the petition was heard and overruled; and letters granted to herself and Edward Johnson, who qualified, gave bond, and received letters in the ordinary form.</p> <p>At the February term, 1843, an attachment was issued against Elisha Cox, because he would not deliver up the papers belonging to the estate to the new administrator and adminis-tratrix; the attachment was executed, and Elisha Cox after-wards discharged from custody by consent.</p> <p>At the March term, 1843, Nancy Cox and Levi Childres filed a petition, in which they state, that Daniel Cox’s will had been regularly admitted to probate by the court and recorded ; that Elisha Cox, hamed as executor therein, had failed to give security as required by law, and had neglected, for the space of more than forty days to exhibit the will for probate, and was at that time absent from, and a non-resident of the state, and they prayed that letters of administration, with the will annexed, might be granted to Nancy Cox and Edward Johnson. At the same term, Childres, as guardian of the children and legatees under.the will, filed a petition to have the will established, and letters c. t. a. granted.</p> <p>Upon which petition the following order was made: “ On the petition of Levi Childres, and on the production of the last will and testament of Daniel Cox, late of the county of Choctaw, deceased, and on hearing of the cause and the examination of the witnesses, and proof adduced, it is ordered, adjudged and decreed, that the last will and testament of him, the said Daniel Cox, &c., deceased, with the testimony thereon taken, be filed and admitted to record in this court.”</p> <p>At the same term it was ordered, that letters of administration with the will annexed, be granted to Nancy Cox and Edward Johnson, which was done; and they took the prescribed oath and gave bond.</p> <p>From this order, appointing Nancy Cox and Johnson, admin-istratrix and administrator, c. t. a., Elisha Cox prayed for and obtained a writ of error on the 25th of April, 1843, to this court.</p> <p>All the orders, made in reference to the estate, are irregular and void. After the probate of the will, no administrators could be appointed until the executor had renounced.</p> <p>The order setting aside the will, and declaring a division of all the estate, was void, as the record shows no foundation for such decree.</p> <p>The last order, appointing Johnson and Cox administrators with the will annexed, was irregular, there having been no summons or citation to the executors of the will.</p> <p>Every act done and performed by the court until the 27th March, 1843, was absolutely null and void; at that time the question came before the court as new; the will until that time never having been probated; the executor, Elisha Cox, never having offered to give security, or to exhibit the will, but on the contrary, having neglected so to do. It became the duty of the court to appoint the proper person as administrator with the will annexed, the executor not being in the state. How. and Hutch. 389,' § 18.</p> <p>To all the proceedings Elisha Cox was not a party injured ; having made no application, no movement, or in any manner objected to the proceedings of the court, he cannot complain now, or reverse the decision made with his consent or without exceptions; and had he at that time proposed himself to qualify as executor or administrator, it was within the discretion of the judge to allow it.</p>

<p>In an action of forcible entry and detainer, it is not error to exclude the answer of a witness giving the statements of the plaintiff when claiming to be in possession of the premises in controversy ; as the mere statements of the plaintiff were not evidence in his own behalf.</p> <p>A parol submission and award, in regard to real estate, will be binding, if the contract between the parties to the award, as to the real estate, is itself binding; where, therefore, “ the right to a mill and lumber,” was submitted by parol to arbitrators, and they gave a parol award, the latter was held not to be binding; the terms of the submission being broader than the language of the statute of’frauds would justify, which makes contracts, as to the lease of lands for a longer period than one year, not binding, unless in writing.</p> <p>A new trial will not be granted for the improper exclusion of testimony, ‘ where it is apparent, that had the testimony been admitted, the result would have been the same, and where it was scarcely possible that a new trial would produce a different verdict.</p> <p>A. M., the administrator of W. A. M., sued M., in an action of forcible entry and detainer, for the possession of a saw-mill. On the trial, it was proved that W. A. M. bought of C. M. ; and 'that C. M. had made a contract with M., that if M. would help build, and tend, when built, the saw-mill, he should have half the clear profits, so long as he complied with the agreement, which was made in 1841, and of which W. A. M. had notice when he bought; M., under this agreement, continued in possession until May, 1846, when A. M. brought the 'writ of forcible entry; on these facts, the jury having found for M., the high court of errors and appeals refused to grant a new trial, although the court below had improperly admitted a parol award, in evidence, as to the matters in controversy.</p> <p>It seems that an administrator cannot proceed by the proceeding of forcible entry and detainer, to recover possession of lands of his intestate.</p>

<p>Where personal property is purchased at sheriff’s or marshal’s sale, and is left by the vendee in the possession of the defendant in the execution, in whoso possession it is permitted to remain for two years or more, the facts will be at least prima facie fraudulent as to creditors.</p> <p>Where a witness swears positively one way, 'and facts and opposing circumstances conduce to establish the opposite, and the jury find against the positive swearing of the witness, the court will not disturb their verdict; as the credibility of the witness is exclusively a matter for the determination of the jury-</p> <p>Statements of persons not parties to the suit, when they constitute paTts of the res gestee are evidence, though not made in the presence of the party to be affected by them ; as where J., a judgment debtor, was about to have his property sold under execution, and tried to make an arrangement with Q. to buy it for his (J.’s) benefit, but Q, not being willing to buy, proposed to S. to do it, and S. afterwards bought the property ; it was held, in a proceeding against S. to subject the property thus bought to J.’s debts, that the statements of Q. made to different bidders at the time of sale, that S. was buying for J.’s benefit,, whereby they were deterred from bidding, were competent testimony, even though not overheard by S.</p> <p>The statement of one conspirator in a fraudulent design is evidence against his co-conspirator; as where A., and B. and C. have united to defraud the creditors of C., by purchasing in his property at sheriff’s sale in the name of B., but really for C.’s benefit; the statements of A., made at the sale to prevent competition, and to enable B. to buy the property low, that B. was buying for C.’s benefit, are competent testimony in a proceeding against B. to subject the property to C.’s debts.</p> <p>Where S. purchased the property of J., under execution against him, and Q., by connivance with J. and S., induced persons not to bid for the property, whereby S. purchased it for two-thirds of its value, by which J. was to be benefited, the whole sale will be fraudulent and void as to the creditors of J.</p> <p>If a purchaser at sheriff’s sale, by a fraudulent combination with the judgment debtor and others, is enabled to purchase the property of the judgment debtor for less than it is really worth, the benefit of which the judgment debtor is to reap, the whole sale is fraudulent and void as to the creditors of the judgment debtor ; and even though the purchaser has paid his own money at the sale, he will have no right to retain the property purchased as a security for the money he has paid.</p> <p>Where a fraudulent combination is entered into to defeat the claims of creditors of a judgment debtor, there is no difference, between those who form the design, and those who afterwards enter into it with a knowledge of its character, and aid in carrying it out; all are equally affected by the fraud.</p>

In error, from the De Soto circuit court; Hon. James M. Howry, judge. The record in this cause shows that the plaintiff in error brought an action of debt against the defendant in error, to the September term, A. D. 1843, of the circuit court for De Soto county, on the record of a judgment, for the sum of $191 damages and costs, recovered in the state of Tennessee, before a justice of the peace. The plea of nul tiel record was filed by the defendant.

In error from the circuit court of Holmes county ; Hon. Morgan L. Fitch, judge. This was an action of assumpsit, brought by Andrew McIntyre against Robert Sims, on an open account for one hundred and seven dollars, and ninety-five cents. The account is stated to be for the amount of one Boyd’s note, collected by Sims, and dated 1st January, 1842.

In error from the circuit court'of Holmes county; Hon- Morgan L. Fitch, judge. Thomas Hutchins, who sued for the use of Mordecai Lewis, brought an action before W. L. Morris, Esq., a justice of the peace of Holmes county, against Thomas Sims, to recover the sum of fifty dollars, for money had and received. The magistrate awarded judgment against Sims, and he appealed to the circuit court. At that court a trial was had, which also resulted in a verdict for Hutchins.

In error from the circuit court of Adams county; Hon. Thomas A. Willis, judge, presiding. Held: that if a vendor warrants an article, the vendee on discovering the defect must abandon ownership (except as agent) and give notice to the vendór, in order to sustain an action 'on the warranty.

In error, from the chancery side of the circuit court of Holmes county; Hon. Morgan L. Fitch, judge. Thomas Hawkins alleges in his bill that James Higgins died in 1838, intestate. Johnson and West were appointed administrators. Higgins was possessed of large real estate, among which was a plantation near Tchula, on which he resided at the time of his death. That his widow afterwards married J. 0.

In error from the circuit court of Monroe county; Hon. Francis M. Rogers, presiding judge.

<p>It is impossible, at law, to set off unliquidated damages against a fixed money demand ; therefore, to an action on a note, for a fixed sum, an offset cannot be made of the value of a slave of the defendant, alleged to have been converted by the payee of the note to his use:</p>

<p>On appeal from the, circuit court of Lafayette county; Hon. H. R. Miller, judge.</p> <p>On the 16th of May, 1843, Charles Lofland recovered judgment against R. R. Corbin and others for $1213, on which an execution issued to November, 1843, which was returned “ bonded ” ; and “ bond forfeited October 16th, 1843'.” Onjhis bond an execution issued in January, 1844, returnable to May of that year, but was not acted on in consequence of an agreement between the'plaintiff and defehdant,'to delay the enforcement of the judgment by execution, until after the sitting of the circuit court of the county of Lafayette, in May, 1844; which agreement for delay was given in consideration of collateral security from the defendants. On the 9th of December, 1844, Lofland issued another execution to May, 1845, which was levied on certain slaves of the defendants ; the proceeds of the sale of which were awarded to an execution in favor of John D. Martin, to be presently noticed.</p> <p>Another execution was issued on Lolland’s judgment, returnable to October, 1845, which was levied on a lot of land, which sold for $805.</p> <p>On the 20th of May, 1843, the same defendant Corbin confessed judgment with a stay of execution for six months, in favor of John D. Martin, for $2220. On the 9th of January, 1844, an execution on this judgment issued to May, 1844, which was bonded, and the bond forfeited to May 6th, 1844; on the 22d of June, 1844, an execution issued on the forfeited bond, returnable to November, 1844; on which the sheriff returned “ October 5th, 1844, held up by plaintiff.”</p> <p>On the 11th December, 1844, Martin issued another execution, which was levied on the same slaves on which Lofland’s judgment was levied; and the court awarded the proceeds of sale to Martin’s judgment.</p> <p>On the 1st of August, 1845, Martin issued another execution, which was levied on the same lot of land with Lofland’s, and the land was sold under both executions. Each judgment was regularly registered and enrolled. The sheriff brought the money into court for appropriation; and the court below awarded it to Lofland’s judgment, in the following opinion delivered by Judge Miller. After reciting the facts:</p> <p>“ On the 7th May, 1844, Lofland’s execution was suspended until after the sitting of the May court, by which Martin, whosé bond was forfeited on the 6th of May, 1844, acquired a priority of lien.</p> <p>“After the sitting of the May court, Lofland’s lien was revived, the limited suspension having expired.</p> <p>“ The priority acquired by Martin was however such as could be lost or parted with by the act of Martin. On the 5th of October, 1844, the sheriff returned his execution ‘ held up by plaintiff’; at this time the lien of Lofland was in full force, and has so continued, so far as appears, to the present time.</p> <p>“ It is immaterial whether the suspension of Martin’s execution was for a definite period of time, or for a new consideration, or not; the suspension of the execution, no matter for how short a period, suspended his lien; and the' lien of Lofland’s being then in full force, and having so continued, acquired a priority. I am, therefore, of the opinion, "that the money returned into court should be applied to Lofland’s execution.” From this opinion, having embodied the facts in a bill of exceptions, Martin appealed.</p> <p>1. I maintain that the suspension by the appellee of his execution, was not of such a character as to affect or prejudice his judgment lien. The suspension was from the 7th of May until the sitting of the circuit court, and this was on the 22d of the month. That this was the time when this court was held, is a fact of which the court will take judicial notice, though the same is not set out in the record; and this suspension was not only for so limited a period of time, but was under circumstances which preclude the idea of fraud. And that the lien of a judgment creditor can only be postponed or defeated by some act deemed fraudulent in law. See Smith v. Everly, 4 How. 178; Foute v. Campbell, 7 How. 377, 383, 384. In this last case, the court, speaking on this subject, say in express terms, “ it must be such a delay as would justify the inference of fraud.” See pp. 384, 385. See also 3 S. & M. 231; 6 How. 223.</p> <p>2. That the collateral security cannot affect the question,’see 4 How. 186.</p> <p>3. Again. The stay given in this instance expired before the appellant had it in his power to issue an execution on his judgment. The forthcoming bond of appellant was forfeited May 6th, 1844, and was returnable to the court thereafter to be held in that month. ' Until the return day of this bond, no execution could have been issued upon it; and on this return day, the stay of the appellee expired. The agreement of the appellee was not to stay the collection of his judgment until after court, or after the rising of the court, but until the sitting of the court, which was only another form of expression for the first day of the term. See Foute v. Campbell, 7 How. 377.</p> <p>4. In the case of Michie v. Planters Bank, 4 How. 130, the execution of the junior judgment creditor was levied before the stay of the senior judgment creditor had expired ; and this peculiarity will, it is believed, be found to exist in every case in which the lien of a senior judgment has been declared dormant, as against a judgment. See Peck’s Rep. 30 ; 2 Hill, 364; 5 Hill, 377.</p>

<p>Where a judgment debtor has various pieces of property subject to the judgment, portions of-which he has alienated, the alienee may, by bill in chancery, force the judgment creditor to levy his execution on that property of the judgment debtor, not aliened; and if all be aliened he may force the property to be subjected in the inverse order of alienation, the last alienated being first liable.</p> <p>And it seems to a bill by an alienee for that end, the only necessary parties are the judgment creditor and the alienee; the bill must, however, show that there is other property liable before that for which the exemption is claimed.</p>

In eri'or from the circuit court of Carroll county ; Hon. Benjamin F. Caruthers, judge. John Wright instituted an action of assumpsit againstSimeon C. Geren, upon a promissory note, for the sum of one hundred and eighty-five dollars; and at the conclusion of the declaration, laid his damages at one hundred dollars.

<p>ERROR from the circuit court of Pontotoc county; Hon. Hugh R. Miller, judge.</p> <p>Benjamin D. Anderson sued Joel Root, Hugh R. Miller, and Jacob Thompson, in assumpsit, upon a note made by them, ■ payable to him”. The defendants plead non assumpsit and payment.</p> <p>A trial was had and verdict rendered for the defendants; and. the court overruling a motion for a new trial, the plaintiff filed a bill of exceptions; from which it appears, that at the trial he gave notice to the counsel of the defendants to produce the note sued on, or evidence of its contents would be offered. Miller, onp of the defendants, in answer to the notice, stated to the court that he had not, and never had the note described in the notice; that the only- writing he had ever received from the plaintiff, or had, similar to the one called for, was a writing obligatory, which he then produced, and which answered in all particulars the note sued on except the seals. Upon the production of this note, the plaintiff read to the jury a receipt of Miller’s for a note similar to that sued for.</p> <p>This was all the evidence. The plaintiff below sued out this writ of error.</p> <p>1. That the court below erred in not granting a new trial.</p> <p>2. In permitting the statement of Miller, in answer to the notice to produce the note sued on, to be made in the cause.</p>

John F. Williams, judge. Nancy Brown late widow of William G. Gary, applied, by petition, for dower in certain realty of her former husband. Francis Wyatt applied to be made a defendant to the petition ; which being allowed, he set up in a cross petition that on the 10th of April, 1834, he bought the land of Gary and received from him a bond for title when the purchase-money was paid; that Gary died in the August ensuing, before the purchase-money was paid.

<p>Money paid upon an usurious contract may be recovered back at law ; and also in equity where there are circumstances to give the court jurisdiction ; where therefore after a judgment at law upon a note to which the de-fence of usury had been successfully made and the amount of the judgment reduced thereby, the defendant voluntarily paid the plaintiff the amount of usury thus deducted in the suit at law, it was held, that the defendant .could by bill in equity enjoin the judgment at law to the extent of such voluntary payment and have credit of the amount thereof entered on the judgment.</p> <p>The mode of computing interest in this state when partial payments are made, is regulated by statute; which directs the payment to be first applied to the discharge of the interest due, and the balance to the principal.</p> <p>If an answer to a bill which might be demurred to for multifariousness, contain a demurrer on that account, but at the same time goes farther and responds in full to the charges of the bill on the subjects alleged to be multifarious, the answer will overrule the demurrer.</p> <p>A bill filed by an administratrix to enjoin a judgment against the surety of her intestate to have usurious payments made by her to the creditor on the judgment allowed ; and at the same time seeking to settle the account between her intestate and the surety, and to have certain claims of her intestate against the surety allowed, is it seems multifarious.</p>

Morgan L. Fitch, judge. William E. Pugh filed his bill in the court below, in which he charges, that some time in the year-, John Martin died, seized and possessed of a large estate, both real and personal, and that his only heirs at law were Leonora Washburn, Joseph Martin, and Adaline Martin. That there had been -several administrators on the estate, and it had been much in litigation.

<p>A judgment rendered before a justice of the peace on a note, is a merger of the note; and the latter is not therefore the subject of a set-oif or of a new action ; the record of the judgment before the justice, is, it seems, the only proper evidence of the claim.</p> <p>Where a judgment was rendered by a justice, of the peace on a note, which was at one time taken by certiorari to the circuit court, and thence dismissed ; the effect of the whole proceeding was to leave the judgment of the justice in full force.</p>

In error from the circuit court of Yazoo county; Hon. Morgan Li Fitch, judge. ..Thomas Hundley sued Charles E. Mount in replevin for a •slave named Isham.

Nathan L. Morgan, judge. On the 18th day of July, 1846, a general citation was issued by the probate court, on the order of the court, without any application therefor by any party interested, requiring Samuel J. Gholson, administrator of A. G. Greenwood, to appear and make final settlement of his account as administrator.

In error, from the Yalabusha circuit court; Hon. Hendley S. Bennett, judge. Marcus D. Means sued Thomas Simmons, in assumpsit, first, upon a special contract by the latter, to pay the former $150 for his professional services, as physician and apothecary, for one year; and second, for a like sum for medical services generally, and medicine supplied to the defendant and his family.

<p>In error from the circuit court of Hinds county; Hon. George Goalter, judge.</p> <p>James McDaniel being indicted for the murder of Alexander Frazier, was arraigned for trial in April, 1846, and plead not</p> <p>He applied by affidavit for a continuance of the cause on the ^.ound of the absence of two witnesses, residents of the county of Hinds, who were absent without his procurement or consent, whose evidence would be material for him, as they would testify to. facts which he could not establish by others.</p> <p>It is not deemed necessary to set out these facts; the court below overruled the application, and the prisoner excepted.</p> <p>R. O. Edwards, for the prosecution, testified that he was called to see Frazier after he was wounded, some ten or eleven days before his death; and during his conversation with him, he told Frazier his deposition ought to be taken, as in his (Edwards’s) opinion he would inevitably die before morning; the deceased responded that he thought he should die before morning; and afterwards said he thought that he should die soon. He exclaimed “0 Lord ! I shall die soon.” The witness had never seen the deceased before; an'd the subject of his approaching death was not alluded to until the witness introduced the topic. That a paper was then drawn up by one Stephen Holt containing the statements of the deceased as to the transaction in which he received the fatal wound ; which was twice read over in the hearing of Frazier, and sanctioned by him and his signature affixed to'it. Upon this preliminary proof, the court decided that the written statement was admissible in evidence before the jury, .as the “dying declarations” of the deceased. To this paper was affixed the certificate of a magistrate of the oath of the deceased, to the truth of the statements contained in it. The court however told the jury that they were to disregard the certificate and regard the statement only as dying declarations. An exception was taken to the admissibility of the paper. The statement was in these words, viz.:</p> <p>“ The State of Mississippi, Hinds county, November 24, 1845.</p> <p>“Personally appeared before me, an acting justice of the peace, Alexander Frazier, who, after being duly sworn as the law directs, deposeth and says, that on the 24th of this month to wit, November, A. D. 1845. as he was travelling on the road leading from the town of Raymond, in said county, to Yicksburg, about (he thinks) between the hours of twelve and two o’clock, he met a man of light complexion who said his name was McDaniel, and that he persuaded him to turn back and go with him to his residence, and made him such propositions as induced him to accompany him; the offer by the said McDaniel to the said deponent was to pick out cotton ; the said McDaniel inquired of him the said deponent if he had any money; the said deponent answered him that he had some; he says that they did not proceed far before they left the high road, being informed by the said McDaniel that he would go a nearer route to his residence than the usual one. The said deponent was on foot and said McDaniel was riding, but the said McDaniel dismounted and accompanied him on foot, leading his beast; that he the said deponent travelled in front, and the said McDaniel followed behind him; they did not .proceed far before they reached a creek bottom; they followed that some distance when the said McDaniel drew a pistol and shot him in the back; and he fell to the ground and cried out, and saw said McDaniel mount his horse and ride off in a gallop ; the beast said McDaniel was riding was a small mare pony, with white legs and feet, with a flaxen mane and tail, with a large white in her face; the said mare pony was presented before said deponent and he testified that she is the same; and further this deponent sayeth not.</p> <p>his</p> <p>ALEXANDER X FRAZIER’S mark.</p> <p>“ Sworn to and subscribed before me the above day andsdate.</p> <p>M. Johnson, J. P.”</p> <p>Edwards then testified that a pony had been shown to the deceased while thus wounded, as recited in his dying declarations, and that he recognized him as stated therein as the pony ridden by McDaniel.</p> <p>At this point the bill of exceptions recites as follows, viz. “ A short time after this the following question was propounded to said witness by the district attorney : 1 Do you know what became of McDaniel after the killing?’ This question being answered in the negative, the following was then propounded by the state: ‘ Do you know ‘anything touching the whereabouts of said defendant, and whether he absconded ? ’ This latter question was objected to by defendant’s counsel as leading; the objection was overruled, and the witness answered stating the particulars of a search having been publicly made after'the accused at his own habitation and elsewhere, and of a company having'been despatched in pursuit of him, who arrested him at the house of a near relative in the county of Scott, in this state.”</p> <p>Dr. Thompson was the only attending physician or surgeon at the bed-side of the deceased, and he testified that he examined the wound described in the indictment on the day of its infliction, and often afterwards; that he had repeatedly conversed with the deceased as to his prospects of recovery; and prior to the taking down of his “dying declarations” had told him his chance was bad, his recovery very doubtful, but had never held more decided language to him until after those declarations were taken, when he told him his case was desperate.</p> <p>Mr, Brooks testified that before the dying declarations were made, he heard Dr. Thompson tell Frazier that he would not recover, to which. Frazier made no reply.</p> <p>Holt, the draftsman.of the declarations, testified that before they were"written he informed the deceased that he was “very bad; ” that he hoped he would recover, but he probably would not, and that he desired on that account to take his deposition to be read in the event of his decease.</p> <p>The bill of exceptions, which is very imperfectly drawn, does not undertake to set out all or the principal part of the iesti-mony. The residue of the exceptions were in the following words, it being deemed advisable to set them out in full, viz. :</p> <p>“ The fact having been proved, by Graham, a witness on the part of the state, (the voluntary confession of the accused being first introduced by consent of the state and the accused) that the pony spoken of as being present at the time when the fatal encounter between deceased and the accused is alleged to have occurred, was and had been for some time before a subject of controversy between McDaniel, who claimed her as owner by reason of purchase from the former owner, a-young lady by the name of Mary A. Stewart, and various persons assuming to act in Miss Stewart’s behalf, she being a minor, and those contending for the pony for her, her relatives; and Graham having likewise proved that Miss Stewart’s father was his brother-in-law, had been dead for some years, and died in the workhouse; and that his daughter had, up to the time of Frazier’s death, resided with one Atwell, a near neighbor of McDaniel’s, being within the distance of a mile or a mile and a half; that Atwell was also a brother-in-law of Miss Stewart’s father, and that the witness had come to Atwell’s on the very day of the homicide, and arrived there about the very time of day when it is supposed to have occurred; the said Graham having stated also that he lived about twenty miles from the scene of combat, and had never been in the neighborhood but once before in his life (but explaining that in this instance he had actually come up on other business, viz. fqr the purpose of inducing a man whom he had once before employed to work for him, to return to service with him,) said Graham having in addition confessed that he after this period succeeded said Atwell in the custody of Miss Stewart the minor, not as a legally appointed, guardian, but on his own motion, as brother-in-law to her. father ; that he actually got possession on the very night of the killing, some hours after the killing was supposed to have occurred, without the consent of McDaniel or of his family, of this very pony, and that he carried off and sold her for thirty-five dollars. Under these circumstances, defendant’s counsel offered the evidence of Mrs. McDaniel, the mother of the accused, to prove that the deceased had been met by witnesses on the morning of the fatal encounter, and had inquired of Mrs. McDaniel for her son, and threatened to have the pony from him or to have blood ; and this evidence having been in fact adduced by the defendant, it was further proposed on his part to prove that Atwell, in whose care the orphan girl was at the time, and from whose hands she passed into that of Graham, had frequently before that time threatened to take said pony from the posses-session of said McDaniel, and that McDaniel had been distinctly and repeatedly advised of the claim and threat; but the court, at the instance of the state, refused to permit the threats or language of Atwell to be introduced as evidence.</p> <p>“After the general testimony in the case was closed, defendant’s counsel proposed to examine witnesses in proof of McDaniel’s good character as a peaceable and quiet citizen, for the purpose of rebutting the presumption of murderous intent in the present instance. Their mode of examination was this: they first propounded this interrogatory, “ Do you know the general character of the accused for peace or violence ? ” designing and avowing that if this should be answered in the affirmative, they would then proceed to ask the following question : “ From your knowledge of that gentleman’s character for peace or violence, would you say that you regard him as a man of violent or peaceful character 1 ” But the state objected to this mode of ■ examination, and,the court ruled that the only proper question in the beginning would be, “Do you know the general character of the accused 1 ” leaving out all allusion to peacefulness or violence, and afterwards to ask the question proposed by defendant’s counsel, and required that the defence should commence their examination in this mode, to wit, “Are you acquainted with the general character of the accused 1 ” The de-fence declining to propound the queries in that way, there was no examination at all on the head of character.</p> <p>“ When the testimony had on both sides been adduced, the following instructions were given and refused for the state and accused in manner as follows, viz.</p> <p>For the state these were given, viz.</p> <p>1. Every homicide is presumed to be committed with malice aforethought; and it devolves upon the prisoner to prove the circumstances which excuse the act. ,</p> <p>2. No trespass upon personal property will authorize the killing a man; any such killing would be murder if committed with a deadly weapon.</p> <p>3. To constitute the crime of larceny there must be a felonious taking as well as carrying away ; and it is necessary to larceny that the property should be taken in order to be converted to the defendant’s own use.</p> <p>4. To constitute robbery the person robbed must have been first in fear of his person or property.</p> <p>5. A man who takes property, claiming it for himself or another commits no larceny.</p> <p>The following instructions were asked for the accused, viz.</p> <p>1. If the jury believe, from the evidence, that the statement of the dying declarations of the deceased was not designed as a dying declaration, and that the same is not satisfactorily proved to have been drawn up at his instancé or subscribed by him Avith a perfect knowledge of its contents, and under a strong sense of his being about to die, or that he was on the verge of immediate dissolution, they are bound to disregard it in making up their verdict.</p> <p>This was refused.</p> <p>2. If the jury believe, from the evidence in the case, that there is reasonable ground for doubt as to the guilt or innocence of the accused upon any material point in the cause, that is to say upon any point necessary to be made out by the state, they are as much bound to acquit as if the state had failed upon every point.</p> <p>This was given.</p> <p>3. If the jury believe, from all the evidence in the case, that the deceased did not actually make dying declarations, designing them to operate as such, under a strong sense of impending dissolution, they are bound' to disregard all such evidence.</p> <p>This was refused.</p> <p>4. If the jury believe, from all the evidence in the case, that McDaniel killed Frazier, whilst the latter was attempting to carry off his pony without his consent with a view of permanently depriving the owner of the same; and for the purpose of preventing a fraudulent scheme of taking and carrying away said pony without his the said owner’s consent, and that the means employed by McDaniel, tvere actually necessary to such prevention, they are bound to acquit.</p> <p>This was refused.</p> <p>5. If the jury conceive, upon considering all the evidence, that there is one material fact or more of a character inconsistent with the hypothesis of guilt, they are bound to acquit.</p> <p>This instruction was refused as asked; and modified by the striking out the word hypothesis, and adding after “guilt" the words of accused.</p> <p>6. 'And this they must do though they find there are circumstances however material produced before them satisfactorily, which do not harmonize with the hypothesis of innocence.</p> <p>This instruction was neither given nor refused.</p> <p>7. It is lawful to exert such force against a trespasser who comes to take the goods of another as is necessary to make him desist; and if the jury believe from the facts that the deceased had taken the horse of the accused and was riding him off beyond the reach of probable recapture, that the accused after having repeatedly hailed him, slew the trespasser, he is not guilty of murder.</p> <p>This instruction was also refused.</p> <p>8. If the jury believe from the evidence that at the time of killing Frazier, the prisoner had reasonable ground to apprehend a design on the part of the deceased to commit a felony, or to do the prisoner some great personal injury, and that there was imminent danger of such design being accomplished, they are bound to acquit him.</p> <p>“ This instruction was also refused. '</p> <p>“ After the jury had retired from the box to consider of their verdict, they returned into court, and announced that they could not agree, and on coming in and thus announcing, the court inquired of them whether they wished to hear any of the testimony; they answered’that they did not, and wished to know whether they could find him guilty of murder, or manslaughter in the first degree? The counsel for the defence all the while objected to this intercourse between court and jury, and to any further instruction from the court to the jury, especially like this, on a point not instructed on before.</p> <p>“ But the court declared that it would not give any instructions to the jury, but give to the jury any information on any point of law which they might think pertinent to the case, and proceeded to instruct notwithstanding in these terms, viz. (and reduced the same to writing, the defendant being still present in person.) “ The jury are exclusive judges of what is proven before them and from the testimony before them, it is for them to say, whether or not the defendant is guilty of any offence on this indictment; they can say he is not guilty; or they can say he is not guilty of murder but is guilty of manslaughter, according to the testimony.”</p> <p>The jury found the prisoner guilty of murder, the court sentenced him to be hung, and he prosecuted this writ of error.</p> <p>The following errors were assigned :</p> <p>1. In refusing a continuance of the cause, on affidavit of prisoner, and forcing him to trial, in the .absence of testimony disclosed in said affidavit.</p> <p>2. In admitting the dying declarations of the deceased, on the preliminary proof adduced.</p> <p>3. In permitting the district-attorney to propound to the witness, Edwards, several leading questions, as disclosed in the bill of exceptions.</p> <p>4. In excluding the interrogatory propounded by prisoner’s counsel, to Mrs. McDaniel, a witness for the defence, touching the declarations and threats of Atwell.</p> <p>5. In excluding the investigation of the character of the accused, for peace or violence, in manner and form as defendant’s counsel sought to conduct such examination.</p> <p>6. In giving the second, third, fourth and fifth instructions asked for by the state.</p> <p>7. In refusing to give the first, third, fourth and seventh instructions asked for by the prisoner’s counsel.</p> <p>8. In instructing the jury after their retirement from the bar, and in opposition to the remonstrance of prisoner’s counsel.</p> <p>9. In modifying the fifth instruction asked for prisoner’s counsel.</p> <p>10. In disregarding the sixth instruction asked by prisoner’s counsel, and neither giving nor refusing the same.</p> <p>11. The court erred in passing sentence upon the accused.</p> <p>1. The court erred in refusing a continuance of the cause. The accused had used all legal diligence in an effort to procure the attendance of witnesses. The witnesses who were absent were important to the defence. Their testimony, if addu'ced, would have resulted in a mitigation of the offence, if not in an entire acquittal. Reference is made to the affidavit, as also to the remainder of the testimony in the cause, contained in the bill of exceptions.</p> <p>2. The paper, called “ dying declarations of the deceased,” ought not to have gone to the jury; because the preliminary proof required, w^.s hot adduced, prior to its introduction; because the magistrate who attested it, and administered the oath to declarant, was not produced; and because the whole mass of testimony relating to that document, shows that it ought not to have been admitted as an instrument of evidence. 1 Greenl. Ev. 186, 188, 189, 190; 1 Phil. Ev. 235; 1 Stark. Ev. 28, 29; notes to 2d Phil. Ev. 606.</p> <p>3. The state propounded' leading questions to its own witness, on direct examination. That was error. See the questions. For the principle of law excluding such questions; see 1 Greenl. Ev. 48l; 1 Stark. Ev. 149, and the notes, and cases there referred to.</p> <p>4. The testimony of Mrs. McDaniel, touching the declarations and threats of Atwell, was improperly excluded; because a narrative of that matter having been commenced by the state, it ought to have been continued by the accused, so as to bring out the whole transaction.</p> <p>5. The charge against the accused was murder! To negative the presuniption of guilt, his counsel proposed to institute inquiries touching his general character “for peace or violence.” This was refused by the court below. That it is error, is abundantly shown by the authorities. 1 Greenl. Ev. 61; 2 Stark. Ev. 314, 315, and the notes, as well as the cases there cited.</p> <p>6. The court gave the second, third, fourth and fifth instructions asked for by the state, and thereby committed error in reference to each one of those instructions. To show that the second instruction ought not to have been given, reference is made to the following authorities : 4 Black. Com. 180; 2 Stark. Ev. 524. The third instruction ought to have been rejected, 2 Stark. Ev. 443, 444; 4 Black. Com. note 8, p. 232 ; R. & R. C. C. 307; Burns’s Jus. 24th ed. 209; R. & R. C. C. 18; 2 Russ, on Crimes, 94. The fourth instruction for the state was erroneously given. 2 Russ, on Crimes, 61, and note A, on that page. H. & H. 708. The fifth instruction need only be read to show that it ought to have been refused. A mere claim to the property stolen, set up by a rogue, can never free him from the guilt of larceny. If so, all rogues would escape punishment, as it is an easy mattér to make a false claim.</p> <p>7. The court below improperly refused to give the first, third, fourth and seventh instructions asked for by the counsel of the accused. To demonstrate that it ought to have been given, reference is made to 1 Greenl. Ev. 186, 188, 189, 190; 1 Phil. Ev. 235; 1 Stark. Ev. 28, 29; note 1, on p. 191; 1 Greenl. Ev.’ And to show that the third instruction ought to have been given, the authorities last named are again cited. The fourth instruction ought to have been given; 4 Bl. Com. 180 ; 2 Stark. Ev. 523; How. & Hutch. 694. The seventh instruction is a correct legal proposition, and ought to have been given. How. & Hutch. 694.</p> <p>8. The court cannot, legally, instruct a jury after their retirement from the bar, and without a request from counsel engaged in the cause. In this case, no person asked for instructions, except a juror, and the prisoner’s counsel solemnly dissented to the procedure. How. & Hutch. Dig. 482, sect. 9; lb. 493.</p> <p>9 and 10. Reference to the authority last cited.</p> <p>cited 1 Peters’s Dig. 593; 1 Greenl. Ev. 188, 189, 190; Roscoe’s Crim. Ev. 31 — 33; 1 East PI. Crown, 357, 358; 1 Stark. 523; 1 Leach, 503; 6 Car. & Payne, 157, 386; 9 lb. 157; 7 lb. 187; 1 Harrison’s Dig. 1943; 1 Chit. Crim. Law, tit. Dying Declarations, and Phillips’s Ev.; Cowen & Hill’s notes, same point; 4 Chit.; Black. Com. tit. Larceny; Chit. Crim. Law, tit. Larceny; 5 Humph. 383.</p>

