Volume 18 — Mississippi Reports

In error from the circuit court of Carroll county; Hon. Benjamin F. Carruthers, judge.

In error from the circuit court of Choctaw1 county; Hon. Francis M. Rodgers, judge. Everette L. Ford, on the 17th day of September, 1845, recovered a judgment against James Cameron for $751.02, and on the 12th of November, 1845, levied an execution thereon, on two negro men who were claimed by Levi Childress, according to the statute.

<p>The general doctrine that an attorney may submit a matter in dispute to arbitration, is limited to the case where there is a cause pending which he has been employed to manage.</p> <p>Therefore where W. J. and N. J. and G. signed a written agreement to submit a matter in controversy between them to the arbitrament of seven persons, and afterwards it was agreed in writing, signed only by W. J. and G., that five persons should act instead of seven, a majority of whom should be authorized to make the award, and accordingly an award was made by them, two dissenting; it was held, that N. J., who was not a party to this agreement, but whose attorney at law assented to it, without express authority so to do, was not bound by the award.</p> <p>Even admitting that an attorney has, in general, power to submit the cause of his client to arbitration, yet it seems he has no power to change the terms of submission made by the parties, where it does not appear, whether he was employed before or after the submission; nor to what extent his authority went.</p>

Henry Dickinson, vice-chancellor. .On the 18th of May, 1842, Richard Evans filed his bill in the district chancery court, against Willis Banks,… Held: in the early part of 1840, an execution in favor of Edward Sims against Daniel W. Jordan, Francis W. Irby, and J. S. Chandler; and another execution in favor of Sims against said Jordan, Irby, and Chandler; and one in favor of Martin T. Collier against Francis W. and John H. Irby, and John S. Chandler and Thomas Wilson.

Henry Dickinson, vice-chancellor. On the 6th of September, 1841, James M. Strong, James Mooring and Weldon Jones filed their bill against… Held: and the contract in relation to said sale and purchase from said Mooring and Jones to said William V. Taylor, to be declared null and void; and the said Knox be perpetually enjoined from enforcing his judgment and execution at law against the said land, and that the title thereto be revested in Mooring and Jones, and that Hunt and…

James Dick, William J. McLean, and Harry R. W. Hill, surviving partners of Nathan Dick and James Bodker, who were in business under the firm of N. & J. Dick & Co., sued Green Crowder, administrator of James B. Crowder, upon two guaranties. The first Count was based upon the following guaranty — to wit: “ Pittsburg, February 2€>ih, 1836. “ Messrs.

In error from the circuit court of Adams county; Hon. Thomas A. Willis, judge of the second judicial district, presiding. This was an action of detinue, brought by McCarty B. Melvin, Mary McCarty Melvin, James Melvin, Sarah Eliza Melvin, Mehitable Melvin, Freelove Melvin and Mary Melvin, the said Sarah Eliza, Mehitable, Freelove and Mary being minors, and suing by the said James Melvin, their next friend, against Aurora Lyons, for the recovery of certain slaves.

Henry Dickinson, vice-chancellor. The facts of this cause will be found sufficiently stated in the opinion of the court. insisted the bill should be dismissed, because the complainants had an adequate and unembarrassed remedy at law, either by a trial of the right of property or an action of replevin.

In error from the circuit court of Ciaiborne county; Hon. George Coalter, judge. George R. Deut, President of the Board of Trustees of School Lands, of township number ten, range one east of the basis meridian, in the county of Jefferson, and state of Mississippi, sued John B. Coleman, Asa P. Jones, and Levi C, Harris, in assumpsit, upon a promissory note.' The declaration contained the count upon the note, and the common counts.

In error from the circuit court of Claiborne county; Hon. Thomas A. Willis, judge. George W. Grant sued. George G. and P. H. Torrey, on a note made by them dated' March 2d, 1841, for $ 1700, payable to the plaintiff or order, on or before the 1st of January, 1842, at the Branch of the Planters Bank at Port Gibson.

<p>Appeal from the vice-chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor. x</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

In error from the circuit court of Adams county; Hon. Thomas A. Willis, judge. William McEIroy sued the administrator of James Sparke, for work and labor. The pleadings were in the common form; the issue non assumpsit. There were two trials had.

Jn error from the probate court of Claiborne county ; Hon. William M. Randolph, judge.

Henry Dickinson, vice-chancellor. Benjamin Williams alleges in his bill, that in the year 1839 he purchased of Sarah Jones a certain tract of land, which had been appraised for the purpose of taking stock in the Mississippi Union Bank, and the stock had been subscribed for; that Sarah Jones sold him the land and transferred him the stock, for which he was to pay her sixteen hundred dollars in the notes of the Mississippi Union Bank, which sum was not to be paid until the…

<p>The surety on a forthcoming bond, becomes liable by signing and forfeiting the bond ; the re-delivery of the property is the consideration ; and he cannot go into equity, apart from his principal, to re-investigate the original judgment.</p> <p>Therefore, -where a judgment was rendered against A. & M., upon which execution issued and was levied on personal property; and B. joined with them as their surety in a forthcoming bond, which was forfeited; it was held, that B. could not seek relief in equity, in his own name, on the ground that the original judgment was founded on an usurious consideration.</p> <p>A debtor, who owes his creditor two distinct demands, has a right, in making a payment, to direct its application; if the debtor make no direction, a court of equity will place the credit where it would be most beneficial to the defendant, on the presumption that it was so desired by him; but if there be any direction that it shall be otherwise placed, or if the defendant waive his right to direct the appropriation, a court of equity will not disturb it.</p> <p>Whether, where a forthcoming bond has been given and forfeited, a court of equity has jurisdiction to go behind the judgment of forfeiture, and inquire into the validity of the levy of the execution on which the bond was given,— Query?</p> <p>Where a surety sought to be relieved from a forfeited forthcoming bond, on the ground that there had been no levy; and it was proved, that the sheriff came into the defendant’s store with the execution, and that he supposed both parties considered that a levy was there made on the goods; it was held, the proof was entirely too vague to constitute the foundation of a decree, even if equity had jurisdiction.</p> <p>It seems, where there is a judgment against a party, and he purchases real estate on a credit, and subsequently gives a deed of trust thereon, to secure the payment of the purchase-money, that the lien of the judgment will be paramount to the vendor’s lien or that of the deed of trust; and the real estate thus purchased, will be liable to sale under the judgment.</p> <p>A subsequent purchaser has a right in equity to require an execution creditor to exhaust the unsold property of his debtor, before he resorts to that which has been sold ; so, also, it seems, that one holding an incumbrance on property junior in date to a judgment lien, can force the judgment creditor to exhaust the other property of his debtor before he can sell the incumbered estate; but if the junior incumbrancer permit a sale to take place of the property on which he has a lien, under execution on the judgment, his remedy is at an end ; for though the sale might have been prevented, it does not follow that it will be set aside.</p> <p>A surety has a right, under the statutes ,of this State, to require the plaintiff in execution to make the money out of the principal.</p> <p>An execution having been levied on certain lands, a junior incumbrancer filed his bill, to compel the judgment creditor to. levy on other property of the judgment debtor ; the chancellor decided against his right to do so, and he prayed and appealed; but before prosecuting his appeal, the property was sold under the execution; he moved this court to have the sale set aside; held, that although he was entitled to the relief originally prayed for, yet, as by his neglect in prosecuting his appeal, he had permitted the sale to take place, it was too late to afford him relief, and the sale could not be set aside.</p>

Robert H. Buckner, chancellor. Theodore O. Starke filed his bill, in which he states, that in 1836 he was in partnership with Thomas Oxnard, jr. and William L. Hodge, in Woodyille, under the name of Hodge, Starke & Co., and in New Orleans of Hodge, Oxnard & Co.; on the 28th June, 1836, Henry A. Moore and H. N. Martin purchased from John Henderson twenty-three slaves, and, in payment, gave a bill of exchange on said firm for $7,853.39, due January 1, 1837, and three other…

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge. On the 13th day of December, 1843, the sheriff of Tippah county, hy virtue of an execution in favor of Moses B. Moore against Edward Pegram, levied on six slaves, as the property of Pegram. Thomas B. Gilliam claimed them, according to the statute, as his property; and at the January term, 1844, an issue was made up to try the right of property.

In error from the Claiborne circuit court; Hon. Stanhope Posey, judge. John A. Miller sued upon a note made by H. & H. 0. Anderson, A. K. Shaifer,' H. W. Barnes, and Lewis Williams, dated June 24, 1839, for $5,000, payable five yeats after date to A. W. Putnam, with six per cent, interest, annually, at the Fulton Bank of New York.

Robert H. Buckner, chancellor. Benjamin Wade filed a bill of interpleáder, in which he states, that in December, 1835, he became the purchaser of the undivided half of certain lots in Natchez, from H. Gridley, for $8,500. He gave three notes, the last of which for $2,833.33, is now due and unpaid. P. Hoggatt, the owner of the note, brought suit upon it in the Adams circuit court.

Error from the circuit court of Adams county; Hon. Thomas A. Willis, judge of the second judicial district, presiding. This was an action of detinue, brought by William Vanner-son against Julius Culbertson, to recover certain slaves claimed under the will of Levi Purnell.

