Volume 17 — Mississippi Reports

Error from the circuit court of Yalabusha county; Hon. Benjamin F. Caruthers, judge. This was an issue to try the right of property in certain slaves.

ERROR from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge. Yancy Wiley, administrator of Samuel Mitchell, deceased, instituted an action of covenant against William Grubbs, to the May term, 1843, of the circuit court of Yazoo county. The declaration contained two counts. The first averred that the defendant, by the name and signature of “ Wm.

In error from the circuit court of Washington county; Hon. George Coalter, judge. The record in this case contains depositions and papers not embodied in the bill of exceptions; these were disregarded by the court, and are therefore not noticed in the statement of the case.

Robert H. Buckner, chancellor. James G. Newell, Charles Newell, Elias Newell and William Newell, as heirs and devisees of Fereby… Held: that this was not a limitation over on a failure of issue generally, but of a particular class, children of the first taker, capable of taking, and therefore that the limitation was good.” 2 Hill’s (S. C.) Law R. 543; 1 Bailey’s E. R. 48; 4 Kent, 282, note (b.) The counsel for appellants relies also, on the case 1 Bay’s R. 453, 454.

In error from the probate court of Claiborne county; Hon. W. M. Randolph, judge! Robert W. Harper and Catharine, his wife, late widow of Stephen C. Archer, deceased, filed their petition in the probate court, against Richard T. Archer and William Eggleston, administrators of said Stephen C. Archer, charging them with having made false charges in their annual settlements with the probate court of their intestate’s estate.

In error from the circuit court of Warren county; Hon. George Coalter, judge. A motion was made in this court to dismiss the writ of error in this case, for the reasons set forth in the opinion of the chief justice.

ERROR from the circuit court of Attala county j Hon. Morgan L. Fitch, judge. Alexander M. Grant filed his petition in the circuit court of Attala county, stating that he contracted with the board of police of Attala county to build a court house, according to certain specifications and a plan, which were entered upon the minutes of the board, a certified copy of which was made exhibit A to the petition.

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

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

Hugh R. Miller, judge. A motion was made in the court below, by Romulus Riggs and others, against Levi McCrosky, Byrd Hill, Alfred Simpson, Robert C. McEwen, James C. Alderson, and Henry Anderson, the former as sheriff, and the latter as his sureties, on his official bond, which bore date March, 1841, for money collected by the sheriff.

ERROR from the circuit court of Warren county ; Hon. George Coalter, judge. At the October term of the circuit court of Warren county, in the year 1846, the slave Lewis was indicted for the murder of the slave David, and being tried was found guilty.

Henry Dickinson, vice-chancellor. William Clower states in his bill, that some time in the year 1835, he sold to Mary Ann Davis, now the wife of Joseph T. Copes, of the city of Jackson, in this state, certain lands lying in the county of Carroll, known as the east half of the southeast quarter of section twenty-nine, the north-east quarter of section thirty-two, and the west half of the north-west quarter of section thirty-three, in township sixteen, range two, east, for the…

ERROR from the circuit court of Greene county. Hon. A. B. Dawson, judge. Josiah Brown sued Joel Dickinson in an action of ejectment for the recovery of a tract of land, a description of which is not material. The jury gave a verdict in favor of Brown. On the trial of the cause the plaintiff introduced a patent from the United States for the land in question.

Robert H. Buckner, chancellor. Joshua Green filed his bill in the superior court of chancery against H. B. McDonald and others to enjoin the collection of a promissory note made by him to George Finucane and -. Barnes, and by them indorsed to McDonald; and also to procure the rescission of a contract for the purchase of a lot in the city of Jackson, in part consideration of which the note referred to was executed.

Robert H. Buckner, chancellor. Mary K. James filed in the court below her bill to review a decree of that court, obtained against herself and others by Alvarez Fisk, directing the foreclosure of a mortgage executed by herself and husband.

Robert H. Buckner, chancellor. ' Nancy Quine states in her bill, that in 1814, Henry Quine, then a youth, came to live with his brother, Robert Quine, her husband. Held: by Holt, a good promise within the statute.