<p>In error from the circuit court of Madison county; Hon. J. R. Nicholson, presiding judge.</p> <p>Samuel Ewing and James Cromey sued George R. Fall, as maker, and William H. Washington, as first, Anderson Miller, as second, and Alfred Cox, as third indorser of a promissory note. The suit was brought in the circuit court of Madison county, to its April term, 1838. Fall acknowledged service of process; and an alias process issued to Washington county for Miller and Cox; but no return was made upon it; the record does not show whether any writ issued for Washington.</p> <p>At the return term the following plea was filed, viz.</p> <p>“ And the said defendants Washington, Cox, and Miller, by their attorney, come and defend the wrong and injury, when, &c., and for plea say, that they did not promise and assume in manner and form, as the said plaintiff has thereof complained against them, and of this they put themselves on the country, &c. Ott, for defendants.”</p> <p>The record then recites as follows, viz.</p> <p>“And now, to wit, on the 18th day of May, A. D. 1838, this day came the said defendants, Fall, Washington, and Miller, by their attorneys, as well as the said plaintiffs, and on motion of plaintiffs’ counsel, this suit is dismissed as to defendant Cox; whereupon came a good and lawful jury to try the issue joined, to wit, &c. &c., who, upon their oath, do say, we the jury find for the plaintiffs, and assess their damage at sixteen hundred and forty-one dollars ; it is therefore considered by the court, that the plaintiffs recover of the said defendants, Fall, Washington, and Miller, the sum so as above by the jury assessed.”</p> <p>A. fieri facias issued on this judgment to Madison county, and was returned nulla bona as to Fall. Affidavit being made of Fall’s insolvency under the statute, a fieri facias against Washington was issued to Rankin county, which was returned nulla bona also; upon which, an affidavit of Washington’s insolvency was filed, and a fieri facias issued to Washington county, commanding the sheriff to make out of the “ goods and chattels, lands and tenements of George R. Fall, William H. Washington, Anderson Miller and Alfred Cox,” the sum of six hundred and forty-one dollars, which Ewing and Cromey had by the judgment of the court lately recovered against them.</p> <p>The sheriff of Washington county returned this execution “ stayed by supersedeas, April 20th, 1840”; and to the April term, 1840, of the Madison court the petition of Miller and Cox was filed, in substance, stating the circumstances under which the judgment was rendered, and that they had never been served with process of any kind; had no notice of the pendency of the suit until execution was issued against them, and had been levied on the property of Miller; that the attorney, Ott, was not employed by them, or either of them ; that he plead to the suit without their knowledge or consent, and that they had never recognized his appearance for them; that notwithstanding the dismissal of the suit as to Cox, an execution had issued against him. It was upon this petition, upon the execution of bond, that the writ of error coram nobis with supersedeas, was issued.</p> <p>A motion was made and sustained to discharge the superse-deas, to which Miller and Cox filed exceptions; from which it appears, that they proposed to make and try an issue of fact, as to whether John G. Ott was their attorney in the case; and on the trial of that issue, they proposed to prove he was not their attorney in that or any other suit; that Ott had no authority to appear for them in the suit; that his appearance was without their knowledge or consent; and was made at the request of the attorneys for Ewing and Cromey, to enable them to obtain judgment at that term of the court, for the purpose of making the money out of Fall, who was the principal in the suit; and that the appearance entered by Ott, was with the tinderstanding that it should not operate “prejudicially” to Miller and Cox. The court below refused to entertain the issue or hear the proof; and no further testimony being offered, it dismissed the petition and supersedeas, and the defendants Miller and Cox sued out this writ of error.</p> <p>1. That the entry on the record that a party appeared by attorney, or a return by a sheriff, or his general or special depu*;, if executed on the defendant, shall conclude that defendant, would be an estoppel of the most appalling kind. It rests upon none of the reasoning which renders records and judicial determinations conclusive; and the same reason of policy which dictates the latter, excludes the former. In England, the appearance by attorney might, with some show of propriety, be held to conclude the party ; for there the warrant constituting the person who appeared as attorney the actual attorney of the party, was indispensable, and the appearance was made by acts of the attorney in court. That the attorney of the court, who claimed to be the attorney of the party, was, in point of fact, constituted his attorney by the party, was therefore a matter to be inquired into, and of which fact high evidence was required, to wit, the warrant of attorney. The fact, therefore, that the attorney who entered the appearance, was in truth the attorney of the party, was a fact judicially inquired of, and ascertained in each case. It was a fact in the cause, ascertained and recorded, as much so as the fact that the attorney appeared.</p> <p>But how is it here 1 Any man who has leisure to practise law, (and a sprightly man may in a month’s time prepare for this,) may write a plea on a slip of paper, put it in the cause, no evidence of my having entrusted my rights or defence to him being required.</p> <p>This court will judicially know the usages and practice of the inferior courts, and will construe their records with the aid of that knowledge. The record may estop the party, a? to any fact which it contains, when thus construed; and this is the whole extent to which the doctrine can, upon sound principles, go. The entry, “This day came the parties by their attorneys;” or, “This day came the defendant by his attorney,” being thus construed, only means, that there was an appearance, by attorneys, representing themselves to be the attorneys of the parties; and not that, in point of fact, the parties had constituted them their attorneys, in that cause. For this is a matter never judicially inquired into, or in any way ascertained. And for a record to estop, save as to matters which have been inquired into — and as to which, upon such a construction, it is wholly silent, would be as d'angerous as it is manifestly unjust. It would also be dangerous to hold that it was no evidence of the fact. But the difference is that between prima facie and conclusive. In the great majority of cases the attorney who appears is employed by the party. And according to sound rules it should be presumed that he was au~ thorized to do so, until the contrary appears. All that I contend for is, that it should be open to inquiry.</p> <p>2. Wherever the fact which gives the court jurisdiction of the party or the subject-matter is a fact inquired into and judicially ascertained in the cause, then the record ought to be and is conclusive. See Brittain v. Kinnaird, 1 Brod. & Bing. 432; S. C. 4 Moore, 50 ; 3 Phil. Ev. 50.</p> <p>But when the fact which gives the court jurisdiction of the party is not the subject of judicial inquiry in the cause, the record should not conclude as to such fact. In Hall v. Williams, 6 Pick. R. 232, it appeared by the return that no process had been served on F., a plea was filed by the attorney for the other defendant, and the record stated that W. & F. came by their said attorney, the court decided that it could not be held an assertion on record, that F. appeared to the action. In Aldrich v. Kinney, 4 Conn. R. 380, evidence by defendant, that he had no legal notice, and did not appear was admitted, although the record expressly stated, that the defendant appeared and plead by attorney. Starbuck v. Murray, 5 Wend. 148, is a strong case, in which the record is held but prima facie, and the reasoning of the court seems to be conclusive. The broad ground is here taken, that the appearance is necessary to give jurisdiction over the person of the defendant; and that any fact stated in the record, upon which jurisdiction depends, may be controverted by pleading and proof as fully as facts may be disputed to which the record has no relation. “ It appears to me,” says Judge Marcey, “that this proposition (the conclusive effect of the entry) assumes the very fact to be established, which is the only question in issue. For what purpose does thre defendant question the jurisdiction of the court ? ' Solely to show that its proceedings and judgment are void, and therefore the supposed record is not in truth a record. If the defendant had not proper notice of, and did not appear to the original action, all the state courts, with one exception, agree in opinion, that the paper introduced, as to him is no record. But if he cannot show, even against the pretended record, that fact, on the alleged ground of the uncontrollable verity of the record, he is deprived of his defence by a process of reasoning, that to my mind is little less than sophistry. The plaintiffs in effect declare to the defendant, — the paper declared on is a record, because it says you appeared, and you appeared because the paper is a record. This is reasoning in a circle. The appearance makes the record of uncontrollable verity, and the record makes the appearance an uncontrollable fact.” This reasoning does seem irresistible, but the court will examine the case itself, and it will be found to stand on a foundation not to be shaken. On the only foundation that can, to an independent mind, give the weight of authority to any judicial determination, or settle any question which involves the rights of man. That is the authority of right reason bestowed by God himself, upon his creature man, as the supreme director of all his actions, and the final arbiter of all his rights. Judge Co wen, whose opinions are entitled to no small consideration, refers to the case of Starbuck v. Murray, with unqualified approbation, and in his 3 Phil. Ev. 801, refers to Latham v. Edgerton, 9 Cow. R. 227; Mills v. Martin, 19 John. R. 33; Borden v. Fitch, 15 lb. 141; Slocum v. Wheeler, 1 Con. R. 429; Buitrick v. Allen, 8 Mass. R. 273; Bissell v. Briggs, 9 lb. 462; Jacobs v. Hull, 12 lb. 25; Kilburn v. Woodioortk, 5 Johns. R. 37; Fenton v. Garlick, 8 lb. 194; Pawling v. Bird's Executors, 13 lb. 192; Phelps v. Holker, 1 Dali. 261; Kibbe v. Kibbe, Kirby’s R. 119; Stay ell v. Westcott, 3 Day’s R. 349; Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat. 234, note(e) ; Hay dock v. Cobb, 5 Day’s R. 527; Smith v. Rhoades, 1 lb. 168; Den-isson v. Hyde, 6 Con. R. 508. I have carefully examined these cases. Some of them have no direct bearing, but they rest on principles wholly sound, and confirmatory of the position for which I contend. It is a well established rule that we may at all times raise the question of jurisdiction. If so, of what value is the right, if the record concludes us as to the fact upon which the jurisdiction depends 1</p>

<p>R. being the owner of a slave, mortgaged him to H., to secure and indemnify him against liability as surety for R.; the slave was left in this state on R.’s plantation ; the mortgage was never recorded ; R. afterwards in Tennessee sold the same slave to S., who took an absolute bill of sale, and at the time arranged with R. a large portion of the purchase-money by a debt due to him by R., and received from R. an order for the slave in this state; but before he presented the order for the slave, he, after the purchase, without any K new consideration, gave R. a written agreement, that R. by a certain day might redeem the slave. On presenting the order in this state, the slave was on R.’s plantation, but on the night succeeding the presentation escaped therefrom into H.’s possession. S. sued H. in detinue for the slave. Held, that S. was entitled to a recovery in the action at law.</p> <p>A mortgagee of personal property has the right to the possession of the property, and may recover it in an action at law against the mortgagor, and those claiming under him, who have no remedy except by bill in equity to redeem.</p> <p>Whether a payment made by the settlement of an antecedent debt, constitutes a purchase for valuable consideration ; — Quare l</p> <p>It seems that if a mortgage of personal property be executed to indemnify the mortgagee against suretyship for the mortgagor, and the mortgage be never recorded, and the mortgagor retains possession of the personal property, and afterwards sells it to a third person for a valuable consideration without notice of the previous mortgage, the purchaser will hold it free from such mortgage.</p>

<p>An attachment was issued commanding the sheriff to hold the estate attached in his hands, so that the same might be liable to farther proceedings thereupon, according to law, “at a court to be held at Mississippi city, of the county of Harrison aforesaid, upon the Monday immediately preceding the first Monday in October next: ” Held, on a motion to quash the attachment, that the omission of the word “ circuit” before the word “ court,” the attachment being in all other partiedlars regular, was immaterial; that the nature and character of the attachment, and the statement of the time and place sufficiently identified the court to which it was returnable.</p>

<p>ERROR from the circuit court of Claiborne county; Hon. George Coalter, judge.</p> <p>On the 16th day of. August, 1842, William D. English and Thomas Turner, filed their bill in the circuit court of Claiborne county, against Julien L. Foote and Davis H. Hoopes, alleging that in the fall of 1839, they, being mechanics, were employed by Foote, to perform certain work as bricklayers and plasterers, on a dwelling-house, then being erected on the S. W. | of N. E. | of square No. 34, in suburb St. Mary, adjoining the town of Port Gibson, by and for Foote, who was in possession of the said lot.</p> <p>That they did the work in pursuance of said employment, to the amount of $229 50, due March 2d, 1840, as per bill of items filed as Exhibit A.</p> <p>That after the completion of the work, and within six months after the commencement thereof, they, in order to secure to themselves the benefit of their lien on the house for the work so done, to wit, on the 4th of May, 1840, commenced an action in the circuit court of Claiborne county, against Foote, on the said account, (Exhibit A,) and at the November term, 1841, recovered judgment thereon against him, for $229, (and they filed a transcript of the record in that case, as Exhibit B.)</p> <p>That since the work was done, Foote had sold the lot to the defendant, Hoopes. The bill makes Foote and Hoopes defendants, and prays a decree for the sale of the house to pay the debt due to complainants, and for other relief.</p> <p>Hoopes answered that he had no knowledge of the work and labor said to have been performed. That he owned the lot, and was the owner of it when the work was performed. That on the 8th of October, 1839, Foote gave him a note for $371 50, due January 1st, 1841, and another for $398 25, due January 1st, 1842, and that he gave Foote his bond to make Foote a title to the lot on his paying the notes at maturity. That Foote did not pay the notes, and he, (Hoopes,) has never made a deed, and he denies that the building is liable for any work done-at Foote’s instance. He further insists that complainants have a judgment at law against Foote, and that they ought to be compelled to pursue it.</p> <p>Foote, in his answer, admits that he employed the complainants in the fall of 1839, and that they did the work, and that they sued him, as alleged, and got judgment. That although he had hoped to be able to purchase the lot, yet he has not been able to do so. The title has always been in Hoopes, and not in him, (Foote.) That the complainants’ account is principally for building a chimney, and finding materials, for the accommodation of this defendant, and he would have paid for it, if he could. He cannot but think that the complainants looked to him alone for payment.</p> <p>The case was submitted on bill, answers, and exhibits, and at May term, 1845, the court dismissed the bill, and decided, that the complainants were not entitled to a lien on the house. To reverse which decision, the complainants now prosecute this writ of error.</p> <p>For the plaintiffs in error it is insisted, that a clear case is made out by them, to have the building subjected to the payment of their claim for the work done, and the materials furnished. The act on which we rely is that of February 15th, 1838. H. & H. 378.</p> <p>The employment of the appellants as mechanics, the performance of the work, and the amount of it, are all admitted by the answers, or not denied. So also is the allegation that suit was brought within six months after the work was commenced. These are all the requirements of the statute, and the case is precisely similar to that of Andrews v. Washburn, 3 S. &. M. 109.</p> <p>Two points of defence seem to be relied on.</p> <p>1st. That Foote, who was in possession of the land, and who contracted for the work, did not own the legal title in fee, but that it remained in Hoopes.</p> <p>Now Foote, being in possession of the lot, and having the right of possession, it can surely make no difference as regards the right of the mechanics to 'their lien upon the building, whether his title to the fee was legal or merely equitable. The object of the statute is to secure payment to the mechanic of the price of his labor, by subjecting the result of his industry and skill to a specific lien for that purpose. The claims of the mechanic are favored in law, and the courts will uphold the policy of the country in giving the statutes a free interpretation in favor of the laborer. They were made to secure him the reward of his toil, and should not be baffled by any subterfuge. Buck v. Brian, 2 How. 874.</p> <p>What better right has Hoopes, as against these mechanics, to enjoy the building partly erected by their labor, because he had the legal title to the lot, than Foote would have, holding only an equitable title 1 The statute says nothing about the title of the ground, the house being regarded as a distinct thing.</p> <p>This very question was presented in the case of Buck v. Brian before cited, and was overruled. The act of 1821, is like that of 1838. Buck contended that Wilson and McDonald, who contracted with Brian, had only an equitable title, and that the legal title was in Hughes, from whom Buck had procured it, but the court disregarded the point.</p> <p>2. The appellee, Hoopes, further contends that he had a lien on the lot for the payment of the purchase-money; that this lien attached upon the house, and was older than that of the mechanics, and that, by the statute the lien of the mechanic is preferred only to subsequent encumbrances.</p> <p>This argument is fallacious. The statute treats the building as a distinct thing from the land. The object in view is to secure payment to the mechanic for his labor. It does this by giving him a lien on the building “in preference of any other lien originating subsequently, &c.” The statute evidently refers to liens on the building, as contradistinguished from liens on the land, and it could not have been contemplated that, wherever there was a previous incumbrance upon the land, the mechanic should be deprived of his security. This would be to give to the prior incumbrancer a benefit for which he had not stipulated, and to take away protection from the mechanic in the very cases where it is most needed.</p> <p>The present is like the case of an instantaneous seizin, where a man purchases land, and at the same time gives a mortgage upon it for the purchase-money. The whole is regarded as but one transaction, and the seizin being only for an instant, there was no time for the rights of third persons to attach. The mortgage binds the land in preference to older judgments against the mortgagor; and his wife, as against the mortgagee, is not even entitled to dower.</p> <p>Here the lien of the mechanic attached upon the building as fast as the work progressed, and in no fair sense can the lien of Hoopes, the creditor, be considered prior to, or elder than the claim of the mechanic. His is, in fact, a subsequent in-cumbrance on the house, and he is only entitled to what is left, after the house is paid for.</p> <p>Cases are cited by the defendants in error' to show that where a party has a concurrent remedy at law, and in equity, if he elects to proceed in one forum, he cannot afterwards resort to the other. The principle has no application to this case, for here the statute only gives the remedy in equity on the condition that the party shall first have sued at law, within six months after the commencement of the work, there being no written contract.</p> <p>It is contended, there is not the slightest ground for the interposition of a court of equity. First, the complainants bring a suit on their account against Foote in the circuit court, and obtain a judgment. After having selected their forum and subjected the defendant to the costs and perplexities of a suit in that court, they now seek the aid of another forum, and to subject the defendant to the costs of another suit, and that too, without showing that their judgment at law could not be collected ; and without even showing that an execution has ever been issued -on their judgment. Their bill shows nothing of this kind, and hence might have been demurred to. But it is a principle in equity, that when a demurrer would hold to a bill, the court, though the defendant answer, will not grant relief on the hearing of the cause. Milford’s PI. 157, Story’s Eq. PI. 352.</p> <p>It is also a well-settled principle, that when there has been an adjudication of a court of competent jurisdiction, the matter in controversy is at an end, and the losing party cannot go into another forum to try his rights there; if he could, litigation would indeed be interminable. In all cases of concurrent jurisdiction the court which first gets jurisdiction must decide finally. Smith v. Mclver, 9 Wheat. 552,</p> <p>If the complainants were entitled to a mechanic’s lien at all, which is denied, they could have instituted their suit in the first instance in a court of chancery, but having chosen a different jurisdiction they must abide by it. “ The law abhors multiplicity of suits, and it is a chosen object with courts of justice, to put an end to litigation.”</p> <p>Although a court of equity may sometimes lend its aid to enforce the judgment of a court of law, yet this aid is never given when the complainants might have brought their suit at first in a court of equity, or where it does not appear that an execution has been issued, and returned “nulla bona.” For aught that appears to the contrary, the complainants, if they had issued an execution on their judgment, might have made, their money. How then can it be said that they present a proper case for the interposition of a court of equity 1</p> <p>But again, even if the suit had been at first instituted in a court of chancery, the complainants could not have enforced a mechanic’s lien on the house.</p> <p>The suit in the circuit court, as was stated by the solicitor of complainants, in his brief in the court-below, was insituted under the act of 1838. H. & H. sect. 24.</p> <p>This act provides, that every dwelling-house, &c. which may be erected within the limits of this state, shall be subject to the payment of the price contracted therefor, or in case there be no contract, of so much as reasonably ought to be paid for the work and labor done, and performed, and the materials or implements supplied in the erection of the building, &c. “in preference to any other lien originating subsequently to the commencement of the building, or date of the contract.” Here is the extent of a mechanic’s lien in any case under this act. It is not a general lien, taking precedence over all others. It is only a lien in preference to those liens originating “ subsequently to the commencement of the building, or date of the contract.” It was not intended to give, nor was it competent for the legislature to give, a mechanic, or any other person, a lien on a building, in preference of older liens.</p> <p>If Foote ever had any interest in the house and lot, it had been sold under judgments against him, older than the judgment of complainants.</p> <p>Hoopes never parted with the title to the lot of ground. The complainants must have known at the time their account was contracted that Foote had no title to the property, for the contract between him and Hoopes was on record. They were bound to notice it. The owner of land, owns all the buildings and improvements thereon. “If a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields 'and meadows.” 2 Black. Com. 18.</p> <p>If A. builds a house on B.’s land, it is as much B.’s as if B. built it himself. Co. Litt. 53, 56.</p> <p>If a man contracts to purchase a lot of ground, and builds a house on it, and then fails to comply with his contract, could he remove the house % Certainly not. It has become a part of the realty, and could neither be removed, nor sold separately from the lot.</p> <p>The case in 2 How. 875, referred to, in the argument in the court below, is not analogous to the present. There the contract was reduced to writing and recorded, thus giving notice of it to all the world, the property had not been sold under older judgments against the defendants, and the suit was originally brought in the chancery court. In this case, the suit was brought in the circuit court, no execution appears to have issued on the judgment there rendered, there was no special contract on record or elsewhere, nothing to show that complainants claimed a mechanic’s lien, and the property has been sold under older judgments.</p> <p>As to the argument sometimes advanced, that the claims of mechanics are favored in law, if there was any truth in it, it would be a deep reflection on courts of justice. The law, when properly administered, can know no favorites, all stand upon an equality, and no man, whatever may be his occupation, can reasonably expect, that his rights shall be more sacredly guarded than the rights of any other member of the community.</p>