ERROR from the circuit court of Adams county; Hon. Thomas A. Willis, judge of the second judicial district, presiding. James Surget sued Henry Stier, before a justice of the peace, on a plea of debt, on an account for rent, from the 26th August, to the 20th October, 1844, and recovered twenty dollars and costs. Stier appealed to the circuit court of Adams county.

Robert H. Buckner, chancellor. Daniel Green states in his bill that he is a creditor, in the sum of sixty thousand dollars, of the estate of Amos Whiting, who died in August, 1837 ¡^George Lake, and Maria Louisa Whiting, his widow, administered on his estate, and gave James S. Mc-Aleb and Robert H. Moore as sureties on their administration bond. In March, 1839, Maria Louisa married Jeremiah'M. Rhodes, and they jointly administered until October, 1841.

In error from the circuit court of Simpson county; Hon. Stanhope Posey, judge of the first judicial district, presiding. Joseph E. Jones brought his action of replevin in the court below, against Nancy Gowan the plaintiff in error, to recover a slave named Eliza; various objections were taken to the pleadings in this court, but as they were not passed upon in the opinion, they are not here further noticed. The issue was on the plea of not guilty.

In error from the circuit court of Tippah county; H011. Hugh R. Miller, judge.

Henry Dickinson, vice chancellor. Thomas H. Willians and Benjamin Bugg, allege in substance in their bill, that in the month of November, 1836, they purchased sec. 3, T. 12, R. 3, E., of Henry Anderson and Edward Orne for the sum of $4,160, of which they paid, at the time of the purchase, $1,200, and gave their three notes at twelve, twenty-four, and thirty-six months, with interest from date, at eight per cent, for the residue, and took a title-bond from the vendors, to…

<p>It seems that where an administrator’s account is contested in the probate court by one of the distributees, and it is sought to hold him liable for the services of a slave of the estate for a series of years, as an offset to which, the administrator sets up disbursements for the board and maintenance of the distributee, it is a case peculiarly fitted for the consideration of a jury under the statute (How. & Hutch. 472, § 17, 18,) in the circuit court; yet, if it be otherwise agreed that the probate court shall determine the controversy, and that court does determine it accordingly, its decision, if otherwise correct, will not be set aside.</p> <p>Where an administrator, to a petition, seeking to make him liable for the hire of a slave of the estate not accounted for in his accounts, plead that the petitioner was not a distributee of the estate, but afterwards filed an answer to the merits of the petition ; it was held, that the latter answer waived the former plea.</p> <p>The charge by an administrator, in his accounts as such, for disbursements made by him for board and maintenance of infant distributees, does not pertain to an administration account, and is not allowable, as a general rule.</p> <p>Yet where an administrator, in, the settlement of his final account, was sought to be held liable by the children and distributees of his intestate, for the hire for a series of years of a slave of the estate of the intestate ; and as an offset the administrator charged for sums expended for these distributees, both before and after the grant of letters of administration to him; and it was agreed by the parties, that the probate court should decide the matter, and “in making its decree, should take into consideration the hire of the slave, and also the support of the heirs for the same period of time, and strike the balance; ” and the probate court made its decree accordingly upon that basis ; it was held, on appeal from that'decree, that the high court of errors and appeals would not disturb a result which had been brought about by the parties themselves, and the decree must therefore stand.</p>

Robert H. Buckner, chancellor. On the 20th day of February, 1840, James Kelly, William Kelly and Robert Kelly, partners under the firm of J. & W. Kelly1 & Co., and Needham Stevens and John Stevens filed their hill, in -which they allege that Needham Stevens, in 1836, sold to Robert E. Beatty about sixteen hundred acres ojf land lying in Panola county, for $25,000, and the lattem -without’security, for the payment of the purcl the 21st of August, 1838, all the purchase-mo^…

In error from the circuit court of Hinds county; Hon. George Coalter, judge. A grand jury, regularly impanelled at the November term, 1846, of the circuit court of Hinds county, preferred a joint indictment against Jack Fountain Silas as principal, and Henry Keithler as accessory before the fact to the murder of Benjamin G. Sims, on the 6th day of July, 1846.

Thomas A. Willis, judge. Julius 0. Monet, President of the Board of Police, of Hancock county, filed his petition in the circuit court of Harrison county, for a mandamus, in which he alleges that the legislature, at its session of 1846, passed an act, entitled, “ An act to locate the seat of justice for the county of Hancock, and for other purposes,” as follows : “Section 1.

In error from the circuit court of Adams county; Hon. C. C. Cage, judge. John Doe, on the demise of William J. Minor, brought an action of ejectment in the circuit court of Adams county to the May term, 1842, thereof. The notice was served on the president and selectmen of the city of Natchez, who appeared, entered into the consent rule, and plead not guilty.

In error from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge. Bartee instituted his action of ejectment, for the recovery of lots 3 and 4, in square 9, in the town of Columbus. The declaration w;as served on E. C. Eggleston, as tenant in possession. Subsequently, Thomas W. Brown was admitted to defend as landlord. At the October term, A. D. 1846, the cause was tried before a jury, and a verdict rendered in favor of the plaintiff.

Thomas Carbry, judge. Mildred Beck, in October, 1845, filed her petition in the probate court of Yalabusha county, to have revoked and annulled the grant of letters of administration in April, 1845, to William Wright, upon the estate of Jeffrey Beck, whose widow she was, to have certain sales made by Wright, as administrator, set aside, and letters granted to herself.

Henry Dickinson, vice-chancellor. Neill Bartee alleges in his bill, in substance, that on the 21st of February, 1839, he loaned Samuel W. Turner ¡§1500, to pay off certain judgments against him with, and took his note, bearing ten per cent, interest for loaned money, secured by a deed of trust to Pascal B. Wade, on two houses in Columbus.

In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.

Henry Dickinson, vice-chancellor. Seth Applenhite stated in his bill that, on the 16th of June, 1831, John Applenhite executed a deed of gift, by which, in consideration of his love and affection for his daughters, Mary, wife of Eli Ferguson, and Martha, wife of Asa Lee, he gave their children the slaves Hester and her child Mike and their future increase; his daughters ta have the benefit arising from the said negroes until their youngest children arrived of age, then to he…

In error from the circuit court of Madison county; Hon. John H. Rollins, judge. Dabney M. Wharton, for the use of A. J. Davis, administrator of Martha Davis, sued David M. Porter, Dennis Burns and Wesley Drane, on a supersedeas bond, given by Porter as principal and the others as sureties, in an action of debt in the usual form. A judgment, by default, was rendered ágainst Burns. Porter pleaded his bankruptcy, and a verdict and judgment were given for him.

Mathew B. Cannon, probate judge. James M. Turner alleges in his petition, that as administrator de bonis non of Thomas W. Burge, deceased, he had paid out of his own private funds in payment of debts against the estate, the sum of five thousand seven hundred and thirty-five dollars, as appeared by his accounts to the probate court.

In error from the circuit court of Yazoo county; Hon. Robert C. Terry, judge. On the 13th of April, 1844, Fisher, administrator of George Fisher, sued out a writ of replevin for four slaves, against William W. Leach. At the November term, 1846, a trial was had, and the jury found for the defendant.

Hugh R. Miller, judge. There was a motion in the court below to appropriate money made on executions under the following facts : Charles Lofiand obtained a judgment against Richard A. Corbin and his security, by means of the forfeiture of a forthcoming bond, on the 16th of October, 1843, which was enrolled on the 26th of June, 1844.

In error from the circuit court of Amite county; Hon. Yan Tromp Crawford, judge. Elizabeth Williams, in March, 1844, sued Joseph A. Montgomery, at the May term of the circuit court of Amite county. The declaration contains several counts. The defendant filed a demurrer to the first count, with special grounds, and non assumpsit to the others. The plaintiff did not join in the demurrer.

In error from the circuit court of Kemper county; Hon. Benjamin F. Caruthers, judge. Reason E. Mabry sued Obadiah Matheny, in assumpsit, in three counts, but entered a nolle prosequi as to all but the last, and as to that the record recites “came on to be heard, the defendant’s demurrer to the third count in plaintiff’s declaration, which, upon argument, is sustained, and is considered by the court that the cause be dismissed.

In error, from the circuit court of Marshall county; Hon. Hugh R. Miller, judge. John S. Mitchell, assignee of Street and Mitchell, for the use of Joseph D. Beers, by Lucas & Lane his attorneys at law, sued William Arthur on a note for $1102.09, due on the second of December, 1839. The suit was brought in June, 1843. The defendant plead non assumpsit.