Henry Dickinson, vice-chancellor. MeCorkle filed his bill in the vice-chancery court at Holly Springs against Bybee, Brown and others, in which he states that on the 10th May, 1839, he contracted to sell, to Bybee and Brown jointly, a section of land, for $8000. They paid him $4000 cash, and gave him their joint note for $4000, payable one year from that date.

In error, from the circuit court of Warren county; Hon. George Goalter, judge. This was an action of debt brought by Alexander H. Arthur, as president of the board of police of Warren county, Mississippi, and as successor of John I. Guión, &c., on a bond executed on the 8th day of December, 1835, by Richard Featherston, as treasurer of said county, with Edwin G. Cook and John M. Taylor, as his sureties therein.

In error from the circuit court of Warren county ; Hon. George Goalter, judge. This was an action of assumpsit brought to the April term, 1844, of the circuit court of Warren county, by James R. McDowell, James R. Harris and Richard J. Lyons, partners in trade under the name and firm of McDowell, Harris & Co., for the use of Christopher Wolfe, against Claiborne Steele, James Allen and Frances M. Allen his wife, as administrators of the estate of George J. Rapalje, deceased.

In error from the circuit court of Hinds county • Hon. John H. Rollins, judge. In July, 1840, the Grand Gulf Bank sued Daniel Thomas in an action of trespass for taking away and converting a negro man of the plaintiffs, named Sterling. The defendant pleaded, 1. Not guilty. 2.

<p>In error from the circuit court of Claiborne county; Hon. George Coalter, judge.</p>

Henry Dickinson, vice-chancellor. William Beaman states in his bill in substance, that Daniel Buck having purchased some land of his at sheriff’s sale, under a judgment in Buck’s favor against him, agreed that complainant might sell the land and reap the benefit of the surplus, after paying Buck the sum of $375, due him, and Buck would make title to whom complainant might sell.

In error from the circuit court of Kemper county : Hon. Hend-ley S. Bennett, judge. At the April term of the circuit court in the year 1843, Benjamin J. Jacoway instituted an action of assumpsit against Samuel Young, on a promissory note for two thousand dollars, due January 1st, 1843, and bearing interest from date. He plead the general issue, and at the October term, 1843, a verdict and judgment were rendered for Jacoway for ¡$2213 33.

In error from the circuit court of Holmes county; Hon.Morgan L. Fitch, judge. \ On the 24th day or January, 1838, N. and E. O’Reilly recovered a judgment against Jesse Wadlington and others in the circuit court of Holmes county. On the 19th day of April, 1838, Solomon West recovered a judgment against the same parties.

In error from the circuit court of Washington county, Hon. George Coalter, judge. William W. Frazier, for the use of the assignees of the United States Bank of Pennsylvania, sued Thomas B. Warfield and William P. Warfield upon the following bill of exchange, viz.: “Exch. $ 10,000.

Robert H. Buckner, chancellor. William H. McCardle filed his bill in the court below on the 11th of April, 1842, against Fisher A. Tyler, S. S. Prentiss, and Marmaduke Shannon, The bill avers that F.… Held: that payment of part of a debt is in general no legal satisfaction of the remainder, although the creditor agree to receive the smaller s min full discharge of the whole demand, and give a receipt accordingly. Chit. Con. 578; Fitch v. Sutton, 5 East, 232; 11 J. R. 169.

Henry Dickinson, vice-chancellor. William D. Hooe and Nathaniel H. Harrison, the latter an infant by his father, and next friend William A. Harrison, both of the state of Virginia, filed their bill… Held: there being no evidence of an intention to convert the land into money out and out, that a trust resulted to the heir at law, notwithstanding a residuary clause bequeathing “ any other thing not mentioned in this my last will.” Henderson et al. v. Wilson, 1 Dev. Eq. R. 309.

In error from the circuit court of Warren county; Hon. George Coalter, judge. The grand jury of Warren county indicted William H. Boles for the crime of murder of one Donohoo, whose Christian name was unknown to them. The killing is alleged in the indictment to have taken place on the 19th of September, 1846.