<p>The absence of a party from court, from unavoidable circumstances, may be good ground of new trial: in such case the application will be watched with jealousy, and the power exercised with caution; but if there be no reason to believe that the cause is feigned, a new trial will be granted to prevent a failure of justice.</p> <p>Where a plaintiff filed an affidavit, as the basis of an application for a new trial, in which he stated that he was prevented from reaching the court, before the trial took place, by high water; that being in the habit of attending the court regularly in person, he had no counsel who knew anything of the facts of the case; that his demand was just and true, and that injustice had been done him on the trial; and two' other affidavits were filed tending to support the statement of the plaintiff; it was held, that the showing, was sufficient to authorize the granting of a new trial.</p>

<p>G. entered amotion in the circuit court of Adams county, to quash a levy and sale made by the sheriff of Washington county, because, before the levy and sale, and after the rendition of the judgment upon which the execution, under which the sale was made, issued, he, G., became a bankrupt under the act of congress in such case made and provided; and because the land levied on and sold was acquired by G. after his bankruptcy ; and also on account of the inadequacy of the price for which the land sold, &c., and the circuit court overruled the motion; held, that a motion was not the remedy compatible for the end sought to be obtained, and it was therefore properly overruled.</p>

<p>Error from the circuit court of Panola county ; Hon. Hugh R. Miller, judge.</p> <p>This was an action of replevin instituted in the circuit court of Panola county, to the April term, 1846, by James L. Calhoun against Henry Kirby and Jared Kirby, to recover the following named slaves, to wit: “Amand, Sherrod, Harriet, Alley, Maria, Emily, Stephen, Tom, Jim, Julius, and Bob, and also a barouche, one mule, and a gold watch.” At the return term, the defendants filed two pleas. The first, that they were not guilty of the wrongful detention, as plaintiff hath alleged. The second, “ that on the 31st day of December, 1844, the said Henry Kirby was lawfully possessed as of his own property, of the said slaves, Jim, Alley, Emily, Julius, William and Maria, and Julia, a woman slave, who is not mentioned in said declaration, and being so possessed, by deed of the date of the day and year aforesaid, signed with his name, and sealed with his seal, conveyed the said slaves Jim, Alley, Emily, Julius, William and Julia, to Lucinda Grove, the wife of the plaintiff, and the heirs of her body, provided, nevertheless, that should the said Lucinda die without heirs of her body, then, and in that case, the said described property, with their increase, should be the property of the surviving children, who should be alive at the death of the said Lucinda Grove; and the said Maria was afterwards substituted for the said Julia, by the pa-rol agreement of the said Lucinda Grove and the said Henry Kirby. And the said defendants aver that the said Lucinda Grove departed this life heretofore, to wit: Before the commencement of this suit, without heirs of her body, and that defendant, Jared Kirby, and Elizabeth White, the wife of Thomas D. White, are, and were, at the death of the said Lucinda Grove, the sole surviving children of the said Henry Kirby, and that he, by said right, and by consent of the said Elizabeth, holds the possession of the said slaves; and as to the said slaves, Amanda, Sherrod, Harriet, Stephen and Tom, defendants aver that they are, and were, at, and before the commencement of said suit, the property of Lucy Harper, and that defendant, Jared Kirby, holds, and detains possession of the same, by the consent and approbation of the said Lucy Harper, Without this,” &c. The plaintiff took issue on the first plea, and replied to the second; that on the 12th day of September, 1844, he intermarried with the said Lucinda Grove, who, at the time of her intermarriage, was seized and possessed as of her own property, without any limitation, condition, restriction, reversion, or remainder, in fee simple of the said several slaves, and being so seized and possessed thereof, she continued to hold and own the same, without any condition, reversion or remainder, until the time of her death. That at the time of the death of the said Lucinda Grove, she was the wife of the plaintiff, and died without any issue, or descendant or descendants of such issue; wherefore, the said slaves then and there became, and were the property of the plaintiff, and that he is now entitled to the possession thereof. And that on the 31st day of December, 1844, the said Henry Kirby was not lawfully seized and possessed of said slaves, and had no authority to convey the same. The (defendants rejoined, and upon the rejoinder, the plaintiff •took issue. On the trial, which took place in .April, 1846, the plaintiff introduced James Crenshaw, who testified that he was then, and had been the overseer of the plaintiff, since the first day of November, 1845, and he knew all the negroes in controversy, except one boy, that had been in the possession of plaintiff from the time witness commenced'overseeing for him, until the 14th day of January, 1846; that four of the negroes, children, were taken off in a wagon, by a negro man belonging to Henry Kirby, when plaintiff was absent from home; that a few mornings thereafter, the balance of the slaves in dispute were gone from the plantation of plaintiff; witness had seen them the evening before, and he did not know at what precise time they left, nor how, nor who had taken them; that Amanda was worth six hundred dollars, Sherrod, four hundred dollars, Tom, two hundred and fifty dollars, Stephen, two hundred dollars, Harriet, one hundred dollars, Maria, five hundred and fifty dollars, Bob, two hundred dollars, Alley, three hundred dollars, Emily, four hundred and twenty-five dollars, Julius, three hundred and fifty dollars, and Jim, eight hundred dollars; and that their hire was worth from the time they left the plaintiff’s plantation to the time of the trial, about the following sums: for Amanda, twenty-seven dollars, Sherrod, fifteen dollars, Maria, forty dollars, Alley, twenty dollars, Emily, sixteen dollars, Julius, eight dollars, and Jim, sixty dollars. The plaintiff, by several other witnesses, proved, in substance, that the morning after the slaves were missing from the plantation of the plaintiff, he, with others, at his request, went in search of the slaves, and found them at the house of Henry Kirby, and plaintiff demanded them of Jared Kirby, who refused to give them up. That plaintiff married Lucinda G. Kirby, daughter of the defendant, Henry Kirby, about the 12th day of September, 1844; that she died about the 23d day of December, 1845, without leaving any child then living; she had borne a child while she was the wife of the plaintiff, which died before she did. The plaintiff also proved a conversation held between Jared Kirby, and one of his, plaintiff’s, counsel, on the morning this suit was commenced, and also some other matters, none of which need be noticed here, as none of them bear upon the point upon which the case turned in this court. After the plaintiff had closed his evidence, the defendants then introduced and read to the jury the following deed, first proving its execution and delivery to Lucinda Grove, wife of the plaintiff, to wit:</p> <p>“ State of Mississippi, Yalobusha, County</p> <p>“ Be it known that I, Henry Kirby, of said state and county, for, and in consideration of the sura of ten dollars, to me in hand paid, the receipt whereof is hereby acknowledged, and for the further consideration of the love and affection I have and entertain towards my beloved daughter, Lucinda Grove, now the wife of James L. Calhoun, and all of said county, have bargained, sold, alienated, given and delivered unto my said daughter, wife as aforesaid, the following negroes, slaves for life, to wit: Jim, a man aged about twenty years, Alley, a woman aged about forty-five years, Julia, a girl aged about thirteen years, Emily, a girl aged about eleven years, and William, aged about two years; to have and to hold the said described negroes, unto iny said daughter aforesaid, and the heirs of her body; provided, nevertheless, that should my said daughter aforesaid depart this life without heirs of her body, then, and in that case, the said described property, together with their increase, shall be the property of my surviving children and grand-children, who shall be alive at my said daughter, Lucinda G.’s, decease. Now, therefore, I quit-claim, release, and deliver up the said described negroes for the said purposes. In witness whereof, I have hereunto set my hand and affixed my seal, this 81st day of December, 1844.</p> <p>“ H. KiRby. [l. s.] ”</p> <p>The defendants then proved that the slaves mentioned in the foregoing deed, except Julia, are part of the same slaves now in controversy. That Jared Kirby and Mrs. White of Texas, were the son and daughter of Henry Kirby ; that Mrs. White had two children, the grand-children of Henry Kirby, and all were living at the time of the death of Lucinda Grove, wife of plaintiff, and are still living. Defendants also proved that the plaintiff was at the house of defendant, Henry Kirby, when the four negro children arrived, and made no objection to their being brought there; that Jared Kirby remarked to plaintiff, he was sorry the children had been brought up through the cold, and the plaintiff made op reply to him. This being all the evidence offered on either side, the court, at the request of the plaintiff, charged the jury as follows, viz.:</p> <p>1. That the deed or bill of sale from Henry Kirby to Lucinda Grove, the wife of plaintiff, vested in her an absolute title to the slaves mentioned in it, and that on her death, without heirs of her body, her title vested in the plaintiff.</p> <p>2. That if the jury believe from the evidence, that Mrs. Harper made a conveyance of the slaves, Amanda and her children, to Mrs. Calhoun, and that she delivered the slaves to the plaintiff, as the husband of said Lucinda, under the conveyance, the right to the possession was thereby vested in the plaintiff.</p> <p>3. If the plaintiff had possession before the commencement of this suit by the authority, or consent of Mrs. Harper, it was in him the legal right of possession, until contradicted.</p> <p>The court also instructed the jury, at the request of the defendants, as follows, to wit:</p> <p>1. That if a party to a suit introduces, as evidence,, the statement of the opposite party, the jury must take the whole as evidence in the case. The party introducing such proof makes it testimony, and the jury must weigh the whole of it.</p> <p>2. That the return of the sheriff, upon the writ of replevin in this case, is not proof before the jury for the purpose of identifying the negroes in dispute, or for the purpose of establishing any fact involved in the issue before them, except the fact that the slaves referred to in the return, were in the possession of the defendants, at the time the writ was executed, and were returned to them on the giving of bond by them, and cannot be taken as showing that plaintiff had possession of such negroes, or had a right to the possession.</p> <p>3. If Mrs. Calhoun accepted of the negroes in the deed, according to the terms of the deed, she took such title only as the deed conveyed, and a failure on her part to show the deed to plaintiff cannot destroy or impair the rights of others, provided for in the deed.</p> <p>To the giving of the first instruction asked for by the plaintiff, the. defendants filed a bill of exceptions. The jury found a verdict in favor of the plaintiff, and judgment was entered accordingly. The defendants then moved for a new trial; and upon their motion being overruled, they filed a second bill of exceptions, and removed the case to this court, by writ of error.</p> <p>1. It is insisted that by the terms of the deed, the limitation over, was to vest, if at all, immediately upon the death of the first taker, Mrs. Calhoun. The language is, “ provided, nevertheless, that should my said daughter depart this life, without heirs of her body, then, and in that case, the said described property, together with their increase, shall be the property of my surviving children and grand-children, who shall be alive at my said daughter, Lucinda Grove’s, decease.” Language of this import has uniformly been held to create a limitation over, upon a definite, and not upon an indefinite failure of issue, and that such a limitation, whether created by deed or will, has always been sustained. See 6 Port. Ala. R. 319; Polk v. Paris, 9 Yerg. 209 ; 5 Humph. 505; 6 Munf. 174, 187, 301, 470; 1 Iredell, 186; Carroll v. Renich, 7 S. & M. 798, and others decided by this court, during its present term. 1 Ired. Law R. 566.</p> <p>The case in 9 Yerger, the last one referred to in 6 Munford, the one in Iredell’s Reports, and the case of Carroll v. Renich, all arose on deeds.</p> <p>In this state slaves are personal property, and that a limitation of personal property in remainder is good, see 2 Yerger, 582 ; 2 Humph. 589; 1 Leigh, 401; 2 Ibid. 131; 3 Ibid. 64; 5 Ibid. 447 ; 10 Ibid. 628.</p> <p>'2. The 26th section of the statute of conveyances, H. & H. page 349, settles this question. The language of this section is general, and that the mischief which it was designed to remedy existed as well in reference to personalty as realty, all of the cases conclusively show. And that the idea of giving this restricted construction to this act has never been countenanced by any respectable authority, see 2 Lomax’s Digest, 222, 223, sec. 9; 3 Lomax’s Digest, 221, sec. 9; 310, sec. 45; 9 Leigh, 53, 257, 259; 1 Iredell’s Law Reports, 183-186; Carroll v. Renich, decided by this court. The third section of the forty-third chapter of the first volume of the Revised Statutes of North Carolina is a copy of our twenty-sixth section relied upon, with a slight addition.</p> <p>This is a summary remedy, modelled by the statute upon the common law; intended to reach cases where a party was entitled to immediate possession, the right of possession can alone be put in issue, together with the unlawful detention of the property. The right of property cannot be decided in the cause. In this case the jury found only as to the right of possession ; and the verdict of the jury and judgment of the court cannot be plead in bar of any remedy which the plaintiffs in error may desire, to investigate the legal title. The special plea puts in issue but the unlawful detention and right of possession.</p> <p>There was no error in the instruction of the judge. For the limitation over is void for remoteness. The gift is to Lucinda G. “ and the heirs of her body, provided, nevertheless, that should my said daughter aforesaid depart this life without heirs of her body, then and in that case the said described property, together with their increase, shall be the property of my surviving children and grandchildren who shall be alive at my said daughter Lucinda G.’s decease.”</p> <p>The fair construction, on the authority of adjudged cases, is, that the words mean an “ indefinite failure of issue.” The property is first given without limitation of time, but to the heirs of the body generally for an indefinite time.</p> <p>The condition of the limitation is that the children and grandchildren of the grantor shall take, if his daughter dies without heirs of her body, which has ever been construed to mean, if she should die, and at any subsequent time her inheritable blood should cease, even at the close of many generations.</p> <p>Do the last words change this construction 1 Evidently the construction is, that his children shall take the property who shall be alive when his daughter dies ; not to take in any event, but only if she dies without heirs of her body, indefinitely. The words and construction of the law will not permit it to be confined in time, or added to by the addition of the words “ if living at the time of her death,” to the phrase, heirs of her body. The word surviving in this deed evidently means that the children and grandchildren that may be living at the decease of Lucinda G. without heirs of her body, at any future period, or that the children and grand-children who may be alive at the decease of Lucinda G. may take the estate, and they only, if her inheritable blood becomes extinct, in which case the limitation is too remote, but the property is locked up in the heirs of the body of Lucinda G., and the children and children’s children of the grantor, — none of whom are in esse. Polk v. Paris, 9 Yerg.; Booker v. Booker, 5 Humph. 512, Carroll v. Renich, 7 S & M. 798.</p> <p>But does the twenty-sixth section of the statute in regard to conveyances affect the construction of this gift ? Clearly not. The twenty-sixth section was adopted to reverse the construction that grew out of the rule in Shelly’s case, which was adopted by the judges to prevent the tying up of estates for an indefinite period, which was probably intended by the framers of the statute, (see Dwarris,) and which could not be done under the rules of construction before that time adopted by the common law; all of which apply to real estate, and not to personal property.</p> <p>By the common law personal property could not be entailed. The decisions upon conditional fees, the statute — see Dwarris — and the rule in Shelly’s case, had application alone to the rule of descents in realty, and the court will not imply that it was meant to reverse a rule of construction, which never had been made or supposed applicable to personalty; which latter estate was not considered of sufficient dignity to limit after a life estate. “ A contingent limitation is a technical term, and applies only to land.”</p> <p>Admitting the limitation is not too remote, it vests absolutely in the first taker, because the words would vest an estate tail in real estate in common law, and, according to all authority renders the gift absolute in personalty. 4 Kent; Chandless v. Price, 3 Yesey, 99. And personal having once vested cannot be limited. After the absolute estate, or what amounts to the same thing, an estate tail, is given, the limitation is void, for the property becomes vested instantly, and the power of disposition once attaching, the first taker has the interest. Jackson v. Bull, 10 John. 19; Booker v. Booker, 5 Humph. 512; Jackson v. Robins, 16 John. 537. And under our statute How. <fc Hutch. 348, sect. 24, this estate, which would be a conditional fee, has been released of the conditions at common law, full power of alienation given and the property vested. But in this case the condition has been performed by the birth of issue, and in the absence of the statute the estate would become absolute.</p> <p>Again, in all the cases produced, when a limitation is made of personal property, it must be made by way of executory devise or by deed, in which the property is held.by trustees in remainder. This being a deed direct, the remainder must vest with the use. Monroe v. Williams, 3 Dev. 263; Betty v. Moore, 1 Dana, 235; 1 Bay’s R</p>

<p>A bill filed by a party against whom a judgment had been rendered, disclosing facts which would have constituted a good defence to the suit at law, and alleging as a reason why the defence was not made at law, that the complainant was dangerously sick during the term of the court at which judgment was rendered against him, but not averring that he had employed any attorney at the return term of the action, which was antecedent to the term at which the judgment was rendered, nor that he had subpoenas issued for any witnesses, shows no sufficient reason why the party failed to make his de-fence at law, and consequently no grounds for equitable relief.</p> <p>C. for the use of G., sued J. C. and H. on a note in favor of C. for $ 327 27¿, to be cancelled by a cotton bond ; H. permitted judgment to be taken against him by default, and then filed a bill, averring that the note was to be paid in the notes of the Bank of Madison County, which had been tendered by J. C., the principal in the note, and who was still ready and willing to pay in those notes: Held, that the contract set out in the bill was an entirely different one from that sued on, and the bill showed no grounds for relief.</p> <p>Parol evidence is not admissible to vary a promissory note, so as to change its terms and make it a different contract.</p>

Error from the circuit court of Warren county; Hon. George Coalter, judge. Held: that whenever the parties state in the body of the instrument, they “ sealed it with their seals,” or use language clearly.showing their intention to make it a sealed instrument, and there is any kind of scroll, no matter of what shape, annexed to their names, that the instrument is a sealed one. See 1 Dali.

EreoR from the circuit court of Madison county; Hon. John H. Rollins, judge. Held: that a judgment had against a party without notice, is not evidence against him in another suit.

ERROR from the circuit court of Carroll county ; Hon. Francis M. Rogers, judge. This was an action of covenant brought by Reuben Marshall against Reuben Gayden, to the October term, 1844, of the circuit court of Carroll county, founded on a bond given by Philip S. Beasley, as claimant, and Reuben Gayden, as surety, to try the right of a negro man named Joe, levied on as the property of Robert E. Beasley, under an execution in favor of Marshall.

<p>Payment of an execution to a sheriff, in anything hut constitutional currency, is no satisfaction thereof, except by the consent of the plaintiff; but such consent may be implied, as well as express, and may be inferred from long acquiescence.</p> <p>Where a sheriff returned an execution with an indorsement that he had made the amount thereof in the notes of a particular hank, and no further steps were taken for more than six years ; and it did not appear that the plaintiff ever disclaimed the act of the sheriff; and this long delay was entirely unexplained ; it was held, that the plaintiff must be presumed to have known of the sheriff’s return, and acquiesced in his act; and that an execution issued after such delay, under such circumstances, ought, upon motion, to be entered satisfied.</p>

Error from the circuit court of Holmes county; Hon. Morgan L. Fitch, judge. This was an, action of trover, brought to the October term, 1842, of the circuit court of Holmes county, by Marshall Forbes against Henry W. Brown, for the conversion of a female slave, named Aggy. The defendant pleaded not guilty. At the April term, 1843, there was a mistrial.

<p>The question is now settled, that as the forfeiture of a forthcoming bond is a satisfaction of the original judgment, the lien of that judgment is also extinguished, and a new lien commences with the forfeiture of the bond, on new parties.</p> <p>An execution issued on the original judgment, after a forthcoming bond has been given and forfeited, is a nullity.</p> <p>A forthcoming bond cannot be quashed after the return term ; and if it be so quashed, the judgment quashing it is itself a nullity; an execution, therefore, issued under such circumstances, on the original judgment, is void, and a sale under it would pass no title, especially in favor of one having notice.</p> <p>A judgment at a subsequent term, which vacates a previous judgment, is void.; the statutory judgment, therefore, entered on a forfeited forthcoming bond, even though the bond be void, cannot be vacated by a judgment rendered at a subsequent term.</p> <p>A void judgment may be disregarded, even collaterally.</p> <p>In June, 1838, judgment was rendered against H. & M., on which an execution was issued, which was bonded, and the bond forfeited in November, 1838 ; on the forfeited bond sundry executions were issued until June, 1840, when the bond was quashed on the plaintiff’s motion, without notice, because it was not sealed. Other executions, however, were afterwards issued on the forfeited bond, and property sold under them ; in September, 1842, an execution issued on the original judgment, disregarding the bond, and levied on real estate, which was sold and purchased by the plaintiff’s attorney. Held, that the execution which issued in September, 1842, on the original judgment, was a nullity, and the sale under it, to the plaintiff’s attorney, passed no title.</p>

<p>On appeal from the probate court of Wilkinson county; Hon. Francis Gildart, judge.</p> <p>The record in this case discloses in substance the following facts, viz. That the estate of Wright B. Orr, deceased, having been reported and declared insolvent, the probate court of Wilkinson county, at the October term, 1843, appointed commissioners to receive and audit claims to it. That at the April term, 1844, commissioners were appointed to set apart to Martha N. Lewis, (late Martha N. Orr,) one year’s provision out of the effects of her deceased husband, Wright B. Orr, deceased. At the May term, 1844, the commissioners reported, setting apart to Martha N. Lewis, out of the effects of her deceased husband, five hundred dollars, and their report was received and confirmed by the court. That the claim of five hundred dollars sef apart by the commissioners and allowed by the court to Martha N. Lewis,' out of the effects of Wright B. Orr, deceased, was, fitough the record does not show at whose instance, laid before the commissioners of insolvency appointed to receive and audit claims against Orr’s estate; and that the commissioners refused to act on it, believing they had no jurisdiction of the claim. At the April term, 1845, the claim of Martha N. Lewis, the record does not state at whose request, was referred to referees. Two of the referees made their report at the August term, 1845, allowing Martha N. Lewis’s claim against the estate for five hundred dollars, and their report was received and confirmed by the court. At the same term, Samuel McNulty, administrator de bonis non, filed exceptions to the report of the referees, and his exceptions being overruled, he appealed to this court.</p> <p>There are but two questions in this case which require special consideration. 1st. Whether the legislature, by the act of 1839, H & H. Digest, p. 421, sect. 123, intended to give the widow and children of a deceased person, anything more than one year’s support out of the stock of provisions left by the decedent at his death. And, 2d. Whether under the statute, H. & II. Digest, p. 409, sect. 80, the said claim.for “one year’s provisions ” out of decedent’s effects, is such a claim as comes within the scope of the action of commissioners of insolvency, appointed to receive and examine the claims of the creditors against a decedent’s estate when reported insolvent. In regard to the first point, I think no one can read the statute, without at once seeing that the legislature only intended to give the widow and children of the deceased, “ one year’s provisions ” out of the stock on hand, if such were left by him, if not, then such provisions were to be procured out of the effects of the estate by the administrator, or other person having the control thereof, when the necessary articles for that purpose were ascertained as the law directs.</p> <p>The object evidently is to furnish a support in provisions to the widow and children for one year after decedent’s death, until the situation of the affairs of the estate could be ascertained, and a suitable plan adopted for their adjustment. It seems to me absurd to suppose the legislature meant by this act, that several years after the decedent’s death, and after the widow had married a second husband, and where there are no children of the decedent, as in the present case, to allow an amount in money, for one year’s provisions for the widow “ and children ” out of the insolvent estate of her former husband. Such an interpretation I presume will not be put on the statute by this court.</p> <p>2d. If, however, it should be considered by the court, that such an allowance was properly made, I think it is clear, that said claim could not be brought before the commissioners of insolvency, appointed to receive and examine the claims of the creditors of the deceased insolvent’s estate, it not being a claim against the decedent before his death. The commissioners of insolvency, as they say in their affidavit to their report, could have “ no jurisdiction over it,” they therefore, as shown in their report, took no action upon it at all. It is the action of the commissioners of insolvency, upon a claim laid before them, in either allowing or rejecting it, in whole or in part, which gives the probate court the power upon good and sufficient cause being shown to appoint referees to report on such claim. H. & H. Digest, p. 10, sect. 80, (in proviso.) And although it is stated in one or two places in the record, that the claim in question was rejected by the commissioners of insolvency, yet their report which forms a part of the record, does not warrant such statements, and they are mere dictums inserted by way of inducement or introduction of the different parts of the record. But I maintain, that if the commissioners had formally allowed or rejected the claim under consideration, having no right or jurisdiction to enteriain it, the probate court could not appoint referees to report upon it, the legiti acy of whose appointment and action is necessarily dependent upon the right of the commissioners to act upon the matter. It seems to me that the commissioners of insolvency, and the referees appointed under the act referred to, bear somewhat a resemblance to a court of original jurisdiction and an appellate court. If this be so, I apprehend no one will contend, that if the court of original jurisdiction, could not take jurisdiction of a matter presented before it, that by taking an appeal, and coming into the appellate court, the defect in the jurisdiction of the court below, would be cured, even if it was by the express agreement of the parties waving the question of jurisdiction, for it is a well settled principle, that where a tribunal has no jurisdiction of a matter, jurisdiction cannot be exercised by it, even by the consent and agreement of the parties.</p> <p>It may be insisted, on the part of appellant in the first place, that, the allowance of five hundred dollars to appellee, by the commissioners appointed by the probate court, to set apart t'o her one year’s provisions, &c., was improper, and that their report should not have, been confirmed; but whether the decree of the probate court, confirming the report of said commissioners, is or is not erroneous, cannot be made a question in this case, but being upon a subject clearly within the jurisdiction of that court, any error in the same can be corrected only by appeal or writ of error, until this is done, the decree of the court must remain valid, and binding on the parties: but admitting, that this court could determine upon the validity of a decree of the probate court, brought before them in this collateral manner, 1 still contend that the decree of the probate court, confirming the report of the commissioners, setting apart to said Martha N. Lewis, five hundred dollars for one year’s provisions out of the effects of the estate of said Orr, deceased, is not erroneous, but that the allowance so made and confirmed ; comes within the letter and spirit of the statute. See H. & H. 421. That an amount of money in the place of actual provisions, was set apart to the widow, is not a valid objection; the object of the statute, was to give to the widow and children a maintenance, until they could have distribution of the personalty of the deceased, or make other provision for themselves; and it will not be contended that in case there is no stock of provisions on hand at the time of the death of an individual, his widow is deprived of the benefit of the statute; such a construction of the statute would be strict beyond example.</p> <p>Any objection that the allowance or provisions was not made for the widow, soon after her husband’s death, is equally invalid ; the statute gives her a right, and if she neglects to assert it, as soon as it accrues, there is no law or reason that would make such neglect a forfeiture of the rights and benefits secured to her by the statute.</p> <p>The only question that I conceive to be properly before the court, is whether or not the probate court erred in confirming the report of the referees in this case; whether the probate court, was right or not in appointing the referees, this court cannot now inquire; it was a decree of the court from which appellant could have taken an appeal; but appellant has set this down as a cause of error.</p> <p>The record shows that the claim of appellee, was presented to the commissioners, and that it was not allowed by them. If it was not allowed it was necessarily rejected, and upon this the court was authorized to appoint the referees. (H. & H. 410.)</p> <p>The referees, to whom said claim was referred, allowed the same, and so reported to the August term of the probate court, 1845, which report was excepted to by the appellant, but the court overruled the exceptions, and confirmed the report. The question raised is, whether the claim of appellee, was such a claim against the estate of said decedent, as authorized its allowance by the referees, if it was, then there is no error in the final decree of the probate court appealed from. What is the character of this claim so strenuously objected to by appellant? It is a judgment of the probate court, in favor of Martha N. Lewis against the estate of Wright B. Orr, deceased, for five hundred dollars; but appellant would say, it was not a debt due from said Orr, at the time of his death; but is not the estate of said Orr, as much bound for this judgment, and the assets in the hands of the appellant as administrator, as liable to its payment as to that of any other debt against said estate 1 It is a debt created by the operation of the statute, and as valid as though the deceased had created it in his lifetime. But appellant objects that it is a privileged claim, and entitled to be paid in full, if valid. It is true, that appellee was entitled to the amount allowed by referees, but if she waives her privilege of having the whole amount set apart to her, and consents to come in pro rata, with the other creditors of the estate, no objection can be made by the administrator, or other creditors, as such waiver is in favor of the other creditors, and adds to the amount of their dividends. The claim being a privileged legal and valid claim against the estate, it was discretionary with appellee to compel a full payment, or take a pro rata share with the other creditors, and having waived her right to have the whole, and presented her claim to the commissioners of insolvency, they, and the referees afterwards, were as competent to act upon and allow the same, as in the case of arty other claim.</p>