<p>Where a party to a negotiable paper, before its maturity, has changed his residence, and his removal is known, notice should be sent to him at his new place of domicil, if known, or if by reasonable diligence and inquiry it can be ascertained; but this rule presupposes knowledge of the removal; without such knowledge, notice, it seems, to the former place of residence will be sufficient.</p> <p>Where, therefore, P., residing in Somerville, Tennessee, a distance of two hundred miles from Nashville, indorsed a note for G., also a resident of Somerville, to be discounted by a bank in Nashville, and that bank discounted the note, knowing the then residence of the parties, and, afterwards, at its maturity, G. paid part of the note, and renewed the residue by executing a new note, with P. as indorser, falling due at a subsequent period; shortly before the execution of which last note, P. had removed to Mississippi, but the knowledge of the removal was not brought home to the bank, it was held, that notice of protest of the second note sent by the bank to P., at Somer-ville, Tennessee, was sufficient; it would have been otherwise, if knowledge of the removal had. been brought home to the bank.</p> <p>It seems that where, after a note has been protested for non-payment, the indorser executes a deed of trust to secure its payment, it would furnish strong presumption that notice had been received, or else waived by the subsequent agreement.</p> <p>Where, immediately after the entry of the rendition of a judgment, the record recited, “ And the defendant agrees to stay execution until the first of May, 1840,” it was held, that even if by defendant was meant plaintiff, it did not appear that the stay was made on consideration, or to be binding on any party, and if a mere voluntary offer, it did not discharge a surety to the note on which the judgment was rendered.</p> <p>An agreement to give the principal time, which will discharge a surety, must be positive and binding, based upon a valuable consideration, sufficient to tie up and restrain the creditor during the time for which the indulgence was given; therefore, where the plaintiff in a judgment directed the sheriff to hold up an execution against the defendant, until he should hear from him again, it was held not to be such a stay of the execution as would discharge a surety to the note on which the judgment was rendered.</p> <p>An attorney at law, as such, has not power to grant a stay of execution to the principal defendant, that will discharge a surety ; unless he have express authority so to do from his client, a stay of execution by him will not be binding.</p>

George Coalter, judge. Archy B. Lawrence, on the first of January, 1845, made oath before N. G. Byson, Esq., a justice of the peace for Warren county, that Richard Featherston, a non-resident, owed him “ two hundred and thirty-seven dollars and sixty-two cents, or thereabouts.” The magistrate took a bond from Lawrence with surety, in the penalty of four hundred and seventy-five dollars and twenty-four cents, payable to Featherston; the condition of which recited, that…

Robert 0. Perry, judge. Joseph Marlow, Jr., on the 14th day of April, 1842, made oath before a magistrate of Holmes county, that James Brander and others, partners, under the style of Brander, McKenna & Wright, were in debt to him in the sum of $400, and were nonresidents ; bond was given, and a writ of attachment issued, on which the sheriff returned, “executed the 15th March, 1842, by summoning Hugh H. Fultz as a garnishee.” At the April term, 1842, of the circuit court,…

Francis Gildart, judge. Charles E. Stewart, by T. Jones Stewart, his guardian, filed his bill of review in the probate court on the 12th of November, 1846, in which he alleges in substance, that he is a minor. That in 1836, one John Netterville' was appointed guardian of his person and estate, by the probate court of Wilkinson county.

In error, from the circuit court of Jefferson county; Hon. Stanhope Posey, judge. John B. Thrasher sued Isaac R. Wade, Walter Wade, Wilson W. Wade, and Lawrence Wade upon this note, viz.: “$4,000. “ Port Gibson, Dec. 2, 1839. Twelve months after the 20th Dec. 1839, we, or either of us, promise to pay J. B. Thrasher, or order, for value received, four thousand dollars, negotiable and payable at the Bank of Port Gibson. [Signed,] Isaac R. Wáde, Waltee Wade, Wilson Wade.

Henry Dickinson, vice-chancellor. Robert Cook bought a tract of land of James Torrey, and took a deed of conveyance, and gave his note for the purchase-money. He joined in the execution of the indenture, by 'which he agreed, that the land should remain bound for the purchase-money. Torrey assigned the note to Fultz, who filed his bill in the vice-chancery court, seeking to subject the land to the payment of the note.

In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.

In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. On the 15th of April, 1846, Cyrus Marsh and Benadam Pen-dleton sued out an attachment against Conrad F. McRea, returnable to the Adams circuit court; the sheriff levied on eleven bales of cotton. At the November term, 1846, James Bonner and Joseph B. Cribble, partners, under the style of Bonner & Co., interpleaded and claimed the eleven hales as theirs at the date of the levy.

On- appeal from the circuit court of De Soto county; Hon. James M, Howry, judge. L. P. C. Burford charges, in his bill, that an execution issued from De Soto circuit court on the 24th of November, 1843, founded on a judgment in that court in favor of Goodman & Means, for $79.58 against Benjamin B. West, and that it was levied on a slave named Isaac, as the property of West.

In error from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge. This was an action of slander, commenced in the circuit court of Lafayette county, by James S. McClure against Robert B. Houston. The latter plead justification, and upon issue joined thereon the jury found the plea false, and assessed the plaintiff’s damages at three dollars and fifty cents.

James M. Jones, judge. Eloísa C. Cameron filed her petition in the probate court, alleging that she was the widow of John Cameron, deceased, who died in December, 1844, leaving a will; whose executors were Dugald R. Cameron, since dead, Dugal A. Cameron and John P. Stewart, all of whom qualified; that by his will, the testator attempted to make provision out of his property for her, but within the time limited, she renounced the will; that besides his lands, the testator…

In error from the circuit court of Hinds county; Hon. George Coalter, judge. Joseph S. Copes sued James E. Matthews, in the following declaration: “For that’heretofore, to wit, on the 7th day of November, 1844, at Jackson, to wit, the county aforesaid, the said defendant made his certain writing, or letter of credit in these words and figures, to wit: “ Mr. Jas. Wade, wishes to anticipate the amount of his salary from the first November, 1844 to first November, 1845.

<p>On appeal from the probate court of Ponola county; Hon. J. T. M. Burbridge, judge.</p> <p>James W. Evans filed his petition in the probate court, to set aside the probate of the will of his father, John Evans, deceased, made at a former term of the court, on the ground of the insanity of the testator; and also on the further ground that the will devising real and personal estate, though attested by three witnesses, had been admitted to probate on the proof of but one, though the others were living, and within the jurisdiction of the court. The heirs of John Evans and his widow were made defendants to the petition. They answered, denying the insanity of the testator, but admitting the mode of probate of the will.</p> <p>The court below, upon the hearing of the petition, answer and proofs, the latter taken on the point of insanity, dismissed the petition, and the petitioner appealed.</p> <p>cited 2 J. J. Marsh. 511; 2 A. K. Marsh. 467; Litt. Sel. Cas. 503; 1 B. Mon. 57; 4 Cow. 483; 2 Nott & McCord, 588; 19 Johns. 386 ; 1 Peters, 508; 2 Har. & J. 86; 7 Halst. 70; 1 Green’s Ch. R. 8 ; Pow. Dev. 708, 709; 5 Monr. 199; Black. R. 365; Gibb’s Rep. in Eq. 364; 1 Con. R. (So. Car.) 336; 1 Green’s Ch. 220; 3 Phil. Ev. (Cow. & Hill’s notes,) 1349-1351.</p>

In error from the circuit court of Monroe county; Hon Francis M. Rogers, judge. Richard Dilworth, judge of the probate court of Monroe county, for the use of John B. Hunter, guardian of the person and estate, real and personal, of Joseph John Kirk, infant son of John Kirk, sued Michael Bailey, Elisha D. Prewett and Kirk Prewett, upon their bond for the faithful discharge by Bailey of his duties as executor of the last will and testament of John Kirk.

<p>In error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge.</p> <p>The Commercial Bank of Manchester, by its president, made oath before a justice of the peace, that “Messrs. Ullman & Hausman, partners in trade, in the town of Yazoo city, are justly indebted to the said Commercial Bank of Manchester, in the sum of two hundred and thirty-three dollars and thirty-three cents, and that they have been informed, and have good reason to believe, and do verily believe, that the said Ullman & Hausman, are about removing from the state, or are so concealing their effects as to defeat their claim.”</p> <p>The president of the bank, executed bond, payable to Ull-man & H. Hausman, conditioned in the ordinary way.</p> <p>The writ of attachment was against Ullman & Hausman ; and stated that the bank had made oath that Ullman & H. Hausman were indebted, &c. It was otherwise in the ordinary form in the body, and concluded in this way, viz.: “ Witness, R. Eaton Keys, Justice of the Peace, the fifth day of March, A. D., 1845. R. Eaton Keys, J. P.” [Seal.]</p> <p>The attachment was duly levied, and Ullman & Hausman replevied the goods attached; and at the May term, 1845 of the circuit court, the bank filed her declaration in assumpsit, against Henry J. Ullman and William H. Hausman.</p> <p>At the same term, the defendants moved to quash the attachment, because the bond and affidavit did not conform to the law. The motion was sustained and the bank sued out this writ of error.</p> <p>The objection taken in the court below to the affidavit, was that it was in the alternative, and therefore made out too strong a case. And the court held in its opinion, that whilst a removal from the state, or a concealment of his effects by a debtor charged singly in the affidavit, would be sufficient ground for an attachment to issue; yet if both charges were combined, or if they were charged in the disjunctive, it would be insufficient. Such I do not think to be the spirit of the act. See Acts of 1844, 125-6.</p> <p>1. The attachment is for an amount greater than a justice of the peace can take cognizance of, and consequently made returnable to the circuit court; but instead of being tested in the name of the judge of the tenth judicial district, it is in the name of the justice of the peace who issued it. By our statute all process shall be tested in the name of the presiding judge, and must be under seal; though there is a scroll annexed to the justice’s name, it nowhere appears that it was his intention to seal it. How. & Hutch. 576. The statute is peremptory that the justice granting an attachment shall sign and seal it. How. & Hutch. 557. An attachment not under seal, is not merely voidable but absolutely void. Walker v. Winn, 3 Yerg. 72 ; McCullough v. Foster, 4 Yerg. 162.</p> <p>2. A signature like that of the justice who granted this attachment, viz., witness my hand, &c., and annexing a scroll, will not make it a sealed instrument. Bohannon v. Hough, Walk. R. 468.</p> <p>3. There is a variance between the affidavit, the bond, the attachment and declaration, so great, that they cannot be identified as parts of the same case; leaving it a matter of considerable doubt whether the record brought up is the entire record of one case, or portions of records in different cases; they certainly bear no mark of similarity as to parties and amounts sufficient to identify them as portions of the same case.</p> <p>4. It is a fatal objection to an attachment that it is founded on an affidavit, stating different causes for suing it out; one distinct, substantive fact must be sworn to, and the party must rely on that alone, and cannot state additional causes in the same affidavit. 9 Yerg. 428, Hard. 65 ; lb. 342.</p>