Hon. Robert H. Buckner, judge. The Bank of Port Gibson filed their bill against John M, Carpenter and others, in which they state that on the 1st June, 1832, Horace and John Carpenter formed a planting and mercantile copartnership, to be carried on for their joint profit, in the name of H. Carpenter & Co., which went into operation the 1st August, 1832, to continue during their joint pleasure according to the articles exhibited with the bill.

In error from the chancery side of the circuit court of Madison county; Hon. John H. Rollins, judge. Robert H. Buckner filed his bill, and subsequently an amended bill against George P. Bierne and George W. House, partners under the firm and style of Bierne & House, in which in substance he states these facts.

In error from the circuit court of Holmes county. A motion was made to dismiss the writ of error in this case, on the ground, that all the parties to the judgment in the court below, had not joined in the writ of error. D. C. Thomas brought an action of replevin under the act of 1842, against John D. Wyatt; and gave bond according to'the statute, with William Landsdale and James A. S. Bryan as his sureties.

In error from the circuit court of Yazoo county ; Hon. Morgan L. Fitch, judge. An execution issuing on the 5th day of February, 1844, upon a judgment in the circuit court of Yazoo county, in favor of M. B. Hamer & Co. against Burwell Whitehead and Nathaniel H. Hurst, rendered on the 16th day of May, 1838, for $336 97, was on the 11th of March, 1844, by the sheriff of Yazoo county levied on a negro girl, named America, as the property of Nathaniel H. Hurst.

Robert H, Buckner, chancellor. James Roach filed his bill to enjoin a sale of certain real estate in the city of Yicksburg, under execution in favor of P. and W. R. Deering, against Thomas E. Robins and others, on the ground that the property levied on belonged to complainant, and not to Robins, or any of the defendants in the execution.

In error from the circuit court of Hinds county; Hon. John H. Rollins, judge. Henry D. Mandeville for the use of William E. Gillespie, sued William W. Gwin, G. S. Cook, W. E. Harrold, and C. W. Clifton, in assumpsit by writ returnable to the May term, 1839, of the circuit court upon a bill of exchange drawn by Cook upon Gwin, and accepted by him; and by Samuel Gwin, Harrold, and Clifton indorsed. The writ was executed in March, 1839, upon Cook and Gwin.

<p>It was held to be the true construction of the statutes of this state on the subject of recording deeds, where all of its sections are considered together, that a deed attested by but a single witness may rightfully be admitted to record on proof by him and his oath that he saw the grantor sign, seal, and deliver it, and signed his name as a witness thereto in' presence of the grantor.</p>