<p>ERROR from the circuit court of Jasper county; Hon. Henry Mounger, judge.</p> <p>The record in this case is very imperfect; but it substantially discloses the following state of facts, to wit: That Jeremiah Anstill and Benjamin F. Marshall, copartners, under the firm and style of Anstill & Marshall, sued William B. Dozier in action of assumpsit, on a promissory note for $425 81, to the November term, 1842, of the circuit court of Jasper county. At the return term the defendant pleaded the general issue. Upon the trial the defendant filed a demurrer to the evidence, in the following words and figures, to wit:</p> <p>“ Stale, of Mississippi, i gs Jasper County, )</p> <p>“In Circuit Court, November Term, 1843.</p> <p>“Anstill & Marshall vs. William B. Dozier.</p> <p>“ Afterwards, on the day and at the place above contained, comes as well the above named Jeremiah Anstill and Benjamin F. Marshall as the above named William B. Dozier, by their attorneys, and the jurors of the jury, whereof mention is above made, being called, likewise came, and being chosen, tried, and sworn to say the truth of the premises within contained, and as to the issue above joined between the said parties, the said plaintiffs, Jeremiah Anstill and Benjamin F. Marshall, show in evidence to the jury aforesaid, to prove and maintain the issue joined on their part, the following instrument, in writing, to wit:</p> <p>“ ‘ $425 81. One day after date, I promise to pay Mess. Anstill & Marshall the sum of four hundred and twenty-five dolls. for value reed.</p> <p>“ ‘ Paulding. Jasper County, Miss. Juki 27, 1840.</p> <p>“ ‘ Will. B. DozieR.’</p> <p>“ And the said William B. Dozier says that the aforesaid matter to the jury aforesaid, by the said plaintiff, is not sufficient in law to maintain the said issue joined as aforesaid, on the part of the said plaintiffs; and that he, the said William B. Dozier, to the matter aforesaid, in form aforesaid, shown in evidence, hath no necessity, nor is he obliged by the law to answer; and this he is ready to verify. Wherefore, for want of sufficient matter in that behalf, to the jury shown in evidence, as aforesaid, the said William B. Dozier prays judgment,” &c. To which demurrer the plaintiff filed the following joinder, or replication: “And the said plaintiffs, for replication to said defendant’s plea, say, that they ought be precluded from having and maintaining their against said defendant, by reason of anything injjsáíd plea alleged, because, .they say, that the matters to the j^Jy^njíSEj plea alleged, are sufficient in law to maintain the issue join as stated in said plea; wherefore they pray jud®n|^¡^ The court withdrew the case from the jury, and renated juclg merit in favor of the plaintiffs. To reverse which juc the defendant now prosecutes this writ of error.</p> <p>In this case it appears that the issue was submitted to a jury, and that the plaintiff in this court, demurred to the evidence. The record shows an attempt to join in the demurrer, but in point of law it is not a joinder in demurrer. It commences by saying that the matter in the plea alleged is not sufficient to preclude a recovery by plaintiffs. It does not appear on its face to be a joinder in a demurrer to evidence. And until there was a proper joinder in demurrer, the court had-no right to discharge the jury from the trial of the issue. Both parties must concur in the prayer that the jury be discharged. And if either party refuses to join in such a demurrer, when the same is properly tendered, it is a discontinuance, for which a non pros. or default, might be entered. This case stands as at common law, unaffected and unassisted by . any statute of jeofails. None of those statutes extend to a judgment on demurrer to evidence.</p> <p>The court below had no power or authority to give final judgment in an action of assumpsit, which is for damages, without the intervention of a jury. By the common law it could not be done. And our statute, allowing final judgment on promissory notes, &c., is, we think, confined to demurrers in law, and does not extend to this case.</p> <p>There is no such demurrer to the evidence in the record as the law recognizes, although three attempts seem to have been made at it; two by the clerk, and one by the counsel. Had there been any objection to the admissibility of the note as evidence, the plaintiff in error could not avail himself of it, by demurrer to evidence. Buller’s Nisi Prius, 314.</p> <p>If the note had not have been copied in the record, this court would presume that the note mentioned in the declaration accompanied it, and that the court below gave judgment upon it, for neither the record nor the demurrer states that the note copied in the record was all the evidence in the cause. The plaintiff in error cannot object here that the court below did not treat his demurrer as a nullity, and send the cause to the jury, and so the question cannot arise here, whether it would be error in a court to discharge a jury after issue and proof adduced, and give judgment on the writing sued on, though I think it clear it would not. It is not only proper, but the common practice, to discharge the jury on a demurrer to evidence. See the authority above quoted. And the question, and, 1 take it, the only question is, whether the court erred in not ordering a writ of inquiry after overruling the demurrer, and in giving judgment on the note? In other words, can the court assess damages on a writing, where the amount is certain ? Nothing is better settled than that it can. Renner et al. v. Marshall, 1 Wheat. 215; 2 Saund. 107, n. 2; Dicken v. Smith, 1 Lit. R. 211. See 2 Pirtle’s Dig. 30, for reference to other authorities.</p> <p>It is contended that there is no such demurrer to the evidence as the law recognizes. If this be true the judgment must be reversed, and a venire facias de novo awarded. The general issue is in the record. And if that issue was not properly withdrawn from the jury, it remains undisposed of, and the case must be remanded. We will not raise the question here, whether or not the evidence offered was sufficient to sustain the issue on the part of the plaintiffs in the court below. We demurred, and that which we complain of is, that the court gave judgment without there being a legal joinder. We could not have demurred to the joinder. And that it is grossly defective by the common law, cannot be doubtecl. And inasmuch as no statute of amendments cures the defect, it still remains, and is therefore error.</p>

ErboR from the circuit court of Adams county; Hon. Charles C. Cage, judge. This was an action of assumpsit, brought to the May term, 1842, of the circuit court of Adams county, by the Commercial Bank of Natchez, against Elizabeth P. Bondurant, Frederick Stanton and Malachi B. Hamer, on a promissory note for $5353 90; dated 21st of March, 1838, and payable twelve months after date, upon which was entered a credit on the 24th of March, 1839, of $2779 04.

ERROR from the circuit court of Holmes county; Hon. John H. Rollins, judge. This was an action of assumpsit brought to the October term, 1839, of the circuit court of Holmes county, by the-Bank of Lexington, against Thomas Cook, David Lanfair-, Bryant G. Whitehead and William L. Pickens, on a promissory note, for two thousand and ten dollars. The defendants pleaded the general issue. Upon the trial the plaintiff read in evidence the note sued on, and rested her case.

ERROR, from the circuit court of Jasper county; Hon. A. B. Dawson, judge.

<p>ErroR from the circuit court of Holmes county ; Hon. Morgan L. Fitch, judge.</p> <p>This was an action of assumpsit brought to the April term, 1844, of the circuit court of Holmes county, by William Ross, Thomas Strong, and William Hurt, late copartners, doing business under the name and firm of Ross, Strong, & Co., against-Robert Sims. The declaration was founded on a promissory note, drawn by the defendant, in favor of the plaintiffs, by their partnership name, for the sum of five hundred and six.ty-five dollars, dated the 15th day of February, 1840, and payable one day after date. The defendant pleaded the general issue. On the 24th day of April, 1845, the cause was tried. On the trial, the plaintiffs read, in evidence to the jury, the note sued on, and rested their case. The defendant then read to the jury, a duly certified transcript of the records of the district court of. the United States, for the southern district of Alabama, which showed that William Ross and Thomas Strong, on the 19th day of February, 1842, filed their petition to be declared bankrupts, pursuant to the act of congress, passed on the 19th day of August, 1841; and that on the 4th day of July, 1842, they were regularly discharged from all their debts. The defendant then moved the court to instruct the jury : “ That if they believe that all or any of the said firm of Ross, Strong &Oo., to whom the note sued on was given, have, since the giving of said note, become bankrupts, under the act of congress, in such case made and provided, that the said plaintiffs have no right to sue, in manner and form, as they*have sued, and they must find for the defendant,” which charge the court refused to give, and the defendant excepted. The jury found a verdict for the plaintiffs, and the court rendered judgment thereon. To reverse which, the defendant now prosecutes this writ of error.</p> <p>The bill of exceptions, in this case, shows that the defendant below proved, on the trial, that two of the plaintiffs were bankrupts, and had become so since the making of the note sued on. The court was requested to instruct the jury, that, under such circumstances, no recovery could be had. The refusal of the court to give this instruction, is the error complained of.</p> <p>When one or more of several plaintiffs are bankrupts, the suit cannot be maintained. 1 Chit, on Plead. 27; Eckhardt v. Wilson, 8 T. R. 140; 10 East, 418; 4 lb. 230; 12 Mod. 446; 5 J. Ch. R. 70. The case in 8 Term Reports, is conclusive, being a case precisely in point.</p> <p>Want of interest in plaintiffs in a note, is a good defence under the general issue. 2 How. 642. The only case controverting the foregoing, is the one from 1 Johnson, relied on by defendants in error. By reference to that case, it will be seen that the court were equally divided in opinion. Justices Thomson and Kent, by far the ablest lawyers on the bench, being of opinion that the bankruptcy was a bar. This is the only case in opposition, and its weight, as authority, is entirely nullified by the circumstances attending it.</p> <p>The error complained of is, that the court refused to give the instructions asked for by the plaintiff in error.</p> <p>Under the state of the pleadings and proofs, the instruction was properly refused. The statute, How. & Hutch. 595, s. 32, enacts that all pleas to the action, shall be deemed and adjudged as admitting the parties, and the character of the parties suing. Now this suit was brought by the defendants in error, in their firm names, alleging themselves to have been late partners, &.c.- And the court was asked to instruct the jury, that if they believed, from the evidence, that all or either of the firm, became bankrupts, after the making of the note sued on, that plaintiffs have no right to recover. The instruction was.en-. tirely too broad. There was no proof, whatever, that Hurt was a bankrupt, or that he was ever divested of, or parted with, his interest in the note sued on.</p> <p>The proof that one or two of several partners have become bankrupt, where there is still a solvent partner, will not be sufficient to defeat the action, when the suit is brought in the names of all. The solvent partner, having the possession of the note, would have a right to use the names of the other members of the firm, as a matter of form, to recover his debt. The court is here respectfully referred to the case of Bird et al. v. Pier-pont, reported in 1 Johns. 118, as a case precisely in point, which decision was made after a full review of the authorities cited in the brief of the plaintiff in error. The controversy here, is not between the solvent partner and the assignees of the two bankrupt partners. The assignees do not interfere, and it does not lie in the mouth of Sims to object to the form merely, when the debt is indisputably just; for this is ftiore a question of form, than substance, and there can be no doubt of the right of the assignee to collect the debt due the bankrupt, either directly, in his own name, or as trustee, using the name of the bankrupt. See 2 Johns. 344. The assignees not interfering, and the solvent partner having the possession of the note, raises a strong presumption that the assignees have assented to sue as trustees, using the names of the bankrupt partners; and there is nothing in the record to rebut such presumption. The case cited, by the plaintiff in error, from 5 Johns. C. R. 70, has no application to the one before the court, it being a contest, solely, between the solvent partner and the assignees of his bankrupt partners.</p> <p>I see nothing in the record before the court, which shows that assignees were ever appointed, and for aught that appears, the trust has never been accepted by any one ; if such be the fact, surely the solvent partner should be allowed to use the names of all, until assignees were appointed.</p>

<p>ERROR from the circuit court of Kemper county; Hon. Hend-ley S. Bennett, judge.</p> <p>This was an action of assumpsit brought to the April term, 1843, of the circuit court of Kemper county, by Absalom Har-man, president of the board of commissioners, &c., and successor of Meshach Carter, late president, &c., against Peter H. Cole and Silas A. Drake. The declaration was founded on four promissory notes, for the sum of four hundred and thirty-one dollars each, all drawn by the defendants, in favor of Me-shach Carter, president of the board of commissioners for the sixteenth section, in township eleven, range fourteen, east, or his successors in office, all dated the sixth day of January, 1838, and payable respectively at one, two, three and four years, after date. • At the return term, the defendants pleaded the general issue, and also that neither Absalom Harman, nor Meshach Carter, was, at the time of bringing this suit, or at any other time, legal trustee of the said sixteenth section of township eleven, of range fourteen, east. Both pleas were, by consent, filed in short, neither being sworn to, and the issue was also joined'in short, by consent. On the 29th day of October, 1844, the cause was tried, and verdict and judgment rendered in favor of the plaintiff, for the sum of twenty-one hundred and six dollars and sixteen cents. During the trial, the defendant filed a bill of exceptions, which discloses the following facts, to wit: That the plaintiff, on the trial, read to the jury the notes sued on, upon each of which was entered a credit of forty dollars, and proved that the notes were given for a lease of a part of the section named in the notes, and that Cole went into possession of the land after the lease was made, and here rested his case.</p> <p>The defendants then offered witnesses to prove that the commissioners who made the lease, and took the notes, never qualified themselves to act in the matter, by giving bond and security, and taking the oath required by law; that only four persons acted as commissioners, and they, without having given bond and security, and without having taken any oath ; that the lease was made after an advertisement of only thirty days. But the court would not permit the evidence offered, to go to the jury; to which the defendants excepted. After the judgment was rendered, the defendants made a motion for a new trial, based upon an affidavit of Peter H. Cole, stating that he was principal in the notes sued on, and Drake merely surety for him; that they were given for the lease of a part of the sixteenth section, in Kemper county, made to him by the then school commissioners thereof; that there was no writing passed between them and himself, at the time the lease was made, or since, except the notes sued on, that if he had been present at the trial, he could have made these facts appear, by informing his counsel what questions to propound, and by introducing evidence which did not go to the jury ; that he has never been benefited by the lease, and has no means of enforcing its execution, there being no record, whatever, preserved of the transaction. The reason why he was not present at the trial, was, that his counsel, the day before, informed him that the state docket would be taken up next morning, (the court having said so,) and that the trial would not come on until late in the day, if at all; that he reached court before eleven o’clock the next morning, when the argument made to the jury had just been concluded; and that he believed he could make these facts appear at the next term, if a new trial should be granted to him.</p> <p>The motion for a new trial being overruled, the defendants brought the case to this court, by a writ of error.</p> <p>The declaration shows no cause of action. The plaintiff must state so much as is necessary to show that he has a right to sue in the particular action; The notes are payable to “ Me-shach Carter, president of the board of commissioners for the sixteenth section, in township eleven, range fourteen, east, or his successors in office.” The plaintiff can have no right .to sue- in this action, unless he be successor in office to Meshach Carter, as “ president of the board of commissioners for the sixteenth section, in township eleven, range fourteen, east.” He states no such fact in his declaration ; and thereby, fails to show that he has a right to sue in this action. He states merely, that he is “ president of the board of commissioners, &c., and successor of Meshach Carter, late president, &c.” This statement may be true, and yet the plaintiff have no right to sue in this action. His right to sue cannot rest upon presumption. No rule in pleading is better established than this, that the plaintiff must state in^his declaration, positively and particularly, every fact necessary to give him a right to the action.</p> <p>The plea of the general issue may be said to admit the character in which the plaintiff sues. The statute on that subject cannot be construed to mean anything more, than that this plea admits the character of the plaintiff as it is stated in the declaration.</p> <p>The promise of the defendants below, was, in the alternative, to pay the amounts of the notes to Meshach Carter, or his successors in office. The plaintiff states, that they have not paid him. This is not sufficient; it is no averment of a breach of their contract. And, clearly, without such averment, the plaintiff cannot recover.</p> <p>1. The first view of this case shows that the defendants below relied entirely upon the fact that the parties were not commissioners, and therefore not authorized to sue. The proof therefore on this- subject was very properly excluded by the judge. For the plea of the general issue, admitted the parties and their right and character in the suit, as has been so repeatedly decided, that it is unnecessary to refer to any of the numerous cases adjudging the point. And if this had not been so, 1 presume that the law governing the character of officers defacto, as recognized several times by this court, would control this case so as to decide it as the court below has done. See 2 How. 640 ; Ibid. 664; 4 Ibid. 557; also, 1 Phil. Ev. 557.</p> <p>2. But the defence, in my humble judgment, is based upon a misconception of the law, so far as it assumes that some written memorandum must have passed from the lessors to the lessee. This point is evidently controlled by the second section of the act of 1833. (See Fall’s Collection, 452.) That section, so far from contemplating that the trustees shall execute a lease, or anything in the nature of one, explicitly provides that no right, title, use, interest, &c. shall be conveyed until the final payment of all the money. And evidently excludes all idea of any other writing passing between the parties, than the notes given for the lands, by making them a lien on the land for their payment.</p> <p>3. But the entire defence was, moreover, misconceived in this, that, assuming the facts offered to be proved, to be true, there was no consideration for the notes. No fraud was attempted to be proved. And it was directly in evidence, that the defendants went into possession, and'remained in peaceable possession of the lands for which the notes were given.</p> <p>This being so, until legal eviction by paramount title, no defence can be set up to the notes at law. So far from this being the case, these plaintiffs, successors in office, to those who made the lease, and took the notes, and to whose proper qualification no proof is offered, not only bring this suit, but resist this defence, either of which, I take it is a ratification of the acts of their predecessors, that neither they or their successors could ever gainsay.</p> <p>4. I have now, I believe, disposed of the whole case, save the affidavit for a new trial. The first objection to this is that it shows nothing that will bar the action if my views of it be correct. All it proposes to show would not avail the defendant anything. But there is a fatal objection to it even if it presented facts that would undoubtedly bar the suit. This is, it gives as a reason for not being present at the trial, ready to prove them, that he was misled by his attorney as to the time of the trial. The case of Green v. Robinson, 3 Howard, 105, has so flatly settled that no negligence or inattention of a party’s attorney, however palpable it may be, is ground for a new trial, that it is singular that this effort should have been made. See 1 Sch. & Lefr. 201, cited in 1 Johns. Ch. R. 223.</p> <p>The declaration descriptively presents Harman as president of the board and successor of Carter, describes the notes, and avers non-payment; but does not aver on what consideration they were given, nor the process by which Harman became invested as president.</p> <p>Authority need not be cited to show that the declaration is fatally defective in having omitted to trace distinctly and in a chain authorized by the statute, the legal right in its transmission from the payee; yet, see 1 Chit. PI. 368; 1 Salk, 355; 1 Raym. 202; Com. Dig. PL E, 23,24; 2 Wend. 561. If I sue as executor, I must aver that my testator made and published a last will in writing; therein appointed me executor; that the vrill was proved; and that I was qualified. So, if I sue as administrator, I must aver that I had an intestate who died without a will, &c. If I sue as successor to a trust, I must, by a sufficient allegation, show how my predecessor became entitled, and how I am invested. Netterville v. Stevens, 2 How. 643. Yet this is the point chiefly urged by my associate.</p> <p>But on the declaration and. the notes read in support of it, the evidence offered on the pleas being rejected, the jury had before them nothing but a naked promise to pay Carter, as president of a certain board, so much. It was plainly not a commercial or ordinary dealing — an instance of consideration passed, promised or secured on the one hand, and of undertaking to pay an equivalent in return. It was clearly not a transaction out of which a negotiable bill or note could naturally arise. It was a promise to pay a fiduciary character the sums specified: but for what cause? How, or for what did Cole and Drake become thus indebted to the commissioners of the section 1 The plea of non assumpsit, was no more than a general denial of any cause of action; and if no cause of action, no clearly deraigned legal right in the plaintiff below, to demand and have of the defendants below the sums demanded, it would, I think, be a strange perversion to say, that the denial was an admission of a cause of action. It has been universally held, that a declaration in which there is no cause of an action, will not sustain any verdict or judgment. The defect is fatal as well in error as on demurrer. This peculiarly was a suit in which the specification of the consideration of the promise was essential. Riley v. Yanhouten, 4 How. 428; Willis & Co. v. Ives, 1 S. & M. 307.</p> <p>Again, it is manifest, that those concerned in taking the notes, believed that by the legislation of this state, a “ board of commissioners” for the school section mentioned, had been authorized to be elected or appointed, and that certain statutory powers had been given to such commissioners. The whole legislation on the sixteenth sections from first to last, whether general or local, it is believed, contemplates and speaks óf trustees and their election, qualification and powers, and such a thing as a “board of commissioners for a school section,” is presented for the first time in the notes and declaration in this case. If this be a statutory proceeding it ought to have pursued the statutes, and given to itself a name and a right known to the laws. Campbellv. Brown, 6 How. 230.</p> <p>I do not rely on the second plea. It is not worthy of notice. It would seem, however, from the bill of exceptions, that evidence was offered to show that the notes in suit were given on or for the lease of part of the sixteenth section mentioned in the notes. That the commissioners who made the lease never gave bond nor took the oath of office ; that only four of them acted ; and that the lease was on only thirty days’ advertisement. Now this was equivalent to the offer of proof to show that no title had originated, and that consequently none had passed in succession. Was this admissible under the general issue? If so it was illegally excluded. The original 4th section of the Creditors’ Act, Feb. 27, 1836 (H. & H. 595, s. 32,) provided that all pleas to the action should be deemed as admitting “the parties and character of the parties suing,” and in no case should the plaintiff or complainant be required to prove any “ written signature, identity of person, description of character, &c.,” unless the signature, person, partnership, or description of character be denied by plea verified. It is impossible, without a review of a thousand volumes, to delineate all the bearings of that statute, or trace in detail its abrogations of the common law. It was in derogation of the common law. Yet it is still the law; but in judicial interpretation it ought to be applied to such cases only as are within the clear meaning and effect of its words, and certainly not one jot beyond them. Well, then, to apply it here — the plea of non assumpsit admitted the identity of Harman — admitted he was president of a certain board called the commissioners of a certain school section, and that he was suing as successor of the payee; and admitted that the names of Cole and Drake, as signed to the notes, were signed by them. Did the act convert the denial of the makers of the note into any other admissions? If any, into what others — what were they ? If into any others it would be well to ask and satisfactory to the country to be informed, if in truth and in result the denial of any pleading in court is not by the potency of that act transformed into an admission. The truth is, the act was only intended as a rule of evidence, to dispense with proof of signatures and partnerships, and nothing more, unless the signature or partnership should be denied by plea and affidavit. There is no dispensation of proof required to support the right claimed. There is no preclusion, by the plea of general denial of right, to question, by the proof, the right claimed. If Carter was president of the board of commissioners when the notes were taken; and if Harman was in being and the successor at the time of suit, was it, under the statute, to be assumed, in opposition to proof offered, that the commissioners who'made the lease were duly elected; had given bond; had taken the oath; had made the requisite advertisement of lease % If so, it is only necessary to file a declaration and get the general issue pleaded, and all is proved; the suitor by his averments proves what cannot be controverted ! It was not so considered by this court in Netterville v. Stevens, 2 How. 642.</p>

Error from the circuit court of Warren county ; Hon. George Coalter, judge. The grand jury of Warren county, at the May term, 1846, preferred an indictment against Charles Covey, for stealing a horse of the value of fifty dollars. At the October term, 1846, the defendant was arraigned, pleaded not guilty, was tried and found guilty as charged in the indictment.

ERROR from the circuit court of Copiah county; Hon. Thomas A. Willis, judge. This was an indictment for larceny, found by the grand jury of Copiah county, at the November term, 1846, of the circuit court, against Joel Swinney.

<p>It is the duty of the circuit judge to charge the grand jury, when impanelled, in regard to the' nature of the duty they are required to perform, and the motives which should govern them in the discharge of that duty, but..the charge so given is not to be placed on the record, nor is it necessary that the record should show that it was given, as the matter charged does not constitute a ground of error ; where, therefore, it is not made apparent by a bill of exceptions that such charge was not given, this court will presume that the circuit judge performed his duty, and gave the charge as required by law.</p> <p>A plea by an attorney of a party indicted for an assault committed with intent to rob, is a nullity; the defendant must plead in person.</p> <p>It is incompetent for the clerk of a circuit court at a subsequent term to make any entry of what had transpired at the preceding term ; where, therefore, the clerk stated in the record, in a criminal case, that “ the said defendant having been arraigned at the last term of this court, pleaded not guilty, and put himself upon the country,” and there was in fact no arraignment mentioned in the record of the proceedings of the previous term ; it was held, that it did not legally appear that the accused ever was arraigned, which was error.</p> <p>In a criminal case where a juror is elected, he must remain under the care of the court, or an officer, before, as well as after he is sworn. And it is error to permit jurors who have been elected and not sworn, or the jury after they have been sworn, to disperse without the consent of the prisoner.</p> <p>A grand jury composed of members who do not possess the requisite qualifications, or who have not been drawn, summoned and impanelled in accordance with the law, have no power to find a valid indictment; a prisoner, therefore, has the right to question by a plea in abatement, the competency of the grand jury by whom he was indicted ; he cannot be called to answer a charge against him, unless it has been preferred according to the forms of law.</p> <p>Pleas in abatement in criminal as well as in civil cases, must be pleaded at the proper time; by denying the charge, the accused waives matter in abatement.</p>

<p>A bill of exceptions, which states that the judge who tried the cause, refused to sign it, and that the two persons who did sign it were practising attorneys of the court, and present at the trial, is in accordance with the statutes, and, therefore, sufficient.</p> <p>The incompetency of the grand jurors, by whom an indictment is preferred, may be pleaded by the defendant in abatement.</p> <p>Where the defendant pleaded, in abatement, that six of the grand jurors who found the indictment against him, were not competent, not having been drawn and summoned according to law, and issue was taken on the plea, and on the trial, the district attorney read to the jury the caption of the record, which, after reciting the term of the court, proceeded thus : “A grand jury of inquest, for the body of this county, was drawn and impanelled from the regular venire, namely : ” naming the grand jurors ; it was held, to be competent for the defendant to read, in evidence, to the jury, the original venire facias, and that being the process which was referred to, as furnishing the names of the persons mentioned in the caption of the record, if it contradicted the caption of the record, it must control and prove that the caption was untrue.</p> <p>R. was indicted for exhibiting a faro-bank ; he pleaded, in abatement, that six of the grand jurors who found the indictment, had not been drawn and summoned, according to law, and were not, therefore, competent grand jurors, and issue was taken on the plea ; on the trial, the district attorney read to the jury the caption of the record, which, afterreciting the term of the court, proceeded in these words : “ Agrandjury ofinquest, for the body of this county, was drawn and impanelled from the regular venire, namely : J. N. C.,” &e., naming all of the grand jurors, and rested the case; the defendant then offered to read the original venire facias, upon which the names of the six grand jurors did not appear, which, being objected to, was ruled out by the court; the defendant then offered to prove, by a deputy sheriff, who was the officer of the court, that when he called the list of jurors regularly summoned, a sufficient number answered to their names, and were present in court, to constitute a grand jury, and that the six persons mentioned in the plea, were, by the order of the judge, substituted for six of the regular panel, who were then in attendance, and who had brought in their substitutes, and tendered them, and the court received the substitutes, and discharged the original jurymen, and that the witness was instructed to insert the names of the substitutes on the panel ; the regular jurors, who employed substitutes, were also offered, to prove the fact of substitution, all of which evidence being objected to, was ruled out by the court: Held, that the venire facias ought to have been admitted, and being the better evidence, it would have proved the caption of the record to be untrue ; the parol evidence would have explained and shown how the discrepancy in the record occurred ; it was pertinent to the issue, which was not an immaterial one, and ought not to have been excluded.</p> <p>In forming a grand jury, the circuit courts in this state have no power to receive substitutes for any part of the regular panel; and if they do receive substitutes, the grand jury thus formed, will be unlawful, and any indictment found by them, may be abated by the plea of the defendant.</p> <p>Where the defendant pleads in abatement to an indictment, and the plea is demurred to, and the demurrer overruled, the judgment of the court should be that the prosecution abate.</p>

Robert Duncan, judge. On the 6th day of July 1844, Isaac R. Wade, filed in the probate court of Jefferson county a petition, stating, that at the February term, 1836, of the probate court of Jefferson county, letters testamentary were granted to himself, Elias Ogden, James P. Parker and John B. Coleman, upon the last will and testament of Isaac Ross, deceased; that petitioner gave bond as executor of that estate, and returned an inventory thereof which was not signed by…

ERROR, from the circuit court of Hinds county; Hon. John H. Rollins, judge. This was an action of ejectment, brought to the December term, 1841, of the circuit court of Hinds county, by Giles S. Tainter, to recover lot No. 100, in the town of Clinton. Fendall H. Robinson was made defendant at the return term. At the March term, 1844, the cause was tried.