<p>A judgment quashing a forthcoming bond after its return term, is a nullity; therefore where such a judgment has been entered, and afterwards the original judgment en which the forthcoming bond was given is amended, and another execution issues on the amended judgment and a second forthcoming bond is given; the amended judgment and second forthcoming bond will also be nullities, for the reason that the original judgment was extinguished by the first forthcoming bond, and that bond, notwithstanding the judgment of quashal, is still in full force and effect.</p>

<p>On appeal, from the decree of the vice-chancery court, held at Carrollton; Hon. Henry Dickinson, vice-chancellor.</p> <p>Ebenezer Stratton, administrator of Shubal Foote’s estate, states, in his bill, that he had reported the estate of his intestate insolvent, and it had been so declared by the probate court of Yalabusha county. That in the year 1837, Foote died, having in his lifetime bought of A. S. Brown a certain lot, (described,) in the town of Grenada, for a price unknown to complainant, and had obtained a bond for title to it; at Foote’s déath $500 was due to Brown; that one John Williams, illegally obtained letters, testamentary or of administration, complainant, as the record of the probate court, was contradictory, could not tell which, on Foote’s estate; after which, Williams sold this lot at private sale, to complainant, and George G. Waters and Robert L. Bingham, for about $1500, in three annual payments, of $500 each, and agreed that Brown should make them a title, .which he did on the 25th of August, 1838; one of the conditions on which Williams agreed that Brown should make them a title, was. that they won Id pay Brown the residue due by Foote, which they promptly did before Brown made them a deed.</p> <p>On the 5th of August, 1840, Williams was removed from his office, as executor, and all his acts declared void by the probate court; and, after his removal, with intent to defraud Foote’s estate, he proposed to complainant, Waters and Bingham, that if they would convey to him the lot, and lose the amount they had paid Brown, he would release them from the payment of the residue of the purchase-money due by them for the lot, falsely representing that he had power to do so; town lots having depreciated greatly in value, they accepted his offer, and made Williams a deed to the lot and delivered them up their notes.</p> <p>Williams afterwards died, and James Williams and Laurena Williams were appointed administrator and administratrix of his estate, took possession of the lot and had retained it ever since the first of March, 1841, renting it out at an annual rent of $150, refused to permit complainant to take possession of the lot, and thus prevent his making sale of it, or obtaining an order of sale, or paying the debts of the estate of Foote, whose property the lot is alleged to be.</p> <p>Williams left four minor children, who, by name, are made defendants to the bill, together'with his administrator and ad-ministratrix. The bill prays, that possession of the lot may be decreed to complainant as administrator; that the defendants, James and Laurena Williams, may be compelled to account for the rents of the lot, and for other relief, &c.</p> <p>The infants answered by E. S. Fisher, Esq., their guardian ad litem; the record shows no appointment, by order of the court, of Fisher as such.</p> <p>Laurena Williams answered by attorney; she states, that she is sole surviving executrix of John Williams’s estate; that Shu-bal Foote borrowed $1000, or $1095 from the Manchester bank, and pledged the title-bond to the lot in controversy to Samuel Smith, his surety on the note, for the borrowed money; that on Foote’s death, Smith was anxious to pay the money to the bank and keep the lot; that Williams, as executor of Foote, took advice of counsel to know how he could save himself in case he borrowed the money and paid the bank; he was advised, if he did so, to take the title to the lot, and if he could.sell it for more than would repay him, to account to the estate for the balance. Williams, therefore, borrowed the money at heavy interest, from one N. Ingram, and paid the bank, and made two sales of it, both of which he was compelled to take back; the last time he received a sum of money for so doing.</p> <p>She insists, that these are the facts of the case, and calls upon complainant to prove the statements of his bill.</p> <p>William P. Bryan, a witness for complainant, stated that Foote bought the lot for one thousand dollars; five hundred paid in cash, the rest secured by note. This note was paid by the sale of the lot to Stratton, Waters & Bingham ; the money paid by them being appropriated to its payment. That he had heard Williams so state, and also heard Williams say that he intended the lot for Foote’s daughter, then in Texas; that he thought he could save that much from the estate. That Williams, in his lifetime, and Laurena Williams, his widow, since his death, had held and rented out the lot, which was worth from seven to ten dollars per month.</p> <p>Hiram Pettybone, also for complainant, stated that Foote bought the lot of Brown for one thousand dollars; he made the first payment in the Commercial Bank of Manchester; five hundred dollars was paid in cash and the balance in twelve months, the last payment being made by Williams out of the payment by Waters, Bingham & Stratton to him, which on the rescission of the sale to them they gave up. * That Williams and his widow had held possession of the lot.</p> <p>Daniel Robinson, for complainant, stated, that he had heard Williams say that he had a deed for the lot, and when the estate paid him what it owed him, he intended to keep the lot for Foote’s daughter, in Texas.</p> <p>R. L. Bingham, also for complainant, stated that Foote died in 1837, and some time in 1838 Williams, as administrator of his estate, sold to Stratton, Waters, and the witness, the lot in controversy, for fourteen hundred dollars ; five hundred paid in cash, and two notes for the residue, due in one and two years. When they bought of Williams, the title bond from Brown to Foote was in the hands of Samuel Smith, as collateral security, Smith having indorsed a note for Foote for the amount of five hundred dollars, due by Foote as his last payment on the lot; the cash payment of five hundred dollars was appropriated to the payment of the note on which Smith was indorser, to release the property from Smith, who required the note to be paid at maturity, or else he was to take the property for the $550. They bought at private sale, and obtained a deed from Brown. In 1S40, they conveyed the lot back to Williams, he giving them up their two unpaid notes. Williams died in 1841, and held the possession of the lot before he died, after the rescission of the contract, and his widow after his death ; the annual rent was worth seventy-five dollars per year. In answer to the cross-interrogatory, whether he spoke from his own knowledge or from information of others, he answered, principally from his own knowledge.</p> <p>testified that after Foote’s death, Williams administered. Foote in his lifetime had given a note for $900 or $1000; he thinks $1000, to the Manchester Bank, with Samuel Smith as security, and delivered the title bond of the lot in controversy to Smith, to indemnify him as security, and to hold the lot absolutely, in case Smith had the money to pay; Foote being dead, and the property supposed to be worth more than the note, Smith wanted the note not to be paid, that he might hold the lot; in the meantime, Williams advised with the witness as to what he should do, and informed witness he could raise the money at heavy interest, and take up the note; witness advised him to do so, and told him the lot would always be security to him for the money and interest he might outlay for its redemption. Williams told witness, he thinks, that he had borrowed the money of Nat. Ingram, and taken up the note; Williams, with the note, took up the title bond from Smith. In the meantime property fell in value; Williams, being likely to lose, again consulted with witness, who advised him to sell the lot as his own, informing him if the matter was canvassed they would be obliged to repay him his advances and interest. Foote sold to Stratton, Waters and Bingham; but the witness was not very familiar with the circumstances of this sale, and of its subsequent rescission; he does not recollect from whom Foote purchased. The note given by Foote for the $1000 was given for the lot, and discounted by the Manchester Bank, or left there for collection. He derived his knowledge of the facts from the transaction itself, from Williams, Smith and the actors. He could give no dates to the transactions detailed by him; he does not think Foote paid any cash. Williams paid the note given by Foote at its maturity, to the bank. This he knows from both Williams and Smith, and from the fact that the latter wanted to pay it, and would have done so, if Williams had not. That Williams made the efforts he did make, to pay for the lot, under the belief that he could certainly sell it for more than the purchase-money, intending to give Mr. Foote’s child the benefit of the advance, but when property fell he had to struggle to save himself.</p> <p>The cause was referred to a commissioner, who reported that $471.50 was due for the rent of the lot, from March, 1841, to December, 1846. Upon which the chancellor decreed that the defendant, Laurena Williams, pay upon demand, to complainant, the amount of rent due; that the defendant deliver up the lotto complainant; that the conveyance from Brown and wife to Bingham, Waters and Stratton, and from them to Williams, be set aside, and for naught held, and the lot and improvements belong to the estate of Shubal Foote, and constitute a part thereof, subject to his debts; and that Laurena Williams pay the costs of the suit.</p> <p>The defendants appealed.</p> <p>1. Foote’s transferring the title-bond to Smith, to secure him against danger as security or indorser for the former, created an equitable mortgage to the latter, and gave him the right to call on the vendor for the legal title, on complying with the condition of the bond. 4 Kent’s Com. 150; Coote on Mortgages, 84, 16 Law Library.</p> <p>2. When Williams paid off the liability of Smith, and took up the bond, he was substituted to Smith’s equities, and acquired all the rights under the bond which Smith had acquired.</p> <p>3. The complainant has no right to rents. Immediately after Foote’s death the property descended to his heirs. Can an administrator recover rent from the heir at law ? An administrator can assert no claim for rent against a third person, which he could not assert against the heir.</p> <p>4. The bill as to the infants must be considered by the court as on demurrer.</p> <p>1. The administrator of an insolvent estate had the right to proceed in equity to have the title to the realty perfected; the probate court could give no relief; adequate relief could be had only in equity. Baines v. McGee, 1 S. & M. 208; Martin, Pleasants & Co. v. Glasscock, 1 S. & M. Ch. R. 17-23; Johnson v. Lewis, 1 Rice’s Eq. R. 40; How. & Hutch. 394, § 33 ; Rogers v. Rogers, 3 Wend. 503; Tappan v. Cain, 12 Johns. R. 120; JEhison-v. •Wallace, Richardson’s Eq. R. 1; Pickering v. Bowles, 1 Brown’s C. C. 198.</p> <p>2. The rents and profits of the realty, when an estate has been declared insolvent, belong no longer to the heirs, but to the administrator; they are but incidents, and follow the principal ; that being assets, so are they.</p> <p>3. The sale to Stratton, Bingham and Waters was void, being a private sale by an executor; no title passed, and none of course passed back to Williams.- Smith v. Denson, 2 S. & M. 326; Laughman v. Thompson, 6'Ib. 259; Worten v. Howard, 2 lb. 527; Murphy v. Clark, 1 lb. 221; Cable v. Marlin, 1 How. (Mi.) R. 559.</p>