<p>At common law, where a power was given by will to executors to sell land, and one of them refused the trust, the others could not sell; in this state, however, the executors, or such of them as shall undertake the execution of the will, are by statute (H. & H. 413, § 90,) expressly authorized to sell the lands devised to be sold.</p> <p>In regard to the real estate of a testator, his executor at the common law was without authority ; without express direction by will, real estate did not enter into the course of administration; so that one empowered as executor to sell land, might exercise the power of sale, though he renounced probate of the will.</p> <p>In regard to the personal estate of the testator, it was different; co-executors, however numerous, are regarded in law as one person, and by consequence the acts of any one of them, in respect of the administration of the effects, are deemed to be the acts of all; for they all have a joint and entire authority over the whole property; so that in regard to the personal property, any one of several co-executors may do whatever all could do.</p> <p>A trustee who has renounced a trust, need not join in any sale or other disposition of the trust estate, or in receipts for the trust money; yet all the acting co-trustees must unite.</p> <p>P. by his will, required certain investments of money to be made for the benefit of certain legatees, and appointed “ B. & H. jointly his executors,” to carry into effect the objects of his will. H. renounced the office, and refused to qualify as executor; B. qualified, and took upon himself the execution of the will and of the trusts, and made the investments. Held, that the action of B. was valid, and within the authority conferred by the will.</p> <p>P. by his will, gave “ to the three daughters of T. the sum of four thousand dollars each, to be secured to them in the best manner possible, and the interest accruing thereon to be paid to T. for their support and education; moreover, till this donation be secured, to pay T. the sum of three hundred dollars per annum; this donation to be paid to each, when of age or married.” Held, that this was a general pecuniary legacy, and not a demonstrative one, and was a charge upon the whole estate of the testator.</p> <p>The executor having invested the legacies given in the above clause of the will, on bond and mortgage, on what was supposed to be adequate property; held, that the investment being for the benefit of the legatees, if it fails when properly made, the loss must fall upon the legatees.</p> <p>If an executor makes investments voluntarily for the benefit of legatees, which the court would, upon the application of the legatees, have compelled him to make, his act will be protected.</p> <p>P. by his will, gave certain pecuniary legacies, to be paid on the marriage or arrival at age of the legatees; and in case of the death of all the legatees before marriage or arrival at age, the legacies were to fall back into the residue of his estate ; he required the legacies to be “ secured in the best manner practicable,” and the interest to be paid to the mother of the legatees for their support and maintenance. Held, that the executor had authority to invest the legacies on bond and mortgage for the benefit of the legatees.</p> <p>If an executor be empowered by will to make investments, and he makes them without that degree of caution which men of ordinary prudence exercise in the management of their own affairs, it seems he will be individually liable, if a loss happens in consequence thereof; but the probate court would have no cognizance of such a question.</p>

The case of Wilson A. Coppage v. George O. Hall, pending in this court on the docket of the third judicial district, on writ of error from the circuit court of Yalabusha county, was submitted to the court, on a suggestion in writing that there was no error in the record, and that the cause had been brought up for delay. The docket of the first judicial district was before the court when the cause was submitted.

In error from the circuit court of Claiborne county; Hon. George Coalter, judge. Held: that it must be revived by sci. fa. after a year and a day. 3. The only reason why a bond cannot be quashed on motion merely, after the term, is because it is a judgment, and has all the qualities and sanctions of a judgment. “After forfeiture, it is no longer a mere bond, it is a judgment.

In error from the circuit court of Holmes county. A motion was made in this case to dismiss the writ of error and supersedeas, because the clerk below had issued them upon a bond given by the plaintiff in error, with only one surety. contended that the statute was imperative, and required two sureties before a writ of error could be issued by the clerk, and referred to the statute.

In error from the circuit court of Madison county; Hon. John H. Rollins, judge. Etherton Wilson sued Lawson F. Henderson in an action on a promissory note in the following words and figures : “$1000. Brandon, Mi. June 9, 1837. “Twelve months after the 1st day of January, 1838, we, Thomas Sanders, principal, and Thos. J. Smith, Lawson F. Henderson, and Archd.

George Coalter, on the trial of a writ of habeas corpus. James Shirley, on petition obtained from the Hon. George Coalter a writ of habeas corpus directed to Thomas J. Randolph, the coroner of Warren county, requesting him to summon Claiborne Steele, the sheriff of the county, to appear before him on the 11th of August, 1847, and to bring with him the bodies of seven slaves, alleged by Shirley to have been forcibly taken from his possession by Steele.

In error from the circuit court of Adams county : Hon. C. C. Cage, judge. John Doe, ex dem. Thomas Mackin, sued James R. Kane in ejectment for a house and lot in the city of Natchez. On the trial, the plaintiff below read in evidence judgments rendered against Kane, in favor of Thomas Mackin, The Planters Bank, Messrs. Briggs, Lacoste & Co., Jane M. Speer, Agnes J. Glover, The Agricultural Bank, and Messrs.

Robert H. Buckner, chancellor. Thomas E. Robins, William S. Bodley, and William C. Walker, filed their bill, in which they state, that on the 13th day of February, A.… Held: to which case particular reference is made. In Massachusetts, it has been held, that if “ the object was to prevent a sacrifice of the property, and to secure the rights of all the creditors to an equal distribution of the property, such an arrangement is against the policy of the law.” 7 Pick. R. 75. 3.