Robert R. Thomas, judge. This was a bill filed in the probate court of Tippah county, to the November term, 1846, by George McCullom and Lydia McCullom his wife, to review the final settlement of the account of Grief J. Box as administrator of Michael Box, deceased, and to surcharge and falsify the same.

<p>On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.</p> <p>John A. Rowan and John L. Harris filed their bill in the superior court of chancery, charging that on the 7th of December, 1837, George W. Adams, being indebted to Hiram G. Runnells in the sum of $26,034, made and delivered to him three several "promissory notes for $8671 33§ each, payable on the 1st day of March, 1839, 1840, and 1841; and to secure their payment executed to him a mortgage, conveying a tract of land, particularly described in the deed of mortgage and bill, which deed of mortgage was not acknowledged and recorded in the proper county, and is exhibited with the bill. Shortly after the execution of the deed of mortgage, Runnells assigned and delivered the three promissory notes to the complainants, and in formal terms invested them with the right to control the mortgage. The bill stated that the note maturing on the 1st of March, 1839, had been settled, and that complainants were the holders of the remaining two notes, and that they were wholly unpaid, and prayed a foreclosure of the mortgage and a sale of the land for their payment. Adams and Runnells were made defendants. Adams died after the bill was filed, and his unknown heirs were brought before the court on a bill of review, and the allegations of the bill were taken as confessed against them. Runnells answered and admitted the execution of the notes and deed of mortgage by Adams, and the assignment and delivery of the-notes to the complainants as alleged in the bill. He also admitted that the note maturing on the 1st of March, 1839, had been settled, and that complainants were the holders of the remaining two notes; and that the consideration upon which Adams executed the notes was the sale to him by Runnells of the same lands described in the deed of mortgage and bill, and that he conveyed the lands to Adams by regular and formal deed, which was lost or stolen before it was recorded. He protested, however, against a decree in favor of complainants, on the grounds that the only consideration upon which he assigned the notes to the complainants was the return by them to him of bills of exchange, amounting to eighteen or twenty thousand dollars, which he had previously given to the complainants for slaves imported by them into the state of Mississippi since the-1st day of May, 1833, for sale and as merchandise, in violation of the constitution and policy of the state. He insisted, therefore, that no legal consideration was given for the assignment of the notes, and that complainants could not maintain any suit thereon. He further stated that several of the slaves at the * time he purchased them were unsound, and seven of them died in two or three months after the purchase, of diseases under which they were laboring at the time of the sale. And that, although the complainants refused to warrant them sound, they falsely and fraudulently stated they believed them to be sound. He also alleged, that after the assignment of the promissory notes to the complainants he rescinded the sale to Adams, and told Adams he would no longer hold him bound on his notes. And that after the rescission of the contract with Adams he sold and conveyed the same lands described in the deed of mortgage to John Watt, or Burke, Watt & Co., which firm was composed of Glendy Burke, John Watt, and some other person whose name he did not recollect, and he received, from them full payment therefor. At the time of the sale he informed John Watt that the complainants pretended to have a claim to the land, but he had been advised that the claim they would set up under the deed of mortgage could not be sustained. He prayed that his answer should be taken as a cross bill against complainants, and that they be compelled to answer the same fully, on oath; that his assignment of the notes to them be vacated, and the notes be decreed to be re-delivered to him, and stated his willingness to do whatever might be deemed right in the premises. Complainants filed an amended bill alleging that since their original bill was filed, they had been informed that Glendy Burke, John Watt, and Louis D. Salles, partners in trade under the name and firm of Burke, Watt & Co. or John Watt, claim title to the lands described in the deed of mortgage under a purchase from Runnells. And they averred if any such sale was made, it was long after the notes had been assigned to them, and the deed of mortgage had been duly recorded, and necessarily subject thereto ; that at the time of the sale it was well known to Runnells, and Burke, Watt & Co. that the complainants were the holders of the notes, and that they were secured by mortgage as aforesaid, and they had therefore not only such legal notice as the registration of the mortgage would furnish, but they had notice in fact of the lien of complainants on the lands. Complainants therefore insisted that the sale to Watt could not affect their rights on the notes. They, also averred the loss of the deed from Runnells to Adams, and prayed that it might be supplied by proper decree. Glendy Burke, John Watt and Louis De Salles were made defendants and called on to answer both the amended and original bill. John Watt answered, and referred to and adopted the answer of Runnells, and insisted on the same defences therein relied on. He. stated that he became interested in the lands in the following manner, to wit: Runnells was indebted to the house of Burke, Watt & Co. in the sum of $24,000, and that the same had been transferred to his private account, and he was charged with it on the books of the house; that in full payment of this he received from Runnells and wife a deed in fee simple to the lands described in the mortgage. He admitted that before he purchased, Runnells informed him of a pretended claim by complainants, but assured him that the pretence of claim by them had no just foundation in fact; and that the sale to Adams had been cancelled, and Adams had been, by agreement, released from any obligation to pay the notes given for the lands; and he asserted his title under the circumstances to be good and valid in law. The complainants filed an answer to the cross bill, admitting that they sold to Runnells, with others, a large number of slaves imported into the state of Mississippi since the 1st day of May, 1833, as merchandise and for sale, and received in payment for Runnell’s portion certain accepted bills of exchange amounting to eighteen or twenty thousand dollars, which were protested for non payment at maturity, and suits instituted thereon in the circuit court of the United States for the southern district of Mississippi, and the suits were defended on the ground of pretended unsoundness of the slaves. But before the suits were tried they were compromised and settled, and the bills of exchange taken up and paid, by the assignment of the notes of Adams, which complainants were induced to accept, because they were secured by mortgage. They admitted they refused to warrant the soundness of the slaves, but denied expressly that they made any false or fraudulent representations in regard to their soundness or unsoundness, or made any representations at all, except such as were made on a list of the slaves, specifying their ages and the prices paid for them, furnished complainants by Runnells and others at the time of the sale, at the bottom of which list was a written memorandum made and signed by the purchasers at the time, in the following'words, to wit: “We have this day purchased of Rowan & Harris the foregoing bill of slaves, and agree to take them as sound if they be sound, and unsound if such be the condition of the slaves. Given under our hands,” &c. And they exhibited with their answer the original list and memorandum. They charged that John Watt was not a bona fide purchaser for a valuable consideration without notice, that he purchased with full notice both legal and in fact of their lien, and could only hold subject to it. They denied that the sale to Watt, or the rescission of the contract between Adams and Runnells, could, under the facts of the case, affect their rights under the notes and mortgage. They-averred that Runnells had sold the slaves, and was seeking a cancelment without offering to return them or pay their value or a reasonable hire for them. And they prayed that the cross-bill of Runnells be dismissed. The bill and amended bill were taken as confessed against Glendy Burke and Louis De Salles. And on final hearing the chancellor decreed that the cross-bill be dismissed, the deed of mortgage foreclosed, and the lands sold for the payment of the notes. From which decree of the chancellor the defendants, Hiram G. Runnells and John Watt prayed an appeal, and have brought the case to this court.</p> <p>That the contract between Runnels and Harris for the purchase of the slaves, and the contract of indorsement by Runnells of the notes of Adams in consideration therefor, were illegal and void, has been so repeatedly adjudicated by this court, that a reference to cases is dispensed with. No action could have been maintained at law against Runnells upon that indorsement. It is believed to be equally well settled, that Harris obtained no title to the notes by that indorsement, and that Adams, in a suit at law brought by Harris, could have shown its illegality, and by this means have defeated a recovery against him.</p> <p>In the late work by Judge Story on promissory notes, he uses the following remarks: — “In respect to cases of illegality also, this further distinction may become important. The illegality may not only occur between the original parties to the note, but where the note was originally given for a legal and valid consideration, there may be illegality in the subsequent indorsement or transfer of it. In the latter case, the illegality will displace the title of the parties thereto; ” that is to such illegal contract. Story on Promissory Notes, 213.</p> <p>Even a bona fide holder of the paper, who had to trace title through the illegal indorsement, cannot recover because the illegal indorsement being void, no title has ever passed to him. Story on Promissory Notes, 213.</p> <p>But when the party to the illegal contract comes into court, as in this instance, to enforce collection of the bona fide claim, there is no conflict of authorities as to his inability to sue. Ibid. 213.</p> <p>In the case of Harrison v. Hammond, 5 Taunt. 780, the court say, “If a man lends $1000 on an usurious interest, and gets from a third person a collateral security for $800 only, without usurious'interest, this last is void, not because it is given for securing usurious interest, but because it is given for enforcing a contract for usurious interest.”</p> <p>The same doctrine has been held by the supreme court of the United States. 1 Peters R. 43; 4 Ibid. 228.</p> <p>In no case has it ever been ruled that the holder of a bona fide obligation, but claiming title through an illegal transfer, and being cognizant of and participating in such illegality, could sue and recover upon it. The only question of doubt has been, whether a bona fide holder, ignorant of such illegal transfer, but obliged to claim title through it, could maintain an action; and as to him, it has been held, if the contract be void he cannot. Story on Promissory Notes, 213, and cases cited.</p> <p>That Harris can obtain no relief in a court of equity in a case like this, would seem to be so clear, that a citation of authorities would not be made, had not the chancellor come to a different conclusion. One of the fundamental maxims of a court of equity is, that a party who seeks its aid must come with clean hands, or it will be denied to him. That is, a court of equity will never lend its aid to assist in enforcement of a contract, illegal or immoral, and in the making of which the party asking its aid violated the law of the land. In this case, Harris claims title to the notes of Adams, and the consequent right to foreclose the mortgage given to secure them, by virtue of a contract made with Runnells, illegal in itself, contrary to the policy and against the constitution of the state of Mississippi. To permit a recovery under such circumstances, would be to encourage parties to violate the law, and make the judicial tribunals of the country handmaids to their illegal and iniquitous deeds. For it has been well remarked, “ that the good of the public requires contracts of this character to be put an end to; otherwise it would be an unequivocal declaration of law, that the party shall have all the benefit of the contract, for the law approves what it refuses to rescind,” a fortiori would it amount to an approval, should a court of equity lend its aid to enforce such a contract. 2 Swanst. R. 165, note (6). See 3 Yerg. 124.</p> <p>Again. Another maxim of equity intervenes, the application of which to the case at bar will equally defeat the right of Harris to recover. It is this : “ In pari delicto melior est 'conditio possedentis aut defendentis.” Thus, in illegal contracts, or where one party has placed property in the hands of another for illegal purposes, as for smuggling, if the latter refuse to account for the proceeds, and fraudulently and unjustly withholds them, the former must abide by his loss. Story’s Eq. PL 70; Cowp. R. 341; 11 Wheat. 258 ; 3 Cranch, 242.</p> <p>Again. The court of equity will never assist a wrong-doer in effecting his wrongful intents — and upon a bill filed by him a defendant may show the illegality of the contract, and thus procure the dismissal of the bill, without any offer upon his part to perform equity, although had such defendant filed an original bill for relief, it would only have been granted to him upon terras of his doing full equity to the party who violated the law. 1 Story Eq. 77; 4 Bro. Ch. Cas. 435 ; 1 Fonbl. Eq. B. 1, ch. 1, § 3, n. (A.)</p> <p>We do not contend that a mortgage, executed to secure the payment of a note given for negroes introduced into this state as merchandise, or for sale since the first day of May, 1833, could be foreclosed in a court of equity, or a suit maintained on such a note in a court of law. The notes in the case at bar, however, are admitted to have been originally given for a , lawful and valuable consideration. Adams received a value for them, and neither he nor his heirs make any resistance to the collection of them; they are willing the mortgage should be foreclosed and the land sold, but Runnells, who is a mere formal party, against whom no decree is sought, who had parted with all his interest in both land and notes, as we believe, resists a decree of foreclosure because he transferred the notes to Rowan and Harris for an illegal consideration. Admit the consideration of the transfer was illegal, what then is the attitude of Runnells ? He appears as a party to an illegal transaction, seeking to recover back choses in action paid by him for an unlawful consideration, and he asks a court of equity to aid him in his unconscientious endeavor, without even offering to return the negroes or pay their reasonable hire; he alleges his own turpitude to enable him to recover back that, which, in pursuance of a forbidden contract, he had delivered to the appellees. It is a wholesome maxim, that he who asks equity, must do equity. There can be no doubt, therefore, we think, that if a court of equity would take cognizance of this forbidden contract, at all, it would require as a condition precedent, a return of the negroes and the payment of their reasonable hire by Runnells, before he could recover back the notes he paid for them. Here the contract was executed — the consideration actually paid over — and we apprehend the same reason which would prevent Rowan and Harris recovering in an action on the indorsement of the notes against Runnells, will prevent Runnells recovering back the notes. The contract was unlawful, and the courts of the country will lend no aid to either party. To such cases the maxim, in pari delicto portior est conditio defendentis, et possidentis, applies. Adams’s heirs, the only parties who could object, if indeed they could, offer no resistance to the decree of foreclosure, and we insist that the court finding Rowan and Harris in the possession of the notes, having received them from Runnells as money, should leave them to pursue their equitable remedies against the maker or his heirs, even though the transaction between Runnells and themselves were in violation of law. John Watt is clearly not a purchaser for a valuable consideration without notice, in any view we can take of the case. He parted with neither money or property, nor relinquished any security for the land, but received it for a preexisting debt. See Harney v. Pack & Clifton, 4 S. & M. 229.</p> <p>He had the constructive notice which the proper registration of the mortgage gave him, and notice in fact, as both he and Runnells admit. Being a purchaser therefore, with full notice, constructive as well as actual, Watt occupies no better condition than Runnells.</p> <p>But we think the opinion of the chancellor may be affirmed, even admitting the doctrine contended for by appellants, that a party claiming through a vicious indorsement cannot be heard.</p> <p>The notes indorsed by Runnells to Rowan and Harris, were given in settlement and compromise of certain bills of exchange, on which a suit was then pending, and to which Runnells had plead a failure of consideration. It was in compromise of the suit that the notes were given ; this is expressly stated and relied on, in the answer of Rowan and Harris to the cross-bill of Runnells; is responsive to that cross-bill, and is thus evidence.</p> <p>That the compromise of a suit is a good consideration to uphold a promise to pay a certain sum of money, or the indorsement of a promissory note. See Okeson v. Barclay, 2 Pennsyl. 531 ; Chit, on Con. 37 -39.</p> <p>It is immaterial how slight the consideration; how inadequate. Any inequality of consideration upon entering into an agreement, for the compromise or abandonment of a doubtful right, will not defeat the contract. Chitty on Contracts, 26, 27, and cases cited'.</p> <p>It is true the cases say there must be doubt about the point of law involved in the case to make the consideration a good one. Admit that to be true, was there not doubt about the ultimate decision of the question as to the constitutionality of these contracts for the sale of negroes introduced into this state, at the time when the compromise of the suits on these bills of exchange was effected 1 It was prior to any decision of this court, or in this state on the subject. And although now no one doubts about it, yet not until the opinion of Brien v. Williamson, 7 How. 14, which Chancellor Kent considers so “masterly,” was the question entirely put at rest. The case of Groves v. ¡Slaughter, 15 Peters S. C. Rep. 449, in which a majority of the supreme court of the United States differed from this court, at least made the question a sufficiently doubtful one to uphold a compromise of a suit. Where the supreme court of the United States is arrayed on the other side, we think even the most confident may doubt of the correctness of the decision of either court. It made the chief justice hesitate and carefully review his former ground, and must surely then be a sufficient justification for a mere litigant to feel that the ultimate decision was doubtful.</p> <p>There is nothing in the plea of Runnells which commends it to the consideration of the court; it is in morals odious in the extreme; and nothing but the iron rules of law will bind the court to its allowance.</p> <p>The courts of this state have gone very far in sustaining this unconscientious defence; and they ought not, it seems to us, to extend its baleful and demoralizing protection any further than they are compelled by positive law.</p> <p>In this case it clearly appears, that bills of exchange were originally given for the slaves thus illegally introduced, that those bills of exchange were sued on at law, were defended at law, and hi compromise of that suit the notes in controversy indorsed to Rowan and Harris. Here is a totally new consideration, valuable in its character intervening, and the court will not go back to the bills of exchange to inquire into their consideration.</p> <p>This conclusion, while it is sanctioned by law, commends itself by its intrinsic equity and justice to the approbation of everybody. The fair contract of the parties is carried out; fraud or injustice perpetrated on no one; and no violation of the constitution occasioned. The conclusion to which we think the court may come on this point, we think sanctioned by the decision of Thomas v. Phillips, 4 S. & M. 358; where, after judgment on one of these contracts, the court refuses to lend its aid or grant relief. It will not look behind the judgment at the violated constitution, which in this case Runnells is so much concerned for; so here it will not look behind the compromise of the lawsuit, and the surrender of the bills of exchange, to see what, if any, illegal or other contracts and considerations were merged in that compromise.</p> <p>1. No action can be sustained, either at law or in equity, upon a contract fraudulent or illegal when shown to be so. Nor can the form of the contract change or modify the rule. A promissory note may be valid as between the maker and payee, yet void in the hands of a fraudulent assignee, or of one who holds the same by a direct illegal indorsement. Because such illegal indorsement confers no title on the indorsee, and consequently no right of action either against the indorser or maker. Story on Prom. Notes, 213; Chitty on Bills, 109,116; Lowes v. Mazzaredo, 1 Starkie’s Rep. 385 ; Parr v. Eliason, 1 East, 92; Chapman v. Black, 2 Barn. & Aid. 588 ; Ackland v. Pearce, 2 Camp R. 599; Lloyd v. Keach, 2 Conn. R. 175 ; Strong v. Tompkins, 8 J. R. 98. See also Gaither v. Farmers and Mechanics Bank, 1 Pet. R. 43, where it was held, that an illegal indorsement was a void act, and that the property in the note and of consequence the right of action, could never pass by it to the indorsee : that the maker may set up the illegal indorsement in avoidance of the contract, even though the indorser might sue the maker, there being nothing illegal as between them.</p> <p>It has never been questioned, that the indorser or assignor might in such case plead the illegality of the contract. The same rule prevails, even in cases of usurious indorsements.. In Lloyd v. Keach, Mr. Justice Hosmer uses this language. To the objection that no person may take advantage of usury in the indorsement of a note, but the person oppressed with the exaction, I reply, that the assertion is utterly unfounded. The plaintiif can recover only on the exhibition of a legal title, and the defendant may avail himself of the want of it.</p> <p>Where a contract, however, is absolutely void, even a stranger may take advantage of it, nor can it be confirmed or ratified. Viner’s Ab. title Void and Voidable, letter A.</p> <p>The assignment of the note applies equally to the mortgage, which is but an incident, and whoever is the owner of the debt, is likewise the owner of the mortgage security. Jackson v. Willat'd, 4 J. R. 41; Johnson v. Hart, 3 J. Ca. 322.</p> <p>3. I admit, that in general where money has been paid in an illegal transaction, it cannot be again recovered, (except in case of gaming, whilst it is still in the hands of the stake-holder, and there is a locas penitential) But the idea that Rowan and Harris took the legal estate in the mortgage lands, in actual payment for the slaves, in the sense in which it is here sought to be used, is wholly rvithout foundation and absolutely inconsistent with their attitude as complainants seeking relief. Wynne v. Callander, 1 Russ R. 293; Baker v. Williams, 1 Amb. 269, 2 ed. note 5. If they have received actual payment, they are entitled to no farther relief and can have no equity. If not, they are yet the complainants, and being in pari delicto, cannot prevail even as against Runnells; for in such case melior est conditio defendentis, aut possidentis. They are precluded by the maxim.</p> <p>4. Again, if it be supposed that there was no rescission of the contract of sale and purchase, between Runne'lls and Adams, and that the former held an estate under the mortgage subject to assignment, as distinct from the notes, it follows that Watt is the party now in possession of that estate by deed, and is protected by the maxim either as possessor or as defendant. But</p> <p>Watt occupies higher ground. After the rescission of the contract between Runnells and Adams, he himself purchased the land from Runnells for the sum of about $24000. Runnells and Adams had an undoubted right to consider the assignment to Rowan and Harris void, and to rescind and cancel the contract of sale and purchase made between them. This was accordingly done, revesting in Runnells the entire estate in the land, who thereby acquired a right, equally undoubted, to convey the same by deed to Watt.</p> <p>Watt then became a purchaser, in good faith for a valuable consideration. And being so, notice to him of the previous illegal assignment to Rowan and Harris was wholly ineifectual to prejudice his rights, either as creditor or purchaser.</p> <p>In Clapp v. Tirrill, 20 Pick. R. 247, it was declared, that a conveyance to defraud creditors, was void as against a subsequent purchaser for a valuable consideration, even though he have notice of such prior conveyance. It was also held, in Ricker v. Ham, 14 Mass. R. 137, that such second purchaser may obtain a good title, by a conveyance made whilst the land is in possession of the fraudulent grantee.</p> <p>“A purchaser, notwithstanding he had notice of a prior fraudulent conveyance might avoid it; for the notice of the purchaser cannot make that good, which an act of parliament has made void.” Newland on Contracts, 396. In Doe v. Manning, 9 East, 59, the conveyance was for a good though not a valuable consideration. Lord C. J. Ellenborough, upon a review of all the authorities, declared it to be void, as against a subsequent purchaser, though he had notice of it.</p> <p>5. Upon any view of the case which may be taken, Runnells was properly made a party to the bill of complainant. Upon payment by him of one of the notes so transferred, he became again the holder. There was by operation of law a re-transfer of the note, and of the mortgage security pro tanto.</p> <p>The fact that he filed a cross-bill, did not change his attitude as defendant in the cause. In general a cross-bill is to be considered as a defence to the original bill. It is but auxiliary. Story’s Eq. Plead. 317, § 399. It was therefore not necessary that Run-nells should have offered to return the slaves to the complainants.</p>

<p>M. sued H. and T. as indorsers of a promissory note ; they pleaded a special plea, not under oath, that a recovery at law had been obtained by M. against the maker of the note, and they, although at the time residents of this state, were not joined as defendants in the action against the maker; M. demurred to the plea, on the ground that the defence should have been made by plea in abatement, verified by affidavit; Held, that the demurrer was well taken ; and if the demurrer had not been filed the plea might have been properly stricken out as a nullity.</p> <p>In an action of assumpsit against the indorsers of a promissory note, the defendants pleaded non-assumpsit, and also a special plea in bar, the plaintiff demurred to the special plea, and the defendants joined in the demurrer; the court overruled the demurrer, and entered a final judgment in favor of the defendants : Held, that it was error to give a final judgment for the defendants, while the plea of non assumpsit existed in the case, undisposed of.</p>

EekoR from the circuit, court of Yazoo county ; Hon. Morgan L. Fitch, judge. This was an action of assumpsit, instituted in the circuit court of Yazoo county, to the May term, 1841, by Nathaniel G. Nye, for the use of John Kirk, against Henry Peden and William Grubbs.