Stanhope Posey, judge. Elbridge G. Walker, Esq., the district attorney for the third judicial district, filed an information under the law of 1843, against the President, Directors and Company of the Grand Gulf Railroad and Banking Company. The writ was issued without any affidavit. Tire bank plead its charter. It is not deemed necessary to set out more of the plea than relates to the remedy retained by the legislature, in case of a violation of the corporate franchises.

In error from the circuit court of Copiah county; Hon. Thomas A. Willis, judge. Solomon Grace, on the 25th of March, 1840, sued Ann Coor, administratrix, and George M. Barnes, administrator of John Coor, deceased, in the common counts in assumpsit on an open account for $554, for money loaned, due on the 25th of June, 1839. The defendants plead non assumpsit by their intestate. A trial was had at the November term, 1846, and the jury rendered a verdict for plaintiff for $925.

In error from the circuit court of Rankin county; Hon. Morgan L. Fitch, judge, presiding. John Fitzhugh sued Thomas C. Thornton and James B. C. Thornton, on a note for one hundred and twenty dollars. The declaration was filed on the 27th of November, 1844; the writ issued on the same day returnable to the first Monday of December, 1844; and was executed on the day of its issuance. The defendants filed the plea of non assumpsit to the December term, 1844.

In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.

<p>The probate Court has no jurisdiction of a petition for the partition of landsfield in coparcenary, joint tenancy, or tenancy in common, except it be for the division of the lands of a deceased person amongst his heirs under the statute (How. & Hutch. 412, § 89,) or in case of the death of one joint tenant, tenant in common, or coparcener, and the descent of his lands to his minor heirs, under the law of 1833, ch. 46, § 1.</p> <p>The probate court has no jurisdiction, and can have no jurisdiction, except it falls under either one or other of the heads of jurisdiction conferred by the constitution, matters testamentary and of administration in orphans’ business and the allotment of dower, in cases of idiocy and lunacy, and of persons non compotes mentis.</p> <p>The act of 1833, ch. 29, § 2, which provides “ that the powers and jurisdiction heretofore invested in the presiding justices of the county courts by an act entitled ‘ an act concerning the partition of land held by coparceners, joint tenants and tenants in common,’ passed 10th June, 1822, shall pertain to and be invested in the judges of probate of the several counties of this state ; and that all matters and proceedings which by virtue of said act were required to be recorded in the clerk’s office of the county courts, shall be regularly recorded in the office of the clerk of the probate courts of the counties respectively where such proceedings shall be had,” confers no power or jurisdiction whatever on the probate courts; if conferred at all, it is conferred upon the probate judge personally, and if the legislature could give it to him, he has the power to order partition.</p>

In error from the circuit court of Pontotoc county; Hon. Hugh R. Miller, judge. John Doe, on the demise of Ho-ya-pa-nubby, on the 9th of September, 1845, brought an action of ejectment against John F. Wray, for section sixteen, township nine, range five east, in Pontotoc county. At- the March term, 1847, the jury found a verdict for the plaintiff; a new trial was moved for and refused ; and exceptions sealed.

<p>By the act of 1844, regulating the liens of judgments and decrees, it is provided, in the 6th section, that judgments thereafter or theretofore rendered shall cease to be liens unless entered upon the “ judgment roll,” when the lien shall be from the enrolment; by the 14th .section it is provided that the act shall not operate upon judgments theretofore rendered until after the first of July, 1844, nor upon those thereafter rendered until sixty days after its approval; held to be the true construction of the act; that all judgments rendered before the act, or within sixty days after its approval, if enrolled at any time before the first day of July, 1844, retained the order of priority which appertained to them before its approval, and derived no priority from an earlier date of enrolment prior to the first day of July, 1844.</p> <p>Where two judgments were obtained on the same day, against the same defendant, prior to the enrolment law of 1844, and both enrolled, but on different days ; and on the judgment latest enrolled the plaintiff issued an execution and made some money; held, that the execution on which the money was made was entitled to it.</p>

<p>In error, from the circuit court of Noxubee county; Hon. A. B. Dawson, judge.</p> <p>Lockhart, Fearne and Donnegan obtained a judgment on the 21st of October, 1844, against Mary A. Longstreet and Hutchinson Dent; an execution thereon was levied on certain slaves as the property of Mary A. Longstreet; Walter B. Lucas, administrator de bonis non with the will annexed of James Longstreet, interposed his claim to the property; an issue was made up to try the right.</p> <p>On the trial, it rvas proved by the plaintiff in execution, that all the slaves levied on, except two, had been in possession of Mrs. Longstreet for ten years anterior to the judgment, those two at the time of the levy were in the possession of Lucas.</p> <p>The claimant then introduced a copy of James Longstreet’s will, made on the 4th of March, 1830, and probated in Richmond county, Georgia.</p> <p>The clauses bearing on this controversy were in these words;</p> <p>“ First. I give my whole estate, both real and personal, to my wife during her widowhood.</p> <p>“ Second. Should my wife die before my youngest child now born, or which may hereafter be born, shall attain the age of sixteen years, it is my will that my whole estate be kept together by my executors, until such youngest child shall arrive at that age; and that then my whole estate be divided equally between them; should my wife marry before my youngest child attains the age of sixteen, it is my desire that the estate be kept together, as aforesaid, by my executors, until such child shall reach that age, and that then the whole be equally divided between my wife and such of my children as may be then living, &c., &c.</p> <p>“ Third. The bequests hereinbefore made to my wife are understood and intended by me to be in lieu of dower.</p> <p>“ Fourth. During my wife’s widowhood, she is to have the entire use, profits and control of my estate, and to her discretion do I intrust the education and maintenance of my children during that time; but in case of her death or marriage before the time appointed for a division, as aforesaid, then it is my desire that my children be all supported, and that the girls under sixteen, and the boys under eighteen be as well educated out of the annual profits of my estate, as they will allow up to the time of division, the profits to be first applied to their support; and in case of a deficiency, then to educate all the children embraced in the last clause, the balance to be applied in educating the younger in preference to the older children.”</p> <p>By the last clause, he appointed his wife, Mary Ann Longstreet, his brother, Augustus Longstreet, and his son, William Longstreet, executors.</p> <p>It was proved, that the defendant, in the execution, was the widow of James Longstreet, still unmarried, that there were children of James Longstreet living; that the slaves levied on were the property of Longstreet at his death; and that Lucas had duly qualified as his administrator.</p> <p>This being all the proof, the claimant asked the court to instruct the jury;</p> <p>1. That the will of James Longstreet does not provide and vest in Mary A. Longstreet any estate in the property embraced in it, which is subject to be seized and sold under execution at law.</p> <p>2. That if Mr. Longstreet 'had an interest or estate which might be taken and sold in execution at law, after it had vested, yet the plaintiffs in execution were bound to show, that distribution and delivery of the property had been made by the executors or administrators before the levy was made; until this is done, the executors or administrators had a right to hold the property in administration and for administration.</p> <p>3. That the property named in the will could not be levied upon on execution against Mrs. Longstreet, and held against the administrator, unless it were shown that the property had gone into her hands by distribution, or with the administrator’s consent.</p> <p>These instructions were refused and exceptions taken.</p> <p>The jury found for the plaintiff in execution; and the claimant prosecuted this writ of error.</p> <p>contended,</p> <p>1. That an estate, during widowhood, in slaves, could not be sold under execution at law; to allow it, would often result in entire loss of the property to the remainderman. The proper mode would be, to subject it in chancery.</p> <p>2. By the first and fourth clauses of the will, Mrs. Longstreet had only a qualified interest in the property, clothed with the trust to support and educate the children. The title is not in her, but in the executors, or, since their resignation, the administrator, c. t. a., whose duty it is to protect the estate. Hall v. Cushing, 9 Pick. R. 395-408; Langley v. Hall, 11 Pick. R. 120 -124; Carenhaven v. Schuler, 2 Paige, 132; 2 Sto. Eq. 413.</p> <p>3. It is immaterial whether the legal title be in the claimant, as administrator, or in Mrs. Longstreet, as trustee, the rights of the children are the same; the burden of proof is on the plaintiff to show the property, subject to the execution. Thornhill v. Gilmer, 4 S. & M. 153.</p> <p>4. The instructions were improperly refused-; a legacy, whether general or specific, does not vest without the assent of the executor. 2 Lomax on Ex. 128.</p> <p>1. As to the true construction of the will, cited and commented on 2 Black. Comm. ch. 3, marg. p. 19; lb. p. 41; Jones v. Col-beck, 8 Tes. 42; Chilton on Prob. p. 108, § 4.; and contended, that in any construction of the will the legal title was in the widow, no title whatever in the administrator, and he could not be heard to interpose his claim.</p> <p>2. Admitting the slaves were held, coupled with a trust, they were still subject to the execution. Mr. Baine cited Thornhill v. Gilmer, 4 S. &■ M. 153, and reviewed it and contended that it was not law, and was overthrown by 1 Porter (Ala.) R. 175-184, and Talbot v. Melton, 9 S. & M. 9. The claimant who has made a false claim, and in fraud, should not be permitted to set up an outstanding title in another.</p>