Henky Diceinson, vice-chancellor. WilliamS. Mitchell filed his bill against Minerva Doty, Jacob J. Doty, and Lot S. Humphrey, alleging that in the year 1841 he rented to Jacob J. Doty and his wife Minerva a tract of land, and at the same time hired to them five negroes for the sum of one thousand dollars, to be paid on the first day of January, 1843, the expiration of their year of tenancy ; and shortly after-wards sold to them a quantity of corn and fodder for the use of…

Robert H. Buckner, chancellor. James H. Mawry states in his bill, which was filed on the 1st day of February, 1842, that in the year 1840, James Dick, and Harry R. W. Hill and others, trading in partnership, under the style of N. & J. Dick & Co., bought a tract of land of one Sims, which was subject to a mortgage conditioned for the payment of two notes made by Sims in favor of Horatio N. Spencer; that Spencer offered to release the mortgage to N. & J. Dick & Co. for $5000.

In ERROR from the circuit court of Adams county; Hon. C. C. Cage, judge. James Shirley sued the makers and indorsers jointly in assumpsit in the circuit court of Adams county on the following instrument in writing, to wit: “ 10,000. Vicksburg, May 24, 1837. Twelve months after date we promise to pay to the order of A. G. McNutt the sum of ten thousand dollars in notes of the banks of Mississippi, value received, payable and negotiable in any bank in the state of Mississippi.

<p>It seems that if a jury, in a criminal case, or any portion of it, have been exposed to undue influence, either by the whole jury being under the charge of an unsworn officer, or any portion of the jury have separated from the others and had intercourse, or opportunity of intercourse, with third persons, and it do not affirmatively appear that no consequences were effected upon the jury by such exposure, and the possibility of undue influence be not wholly negatived, the verdict of such jury will be set aside. It seems, however, it would be otherwise if the record showed that no undue influence had been exerted or attempted.</p> <p>It was held, therefore, that where a jury on a trial of a prisoner for murder were, during a portion of the trial, in the charge of an unsworn officer, and after the retirement of the jury were for a long time wholly under his charge, and nothing whatever appeared as to his conduct towards the jury nor as to their demeanor, and they afterwards found the prisoner guilty of murder, the verdict must be set aside.</p> <p>It seems it is not absolutely necessary that a person should be sworn as bailiff to take charge of each particular jury in criminal cases; if he be sworn generally to take charge of all juries, it will probably be sufficient.</p> <p>'Where, on a trial of a prisoner for murder who was found guilty, the jury were, during the progress of the trial and after their retirement, under the charge of an unsworn officer, it was held, that that circumstance, though ground for a new trial, was not technically ground for motion in arrest of judgment.</p>

In error from the circuit court of Clark county; Hon. A. B. Dawson, judge.

John V. Wilcox, on the 6th day of April, 1840, sued William Ferriday and John Routh, in a joint action, the former as maker, and the latter as indorser of the following promissory note : “ $1612 50.

In error from the circuit court of Madison county; Hon. John H. Rollins, judge. James M. Matlock sued in assumpsit on a promissory note for $4250, executed by John T. Dearing, S. D. Livingston, John Montgomery, and John Stone, Jr., payable to James Matlock, or bearer, dated January 1st, 1838. Dearing was dead when suit was brought.

<p>Where an attachment is sued out in the name of A. for the use of B., and B. makes the affidavit and executes the bond, which is conditioned for B.’s effectual prosecution of the suit; it was held, that the affidavit and bond were within the statute, which required the officer granting the attachment) to “ take bond and security from the party ” plaintiff; the usee is the real plaintiff.</p>

In ERROR from the circuit court of Claiborne county: Hon. George Coalter, judge. Held: the object for which it issued, nor to whom the officer was to make known how he had executed it. H. & H. 551, sec. 19 ; Plowd. Com. 113; 20 John. R. 250; 1 Paine’s R. 406.

In ERROR from the circuit court of Warren county; Hon. George Coalter, judge.