<p>ERROR from the circuit court of Hinds county ; Hon. George Coalter, judge.</p> <p>This was an indictment preferred by the grand jury of Hinds county, against Patrick Donnaher, for a nuisance, in digging and subverting large quantities of dirt in the streets of Jackson, and thereby obstructing the same. The defendant pleaded not guilty. The case was submitted to the court on the following agreed state of facts, to wit: —</p> <p>“ In 1836, the legislature of the state of Mississippi, passed an act incorporating the president and directors of the Jackson and Brandon Railroad and Bridge Company, which is herewith referred to, and made part of this agreed case.” Then follows the act of incorporation; and also the acts incorporating the “Mississippi and Alabama Railroad Company,” the “Southern Railroad Company,” and the act to revive the “ Jackson and Brandon Railroad and Bridge Company.” The eleventh section of the first recited act is in these words, viz. “ Be it further enacted, That the said company shall have the privilege of extending said road, and of constructing branches in any direction whatsoever, that they may intersect or unite with any other railroad terminating in, or passing through the town of Jackson; provided the said railroad be so constructed as not to interfere with the passage of any public street of said town. And so much of the land donated to the state by the act of congress, passed the 20th of February, 1819, for the seat of government, as may be necessary for the passage of said railroad, and as may be selected by the commissioners, with the consent of the governor of the state, and which yet remains unsold, is hereby donated to said company, during the continuance of this charter; provided, that not more than one acre shall be so donated for the erection of warehouses, or a place of depot, and that said acre of said land, shall be located only within two hundred yards of the place where said road shall pass the Pearl river.” The agreement then proceeds thus : “ It is further agreed that all the foregoing acts, or any parts thereof, or any other act in relation to said railroad, whether mentioned in this agreed case or not, may be read as a part of this agreed case from the pamphlet acts as printed by the state printers. By virtue of these various acts the said railroad company claim the right to extend the railroad from the termination of the Yicksburg and Jackson railroad, through the city of Jackson to Brandon, and through the eastern part of the state, to connect with the Charleston railroad. It is further agreed, that the land on which the city of Jackson now stands, at and before the laying off of said city of Jackson, belonged to the state of Mississippi. By the act of , the city of Jackson was laid off by commissioners, appointed by the state, into lots, with public streets, lanes, alleys, squares, &c. A plan of said city is herewith referred to, and made part of this agreed case. It is also agreed, that all the acts laying off the said city of Jackson, or amending the same, shall be considered as part of this agreed case, and may be read from the statute book. It is also agreed, that the various acts of the legislature passed incorporating the city of Jackson, and amending and modifying its charter, &e., all of which acts are herewith referred to, and made part of this agreed case, and may be read from the statute book. It is further agreed, that the lots in the said city of Jackson, were sold by authority of the state, according to said plan, and are held by individuals. It is further agreed, that the president and directors of the Jackson and Brandon Railroad and Bridge Company, laid out the railroad to pass through Jackson to Brandon, from the west side of State street, commencing at the point where the railroad from Vicksburg to- Jackson has been completed, to the piers on Pearl river, where the bridge is to be built, which route, as laid off, passes across State street in the city of Jackson, to and across South street, thence through part of an acre lot, No. 1, South, into and down Commerce street, to the lot on which the saw-mill is situated, whence said route passes through individual property. The right of way has been secured by the company. It is further agreed, that Commerce and State streets, are each one hundred feet wide, and South street eighty feet wide, through which streets alone the track will run. The track of the road will be twelve feet wide on the surface, and the rails will be five feet apart. The track when completed, may be used by either horse or steam cars. The line of road on Commerce street will be about a quarter of a mile in length, and about one hundred and twenty to one hundred and twenty-five feet on State street, and about one hundred feet on South street. It is further agreed, that the defendant was, and is employed by said railroad company to grade the line of road through the city of Jackson, in pursuance of which contract he is digging and grading on said streets, in said cify of Jackson, over which said line of road, as laid off by said company, is to run. It is agreed, that the acts of the said defendant in digging and grading said streets, constitute a nuisance in law, if said company has no power to run their railroad through and over the said streets in said city; but, if said company has such power, then it is agreed that said acts are necessary to make said road through said streets, and do not constitute a nuisance. It is further agreed, that the lots in said city of Jackson situated on said streets, were sold by the state to individuals, some of which have been built on and improved; the said individual purchasers, purchased with reference to the plan of the said city, and with a reference to the use of the streets, &c., in accordance with said plan. In running said road through the streets the value of private and public property will be lessened to some extent, and the use and enjoyment of said streets will be impaired to some extent, that is to such extent as railroad cars, propelled either by steam or horse-power, passing through a street, necessarily impair its use. It is further agreed, that said streets have not been condemned, or damages assessed against said company for the right of way through them. It is also agreed, that the corporate authorities of the city of Jackson never agreed to, but resisted the right and power of the railroad company to use the streets of the city for the railroad. It is further agreed, that if upon the foregoing facts, the court shall be of the opinion that the said company had the power and right to run said railroad, though said streets of Jackson, then and in that case, judgment shall be entered up for the defendant. But if the court is of opinion that said company had no such right, then judgment is to be rendered for the state.” The court was of the opinion that the railroad company had no right to use the streets of the city of Jackson in the manner claimed by them, and therefore rendered judgment against the defendant. To reverse which, he has brought the case to this court by writ of error.</p> <p>The points presented will be,</p> <p>1. Has the company authority from the state to extend the road, or rather the power to run their road through Jackson, so as to join the railroad from Yicksburg.</p> <p>2. If such authority is conferred by any statute, had the legislature such power, without compensation or damages to be paid either to the owners of lots upon the streets over which the road runs, or to the city of Jackson.</p> <p>1st. Has such power or authority been granted by the legislature 1 See Acts of 1836, pages 163 & 196; Acts of 1838, page 82 ; Acts of 1840, page 198; Acts of 1841, page 138 ; Acts of 1842, 'page 123 ; and Acts of 1846, page 126. The Act of 1846 incorporating the Southern Railroad Company, gives the Jackson and Brandon Railroad and Bridge Company the power of completing or building the road from where it unites with the Southern Railroad at Brandon to a.point “at or near the city of Jackson, at which the said Jackson and B. R. & B. Co. shall unite the Vicksburg and Jackson Railroad,” &c. (See 7th section of the act, page 142.)</p> <p>So far then as the state is concerned, so far as the state has any interest, the power to unite the two roads at or near Jackson is unequivocally given. In pursuance of the power, the commissioners were proceeding to build the road by preparing the'way through a part of Jackson. In running through Jackson the line of road passes over several private lots, but the right of way through these-lots has been procured by the company. And for preparing the road through Commerce street, their agent has been indicted.</p> <p>It is insisted the company has the power to run its road through a public street or highway (whether the fee simple in the soil over which the street or highway passes is still being in the state or not, and the right of way dedicated to the public at large,) without an assessment of damages.</p> <p>The first branch of this question is, Have the owners of lots on the street, and who, it is alleged purchased property on the faith of the public dedication of their streets for the use of the city, any right to damages ?</p> <p>So far as their rights are concerned, it is clear that they are not entitled to damages. The question as to their rights has been most ably investigated in the Lexington and Ohio Railroad Company v. Applegate and others, 8 Dana’s Rep. 289.</p> <p>2d. If the lot-holders have no right to damages, has the city? What property or right in the soil of the streets has the city, more than any other portion of the public ? The fee in the soil was in the state. The state laid off the city of Jackson, directed the lots to be sold, laid off the streets, &c.</p> <p>I assume, as an undoubted principle, that not merely the local public, but the community at large, have a right to use the streets. I assume further, that the public have a perfect right to use the streets of Jackson, which were dedicated, as public streets and highways, in any manner not inconsistent with the public use or contrary to the original purposes for which they were given to the public.</p> <p>The use of the streets for running railroad cars, is precisely in accordance with the uses of a public street or highway. The public, by means of cars instead of stages and wagons, claim the right to travel over the streets. If the streets are not for the sole use of the town, but for the public, ,what right have the local authorities of Jackson to prevent the public from trav-elling over them, in an improved or different mode of travelling, than that which was known at the time of the dedication.</p> <p>I say the public have the right to use the streets in any manner not inconsistent with the purpose for which they were dedicated.</p> <p>The case in 8 Dana, is a direct authority on this point. The consent of the corporation, it is true, was had in that case. But their consent to use and appropriate the streets in a way inconsistent with their original use, would not give validity to such use.</p> <p>Neither the original proprietor, nor the city, can appropriate or use property dedicated for public use, to a different purpose.</p> <p>The use must be consistent with the dedication, and if the streets are permitted to be used in a way inconsistent with the use originally intended, it is clear that any citizen or citizens of the town, or any member of the community can in equity enjoin such use.. This the supreme court of the United States in 10 Peters, 662, (City of New Orleans v. U. S.) decide. They decide in that case that the United States had no interest, and therefore that they could not enjoin the city, but said those interested could; and see 6 Peters, 507.</p> <p>Now the running of cars over a street, is either consistent with the public use of the streets, or it is not. If it is, and the state authorizes a company to do so, the public consents to such use, and no one can object. If it is inconsistent with the public use, then any citizen, whether the corporate authorities consent or not, may enjoin such use. In this view the case in 8 Dana is a direct authority, for the citizens who filed the bill in that case, have a right and would have succeeded, notwithstanding the consent of the corporation, if running the cars was a public nuisance, or was inconsistent with the original use of the streets.</p> <p>That the city cannot use the streets or appropriate their use inconsistently with use for which they were originally dedicated, see 1 Wharton’s Rep. 469 ; 3 Vermont Rep. 279, 519, 378; 2 Greenleaf’s Evidence, § 662; 6 Peters, 507. It is settled that property may be dedicated to public use without grant. See cases in 6 and 10 Peters’s Rep.</p> <p>If the owners of private property have no right to an injunction or damages; if the city of Jackson has no right to an injunction or damages, it follows, then, that the defendant cannot be guilty of a nuisance, in preparing the streets for the cars, as the state has agreed and authorized it to be done. The grading the street for such purpose is consistent with the public use of the streets, and if a temporary stoppage is created, this is the necessary consequence of repairing the streets in all cases.</p> <p>It is clear that the owners of lots have no right to damages, for they do not own the soil. Neither has the corporation, for the city only holds the streets as a right of way; and if the streets were condemned, the damages would have to be for the use of the original proprietor, the state. 1L Leigh’s Rep. 42. And the state consents to it.</p> <p>The case in 6 Peters, 507, illustrates the foregoing argument, and shows that the use of the street for public purposes must be inconsistent with the terms of the original dedication. That case proves that the consent of the city of Louisville, to use the streets in a manner inconsistent with their dedication, could be enjoined by a court of chancery. And if the use of the streets by running of cars was inconsistent with their original dedication, it follows, that the court, in 8 Dana, notwithstanding the consent of the corporation, ought to have enjoined such inconsistent use. The cars would not obstruct its use as a public street, any more than a train of wagons. And the above case proves that the streets may be used for any public purpose, not inconsistent with their use as streets. See pages 507, 508.</p> <p>It may be admitted that the state dedicated and parted with its right to the soil over which the street runs; but it dedicated it upon a trust for the public, — for the use of the public. The public are entitled to its use as a street. Running a wagon or a car by steam over the street was a means of transportation not known at the time of the dedication. But it is simply a means of transporting the public, or goods and merchandise.-</p> <p>If the company could run their wagons, or cars, without laying the track or grading the streets, could the city authorities prevent them! Surely not. Why then has it power to do so, because they run by means of a track laid with rails?</p> <p>Can any corporation prevent great public improvements in travelling by refusing the use of the streets of the town ? The street is only to be used for public transportation — the very use amongst others intended by its dedication. To say that a city or town can prevent great public works — improved modes of travelling, from being used, because its citizens may suppose such improvements will produce injury to the local public or citizens, will be to sacrifice the public interest to the whims and caprice of a few individuals.</p> <p>The facts of this case show the width of the streets, the length of the road on each, and they show clearly that the use of such streets would not be materially affected by the laying of the rails.</p> <p>To constitute a nuisance, there must not only be an obstruction of the street, but it must be an unlawful obstruction. It cannot be an unlawful obstruction to grade the street for the purpose of carrying into effect the right of way given to the public, by the original dedication of the streets, and by the act of 1846.</p> <p>I insist, for the corporation,</p> <p>1st. By the charter the company cannot make this road “ so as to interfere with the passage of any of the public streets of the town,” and by the agreed case it is admitted that such will be the effect of constructing the road in the manner contemplated by the company.</p> <p>2d. The legislature never authorized the company to appropriate the streets of the town for the railroad, without paying for them; and if it had done so, the act of the legislature would have been unconstitutional.</p> <p>The constitution of this state declares that, “No person’s property shall be taken or applied to public use without the consent of the legislature, and without compensation being first made therefor.”</p> <p>This court has decided, that a charter to a railroad authorizing them to pass over lands without the consent of the owner, upon an assessment of damages being made, and a judgment and execution therefor, was unconstitutional. The land must not only be condemned to public uses, it must be first paid for before it can be used. Thompson v. Grand Gulf Railroad, &c. 3 How. 240.</p> <p>The ground on which the city of Jackson stands, was given to the state of Mississippi by the general government for a seat of government. In the year 1821 the legislature appointed commissioners to fix upon a site for the seat of government, and to lay out and fix upon a plan of said town. These commissioners proceeded to act, and laid off the city of Jackson as it'at present stands, with its various streets, alleys, squares, &c., and which plan was adopted by the legislature. Subsequently the lots of said city were sold in reference to said plan, and were bought by various persons. See H. & H. Dig. 58, et seq.</p> <p>Among the streets so laid out were the streets along which it is proposed to run this railroad, and lots fronting on said streets and sold with reference to them, were bought by various property holders in said city.</p> <p>Wherever the owner of land lays it out in lots with streets, avenues and squares, for the purpose of being used as a town, and sells lots in it with reference to such plan, he cannot after-wards deprive the grantees of the benefits of the streets, &c. so laid out. 4 Paige’s R. 510.</p> <p>All public dedications are to be considered with reference to ■the use for which they are made. 6 Peters, 438.</p> <p>• The purchasers of lots in the city of Jackson bought them in reference to the plan of the city then laid out, and have a right to the use of the streets as easements, to the full extent of the dimensions of the streets so laid out. 2 Wend. 472.</p> <p>The right to enjoy and use the streets of the city free and un-incumbered, as they were laid out on the original plan of the city, belongs to every citizen. “Underthegrantof a thing,'whatever is parcel of it or necessary to its beneficial enjoyment, or in common intendment is included in it, passes to the grantee.” .3 Mason, 280.</p> <p>Wherever the owner of lands in a city sells building lots, bounding them by streets of a. specified width as laid down on a map, but not actually opened, the purchasers acquire a legal right against the grantor to have the streets kept open to the width delineated on the map. 8 Wend. 85.</p> <p>■I refer the court to the following cases, in which the doctrine contended for by the state is clearly and plainly laid down, and they establish beyond a doubt, that the state having laid out the city of Jackson with various streets, squares, &c., and sold lots therein with reference to such plan, cannot, by any subsequent legislation, appropriate the streets or squares of said city for any other purpose than such as was originally intended, or do anything which will impair the use and enjoyment of the same by the owners of lots in said city. 6 Peters R. 431, 498, 738 ; 10 Ibid. 662, et seq. ; 1 Wend. 268 ; 2 Ibid. 475 ; 8 Ibid. 95; 11 Ibid. 493; 17 Mass. 415 ; 4 Paige, 510; 3 Mason, 280.</p> <p>The counsel for the railroad rely upon the case of The Lexington and Ohio Railroad Company v. Applegate et al. 8 Dana’s Rep. 289.</p> <p>In relation to that case it is only necessary to remark, that the corporation of Louisville, in whom the title to the streets of that city was vested, gave its assent to the road passing through the streets, which clearly distinguishes it from the present. Where that case conflicts with the positions taken by me, I respectfully suggest, that it conflicts with fixed and well-established rules of law, and cannot be regarded as authority by this court.</p>

ERROR, from the circuit court of Monroe county; Hon. Francis M. Rogers, judge. This was a proceeding had before the mayor of the town of Aberdeen, against John Saunderson, upon a charge of retailing vinous and spirituous liquors, without license, within the corporate limits of the town. The proceedings were had under the fourth section of the act of incorporation.

<p>ERROR from the vice-chancery court, held at Columbus, in Lowndes county; Hon. Henry Dickinson, vice-chancellor.</p> <p>Micajah Bennett filed his bill in the vice-chancery court held at Columbus, against John L. Allen and William Burt, alleging, that about the first day of December, 1835, Allen purchased of Malla-to-k'a, a Chickasaw Indian, a float or Indian reservation, calling for one section of land to be located on any unoccupied land subject to such a float, for which he agreed to pay one thousand dollars. That about the 7th day of December, 1835, complainant and Allen entered into an agreement, by which complainant was to pay Allen one hundred dollars more’than one half of the cost of the float; to locate it, and the land when located was to belong to the two jointly, each owning one half; that complainant did, in pursuance of that agreement, locate the float on fractional section number seventeen, in Township number seventeen of Range eight, east, containing five hundred and thirty-eight acres, and on the same day he paid to Allen the sum of one hundred dollars, and took his receipt therefor, which was made exhibit A to the bill, and was in these words, to wit:</p> <p>“ Received of Micajah Bennett one hundred dollars, on account of an interest that I have let said Bennett have in a section of land located in Range 8, east, Township 17, and sec. 17.”</p> <p>“ December 7th, 1835. John L. Allen.”</p> <p>The bill further alleged that about the first of May, 1836, Allen examined the land, and being well pleased with it, proposed to buy complainant’s half at the rate of six dollars per acre; which proposition was accepted by complainant, and he then authorized Allen to take the title to the whole of the land in his own name, the title being still in MalIa:to-ka; out of the six dollars per acre, Allen was to pay Malla-to-ka complainant’s half of the cost of the land, and the residue to complainant when ascertained. That about the 13th day of June, 1836, Allen, in accordance with his agreement with complainant, paid Malla-to-ka for the land, and took from him a deed to the same in his, Allen’s, own name. That about the 21st day of July, 1836, Allen and complainant had a settlement, when Allen was-found to be indebted to complainant, for and on account of the land, in the sum of one thousand and fourteen dollars, and executed his note to complainant for the same; a copy of which note was filed with the bill as exhibit B ; that complainant, relying on his equitable lien on the land, never took from Alien» any other security for the purchase-money, than the note. The bill further charged that complainant, about the 16th day of September, 1839, instituted suit on the note, in the circuit court of Lowndes county, and about the 7th of January, 1840, recovered a judgment thereon against Allen, for the sum of twelve hundred and sixty-five dollars and five cents, besides costs of suit; Upon which judgment an execution was issued, and returned by the sheriff “ nulla bona." A transcript of the record of the proceedings in the circuit court was filed with the bill as-exhibit C. The bill further charged that about the 27th day of September, 1838, Allen sold and conveyed the land to William Burt. The deed to Burt was made exhibit D to the bill. That Burt knew when he purchased the land from Allen, that Allen bought one half of it from complainant, and had never paid for-it, and that the money was still due and owing to complainant. Before, and at the time Burt paid over the money to Allen, he was notified by complainant, or his agent, that his, complainant’s, claim for the purchase-money for the land, was due and unpaid by Allen; and Burt was requested in a friendly manner to pay the same, but being confederated with Allen and others, he refused to pay the whole or any part of it. The prayer was that one half of the land be set apart and sold for the payment of complainant’s claim against, Allen, and for general relief.</p> <p>Allen answered the bill, and admitted he did buy a float or reservation in 1835, from Malla-to-ka, at the sum of one thousand dollars, but he denied that he ever entered into any agreement with complainant for the location of it, or the sale of one-half, or any other part of the land as charged in the bill. He denied that he employed complainant to locate the float; complainant, he stated, furnished the information of the section of land on which the location was made, but he did it voluntarily, and as respondent supposed gratuitously. The receipt for one hundred dollars, made exhibit A to-the bill, respondent admitted was signed by him, though he did not recollect the inducement to his giving it, nor the interest referred to in it. He admitted he paid for the land in specie, and took the deed to it in his own name; but he did it without the assistance, advice or assent of complainant, or any agreement for the sale of it: During the negotiation with Burt for the sale of the land, complainant set up no claim to any part of it, so far as respondent knew or ever heard. He admitted he gave complainant the note for one thousand and fourteen dollars, mentioned in the bill; but he denied that it was for any interest complainant owned in the land. When Burt called on respondent to purchase the land, respondent referred him to complainant for information in relation to the quality of it; and after respondent bad closed the contract with Burt for the sale of it, at five thousand dollars, complainant came to him and said as he, respondent, had sold the land so well, he ought to do something for him, complainant, for furnishing him the information to make the location ; and respondent accordingly gave complainant the note for $ 1014, with which complainant then seemed well content, and did not assert any claim to any interest in the land. The note was given merely as bonus for assistance afforded respondent in effecting the sale to Burt, and not for any copartnership interest of complainant, nor for locating the claim. Respondent admitted that judgment had been obtained against him, execution issued thereon, and returned as charged in the bill. He had no knowledge of any such notice or friendly caution to Burt being given, as stated in the bill.</p> <p>Burt failed to answer, and the bill was taken for confessed against him. The complainant proved by William Bennett, that the one hundred dollars mentioned, in the receipt" filed as exhibit A to the bill, was left with deponent by complainant for defendant, and paid by deponent to defendant; that at the time the money was paid, defendant told deponent he had sold complainant one half of the land described in the receipt, and which complainant had located for him; and that the hundred dollars then paid was in consideration of that sale. Deponent also proved the resale of the land by complainant to defendant, at the sum of six dollars per acre. Upon this slate of pleadings and evidence, the cause was submitted^to the vice-chancellor on final hearing; and he decreed one half of the land to be sold for the payment of the debt due complainant. To reverse which decree, the complainant now prosecutes this writ of error.</p> <p>By statute (see How. & Hutch. 343, sec. 1,) “No estate of inheritance or of freehold, or for a term of more than one year, in lands or tenements, shall be conveyed from one to another; unless the conveyance be declared by writing.sealed and delivered ; nor shall such conveyance be good against a purchaser for valuable consideration not having notice thereof,” &c., &c. And at page 370, How. & Hutch, sec. 1, No person shall be charged by an action “ upon any contract for the sale of lands, tenements or hereditaments, or the making any lease thereof for a longer time than one year,” «fee., «fee.</p> <p>By the statute first above quoted no estate of inheritance or of freehold, or for a term of more than one year, could have passed from Allen to Bennett, as there was no conveyance in writing. ■ His claim therefore to one half of the land is merely null and void. He never had the least interest in the laud, either legal or equitable, as he admits that there was no conveyance in writing to him either from the Indian or from Allen.</p> <p>His claim, if it could exist in parol, is absurd. He alleges that he was to pay one hundred dollars over and above one-half the cost of the land. The land cost one thousand dollars. Consequently he was to pay six hundred dollars. He paid one hundred dollars mentioned in the receipt, Exhibit A. Did he ever pay the other five hundred? Never — not one dollar of the five hundred dollars was ever paid. After the bargain made and the hundred dollars paid as alleged by Bennett, Bennett, instead of paying the remaining five hundred dollars which had to be paid before he could have even an equity in the land, pretends that he reconveyed to Allen at six dollars per acre, and thus not only never paid a dollar of the five hundred dollars which he had to pay before he could claim an equity in the land, but brings Allen in debt to the amount of $1014. Now, what was it that passed./rom Allen to Bennett by virtue of the one hundred dollar receipt ? not even an equity ; because the five hundred dollar balance of the purchase-money was not paid. If nothing passed from Allen to Bennett, what could have passed in Bennett’s reconveyance back to Allen ? Surely less than nothing, if possible. This is surely a poor basis to support a special lien for purchase-money. A vendor can nev.er claim a special lien on anything more than he parted with. Bennett never parted with the land or any part of it, because he never had it to part with.</p> <p>The vendor of an estate has a lien upon it, for the purchase-money against all persons, except a purchaser for a valuable consideration without notice. 15 Ves. 329, and cases cited ; 6 Howard R. 362.</p> <p>And this lien is not waived by the vendee’s giving a promissory note to secure the purchase-money. 15 Ves. 344, and cases cited. The receipt (Ex. A) gives an accurate description of the land, and Allen admits its execution.</p> <p>The witness, William Bennett, explains the receipt, and shows that an interest of one half the section was intended to have been conveyed. This receipt, therefore, takes the conveyance from Allen to Bennett out of the operation of the statute of Frauds, &c. 1 M’Cord R. 425 ; 9 Ves. Jr. 234; 12 Ibid. 466.</p> <p>So that by the execution and delivery of said receipt, Allen conveyed an equitable title to one half of the land to Bennett, which contract a court of chancery would at any time have consummated, by compelling Allen to convey the legal title.</p> <p>But after Bennett had located the float on the land in question, and Allen had examined it, he re-conveyed to Allen at six dollars per acre, according to the testimony of the witness; which re-conveyance is now sought to be established, and upon which Bennett’s equitable lien rests.</p> <p>The only witness examined testifies positively to the fact, that about one year after the execution of said receipt, the said re-conveyance was made. Now it is contended, that the testimony of one witness, corroborated by circumstances, is sufficient to authorize a decree. 9 Vesey, 275 ; 2 John. Ch. R. 93; 2 Tucker, Lect. 487. And that these circumstances may be found in the answer itself: as where it is inconsistent or contradictory. 2 Tuck. Lect. 487.</p> <p>Bennett paid Allen six hundred dollars for one-half of the land (the fractional section.) The one hundred dollars evidenced by the receipt (A), and the five hundred dollars out of moneys due from Allen to him. This gave Bennett an equitable title. 5 S. & M. 506.</p> <p>The re-sale appears to have been made after the location, and when the legal title was in the Indian; the deed (as above shown) was taken to the whole section, directly from the Indian to Allen alone; instead of a conveyance from the Indian to Allen and Bennett jointly, and a conveyance then from Bennett to Allen. It is submitted, whether the lien for the purchase-money due Bennett, is not as effectually upheld by the conveyance of Bennett’s interest by the Indian directly as if the conveyance had first been from the Indian to Bennett, and then by him to Allen 1</p> <p>Upon the payment of the purchase-money to the Indian by Allen and Bennett, nothing remained with the Indian but the naked legal title; he was a mere trustee for the purchasers. 5 S. & M. 506 ; 4 Equity Dig. 693 ; 1 Brock. 97. And as such conveyed in pursuance of the agreement between Bennett and Allen.</p> <p>It is not necessary, for the purposes of this bill, that Bennett should have ever had a legal title to any of said section. Because “ one who sells an equitable title to lands retains a lien for the purchase-money, whenever, under the same circumstances, the vendor of the legal title would hold an equitable lien.” “ The same principle and reason apply to both cases.” 3 J. J. Marshall, 179. And “ so far as it relates to the abstract equity, upon which this lien is founded, it can make no difference, whether the proprietorship of the land is evidenced by a legal or an equitable title. 7 J. J. Marshall, 289.</p> <p>These authorities settle the law upon the facts above stated, and sustain the decree of the court below. But the statute of frauds, &c. is relied on by Allen in discharge of the re-conveyance. This is no defence in this case, 1st. Because the contract of re-conveyance, if any there was, is in Allen’s possession ; and in his answer he does not rely on the statute, but by it admits the legality of the contract, so far as this statute is concerned. 2d. It does not appear, from the bill, proof or answer, whether the contract was by parol or in writing, and under such state of pleadings, the court will presume that the re-conveyance was a legal one, and that it complied with the statute in every respect. 3 J. J. Marshall, 179. 3d. If Allen relies on said statute, or any other of that nature, he should have plead such fact, specially, or insisted on it in his answer, but he chose to do neither, and has thereby waived that defence. Gresley’s Eq. Ev. 304.</p> <p>Then the re-conveyance was regular, as it appears in this case, and stands precisely on the same ground, and is entitled to as much regard as if the proof had shown it to have been by deed between the parties.</p> <p>But should this court think the statute has been taken advantage of properly, still Bennett was entitled to a decree. Because he paid Allen six hundred dollars, to be paid by the latter to the Indian, which was done, and a deed to the whole section taken directly from the Indian to Allen alone. It is imagined that there is, in legal contemplation, no difference between a payment by Bennett directly to the Indian, or a payment in cash to Allen to be paid to the Indian for the land, and a payment in cash by Allen to the Indian for Bennett, out of moneys due and owing from Allen to Bennett. If so, these facts constitute in Bennett’s favor a resulting trust, which Burt admits he had notice of, and by which he is therefore bound. And to trusts resulting from the operation of law, the statute of frauds does not extend. 1 Yern. R. 366; 1 Atk. R. 59 ; 10 Ves. 360; 1 John. Gh. R. 582, and authorities cited.</p> <p>Then it appears that Allen paid the Indian for one half of the land with Bennett’s money, and procured in his own name the legal title, not only to one half, but to the whole; he subsequently sold the same land to Burt, and made the latter a title to the whole, with notice on Biirt’s part of our outstanding equity. Now Burt can stand in no better condition than Allen, in whom, although, the legal title was, still one half of the original purchase-money was paid by Bennett, which most certainly creates in his favor a resulting trust. 7 Howard, 181; 5 S. & M. 506. Then if the property was conveyed to Allen, and the consideration or any part of it were paid by or on account of Bennett, a court of chancery will raise a presumption in favor of the latter, from which in its contemplation will spring a trust, and such a trust need not be in writing. Jeremy’s Eq. 81, 85 ; 1 Yes. 275 ; 10 Ibid. 360 ; 15 Ibid. 50, 350.</p> <p>But, independent of this, the case is taken out of the statute, by parol performance. The purchase-money having been all paid by Bennett, and Burt having occupied the land since 1838. Burt’s possession being Allen’s. See Freem. Ch. R. 65 ; 4 Yesey, 720; 4 Equity Dig. 700; 5 S. & M. 506; 2 Caines Cases, 109; 1 Fonbl. Eq. 182.</p> <p>Furthermore, Allen will not be permitted to set aside this contract, even though it were illegal, and yet retain possession of the property he acquired under it. He must adhere to that part of it which requires him to pay the purchase-money as strictly as he does the other, which gives him the possession and profits. Freem. Oh. R. 35. And his abandonment of the land must be simultaneous with his refusal to pay the purchase-money.</p>

<p>If a probate judge states an executor’s account in vacation, when it comes forward for allowance and confirmation in term time, exceptions may be filed to it in court; or if the account be stated by a commissioner to whom it has been referred, it may in like manner be excepted to in court, when it is presented for allowance and confirmation.</p> <p>If exceptions be taken in the probate court to a commissioner’s report of a statement of an executor’s account; and the exceptions be sustained, and an appeal taken to this court, and the evidence be not set out in the record ; this court can only consider the exceptions to items, the character of which sufficiently appears from the face of the account itself.</p> <p>An executor may be charged with interest on the balance in his hands found to he due the estate on settlement, from the date of such settlement.</p> <p>An executor is not chargeable with- a note in his hands as assets, nor with interest on such note, until it is actually collected, unless he makes himself so chargeable, by some act of gross negligence or fraud; and if he be charged with such note or interest, before the money is collected, without proof of gross negligence or fraud, it is error.</p>