<p>In error from the circuit court of Washington county; Hon. George Coalter, judge.</p> <p>On the 19th of November, 1844, Charles S. Abercrombie, for the use of Thomas S. Stephens and John L. Mapman, sued out an execution against William S. Ellis, which was levied on certain slaves and cord wood. Richard M. Ellis executed to the sheriff a claimant’s bond, which recited among other things, “ and whereas said Richard M. Ellis has made claim to said property by affidavit, in order to the trial of the right thereto, in said circuit court.” The sheriff returned on the execution the fact of the levy, and continued, “ whereupon Richard M. Ellis, by his attorney, in fact, Ezra R. Price, claimed the said property to be his own, and having executed to the plaintiff a bond conditioned according to the statute in such case made and provided, with Francis Griffin and William S. Hood as his sureties, upon the 17th day of December, 1844, and the said property was on that day delivered to the said claimant, and the said bond returned with this writ into court.”</p> <p>At the April term, 1845, Richard M. Ellis tendered an issue to the country for the trial of his right. At the same time, subsequently, the plaintiff in execution moved to dismiss the case, because there was no affidavit filed by the claimant of his claim to the property levied on. The motion' was sustained, the case dismissed, and this writ of error prosecuted by Ellis.</p> <p>contended,</p> <p>1. That the statute did not require the affidavit, but only the bond to be returned with the execution. (H. & H. 634, 635.)</p> <p>2. That the oath required by the statute was for the benefit of the sheriff, and could not in any way affect the rights of the parties to the suit.</p> <p>Counsel for plaintiffs argued at length other points arising on the record, which are not inserted because not passed upon by the court.</p> <p>contended, in addition, that the statute did not even require a written affidavit, and that an oral one would be a sufficient compliance.</p> <p>1. The proceeding by which this case was brought before the court below, was a statutory one, and the requisitions of the statute must be complied with ; it enables a person not a party to a judgment to prevent its execution, and obtain possession of the property levied on, and it would be of mischievous tendency to dispense with a single requirement of the statute.</p> <p>2. The affidavit is the foundation of the proceeding, and the court is bound to see that the claim is conducted according to law, and has a right to dismiss it, if it be not.</p> <p>3. The proceeding is analogous to the writ of attachment and the action of replevin. It will not be pretended, if the affidavit be wanting in either of those cases, the court may not dismiss them; and for the same reason, it properly dismissed this case. They are all remedial statutes, granting peculiar statutory remedies, and in each case, to avail himself of the remedy, the party must comply with the statute.</p>

<p>In the purchase of personal property, the general rule is that the purchaser buys at his own peril; caveat emptor; unless the seller either give an express •warranty; or the law imply one from the circumstances of the case, or nature of the thing sold; or unless the seller be guilty of a fraudulent representation or concealment in respect to a material inducement to the sale.</p> <p>iSfo particular form of words is necessary to the creation of a warranty; any"~\ affirmation or representation in relation to the article sold is sufficient, if it J he intended to have that effect.</p> <p>The law implies a warranty, 1. That the seller has title; 2. That the arti-cíes are merchantable where, from their nature or situation at the time of the sale, an examination is impracticable. 3. Upon an executory contract to manufacture an article or to furnish it for a particular use or purpose, that it is reasonably fit and proper for such purpose and use as far as an article of such kind can be. 4. Against all latent defects, 1st, when the seller knew the buyer relied on the judgment of the seller who knew or might have known the existence of the defects ; 2, where a manufacturer or producer undertakes to furnish his articles in answer to an order; 5. That goods sold by sample correspond with the sample in quality.</p> <p>0. bought of A. a slave, aud agreed to give for him a full price for a sound slave ; there was no proof of warranty ; the slave at the time had scrofula, and was constitutionally diseased with it; there was no proof that A. knew of the disease, or represented the boy sound. A. sued 0. for the purchase-money : Held, that he was entitled to recover the full amount, though the slave was worthless.</p>

<p>On appeal from the decree of the district chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.</p> <p>The trustees of the Franklin Female Academy state in their bill, that Daniel Harvie, in his lifetime, sued them upon their writing obligatory for $740, payable to M. M. Jordan, to the April term, 1845, of the Lowndes circuit court; that Harvie died; and his executors, William W. Browning and Robert Howard, had revived the suit. That Albert G. Watkins and others, the heirs at law of John D. Watkins, deceased, claim title to the bond, and threatened to sue upon it. Watkins died in Texas, and Louis B. Taliaferro administered in that state; but no administration had been taken out in this. They expressed their willingness to pay, if they knew whom to pay to, and offered to bring the money into court,' and prayed that the executors of Harvie and the heirs of Watkins might interplead.</p> <p>The heirs of Watkins and the executors of Harvie answered the bill of interpleader. The former asserting an absolute right to the note, the latter not asserting positively a right in Harvie, insist on the benefit of a demurrer to the bill of interpleader, in their answer.</p> <p>It is not necessary, in view of the decision of this court, to notice further the pleadings and proof in the court below, except to state that it was in proof that the bill single in controversy had been inventoried in Texas as portion of the estate of Watkins. The complainants brought the money into court, and the court decreed it to Watkins’s heirs.</p> <p>The executors of Harvie appealed.</p> <p>1. Property remaining undisposed of at the death of a person cannot be claimed by the heirs except through the medium of an administrator; and in such sase it is the duty of the court to appoint one, as it is indispensably necessary, to give title to the distributees. North on Probates, 112, n. 4.</p> <p>2. If this claim belonged to the administrator in Texas, being there inventoried, the rights of the distributees of Watkins, whatever they may be, must be enforced and settled in the proper tribunal in Texas.</p> <p>3. At common law the administrator could sell, transfer, or give away the assets of his administration at pleasure, being responsible therefor to the heirs, (North on Probates, 86, n. 1) ; and we know of nothing in the laws of Taxas interdicting this right; it would be strange if in Texas the distributees would not have to claim through the administrator.</p> <p>4. In this state an administrator may lawfully sell, transfer, and negotiate the bills receivable, for the benefit of the estate, or in payment of claims against it; and it is not shown that this note was not so transferred in Texas.</p> <p>5. The heirs of Watkins, we think, cannot recover the money in this proceeding; there is no title in them; if the administrator in Texas has wrongfully parted with the claim belonging to the estate, he must account for it there; the heirs of Watkins must seek their redress there. At all events, they cannot here maintain a suit for what appertains to the ‘personal administration.</p> <p>1. The proof shows that the bond was the property of Watkins’s estate in Texas, and inventoried there as such; and if the court had jurisdiction of the case as to Watkins’s heirs, the decree of the chancellor was right.</p> <p>2. There was no administrator in this state; they alone represented the intestate; the money is coming to them, even if it passes through the hands of an administrator, and they ought not to be sent away to Texas, to enforce their rights there against the administrator and his sureties, when the decree rendered here has done justice to all the parties. Fane’s Heirs v. Graves and Wife, 4 S, & M. 707.</p> <p>3. If Watkins’s estate is in debt, that is matter of defence for the-defendant to show in avoidance of the decree.</p>