In error from the circuit court of Warren county; Hon. George Coalter, judge.

Robert H. Buckner, chancellor. On the 7th day of December, 1840, William B. Dodson filed his bill, stating that Edward P. Fourniquet, being in debt to him in the sum of $8254 97, evidenced by four bills of exchange, as recited in “ the written lien 2 exhibited with the bill, executed that lien “or mortgage” to secure their payment.

Robert H. Buckner, chancellor. Thomas R. Reid alleged in his bill, that on the 17th of September, 1836, William M. Haley and Eliza his wife, conveyed by deed to Joseph A. Ferguson, certain land described by sectional lines, lying, in Copiah county, containing three hundred and sixty acres, and acknowledged and delivered the deed to Ferguson.

Robert H. Buckner, chancellor. James H. Leverick and James H. Watson, partners under the style of J. H. Leverick & Co. filed their bill against the President and selectmen of the city of Natchez to foreclose a mortgage, executed by them to Stephen Duncan, president of the Natchez railroad company, in the month of March, 1837, to secure the payment of three bonds for $5596 66§ each, bearing eight per cent, interest, and payable at one, two and three years from date.

<p>By the act of the Legislature of 1822, it is provided “that there shall be annually appointed by the governor, a collector and assessor of taxes for each county, who shall, bt-fore he enters on the duties of his office, take and subscribe the oath prescribed in the constitution, and enter into bond with two or more sufficient securities, to be approved by the county court, which'bond with a certificate that the securities therein named have been approved as aforesaid, and the oath of office thereon indorsed shall be recorded in the office of the clerk of the county court.” The act further provides “that if any assessor and collector of taxes shall presume to execute the duties of his office before he shall have given bond and taken the oath of office, agreeably to the directions of this act, all such his acts and proceedings done under color of office shall he absolutely void, and he shall for such offence he liable to be indicted for a misdemeanor, and on conviction thereof, fined in any sum not exceeding one thousand dollars.” By the constitution of this state of 1832, it was declared that “ all officers, executive and judicial, before they enter upon the duties of their respective offices, shall take the oath of office prescribed therein,” which oath was precisely similar to the one prescribed in the constitution of 1817; the constitution of 1832 also provided that on conviction of a county officer by a petit jury of wilful neglect of duty or misdemeanor in office, he should be removed from office; and all laws then in force not repugnant to the constitution were retained in force until changed. By the law of 1833 it was provided that the qualified electors of each county should elect an assessor and collector for their respective counties, who should be commissioned by the governor, and hold their respective offices for two years and until their successors were duly qualified ; which assqssor and collector should give bond before he enters on the duties of his office as heretofore required by the existing laws of this state. It was held by Chief Justice Sharkey, in view of these provisions of the constitution and statutes, that the law of 1822, which declared the acts and proceedings of the assessor and collector, who did not comply with the requirements of the law, to be void, was still in force and applicable to assessors and collectors under the new constitution. Mr. Justice Clayton held, that it had been repealed by implication. Mr. Justice Thacher, having been of counsel in the case, gave no opinion.</p> <p>L., being sued as principal, and B. as his surety on a bond given by L. as tax-collector of Adams county, in the year-i; for a defalcation by L., B.