<p>EkeoR from the circuit court of Lowndes county; Hon. Benjamin F. Carruthers, judge.</p> <p>This was an action of assumpsit, instituted in the circuit court of Lowndes county, to the October term, 1841, by George M. Rives, James Battle, Samuel Battle, and John A. M. Battle, copartners, doing business under the name and firm of Rives, Battle & Co., against Ebenezer P. Odeneal, for goods sold and delivered. The defendant pleaded the general issue. At the April term, 1845, the ca.-e was tried. On the trial, James F. Lowden, a witness, for the plaintiffs, proved, the amount and correctness of the account sued on, having seen the original entries upon the plaintiff’s books. He presented, as agent of plaintiffs, the account sued on, in 1841, to defendant for payment; he acknowledged having received the articles, but did not know they were shipped by plaintiffs. Witness stated that defendant still owed for the goods; and that they were furnished at the usual prices in Mobile, where plaintiffs resided at that time; witness did not live with Rives, Battle & Co. at the time of the sale; defendant admitted at the time witness presented the account, that he had no reason to doubt that the articles were furnished, by Rives, Battle & Co.; but that was his first knowledge of the fact; and if McMorris, did not settle the amount due him (on his year’s last crop,) he would not pay Rives, Battle & Co., until forced to do so.</p> <p>On cross-examination he stated, that defendant admitted receiving the articles; but made no acknowledgment of being indebted to Rives, Battle & Co.; he did not know by whom the goods were sent, having received no bill with them; he supposed they were shipped by McMorris & Knox, or Mc-Morris alone, who were indebted to him a balance on last year’s crop.</p> <p>Morgan McMorris, a witness for plaintiff, proved: that some time in the winter of 1839, or spring of 1840, he received a verbal order he believed, from the defendant, for bagging and rope, for the crop of 1840; that he purchased from the plaintiffs, the articles mentioned in the account, and he believed the account to be just and correct. The articles mentioned in it were shipped by plaintiffs on the Steamer, Robert Morris, & directed to the defendant at Moor’s Bluff. Witness also, forwarded, to defendant, directed to him at Nashville, Miss, a bill of the goods in question, and wrote him by the same conveyance, and attached to the bill, informing him of all the particulars connected with the shipment of bagging and rope by the plaintifls.</p> <p>On cross-examination he stated, that he ordered the goods in question by a verbal order, he believed, from the defendant. Witness was not engaged in any business in Mobile, at the time; he had been, a short time previous, engaged as a commission merchant; that McMorris & Knox had, in the year? 1840, sold some cotton for defendant; and had paid to his account all the proceeds of his cotton, except a small balance of about fifty-five dollars, which he had since settled, in the winter of 1842, by note, payable in the spring of 1842; the note has never been presented for payment, nor was their any allusion, at the time of the settlement with defendant, to the account of plaintiffs ; the settlement was not intended, by either witness or defendant, to have any connection with plaintiffs’ account. The goods in question, were to be furnished on a credit as usual; defendant gave him no instructions to buy for cash.</p> <p>John C. Canfield, a witness for plaintiffs, testified, that Morgan McMorris ordered of the plaintiffs the articles enumerated in the account; that they were forwarded by boat Robert Morris, marked E. P. 0. Moor’s Bluff, on 21st day of May, 1840, as per bill of lading, produced in court. The articles were charged to defendant, at the time of shipment. Witness was at that time and is now the book-keeper, in the employment of plaintiffs. He stated that the prices charged in the account were usual and fair, according to the Mobile market at that time.</p> <p>On cross-examination he said, that the order by McMorris for the articles was verbal; they were charged to defendant; witness was not acquainted with the pecuniary condition of McMorris & Knox.</p> <p>This was all the testimony given in the cause. The jury found a verdict for defendant. The plaintiffs made a motion for a new trial, which was overruled, to which they filed a bill of exceptions, setting out the evidence. And removed the case to this court, by writ of error.</p> <p>The finding of the jury, in this case, was manifestly against law, and the proof adduced upon the trial. Odeneal, having used the goods of plaintiffs with their consent, was under an implied obligation to pay for them.</p> <p>It does not weaken this obligation, to say, they were received under a false supposition that they were furnished by McMorris & Knox. If it were shown that defendant had ever paid these parties, the argument might assume a show of plausibility ; but there is. no such pretence. This false surmise cannot be made the pretext by which to evade a legal liability. The bagging and rope was furnished in compliance with a “ verbal order” from Odeneal, to McMorris; but there was no contract or understanding, that they were to be paid for by any balance due from the former to the latter.</p> <p>It appears that this balance was settled in 1842. If Odeneal intended it to pay for his bagging and rope, why did he receive the note 1 This single transaction gives the proper clue to this case, and shows that defendant did not believe himself indebted for these articles to McMorris & Knox.</p> <p>But was not McMorris, acting under the “verbal orders” of defendant to purchase these articles “on credit,” his lawful agent, having a perfect right to have them charged to his account, at the house of Rives, Battle & Co. Í</p> <p>Odeneal acknowledges the reception and use of the property of Rives, Battle & Co.; the evidence shows that he has received, by note, the full balance against McMorris & Knox; and that he has not paid one cent for this property.</p> <p>Do not the weightiest objections, both of law and conscience, rest upon him, to satisfy this demand %</p> <p>The jury failing to enforce them, it was the duty of the court to set aside their verdict.</p> <p>In an action for goods sold and delivered, a contract of sale between plaintiff and defendant must be proved. 1 Saund. PI. and Ev. 635.</p> <p>A request by defendant is material to be proved. 2 Greenlf. Ev. 83, sect. 107.</p> <p>Labor voluntarily bestowed by plaintiff for defendant, without his privity or consent, however meritorious, or beneficial, will not support an action. 20 Johns. R. 28.</p> <p>Advances of money by one for another, without an express or implied authority from the latter, will not bind him to pay. .6 Cowen, 588; lb. 619, 620; 6 Cowen, 477.</p> <p>The benefit received is not the test. It must be requested or agreed to be received. Every man is permitted to regulate his own affairs, in his own way; and he is the best judge, when and where he will have services performed, or money advanced for him. 5 Cowen, 520.</p> <p>The defence set up, was that the plaintiffs proved no such contract as that alleged in their declaration; that there was no request from defendant to plaintiffs, no privity between the parties.</p> <p>The facts of the case were fairly left to the jury, and their verdict will not be disturbed, unless a great preponderance of testimony appears against it. Ellzey et al. v. Stone, 5 S. & M. 21.</p> <p>We admit that trover and trespass may be waived where a wrong-doer has converted the property into money. 1 S. & M. 46. But this is not a case of that description. No trespass has been committed, no wrongful conversion has taken place. Plaintiffs parted with their goods voluntarily and at the instance and request of McMorris, and they must look to him for their money. Nor have the goods been converted into money. The action is not for money had and received, but upon an alleged contract of sale.</p> <p>As to what has been said by plaintiffs’ counsel, about “conscience,” we reply by claiming an appeal to the ecclesiastical courts. This court enforces legal and not moral obligations. A question of ethics cannot be entertained here.</p>

EitRORTErom the circuit court of Warren county; Hon. George Coulter, judge. At the April term 1845 of the eircuit court of Warren county, the grand jury found an indictment against Augustine Legori, for selling vinous ■ and spiritous liquors in less quantities than one gallon, without a license.

ERROR from the circuit court of Madison county; Hon. John H. Rollins, judge. This was an action instituted by William K. Carty, before a justice of the peace of Madison county, founded on an account against William Moore, amounting to $32 68|, for money paid, laid out and expended. A judgment was rendered in favor of plaintiff, on the 4th day of July, 1840, for the amount of the account, and costs of suit.

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

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

G eorge Coalter, judge. On the 26th day of September, 1843, the Commercial Bank of Rodney, for the use of Thomas Freeland and John Murdock, instituted suit in the circuit court of Claiborne county against David M’Caa and William Coleman. The declaration was in assumpsit and founded on a promissory note for $666.

<p>In a case of murder, the record must show affirmatively that the accused was present during the trial.</p> <p>On the trial of a case of murder, a witness for the state, on his examination in chief, testified, that on the day upon which the crime was charged to have been committed, he met the accused a half a mile from his house, and that he had blood upon his hands, and upon cross-examination, the witness stated that accused was coming from his own house at the time spoken of, and directed witness’s attention to the condition of his hands ; the court thereupon refused, upon a question in behalf of the accused for the purpose, to permit the witness to state what the accused said, when he showed the blood upon his hands : Held, that to have permitted the question to have been answered, would not have been short of permitting the accused to make evidence for himself, and the statement was therefore properly rejected.</p> <p>Declarations are admitted in evidence as part of the res gestee, only upon the presumption that they elucidate the facts with which they are connected, having been made without premeditation or artifice, and without a view to the consequences.</p>

<p>ERROR from the circuit court of Madison county ; Hon. John H. Rollins, judge.</p> <p>This was an action of assumpit instituted in the circuit court of Madison county, to the May term, thereof 1840, by Addison Taliaferro against William Hoy, William N. Thorn, Thomas Mullin, William E. Harreld and John Briscoe, The declaration was in the usual form, and founded on the defendant’s joint and several promissory note, for the sum of eighteen hundred and thirty-seven dollars and forty cents, payable to Patrick H. Hayes, or bearer, and by him indorsed to the plaintiff. At the return term the defendants pleaded the general issue, and also a special plea, that the note sued on was executed in consideration of a certain tract of land, situated in Madison county, Mississippi, (describing the land,) and that at the time of the sale of said land by Hayes, to defendants, Hoy»& Thorn, there was outstanding, unsatisfied, a certain judgment rendered by the circuit court of the United States, for the southern district of Mississippi, in a certain action of trespass on the case, wherein Charles Tiernan and James McHuddy were plaintiffs, and James Hayden and Patrick H. Hayes, the payee in said note, and -vendor of said land, were defendants, rendered 11th of June 1838, for ,$'2656 86. That on 13th of March 1841, a fi. fa. issued on said judgment, directed to marshal, &c. which, before the return day thereof, was levied on said land, and every part of it, and the same was sold to one Thomas Penny, to satisfy said judgment. Whereby the consideration of said note wholly failed. No replication appears by the record to have been filed to this plea. On the trial the plaintiff read to the jury the note sued on, and rested his case. Defendants then called H. A. H. Lawson, who testified that P. H. Hayes was his particular friend, and seldom if ever visited Madison county without calling on him, and that Hayes never made but one trade with Hoy & Thorn to his 'knowledge, and that was in February 1839. He then sold them a number of negroes, and some little' other personal property, and a tract of land. That theretofore in 1835, Hayes had sold the same and other personalty, and contracted to sell the land to John White, and executed a bond to White to make title to the land. At the same time White conveyed the personal property to Henry Phillips as trustee, to secure the payment of the purchase-money. That when the payments of some of them became due, Phillips, the trustee, being requested so to do, attempted to sell, and White enjoined him from so doing by an injunction from the chancellor, (Hoy being security in the injunction bond.) The injunction was dissolved, and Phillips then refused to act any longer as trustee. The chancellor then appointed witness to execute the trust. He took possession of the property and advertised it for sale. Hoy & Thorn wished to become the purchasers of the property, and produced a paper signed by White, which witness thought woidd free Hayes from all responsibility to White on his bond for title to the land. Hayes contracted with Hoy & Thorn, and that contract prevented the personal property from being sold under the deed of trust. Hayes estimated the personal property at $6000. Hoy & Thorn at $5000. They split the difference, and Hayes sold it to them for $5500 in cash, which they paid. Hayes refused to enter into the contract unless the value of the personal property was paid in cash. Hoy & Thorn agreed to pay Hayes for the land and negroes about the amount due from White to Hayes for all of the property. It might have been a little more or less. Hoy & Thorn gave their notes for the remaining portion of the contract, after deducting the cash payment, with Thomas Mullin, William E. Harrold, and John Briscoe as their sureties.</p> <p>The notes of White to Hayes were given up by witness as agent of Hayes, either to Hoy or Thorn, and witness afterwards saw them, he thought, in the possession of Hoy. Hayes and White were unfriendly at the time of the contract between Hayes and Hoy & Thorn, and did not converse together. At the time the contract was entered into Hayes lived in Ya-zoo county in this state, and in the spring of 1840 he removed to Texas, carrying with him some property, but not sufficient to pay the judgments against him, and leaving none.</p> <p>The defendants then read a record of the proceedings in the United States circuit court, in the case of Tiernan & Cuddy v. Hayden & Hayes, which proved the facts alleged in the defendants’ second plea, and that the land was sold by the marshal to Thomas Penny on the 3d day of May 1841, for $500. The defendants then read the deed from Hayes to Hoy & Thorn, dated 6th February 1839, by which he granted, bargained and sold the same land to Hoy & Thom, with covenants of general warranty. Defendants here closed their evidence.</p> <p>The plaintiff introduced and read a contract or agreement in writing, which was admitted to be the same spoken of by the witness, Lawson, in these words, to wit:</p> <p>“ State of Mississippi, Madison c’ty, Feb. the 10, 1839. — A written agreement entered into between John White of the first part, and Wm. Hoy, Thomas Mullins, and Wm. Thorn of the second. Whereas, the extreme emergency of the case requires it for the better security of the parties interested, it is agreed that John White of the first part, resign all his right, title and interest in all the property now in his possession to the parties of the second part, in order that they may negotiate and settle the claims against the property wherein they are liable, and if possible sustain the property from being sold to the great damage of all parties interested, and procure the titles in their best form from the holders of claims. It is further agreed, that the parties of the second part shall, if possible, prevent the property, from sale; if so, we bind ourselves to settle the principal part of the household furniture on his family, or at least that portion of it brought from Ky. by said White. We further agree to protect said White’s family in a home on the premises, until said White can have a chance to procure a situation for the better for himself and family, — provided he and they will use their best endeavors to make a support without incurring any possible expense to the farm; we further agree that we will give up the before-named property to said White, just as soon as said White can make sufficient showing that we will be safe in so doing, or any portion of it at a fair valuation, according to the liabilities of the parties of the second part at the end of this year, or at any time thereafter while in our possession; or said White or family shall have the privilege of redeeming Mima and Nelly at any time they may see fit.</p> <p>“ John White,</p> <p>“ W. Hoy,</p> <p>“ Wm. N. Thokn.”</p> <p>The plaintiff then read in evidence the record of proceedings in the suit in chancery instituted by John White against Patrick H. Hayes and others, containing copies of the bond for title to the land given by Hayes to White, the bill of sale of the negroes, and other personal property sold by Hayes to White, and the deed of trust executed by White to Phillips as trustee, to secure the purchase-money due Hayes, referred to by the witness Lawson; all of which were agreed to be received as evidence in lieu of the originals. The record also showed the granting and dissolution of the injunction and removal of Phillips as trustee, and the appointment of Lawson to execute the trust, as stated by Lawson. It was then admitted, that John White entered into possession of the property purchased from Hayes, immediately after the purchase was made. And that Hoy & Thorn took possession of the greater part of the land, White occupying the residue, immediately after their contract with Hayes, and remained in possession of it about two years, and until it was levied on and sold by the marshal to Thomas Penny, very soon after which they voluntarily abandoned the possession. ' The plaintiif then read a contract in writing between White and Thorn, executed on the 7th day of November 1837, and recorded in the office of the clerk of the probate court of Madison county, on the 12th day of December 1837; by which White conveyed to Thorn one half of the land purchased by White of Hayes, and also one half a large number of ne-groes and other personal property, in consideration of seventeen thousand dollars; five thousand eight hundred and sixty-five dollars of which was payable in cash, and the residue in five equal annual instalments. This being all the evidence offered on either side, the plaintiff asked the court to instruct the jury as follows, to wit:</p> <p>“ 1st. That if they believe from the evidence, that the contract, between Hayes and Hoy & Thorn, was an entire contract for the land and personalty at an aggregate sum for the whole, the plaintiff in this case must recover, notwithstanding the land which was part of the consideration of the sum agreed to be paid was sold at marshal’s sale.”</p> <p>“ 2d. That the deed from Hayes to Hoy & Thorn conveys only a naked legal title, the equitable beneficial interest being then in White, who was in possession under the bond for title, and that this interest passed by virtue of White’s written contract at the time, and that this interest is not affected by the lien of the judgment.”</p> <p>“ 3d. That the purchaser at marshal’s sale has but a bare legal estate, which he would be compelled in equity, on the payment of the original purchase-money, to convey to the defendants, Hoy & Thorn.”</p> <p>“ 4th. That the stipulation in the title bond of Hayes to White, that on the non-payment of the notes by White the bond shall be void, does not in itself render such bond void on such failure. It is a privilege of the vendor of which he may avail himself, and from the fact that the vendor Hayes, long afterwards instituted proceedings under the deed of trust, to sell the negroes, the jury may presume that he had waived such privilege, and regarded the contract as still in full force.”</p> <p>“5th. If the purchaser of real property lakes a covenant of warranty from the vendor, and is put into possession, he cannot defend himself against the payment of the purchase-money, without a previous eviction, unless the vendor was guilty of fraud in the sale.”</p> <p>“ 6th. A sale of land by a sheriff, or marshal under execution, upon a valid judgment and a deed made to the purchaser under that sale, does not of itself amount to an eviction.” All of which the court gave. Defendant asked the court to give the following instructions, to wit: “If the jury believe from the evidence that Hoy & Thorn purchased from Hayes personal property and land at a sum agreed for the whole; that a price was agreed on for the personal property, and for the sum so agreed on as the value of the personal property, Hayes required and received payment; that notes were executed for the remainder; that the note sued on is one of those so executed; that at the time of the sale of the land and personal property aforesaid, there was an unsatisfied judgment against Hayes, rendered by the United States circuit court for the southern district of Mississippi; that the land was situate in Madison county in said state; that a fieri facias issued on said judgment against the goods and chattels, lands and tenements of said Hayes, that said execution was levied on said land, and the same was sold by the marshal to whom' it was directed, (he acting by deputy,) to satisfy said execution, and that the said land was purchased by one Penny at such sale, they ought to find for the defendants which instruction the court refused to give. Defendants thereupon excepted to the giving of each of the instructions asked by the plaintiff, and to the refusal to give theirs.</p> <p>During the argument to the jury, defendants’ attorney stated that he would then endeavor to show, from the evidence in the case, that the vendor, Hayes, committed a fraud in his sale to Hoy & Thorn, and that if he did so no eviction was necessary under the instructions of the court. Plaintiff’s attorney objected to defendants’ attorney being permitted to argue the question of fraud! The court sustained the objection, because there was'no plea alleging fraud, and because there was no evidence tending to prove fraud. To which defendants’ attorney excepted. A verdict and judgment were rendered in favor of the plaintiff, and the defendants then moved for a new trial. “ 1st. Because the court erred in giving plaintiff’s instructions.”' “ 2d. Because the court erred in refusing defendant’s instructions.” ■ “ 3d. The court erred in not permitting defendants’1 attorney to argue the question of fraud.” “4th. The verdict was contrary to law and evidence.” The motion was overruled by the court, to which the defendants excepted, and removed the case to this court by writ of error.</p> <p>Without going over the several instructions given and refused in detail, I will attempt a discussion of those principles which must govern the whole. In doing this perspicuity requires that' I first consider the case as it would be, had Hayes never sold to White ; and secondly, whether that fact has any legitimate influence in this cause. Upon the first point I contend</p> <p>1st. That, as there was, at the time of the sale of the land by Hayes to Hoy and Thorn, a judgment against Hayes having a lien on the land, and the land was sold to satisfy that judgment, and the possession abandoned by Hoy and. Thom, there was an entire failure of consideration] of which the . defendants’ might avail themselves, although Hayes had conveyed by deed with covenant of general warranty. The case of Frisbee v. Hoff-nagle, 11 Johns. R. 50, is precisely this case, with one fact variant, which if it makes a difference at all, renders this a stronger case. There the purchaser retained possession to the time of trial, whereas in this case the purchasers abandoned the possession immediately after the sale by the marshal. The case of Lattin v. Vail, 17 Wend. 188, proves, if it proves anything, that where there is a subsisting mortgage at the time of sale and conveyance, a sale under the mortgage would be an available defence to an action for the purchase-money. In McAllister v. Reab, 4 Wend. 4, Frisbee v. Hoffnagle is referred to, and the doctrine that partial failure will avail pro tanto, placed on a firm basis of reason, policy and law. Parham v. Randolph, 4 Howard, 453, establishes the same doctrine, for there was a conveyance with covenants.</p> <p>In the court below, two classes of cases were relied upon against me. The one the numerous cases in which courts of equity refuse to relieve against the payment of the purchase-money on the mere ground of a failure of title. But if we will attend to the reason why in such case equity will not interpose, so far from overturning, it maintains my position, that in this case our defence is complete.</p> <p>The reason, and the only true reason why equity cannot relieve before eviction will be found in Abbott v. Allen, 2 Johns. Ch. R. 521. “ This, (a court of equity) is not the appropriate tribunal for the trial of titles to land,” says Chancellor Kent. “ To sustain the injunction (for the purchase-money, before éviction,) would be assuming the fact of a failure of title before eviction or trial at law, and which this court, as not possessing any direct jurisdiction over legal titles, is not bound or authorized to assume. This court may perhaps try title to land where it arises incidentally, but it is understood not to be within its province, when the case depends on a simple legal title and is brought up directly by the bill.” This is the true reason, founded in sound judicial philosophy, and being so we reason from it thus. To avoid the payment of purchase-money on the mere ground of defect of title, the court in which you seek to avoid it, must have direct jurisdiction over legal titles.</p> <p>Again. The words grant, bargain, and sell, as used in the deed from Hayes to Hoy & Thorn, are to be construed “ an express covenant, to the grantees, that the grantor was seised of an indefeasible estate in fee simple, free from incumbrances, done or suffered, from the grantor. Rev. Code, 459. Gratz v. Ewalt, 2 Binney’s R. 95; 4 Kent’s Com. 473.</p> <p>Hayes had not an indefeasible estate. The judgment of the United States circuit court was an incumbrance suffered by him. This covenant was broken therefore when entered into. Although broken when entered into, that did not produce an entire failure. Had it been but an incumbrance at the time of trial it could not have availed us. The incumbrance against the existence of which Hayes had covenanted, had actually defeated the estate of Hoy & Thorn. The incumbrance did not, but the loss of the estate did produce an entire failure. Latin v. Vail, 17 Wend. 188.</p> <p>But the court below was of opinion, that as Hayes sold ne-groes to Hoy & Thorn as well as the land, we could not defend, as we had not lost the negroes. As to the personal property, it was agreed that its value was $5500. That sum was paid in advance. All that remained was the land, for that and that only would Hayes extend credit. The land then was the only consideration for the notes. I need only refer to the cases of Randolph v. Parham, 4 Howard, 453, and McAlister v. Reab, 4 Wend. 483, and the authorities there cited on this point. Thus, then, would the case stand independently of White’s previous purchase.</p> <p>Secondly. What influence can that have! None; for 1st. The conveyance from Hayes to Hoy & Thorn was not made in execution of the contract between Hayes and White. It was in consequence and an execution of a new and original contract of sale by Hayes, directly to Hoy & Thorn. Lawson, the trustee appointed by the chancellor, was about to sell the slaves under the deed of trust. He was as an attorney consulted by Hayes, and gave it as his opinion that Hayes might safely sell to Hoy & Thorn. Hayes, and Hoy & Thorn then contracted anew for the sale by the former to the latter, and did not intend or think that in so doing they were carrying into effect the contract between Hayes and White. No one could have doubted but that Hayes would have been safe in conveying in execution of his contract with White. The question was not whether he might on his part execute that contract. It was, could he sell the land 1 not could he convey pursuant to a former sale.</p> <p>2d. The deed of Hayes tons is conclusive as to what we contracted for with him. It was an indefeasible estate in fee simple, free from incumbrance, done or suffered by him. This estate for the land was the consideration. Suppose this case: That after the marshal’s sale,'Hoy & Thorn had sued Hayes upon the covenants arising from the words “ grant, bargain and sell,” which is as before shown an express covenant that the grantor passes to the grantee an indefeasible estate in fee simple, free from incumbrance done or suffered by the grantor; could Hayes, by any form of pleading, have prevented a recovery to the full amount of the purchase-money, on the state of facts shown by this record 1 Hall v. Dean, 13 Johns. R. 105. How could his sale to White, or our contract with White avail him in defence, suppose we now pay the purchase-money 1 Might we not immediately recover it back by suit on these covenants, if Hayes had not fled to Texas 1 If we could, the rule that a de-fence shall be allowed to avoid circuity of action comes in.</p> <p>3d. We were in a court of law, and that court could not determine the question of equity between Hayes’s vendees and Penny, who purchased at marshal’s sale. According to all judicial science, a court of law must determine questions of law, a court of equity questions of equity. A court of law has no more jurisdiction to decide upon equitable titles than has a court of equity to decide upon legal titles. Whether we had or had not an equity was a question not of legal, but of equitable cognizance.</p> <p>As the special plea was not replied to, the court must for that cause reverse, but it is very important that the main question be decided, to avoid much litigation as to the land, the negroes, the remainder of the purchase-money, the distribution of the estate of Mullins, who is dead, and, indeed, many other rights awaiting the decision of, this cas ■.</p> <p>The court below committed no error in the proceedings, and in refusing to permit defendants below to argue fraud to the jury. The plea should aver that on the sale of the lands to the vendees, Hayes made representations with intention to defraud. Fraud of all kinds must be expressly averred. Hageman v. Sharkey, 1 How. 277. Likewise fraud cannot be set up by way of inducement, but must be directly charged. Ibid. 341. From the above decisions it appears clearly, that a party endeavoring to avoid the payment of his note on the ground of fraud, must so charge the same in his pleadings, and then prove it, which, however, is not so alleged in the present case. The plea only charges that the marshal sold the land in question by virtue of a fieri facias, to one Terry, by reason of which the consideration of the note has wholly failed ; it is nowhere set down, that Hayes made any fraudulent representations to the vendees, or that he concealed from the vendees the fact of the judgment lien with the intention to defraud them. It is quite as reasonable to believe there was no fraudulent representation, or no representation at all, and that the vendees had notice of the existing judgment lien, as to believe that the defendants below had such a defence and did not make it in their pleadings. So much for the pleadings. Now as regards the evidence in relation to the sale, it will appear that the whole transaction was fair and honestly agreed to by all the contracting parties. The vendees paying to the vendor Hayes a sum of money for the land and personal property, the vendor took the money, and gave title deeds of conveyance with covenants, and possession of the real and personal property, which the vendees quietly took at the time, and enjoyed and held for about two years, all of which time Hayes was in an adjoining county. The law presumes every contract to be made bona fide, and all persons innocent of fraud, deceit, and other imputations affecting reputation; and to avoid a contract a party must fully charge either fraud or deceit. 1 Howard, 2§0. This case turns upon covenants dependent and independent. Hoy & Thorn received from Hayes a deed of conveyance with covenants of warranty, when they executed the note sued on, and took possession, — paid part of the purchase-money at the time of sale, and have yet their remedy at law upon the covenants. A voluntary abandonment of the premises by the vendees upon an outstanding claim is no eviction or ouster, because they may take quiet and peaceable possession thereof, so far as this honorable court can know, and at all events the vendees have not been evicted by any title paramount. The vendees have no remedy for this case in chancery; have they it here? The voluntary abandonment of the premises to defeat the payment of the note, would be a fraud,upon the innocent holder of it, as is the case now pending. The law does not allow or permit with impunity such a remedy to be set up in defence, to defeat the recovery of the innocent holder of the vendees’ note. 4 Howard, 435 ; 5 Howard, 387; 5 Ibid. 460; 2 Johns. Ch. 520; 1 Ibid. 213; 5 Ibid. 29, andcases there cited.</p>

<p>A vendee of land, who has received a deed with covenants of warranty of title, and been put in possession, cannot, when he is sued on the notes given for the purchase-money, set up the defence of failure of consideration, without an eviction.</p> <p>L., as administrator of S., sold a lot of ground to W., who subsequently resold it to L., and L. individually sold and conveyed it with covenants of warranty to D., and put D. in possession. Suit was instituted against D., on the notes given for the purchase-money, and he defended it on the ground, that the sale by L. as administrator, was irregular, and passed no title to W.; and the title was consequently still in the estate of L.’s intestate : Held, that whether the sale by L. as administrator, passed the title to W. or not, as D. derived title from L. individually, he stood in the attitude of an ordinary purchaser, who has taken a covenant of warranty, and been let into possession, and could not therefore set up failure of consideration without showing an eviction.</p> <p>The use of the words “ grant, bargain and sell,” in a deed containing a covenant of warranty of title, will not amount to, or constitute under our statute, a covenant of seizin.</p> <p>The case of Hoy Thorn v. Addison Taliaferro, cited and affirmed.</p>

<p>Where a mechanic recovered a judgment under the act of 1838, for work done or materials furnished in the erection of a house or any building, he might resort to a special execution, and have the specific property sold; or he might sue out a general execution against all or any of the defendant’s property ; but if he adopted the latter course, he thereby waived or abandoned Ms special lien ; and he could not therefore, after the issuance of a general execution, and a levy of the same on the specific property, and a sale thereof, at which he became the purchaser, enforce the special lien thus voluntarily abandoned, by a bill in chancery.</p> <p>The statute of 1838, passed for the benefit of mechanics, was never designed to authorize a tenant to incumber the freehold by any description of liens. And the legislature could have conferred no such power, even if they had intended it; a mechanic therefore has no lien upon the freehold, for repairs done on the buildings under a contract with the tenant.</p> <p>The act of 1838, giving mechanics a lien on dwelling-houses, stores, warehouses or other buildings, erected by them, for the satisfaction of the price contracted to be paid therefor, and for materials furnished, &c. does not give any lien for mere repairs; it refers only to contracts for the erection of buildings.</p>

ErRor from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge. This was an indictment preferred by the grand jury of Lowndes county, against A. Morris, at the April term of the circuit court, in the year 1846. The indictment contained four counts.