<p>It is a well established general rule, that where a purchaser has been put in possession, he cannot afterwards acquire a title and set it up in opposition to the vendor; if he extinguish an incumbrance, or buy in an outstanding title, all he can ask or require is, the repayment of the money he has so laid out.</p> <p>And this rule applies, whether the purchase of the incumbrance he by the vendee or his wife; there is such an identity between them, that what under such circumstances cannot be done by the husband, cannot be done by the wife; to permit the wife to purchase when the husband is forbidden, would he a mere evasion of the rule.</p> <p>H. bought of C. a tract of land in this state for $3,600, in November, 1841 ; there were then judgments against C. for about $1,000 ; and it was part of the contract of sale that H. should pay by the first of January, 1842, $600 towards these judgments, and the remainder of the purchase-money in three equal annual instalments, from March 1, 1842, when C. was to make H. a deed; Ii. was put, at the time of sale, in possession of the land; and C. left this state for Tennessee, where he lived ; 'early in December, 1841, the land was sold under two of the judgments against C. at different times, and bought by L. EL for $375; L. El. was the brother of EL’s wife, and bought for her benefit and for her, advancing his own money for the purchase, but buying exclusively for his sister; EL paid the $600 at the stipulated time, and C. made him a deed which EL refused to receive on the ground that C. could not make him a title, by reason of the previous sale to L. EC. Held, that the purchase by L. IE. was in reality a purchase by the wife of H. ; that H.’s wife could not set up her title thus acquired against the vendor of her husband; and that the land was subject to the payment óf the residue of the purchase-money due C. after the repayment to L. IE. of the money advanced by him.</p> <p>A note for a sum certain, payable at a day certain, in cotton, at a fixed price, becomes absolute for the payment of money upon the failure to deliver the cotton at the day ; such a note is different from one payable in bank notes.</p>

<p>In error from the district chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor.</p> <p>On the 24th day of November, 1842, Titus Howard filed his bill, in which he states, that on the 28th February, 1837, R. M. Spicer, as principal, with B. D. Smith and complainant, as securities, executed to one Thomas Drake a joint sealed note for the sum of $2,300, payable on the 25th of December, 1837, which note was executed in consideration of a negro man sold by Drake to Spicer; that the negro was the property of Meek, and the note immediately passed into his hands by indorsement from Drake, and that Meek became the holder and owner; suit was instituted on the note in the circuit court of Carroll county, and judgment obtained against Spicer, Smith and the complainant, by default, at the October term, 1839, for $2,300 debt, and $329 damages and costs.</p> <p>The complainant further charges, “ that not having been advised, at the time, of any legal defence at law, that he could plead in favor of the said suit, he, therefore, suffered judgment to go against him by default, as aforesaid; ” that afterwards he delivered collateral security to Meek, for whose use and benefit suits were brought. It consisted of a note on G. W. Hufham and John Wright, for about $1800 or $1900, including interest, which he charges has been paid to Meek, except about $200 or $300, which he charges to be in a judgment in the circuit court of Carroll county, against John Wright; and also some other means which need not he noticed. He charges further, that long before the institution of suit against Spicer, Smith and complainant in the year 1838, complainant requested Meek to bring suit, &e. on this note; that he did not wish to remain security for Spicer any longer, as he considered Spicer a reckless man; that he has been informed, and believes, that after this request made by complainant to proceed to collect the money on this note, Meek agreed to and did give further and larger indulgence to Spicer, in consideration that Spicer would pay to Meek a certain sum of money about the sum of $100 in addition to the sum named in the note, which agreement was made and entered into and carried out without the knowledge or consent of complainant. At the time the request to sue was made, Spicer was in possession of a large amount of property, and if suit had been instituted at the time, the money might have been made out of Spicer’s property, without harassing complainant; that Meek made a new contract with Spicer, and did, for a valuable consideration, give Spicer longer time in which to pay the note without the knowledge or consent, and against the expressed wish of complainant. The hill charges fraud and combination, &c.</p> <p>It is not deemed necessary to notice the allegations ,of the answer; nor to set out the proof, as this court decided the case on the face of the bill.</p> <p>The chancellor perpetually enjoined the judgment against Howard and Smith; and Meek prosecuted this writ of error.</p> <p>1. The defence set up in the hill was a good one at law, and was not there made; and the reason given in the bill, for not having made the defence at law, was not sufficient to entitle him to relief inequity. He shows no diligence; no conversation with his principal; the delay in bringing the suit was sufficient to put him on the inquiry; he has not shown that he could not have discovered the facts of his defence by due diligence. Perry v. Martin, 4 Johns. Ch. R. 566; Hare v. Sprowl, 2 How. (Mi.) R. 772; Green v. Robinson, 5 lb. 80; 4 Bibb, 168; lb. 348; lb. 414; 2 Eq. Dig. 324, $§ 4, 9, 10, 12, 16, 17; 3 Johns. Ch. R. 356; 1 S. & M. Ch. R. 474; 2 Sto. Eq. 179, § 895; Land v, Elliott, 1 S. & M. 611; 1 S. & M. Ch. R. 524,</p> <p>2. The complainant was guilty of gross negligence; no excuse whatever is shown why the defence at law was not known or sought for. In such case a new trial will not be granted. Perry v. Martin, 4 Johns. Ch. R. 566; 1 How. (Mi.) R. 113, 114; Nash v. Harrington, Aiken’s R. 39.</p> <p>3. The money paid for the delay was usurious interest; if suit had been brought for it, usury might have been plead and payment of the note avoided; the consideration, therefore, for the stay was void, and there was, therefore, no valid contract for the stay. Wilson v. Langford, 5 Humph. 320.</p> <p>4. If a party does not pursue his remedy with diligence, he will be held to have waived it. After the judgment, the complainant gave the collateral paper to Meek, and thus waived his right, if he had any, to relief. 1 S. & M. Oh. R. 134, 390; 3 S. & M. 693; 1 Johns. Ch. R. 42; Sto. Bill of Ex. § 320, n. 1, p. 363; n. 1, p. 364; 1 S. & M. Ch. R. 126; Sadler v. Robertson, 2 Stew. Ala. R. 520; 2 Cow. 139.</p> <p>1. The character of Howard, as surety, did not appear on the face of the bond; the defence must, therefore, have been made at law, and could not be made in equity; the party is estopped from making it there. Willis Sp Conley v. Ires, 1 S. & M. 319. He should have produced the bond, or alleged that he was surety on its face. Bank of Steubenville v. CarroWs Administrators, 5 Ham. 207.</p> <p>2. The statements in the bill, may be true in fact, and yet Howard have known the facts which constituted his defence at law, and yet not have known the law which made it a defence.</p> <p>3. He should have looked to his principal for his defence. Leggett v. Morris, 6 S. & M. 729.</p> <p>4. From the great lapse of time, more than three years from the judgment to the filing of the bill, he is precluded from making his defence in equity.</p> <p>1. The decree was correct, Howard alleges, and it is not denied, that he had no knowledge of the defence at law when sued there. This is sufficient.</p> <p>2. The note was under seal, and he* was estopped from denying his liability at law.</p> <p>3. The contract for delay is fully established; the decree, therefore, should be affirmed.</p>

<p>In an action of trespass, the defendants aslced the court to instruct the jury that if they believed that the defendants acted by summons of an officer to assist him in executing legal process, and did not exceed their authority in their acts, they should find for the defendants ; held, that the instruction was legal and proper and ought to have been given; legal process is as much a justification to those summoned to aid an officer in executing it, if they do not commit excesses, as to the officer.</p> <p>Charges must be given with reference to the evidence before the jury, they must be applicable to the state of case made out.</p> <p>P. and others were sued in trespass, in five counts, for five different trespasses; the declaration charging the trespasses to have been committed on a certain day, and on divers other days, between that and another day; the defendants plead not guilty, generally, and the parties agreed that any special matter might be given in evidence which might have been pleaded; the plaintiff proved several trespasses by the defendants, all committed within the time laid, some committed while an officer was present with a search-warrant, and they were by his summons aiding him in the search, and others, before the officer was present; the defendant on the trial asked the court to instruct the jury that if they believed the defendants acted by summons of the officer to aid him in executing his warrant, and they did not exceed their authority, they must find for the defendants : Held, that under the pleadings and proof the instruction was applicable and ought to have been given.</p> <p>The plaintiff in trespass by alleging trespasses to have been committed on a certain day, and on divers other days between that and another day, makes the time a descriptive part of the trespass, opens the door for proof as to any trespass committed within that time, but excludes all others.</p> <p>Where there are several counts in a declaration in trespass, and a general plea of not guilty, with leave given to give any special matter in evidence that might be pleaded, the plea will be as broad as the declaration, and will be considered as justifying to the counts collectively and separately and to each trespass, where the counts are so framed as to include more than one trespass.</p> <p>It is right that the jury should have the law explicitly laid down to them ; and if the court below refuse an instruction which is the law and applicable to the case, the high court of errors and appeals will reverse the judgment notwithstanding the circuit court may have given other instructions from which inferentially, by mere inference of law, as a consequence, the proposition of law embodied in the refused instruction, might have been drawn.</p>