\ plead that L. did not take and subscribe the oath required by law to be taken and subscribed by tax-collectors before they could discharge their official duly ; Chief Justice Sharkey held, that in view of the law of 1822, which declared that if any collector of taoces should presume to execute the duties of his office before he shall have given bond and talten the oath of office agreeably to the directions of the act, all his acts and proceedings done under color of office should be absolutely void, the plea constituted a good bar to the action; Mr. Justice Clayton held, that even if the law of 1822 were in force and he did not consider that it was, yet the plea was not a good bar to the action ; the tax-collector had enjoyed and exercised the office ; he was an officer de facto ; his acts were valid until the state chose to interfere, and that neither he nor his sureties should be heard to say that the bond imposed no liability on them ; Mr. Justice Thacher having been of counsel gave no opinion.</p> <p>B. being sued as surety on a bond given by L. as tax-collector, plead in substance that the bond was executed and delivered by him to L. as an escrow, to be delivered to the plaintiff upon condition that the bond should be previously approved by the hoard of police of the county according to the statutes of this state, and that the bond was not so approved previous to its delivery ; held, that even if the plea were otherwise a bar to the action, it was bad in this that by the statutes of this state the bond might have been approved by the probate judge of the county; and as the plea did not traverse that it was so approved, it was no bar to the action.</p> <p>It seems, that under the law of 1822 an authenticated copy of a tax-collector’s bond is evidence in the same manner as the original would be if present in court; that it is not necessary for the copy of the bond to be accompanied by a copy of the certificate of approval of the bond, and a copy of the oath to make it evidence ; a copy of the bond alone is made evidence.</p> <p>By the statutes of this state the original of a tax-collector’s bond is to be deposited in “ the office of the secretary of state, where it shall be safely kept and preserved.” Held, in an action on this bond for the use of the state, that this provision in the law excused the necessity of a profert of the original bond in the declaration.</p> <p>Under the statutes of this state, the certificate of the auditor of public accounts under the seal of his office that the tax-collector of any county is in default for a particular sum as tax-collector, is evidence of such default for the sum specified.</p> <p>On the trial of an action of debt upon a tax-collector’s bond for defalcation, it is competent to prove by parol that the list of taxes for the county were delivered by the proper officer to the collector, without producing the lists, themselves.</p> <p>Where the verdict in an action on a tax-collector’s bond against principal and surety was fora greater amount than the penalty of the bond, and the state entered a remittitur for the excess, it was held the duty of the high court of errors and appeals under the statutes of this state, after reversing the judgment to give the judgment which the court below ought to have given, if the release had there been filed; but it seems, where one of the judges of the high court of errors and appeals thinks the excessive verdict and judgment is the only error in the record ; and another of the judges is of opinion there are other errors in the record for which the judgment below should be wholly reversed, and a new trial granted and the third judge is incapable of sitting by reason of interest, the proper judgment to be entered by the 'high court of errors and appeals is a reversal of the judgment below and the grant of a new trial.</p>