<p>Appeal from the district chancery court at Carrollton ; Hon. Henry Dickinson, vice-chancellor.</p> <p>This was a bill filed in the district chancery court held at Carrollton in Carroll county, by the President and Trustees of the Grenada Male Academy, and the President and Trustees of the Grenada Female Academy, alleging that by an act of the legislature of Mississippi, passed and approved on the 15th day of February, 1839, they were created bodies corporate; that on the 6th day of February, 1841, the legislature modified in some degree the first act of incorporation. Copies of both acts were filed as exhibits to the bill. That by virtue of the 5th section of the first act, and the second section of the second, complainants obtained possession of sundry assets belonging to the school fund in township 22, north, of range 5, east; and amongst them of four bonds for the sum of $1800 each, all executed by Andrew R. Govan, and John A. Binford as his surety, in consideration of a lease for ninety-nine years to Govan of the 16th section in the above-named township, and all made payable to George K. Morton, as president of the board of trustees of that section. That Binford, being anxious to escape from his responsibility for Govan on account of the bonds, made an arrangement, in the spring of 1842, with E. Pugh Davis, who had been fully empowered by Govan to do so, to set apart and appropriate a large quantity of land, which was described in the bill, for the payment of the bonds. That on the 26th day of April, 1842, Binford communicated to Morton, who was then president of the Grenada Female Academy, that the land had been so set apart and appropriated, and that E. Pugh Davis and himself were then willing and anxious to convey the whole of the lands to the complainants in discharge and satisfaction of the bonds; that Morton, with the design of defrauding complainants, impoverishing the citizens of the township, and depriving their children of the means of education, requested Bin-ford to say nothing further in relation to the proposition to any other person, but maintain the utmost secrecy about the matter. That very soon after that time Morton, secretly and without knowledge or assent of complainants, illegally and fraudulently took the bonds from the strong box of the treasurer of complainants, where they had been deposited for safe keeping, and gave them up to E. Pugh Davis for the lands described in the bill and referred to by Binford, and took from Davis a blank deed to the same, with the view and for the purpose of defrauding complainants; that Davis well knew that Morton had no authority to use the bonds in that way. That Joseph Caru-thers, who was a relation of Morton, combined with him to defraud complainants, and had the blank deed filled up with his name; which was done not only to defraud complainants, but also to conceal the property from Morton’s creditors, he holding himself out to the world at that time as insolvent. That Morton and Caruthers, to accomplish their fraudulent intentions, and to hinder and delay complainants as much as possible in the assertion of their rights, had for more than two years secreted the deed, and refused to have it recorded in the proper office in the county where the lands were situated. Complainants further charged that immediately after Morton had so illegally and unwarrantably disposed of the bonds of Govan and Binford, he proposed to Septimus Caldwell, who was in the possession of a large frame house in the west ward of the town of Grenada, called Caldwell’s tavern, and for which he knew Caldwell had not paid and had no title, to give him, Caldwell, his, Morton’s, note for about five hundred dollars, and also a small lot in the east ward of Grenada, if Caldwell would convey by quit-claim to whomsoever Morton might direct, the tavern and -the lots on which it was erected, and Caldwell acceded to the proposition. That Morton then by false and fraudulent representations to complainants, stating that he had consulted eminent lawyers who advised him that the lease to Govan was.illegal and void, and the bonds executed therefor by Govan and Binford were consequently without 'consideration and worthless; but that for twenty-five hundred dollars of those bonds, Caldwell would sell to complainants his tavern, which would answer admirably for a male academy, and that he, Morton, knew a good title to the tavern could be procured for that amount of Govan and Binford’s bonds; that those and other false and fraudulent statements prevailed on complainants to sign a written agreement authorizing the investment of any portion of their assets in the purchase of Caldwell’s tavern. That Morton, after the agreement was signed by complainants, without their knowledge or assent, and without any pretence that the written agreement gave him any express authority so to do, and against the positive instructions of one of the trustees of the male academy, who accidentally found out what he was about to do, consummated his arrangement with Caldwell, and received from Caldwell a quit-claim deed to the tavern in the name of complainants; and gave Caldwell in exchange the small lot in the east ward of Grenada, north, not exceeding two or three hundred dollars, and his note for five hundred dollars. That Morton had repeatedly endeavored to get complainants to take the tavern aud lots on which it stood, in payment of all four of the bonds executed by Govan and Binford, and they had invariably refused to have anything to do with the tavern or take it off his hands ; that he purchased it with his own funds, and must risk the consequences. That the tavern and lots were still bound to John Smith for the purchase-money due by Caldwell, and Smith had instituted suit to recover possession of the same. Complainants further charged that Morton had been removed from, his office of president of the Grenada Female Academy, and expelled from the board of Trustees, on account of fraudulent conduct in the premises. That knowing complainants were about to institute suit against him to compel him to surrender up the bonds of Govau and Binford, or-the land he received from Davis, the more successfully to carry out his fraudulent and swindling intentions, he purchased from Ephraim S. Fisher and wife the same lands he obtained previously from Davis, and gave Fisher and wife three hundred dollars for their quit-claim, which deed was also taken in the name of Caruthers, a copyof which deed from Fisher and wife to Caruthers was made an exhibit to the bill. Complainants charged that Fisher’s only title to the land was derived from a purchase at a marshal’s sale under three judgments against Govan, all three of which had been fully satisfied long prior to the sale; that Fisher gave for the whole of the land only six dollars and seventy cents, and it was worth at least two thousand dollars. That the sale to Fisher was void, not only because of the gross inadequacy of the price paid for the lands, and of the prior satisfaction of the judgments under which the sale was made, but also because long before the rendition of those judgments Govan had conveyed those and other lands by deed of trust duly acknowledged and recorded, and bearing date the 31st day of May, 1840, to E. Pugh Davis and William Crump, to secure the payment of various debts due by Govan, and especially the bonds executed by himself and Binford in favor of complainants, and by the terms of the deed of trust either of the trustees was authorized to sell either at public or private sale the whole or any part of the lands therein conveyed, for the payment of any of the debts therein specified. The marshal’s deed to Fisher and the deed of trust were both made exhibits to the bill. Complainants further charged that Morton, Davis, and Caruthers were confederated together to defraud and swindle them out of both the bonds and lands. George K. Morton, E. Pugh Davis, and Joseph Caruthers were made defendants. The prayer was that the deeds from the marshal to Fisher, and from Fisher and wife to Caruthers be declared null, and that the lands be sold for the benefit of complainants, and for general relief.</p> <p>To this bill the defendants demurred, and assigned for causes of demurrer : 1st. If said prayer is granted, the property vested in Davis again becomes a common fund to pay all Govan’s debts, and his creditors are necessary parties. 2d. The charter conflicts with the act of congress, which gives the funds to the township, and the legislature has no power to limit the funds to a portion of the township. 3d. If they have any relief at all, it is at law upon the bonds, as the bill shows that they can be identified, and Binford is still liable. 4th. Because said bill is in every respect insufficient. The vice chancellor overruled the demurrer, and granted the defendants leave to answer. Whereupon they prayed an appeal to this court.</p> <p>The bill is defective in at least twenty respects.</p> <p>1. It has not the proper parties. Caldwell, Fisher and Bin-ford, and Govan’s representatives are all necessary parties.</p> <p>2. It is multifarious. It proposes to cancel the deed made by McClung to Fisher, and the deed by Fisher to Caruthers. The transaction between Morton and Caldwell, is introduced into the bill, for what purpose it is difficult to say.</p> <p>3. The bill sets forth the amount, dates, and time when payable of the writings obligatory, made by Govan and Binford, and no reason is alleged, why the contents of these writings' cannot be proved in a court of law.</p> <p>4. If Morton acted without authority, as the bill alleges, the title to the writings obligatory remains unchanged, as they were trust-funds, and one member of the corporation could not act in the premises. Of course then, Govan and Binford are still liable thereon.</p> <p>5. The bill must propbse to take the land from Morton, on precisely the same terms, as he received it from Davis. If Morton took the land in full payment of the several- writings obligatory from Davis, the complainants must elect to confirm Morton’s acts and take on the same terms, or disregard his acts and look to Govan and Binford for payment.</p> <p>6. The complainants have no power to make any election in this case, according to the bill. The bill says that the land was, and is worth f¡2000. They have no power to elect to take $2000 worth of land, for $9000 secured by these writings obligatory, unless they show by the bill, that Govan and Bin-ford, are in such desperate circumstances, that $2000, could not be made by a suit and judgment at law against them.</p> <p>7. It cannot be ascertained from the bill, whether the complainants are seeking by the bill to protect the interest of the academies, or the good people of the township generally.</p> <p>8. If the complainants are acting for the benefit of the township generally, they can only perform such duties, and possess such rights as belonged to the trustees of the township. In which case they could not make their election to take the land; the trustees of the township having no power to hold lands, except the control over the sixteenth section, and the complainants by virtue of their charter, possessing no power to hold lands, except for the benefit of the academies.</p> <p>9. The secoud section of the act of the legislature p. 21 and 22 of the bill, confers on the complainants no right to demand or receive the writings obligatory given by Go-van and Binford; but merely a right to receive the money when collected. The act requires the complainants to appropriate the “ funds,” as the trustees of the township could have done. The language of the act is this, (last clause of act): “ With a view, and for the purpose of appropriating them in accordance with all the laws now in force concerning said funds.” What were the laws then in force? They were that the money should be lent at ten per cent, interest, which interest should be applied to the use of schools in the township, &c. This was all the power the complainants possessed under this act.</p> <p>10. This act (second section) is unconstitutional, as it seeks to divest the trustees of the township of a vested right.</p> <p>11. It is void for its uncertainty, as it does not repeal the laws regulating the duties of the trustees of sixteenth section, but leaves those laws in full force. A law is not to be repealed by mere implication, unless the intention of the legislature is manifest.</p> <p>12. It conflicts with the act of congress, which gave the lands to the township, generally, and the legislature cannot take from the township this general interest, by giving the proceeds of the section to a particular portion of the people in the township. The act of congress in this respect, cannot be limited by the state legislature. This position is assumed in the event it should be contended that the writings obligatory were given to the academies by the act.</p> <p>13. The trustees of the township should be made parties to the bill. It is deemed unnecessary to assign any more objections.</p> <p>The demurrer in this case cannot be sustained, because it is a general demurrer to the whole bill, and there is no answer accompanying it, denying the fraud charged.</p> <p>The doctrine is now too well recognized to be controverted, that whenever fraud is charged in a bill, that no matter what species of defence the respondent may adopt, he must negative the allegation of fraud. Anderson v. Lewis, Freeman’s Chan. Rep. 2Ü6. So, if respondent plead to such a bill, he must deny the fraud by his plea, and by an answer in support of the plea. Ib. And if a general demurrer be filed in such a case it will be disallowed. Ib.</p> <p>“If a bill contain an allegation of fraud, it is a general rule that the allegation of fraud must be denied by answer, whatever defence may be adopted as to the other parts of the bill, because fraud gives jurisdiction to the court, and lays a foundation for relief; hence a general demurrer to a bill containing such an allegation cannot be allowed.” Niles v. Anderson, 5 How. R. 364, 386.</p> <p>The facts of this case bring it within the principle “ that where lands are purchased with trust funds, a trust will be implied, and that too, not only where the party may be presumed to act in execution of the trust, but even when the investment is in violation of his trust.” 2 Sto. Com. on Eq. 457.</p> <p>So where there is a palpable and gross violation of a trust reposed in a trustee, he will be held accountable for all the consequences. Contee v. Dawson, 2 Bland’s Ch. R. 264-287.</p> <p>In the case of a purchase by a trustee in his own name, in pursuance' of the trust, the cestui que trust is entitled to the estate; but where it is purchased with trust money, in violation of the trust, the cestui que trust has a lien on the estate, and not a right to the estate.' Atherly on Marriage Settlements, chap. 28, 443, 444; 2 Story’s Com. on Eq. 458, note.</p> <p>It is upon this ground that the complainants seek to remove the clouds thrown, by the pretended and fraudulent deeds to another, over the true title to the lands purchased with trust funds by Morton, for the purpose of having said property decreed to be the property of Morton, and then subjecting the same to the lien of complainants.</p> <p>This is necessary as a precedent step; but such a proceeding does not revest the title in either Davis or Fisher, nor does it operate as a reconveyance of property, subject to the claims of Govan’s creditors, as it is supposed by counsel.</p> <p>“ In practice, it is usual to direct a release of the right of a party under a deed which is set aside as constructively fraudulent; but it will not be necessary to direct a release or recon-veyance, when a deed is declared an absolute nullity, from fraud and imposition in the manner of it, except under special circumstances, and ex abundenti cautela.” Henriques v. Hone, 2 Edw. Ch. R. 120.</p> <p>The remaining point made by the demurrer, to wit, “that the charter conflicts with the act of congress, which gives the funds to the township, and the legislature has no power to limit the funds to a portion of the township,” is equally untenable. In the first place, neither the act of 1839, creating the complainants bodies corporate, nor the act of 1841, amendatory of the first act, confines or limits the funds transferred to their keeping, to only a portion of the township. By the fifth section of the act of 1839, the funds belonging to township 22, north, of range 5, east, are transferred to complainants, “ subject to all the laws now in force in regard to school funds.” And by the second section of the act of 1841, complainants are authorized to call upon any person or persons having the funds of said township, “ with a view, and for the purpose of appropriating them in accordance with all the laws now in force concerning said funds.”</p> <p>While the legislature cannot pervert the funds arising from the 16th section, to purposes foreign to the object intended by congress, still that body may interpose any body corporate or otherwise, as trustees, to carry into effect the benevolent intention of the donor.</p> <p>By the act of 1821, (see Rev. Code, 408, sec. 17,) the president and directors of the literary fund were invested with this power. Then came the act of 1824, (see H. & H. 125, sec. 16,) which authorized the appointment of five persons as “ trustees of schools and school lands.” Afterwards, by the act of 1833, the board of county police were empowered to act in this capacity, under certain circumstances. H. & H. 131, 132, sec. 30. The legislature then, in conferring this power, and imposing this duty on the complainants, neither exceeded its authority nor violated any act of congress.</p> <p>The only difficulty I expect to meet with, in reversing the judgment of the vice-chancellor, is that the confused fraud charged in the bill is not answered. To this point I shall first address myself. I first assume that the purchase of Fisher is not fraudulent, eren if the charge be sufficiently explicit, that he purchased with notice, that the judgment had been paid, under which he purchased. In support of this, I rely on the case of Van Cam,pen v. Snyder, 3 How. 66. If this be so, you may grant that Morton, prior to his purchase from Fisher, perpetrated all the frauds reported in the books, and had express notice of all the strange and jumbled ones, attempted to be defined in this bill, and they cannot invalidate his purchase from Fisher. For the rule is well and definitively settled, that “ a purchaser with notice to himself, from one who purchased without notice of a fraud, may protect himself under the first purchase.” Bnmpns v. Plainer et ais. 1 Johns. Ch. R. 213.</p> <p>Again, the complainants show very clearly they have no title or interest in the subject-matter of controversy. They set themselves up as a sort of commissioners of morals, come here to set aside a transaction as fraudulent, that can in no wise concern them, under the constitution and laws of the land, granting everything they say to be so; for the reason that by the constitution and laws they never could, by any possibility, derive any title or interest in the subject-matter of controversy. Why 1 Because the legislature could not divest the title and interest of the inhabitants of the township of this sixteenth section, and appropriate it to these complainants. I think it too clear for argument, that this section and its proceeds were vested in the inhabitants of the township. If I am right, even in this position, and wrong in the others, the relief here sought cannot be granted in any aspect in which the facts of this case can be presented. From the foregoing, I deduce the conclusion, that if the relief sought cannot be granted, then the fraud charged in the bill need not be answered. A demurrer to the relief sought is, in the nature of things, a preclusion to the right of discovery. Courts never require discovery from mere idle curiosity, but only for the purpose of enabling them to grant relief. It would be an absurd waste of time, labor and expense, to the courts and to the parties, to grant it, when if given, (and when given, admitting every charge of the complainant,) no relief could be decreed.</p> <p>Fraud must be accompanied by injury before any relief can be granted. Hall v. Thompson, 1 S. & M. 489.</p> <p>Until a man establishes a title, he has no right to interfere with fruitless, oppressive, and unnecessary litigation. Wiggins et al. v. Armstrong et al. 2 Johns. Ch. R. 144.</p> <p>A demurrer to the relief is good against discovery. Story’s Eq. Plead. 254, and authorities cited; lb. 219, 220.</p> <p>This is enough, without going into the particular, but glaring defects of the bill. For instance, there is a charge that one object Morton had, was to defraud his general creditors ! Are we to answer that? In another place it states what method he adopted to disguise his swindling! It seeks to set aside Fisher’s title, for inadequacy, without making him a party, and substantial relief against Binford, when he is no party, and the same of others. It seeks inconsistent relief. For when closely scanned, it demands about this : first, that the sale do not stand; second, that it do stand ; thirdly, when cancelled and the land sold, that Morton stand good for deficiencies; and if he be not good for them, that Binford shall make him good; and a pile of other absurdities, which, if the court decides a demurrer is good without answer to the fraud, are so glaring and obvious as to need no particularizing for the observation of the court. But I contend, if the court think that the fraud ought to be answered, still the cause must be remanded to the docket for other .parties, before a final decree can be made.</p>

<p>On appeal from the superior court of chancery ; Hon. Robert H. Buckner, chancellor.</p> <p>This was a bill filed in the superior court of chancery by Peter Goad, charging that on the 27th day of November, 1838, he and oné James A. Pugh, who is not now a citizen of the state of Mississippi, became security for one Joseph P. Lavender, of the county of Carroll, Mississippi, on a promissory note, which was signed by complainant and Pugh in blank, with the express understanding with Lavender, that it should not be filled up for a larger amount than about $275 or $280; that the note was made payable to H. H. Hart and Sabra Hart, administrator and administratrix of all and singular the goods and chattels which were of Thomas J. Hart, deceased, at the time of his death, and fraudulently filled up for the sum of $1207. That on the 20th day of February, 1839, Lavender intermarried with Sabra Hart. A copy of the marriage license was made an exhibit to the bill.</p> <p>That at the November term, 1839, of the circuit court of Madison county, H. H. Hart and Sabra Hart instituted suit on the said promissory note, for the use of the President, Directors and Company of the Union Bank of Louisiana against Lavender, complainant and Pugh; and at the November term, 1842, verdict and judgment were rendered against complainant and Pugh for $1515 45, and a transcript of the record of the suit at law was made an exhibit to the bill.</p> <p>Complainant further charged, that the consideration of the note was property purchased by Lavender at the sale made by H. H. Hart and Sabra Hart, as administrator and administratrix of the estate of Thomas J. Hart, deceased; that Lavender, by way of inducing complainant and Pugh to “stand” security for him, informed them that the estate of T. J. Hart owed him (Lavender) the sum of $900, for services as overseer since the death of Hart; and that the $900 should be deducted from the purchase, which Lavender had made as aforesaid, or if it was not so deducted, “ the note should be credited with the $900,” and that the blank in the note to be filled up with a sum of only about $275 or $280.</p> <p>The bill further charged, that by a combination between Lavender and Sabra Hart, administratrix, they fraudulently determined to fill up the “blank” note for the whole amount of Lavender’s bids at the sale, to wit, $1207 45 ; that about the time Sabra and Lavender married, the administrator and ad-ministratrix, paid Lavender the $900, Lavender and Sabra Hart determining to defraud complainant and Pngh out of that sum. That Lavender had made known, as complainant verily believes, the whole transaction to Sabra Hart. Complainant stated that he would have set up this defence at law, but he did not know any person by whom he could prove the above facts. That before the trial he made diligen't inquiry to ascertain the fads, and could not find out anything in relation to them ; but since the trial and adjournment of the circuit court, he had discovered new testimony by which he could prove all the above facts. He charged that the estate of Mr. T. J. Hart was insolvent; that H. H. Hart led complainant to believe that the Union Bank of Louisiana was not the bona fide cestui que use of the note or suit thereon, but only nominally so; that when the money should be collected, it was to be applied to other claims against the estate of T. J. Hart; that if any was remaining after the payment of such other claims, the Mississippi Bank might take it. That H. H. Hart first intimated to complainant that Lavender and Sabra Hart were about to, or had defrauded him, on which suggestion, complainant had been enabled to succeed in procuring the newly discovered testimony since the verdict and judgment were rendered against him.</p> <p>Complainant further charged, that he had discovered a few days before that time, several claims against the estate of Mr. T. J. Hart, deceased, probated in Madison probate court, and left by Pugh before he removed from this state, for the sole purpose of having them pleaded as off-sets against the said note, which claims amounted to $5S6. And copies of the claims were filed as exhibits to the bill. Harrison H. Hart, Joseph P. Lavender, and Sabra his wife, and the President, Directors and Company of the Union Bank of Louisiana, were made defendants. The prayer was for a new trial at law, or for a perpetual injunction.</p> <p>Upon this bill an injunction was granted by the Hon. John H. Rollins.</p> <p>At the June term, 1844, the chancellor dissolved the injunction, upon motion, for want of equity on the face of the bill; whereupon the complainant appealed to this court.</p> <p>The bill is not to revise the judgment for error. Equity acts only in reference to the merits of the case in order to apply, in the last resort, that justice, which, through fraud, accident, mistake, or a force the injured suitor could not resist, was not administered. In all cases of actual fraud, its jurisdiction is concurrent. 1 Story’s Eq. § 68. Its control over suits and judgments at law, is as ample as it is necessary. It will not assume the determination of legal rights or matters whereon there is ample ordinary remedy; but if the case be one for which the common remedy is not ample, or in any case where the suitor has been prevented from being heard and redressed, without his fault or negligence, the tribunal of the last resort is ever opened to him. Story’s twenty-third chapter is replete with illustrations of this auxiliary jurisdiction.</p> <p>In instances of concurrent jurisdiction, such as fraud, if the defence be attempted at law, or where it was known and could have been made, and there is no sufficient reason given for the omission of that opportunity to make it, although the hardship may be very great, chancery may refuse to consider it. Here, however, the defence was not attempted; and indeed could not be made. It was only upon the subsequent disclosures made and discoveries obtained, that the complainant was enabled to allege and prove the fraud; and here it will be noticed, that still he does not seek discovery from those who were concerned in the fraud, but tenders proof! It is only in chancery that Pugh’s claims on the intestate’s estate can be used. The estate is insolvent. Though it is unnecessary, still for the convenience of the court, I cite 4 Johns. Ch. R. 610 ; 3 Dessau. 208, 270; 4 Ibid. 176; 1 A. K. Mar. 500; Phyfe v. War dell, 2 Edw. Ch. R. 47; 1 Rand. 76 ; Sessio?is v. Jones, 6 How. 123; Crisman v. Beasly, 1 S. & M. Ch. R. 561.</p> <p>If a bill contains averments of a fraud, it gives the chancery court jurisdiction, and must be answered. Niles v. Anderson, 5 How. 364; Stovall v. Northern Bank of Mississippi, 5 S. & M. 17.</p> <p>Where the defence at law was meritorious, and was prevented, &c., equity will grant a new trial. 5 How. 43; Land v. Elliott, 1 S. & M. 611.</p> <p>1st. The first ground for relief insisted upon by appellant is that the note was signed in blank. Appellant could not be protected from liability when the note was in the hands of a bona fide holder without notice. If a person writes his name on a blank paper to be used as an indorsement of a note to be written on the other side, and the paper thus indorsed be obtained from him by fraud, and a different note from the one intended be written on the other side, he will be liable to a bona fide holder for a valuable consideration. Putnam v. Sullivan, 4 Mass. Rep. 45. This principle has been settled by this court, in the case of Johnson v. Blasdale and Grubbs, et al. 1 S. & M. 17; Bank of Alabama v. Hemphill, 5 S. & M, 44.</p> <p>2d. The appellant does not pretend to show that the usees of the Bank of Louisiana, knew anything of the “ understanding,” or fraud practised upon him by Lavender. Taking it for granted, that the facts disclosed by appellant about the signing of the note in blank, &c., amounted to a defence to the note, which we do not admit, why did he not make his de-fence at law 1 Let us see what his excuses are; 1st. That he did not set up his defence at law, because he did not know any person by whom he could prove the facts set forth above; “ that he had made diligent inquiry after the facts, but could not find out anything in relation thereto.” See Leggett v. Morris, 6 S. & M. 723, also, Miller v. Gaskins, 1 S. & M. Ch. Rep. 524.</p> <p>3d. If he knew no one by whom he could have proved the facts set out in his defence, other than the said Lavender and Sabra Hart, he could have filed his bill of discovery at law before the trial, and obtained the testimony of such parlies as he would have been entitled at law to examine as witnesses.</p> <p>4th. By an examination of the record of the trial at law, exhibited in the bill, it will be seen that the appellant relied upon his plea in abatement, and did not rely upon his pretended merits, and did not plead the general issue, until the demurrer to his plea was sustained, and the case ready to go to the jury. It is well settled that in all cases proper for law, a man must defend himself by legal pleadings, and a court of equity will not relieve either his pleading, or where there is neglect and want of a plea or no proper plea put in at the time, for it is his own fault. 1 Fonbl. 140. A court of equity will not interfere in favor of a party who omits to avail himself of his remedy in due time. Drury v. Barnes, 3'Russel, 94; 3 Cond. Chan. Rep. 311. If the facts constituting a legal defence to an action at law, can only be established by a discovery from the plaintiff, and the defendant can by the aid of such discovery, avail himself of such defence at law, he should resort to that mode. The general rule is that matters constituting a defence at law must be used there; and if the party omits to do so, chancery will not relieve. Norton v. Woods, 5 Paige, 249. Chancery will not relieve against a judgment at law, unless the defendant was ignorant of the fact, or it could not be received as a defence. Lansing v. Eddy, 1 John. Ch. Rep. 49. A party will not be aided by a court of chancery after a (rial, unless he can impeach the justice of the verdict, on grounds of which he could not have availed himself at law, or unless he was prevented doing so by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part. McMaken v. Williamson, 2 Mil. Law Rep. 181; 8 Martin, Law Rep. N. S. 513; 3 Yerg. 131, 132; 3 Monroe, 296; 3 John. Ch. Rep. 351, 356; 7 John. Ch. Rep. 286; 4 lb. 320.</p> <p>5th. So, if the party has not used due diligence at law in making his defence, in going to chancery to assist him by discovery, he cannot be relieved from a verdict as against him. Barkin v. Elkins, 1 John, Ch. Rep. 465.</p>