<p>Where three persons were named as commissioners to take a deposition, and only two of the three named in the commission joined in taking the deposition, it was held, that the deposition was admissible in evidence under the statute (H. & H. 603, § 17), which requires that depositions shall be certified by the commissioner or commissioners, or a majority of them.</p>

<p>A bill for the specific performance of a contract, and one for the rescission of a contract, do not stand on the same ground in equity; in the former a decree for specific performance will generally be granted, if the applicant has not been guilty of negligence, and there has been no change of circumstances during the delay materially affecting the character or justice of the contract; while a decree for rescission will not be granted unless there has been fraud practised, or a plain and palpable mistake has occurred.</p> <p>How far time, in equity, is of the essence of a contract; or the failure of a party to comply with his contract in the time stipulated will operate in equity as a ' breach; or whether the parties, by stipulating for a particular thing to be done in a particular time, make time materia], — Qucere?</p> <p>Weakness of mind, short of legal incapacity, unconnected with fraud of the opposite party, will not be cause to set aside a contract; yet when combined with other circumstances, it is an important consideration, and has a material influence upon the validity of a contract.</p> <p>Where a vendor of land executes a bond to make title to the vendee on request, and receives the notes of the vendee due in one, two and three years from the sale thereof, if the vendee, when sued upon the notes for the purchase-money, at law, demand title, before a judgment is rendered on the notes, and the vendor is unable to malte it, the latter cannot recover on the notes.</p> <p>Courts hold covenants to be dependent, unless a contrary intention clearly appears; the time fixed for performance is at law deemed of the essence of the contract, and if the vendor is not ready and able to perform his part of the agreement on the day fixed, the vendee may elect to consider the contract at an end.</p> <p>L. filed hialbill to procure the rescission of a contract made with him by S., alleging that he bought of S. in November, 1837, two hundred and fifty acres of land for seven thousand five hundred dollars, payable in one, two and three years, and secured by mortgage on seven hundred and fifty acres of other land of L. That S. represented that he had a full and complete legal title, in which representation L. confided. S. gave him a title bond to make title on request, freed from all incumbrances, and to deliver possession of the land on request after the day of maturity of the first note; that S. was insolvent, had always remained in possession of the land sold, and was still in possession, and had never made title thereto, though often reguested, and at the time of sale had title to but one sixth of the land ; which want of title he fraudulently concealed from L., who was of weak mind and easily imposed on by S., his neighbor, and in whom he had confidence. The bill for rescission was filed in 1842, L. averring that he had then recently delected the defects in title. The answer denied all fraud or untrue representations, or that L. was of weak mind ; set up that ever since the first note was due, S. had been ready to make a deed with proper covenants ; that he had then the full title; before he sold to L. he had procured drafts for title from his co-heirs, in whom jointly with himself the title was; but these had been lost, and he had recently taken conveyances from them; one of these was dated in August, 1842, the others in March, 1843, the answer being filed in May, 1843. The proof showed that S. had always retained possession of the land, cultivating it, and was insolvent; that one sixth of the land was subject to a statutory mortgage for the purchase-money due by S., and that L. was a weak, ignorant man, easily imposed on; and that the land had greatly decreased in value. Held, on this pleading and proof, that the contract of sale must be rescinded, the mortgage cancelled, and suit at law commenced on one of the notes perpetually enjoined; and L., for payments made by him, to have a lien on that part of the land to which S. had title.</p> <p>To a bill by a vendee seeking the rescission of the contract of sale, on the ground of want of title in the vendor, and the fraudulent concealment thereof, the answer of the vendor that he had procured the titles before he sold, hut had lost the memorandums of his purchase, and had neglected to take a conveyance, not being responsive to the bill, is not evidence, and, unless proved, establishes nothing.</p>

<p>Where the record of proceedings in the probate court for the sale of real estate by an administrator, are read without objection in the court below, in an action of ejectment for the land thus sold by the administrator; and neither party excepted to the admissibility of the record on the trial below, the high court of errors and appeals will not entertain objections thereto.</p> <p>Where in an action of ejectment the defendant claims title to the premises in controversy, through a purchase thereof at an administrator’s sale, and is permitted on the trial to read without objection the record of the proceedings in the probate court preliminary to the order of sale by that court, he ought also to be allowed to read the deed to himself from the administrator, to the land so sold.</p> <p>An order, judgment, or decree is void, when the court rendering it has not jurisdiction of the subject-matter or of the parties; both must concurto make the proceedings valid.</p> <p>In the proceedings in the probate court by an administrator to sell the estate of his intestate, the records of that court must show affirmatively that the notice required by the law to give jurisdiction of the persons interested in the land, was given, or the proceedings will be void; yet it seems if the record recites that due notice had been given according to the statute, and that the parties had appeared, such recital will be prima facie evidence of the fact.</p> <p>Whether in an application by an administrator for the sale of his intestate’s realty, to the probate court under the statute, it is competent for that court to appoint a guardian ad litem for those interested in the land, without any notice to them, — Quaere?</p>

In error from the circuit court of Jasper county. Samuel C. Heidelberg, James Donald, Archibald McCullum, C. S. N. Newell, John Cooper, Samuel Thomas, and William Hartfield, citizens of Jasper county, filed their petition to the May term, 1844, of the circuit court of that county, before the Hon. Henry Mounger, judge ; in which they allege, — That the board of police of that county, on the 26th July, 1843, levied a tax on the citizens of the county, of whom the relators were…

ERROR from the circuit court of Jefferson county; Hon. 0. C. Cage, judge. This was an action of assumpsit brought by the Commercial Bank of Rodney against Anon W. Killingsworth, Jane Killings-worth and N. Jefferies, on a promissory note for fifty- seven hundred and twenty-six dollars and sixty-five cents, bearing date November the 1st, 1839, and payable twelve months from and after the fifth day of November, 1839.