<p>On appeal from the district chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.</p> <p>John H." Hand and John H. Huddleston filed their bill, stating that on the 16th day of March, 1840, Pryor M. Grant, as sheriff of Lowndes county, sold lots 5 and 6, in Square one, ■north of Main street, in Columbus, under these ft. fas., viz. William M. Cozart against James Jones, judgment rendered 9th April, 1839; Silas Bronson against Jones, rendered on the same day; and James Sims against Jones, rendered on the 19th June, 1838, which latter judgment has been paid up and discharged. The lots were leasehold property, being leased for ninety-nine years; and that complainants became the purchasers at the sum of $3005; they declined to pay their bid. Grant instituted suit thereon, and recovered judgment for $3738.30. It was taken to the high court of errors and appeals, and the judgment affirmed with damages.</p> <p>Upon consultation with counsel, and an examination of the records, they .are satisfied that they are entitled to relief; that the materiality of the matters relied on in the bill were brought to their knowledge within a few days previous to its being filed.</p> <p>The matters are as follows : — On the 18th February, 1837, James Jones, the defendant in execution, conveyed to David T. Porter one undivided half of said lots 5 and 6 ; and on the 5th June, 1837, made a deed of trust on the same to A. W. Sorsby. On the 19th July, 1838, Jones conveyed the whole of said premises to Brown and'Puller, trustees for the Real Estate Bank, and on the 28th February, 1839, he conveyed the same premises to Butterworth, in trust for Ames. That the deeds in trust were in full force at the time of levy and sale; Jones had no such interest at the time of levy and sale as could be sold under execution, and the sale was therefore void. That Grant had long since ceased to be sheriff, and no steps had been taken to make him accountable on said judgments, and the sale thereon. The judgment in favor of Grant was not subject to the lien of any judgment at law against Jones, but was equitable assets of Jones, subject to be pursued in equity by judgment creditors, according to their priority of lien; that they hold and own a judgment against Jones, in the name of the Commercial Bank, rendered on the 29th of June, 1S38, for $8018.88, which has priority of lien. That Jones conveyed the same premises to Murdock, as trustee for complainants, on the 4th of May, 1839, and also to Brown, as trustee, on the 10th of July, 1S39.</p> <p>The prayer of the bill was, that judgment in favor of Grant might be enjoined perpetually, and for all other and further relief.</p> <p>To this bill the defendant filed a general demurrer, which was sustained by the vice-chancellor.</p> <p>Complainants appealed.</p> <p>argued at length in support of the bill, and cited 1 Com. on Cont. 9; Lansing v. Quacken-burgh, 5 Cow. 38; Thornhill v. Gilmer, 4 S. & M. 153 ; McIntyre v. Agricultural Bank, Freem. Ch. Rep. 105 ; Osgood v. Franklin, 2 John. Ch. R. 23 ; McLaughlin’s Adm’rs v. Daniel, 8 Dana, 183.</p> <p>cited 2 Yerg. 394-397; 9 Ibid. 97; 2 Bay, 171; 2 Murph. 291; 1 Carrington L. R. 2S0 ; 1 Alab. R. 359 ; 6 Ibid. 204; 7 Ibid. 175.</p>

<p>In error from the circuit court of Lowndes county; Hon. Hendle}r S. Bennett, judge.</p> <p>Reddrick Smith, on the 8th of December, 1843, made affidavit that Ivey Herring owed him $2,733.33, on a judgment of the circuit court of Barbour county, Alabama, and that “he absconds, so that the ordinary process of the law cannot be served upon him.” Smith gave bond, with surety, in the regular form; and an attachment regularly issued, which was levied on slaves.</p> <p>At the return term of the attachment the declaration was filed, to which Herring plead in abatement, “that on the 8th December, 1843, he did*4iot abscond, and was not absconding, so that the ordinary process of the law could not be served on him.” This plea was sworn to. Smith demurred to the plea; the demurrer was overruled; the suit abated, and judgment rendered against Smith for costs. He sued out this writ of error.</p> <p>1. A plea in abatement traversing the facts on which an attachment issues, is not allowed by any Avell settled principle of the law. If the process of the court has been abused by wrongfully suing out the writ in this case, the defendant has a full and ample remedy. Suit upon the plaintiff’s bond will afford redress in damages, and if he has sworn falsely he is subject to the pains of perjury. 3 Rand. 148; 7 Leigh, 660 ; 5 Stew. & Porter, 158; 1 Hayw. N. C. R. 365; 2 Nott & McCord, 130. Justice Clayton, in 7 Howard’s R. 602, has most clearly intimated an opinion that such a plea is bad. And, in the same case, Chief Justice Sharkey has directly determined that the facts of the affidavit on which an attachment issues, cannot be traversed by plea. Ib. 506, 507.</p> <p>2. The judgment of the court should not have been final upon overruling the' demurrer. Respondeat ouster was the correct judgment. How. & Hutch. 614.</p> <p>relied on the same points.</p> <p>1. This court has, in effect, decided the plea a good one. James v. Dowell, 7 S. & M. 333.</p> <p>2 The cases in North Carolina, where such a plea has been held bad, depend on the peculiar statute of that state. 1 Rev. Stat. N. C. 71; Ib. 155, § 56. Where no such statutes exist the plea has been held good. 3 Stew. 226. It is true in 5 Stew. & Port. 158, the correctness of the case in 3 Stew, is called in question, yet it is not reversed; the judges give no opinions. See also 2 Hen. & Munf. 312; 3 Rand. 148.</p>

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

<p>On appeal from, the district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor.</p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>cited Lane v. Dickersen, 10 Yerg. R. 373; Grider v. Graham, 4 Bibb, 70; Eq. Dig. 567; McDonald v. Neilson, 2 Cow. 139 ; Mason v. Baker, 1 A. K. Marsh. 209 ; Eq. Dig. 590.</p>

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

Hugh R. Miller, judge. James F. Trotter sued David Pointer and Willis M. Lea on a bond for the sum of twenty-four hundred dollars. They plead, in substance, that the consideration of the bond was the sale by plaintiff to the defendants of a section of land described, and that the plaintiff at the time represented that he had a good and valid title to the land; but that in fact he had ■no title, and so the consideration had wholly failed.

<p>"Where a suit was instituted against the maker and indorsers of a note, and, at one term of the court, previous to the trial, verdict and final judgment in the case were rendered, an order of continuance as to one of the indorsers, and of final judgment as to the other parties was made, to which no objection at the time was taken; but, subsequently, when the cause came on for trial, the suit was dismissed as to those against whom the final judgment had been previously taken, and a verdict and judgment rendered against the indorser alone, as to whom the continuance was entered; no bill of exceptions being taken to the trial and judgment against the indorser ; it was held, that the verdict and judgment against the indorser were properly taken, and should not be set aside.</p> <p>"Whether, if the declaration aver that due legal notice of protest was given, it will be sustained by proof, that diligent search was made in order to ascertain the indorser’s residence, but in vain ; — Qumre.</p> <p>Anote, dated January 1, 1837, at Cayuga, in Hinds county, fell due February 1, 1838, at the Grand Gulf Bank, at Grand Gulf, Claiborne county, it was protested for non-payment at maturity, and suit brought upon it against the indorser; on the trial, it was proved, that in January, 1838, the indorser had removed to a place in Hinds county, two miles and a half from Utica post-office in that county, and six miles from Cayuga; there was no evidence of the previous place of residence of the indorser; the notary, who protested the note, inquired of the officer of the bank where it was payable, to what point he must direct his notice, and was informed to Cayuga, and he accordingly did so : Held, the notice was sufficient to bind the indorser.</p>

<p>On appeal from the circuit court of Holmes county; Hon. Morgan L. Fitch, judge.</p> <p>John Doe, on the demise of Samuel B. Vance and others, heirs of David W. Vance, deceased, sued Osborn R. Eakin and Reuben Matthews, in ejectment, for a tract of land,in Holmes county. A trial was had and verdict rendered for plaintiffs.</p> <p>On the trial, the plaintiffs proved a title in their ancestor, and possession in the defendants. The latter then proved, by the records of the probate court of Holmes county, that John W. Myers was duly appointed administrator of David'W. Vance’s estate, in October, 1833. They read the entire record of the proceedings of Myers in his -administration, from which it appeared, that at the May term, 1834, Myers suggested that Vance’s personal property would not pay his debts, upon which the court ordered citation, for those interested in the realty, to appear at the July term, and show cause why the land should not be sold.</p> <p>At the July term, it was ordered, that those interested in the lands should appear at the September term, and show cause, if they could, against the sale. At the August term, a similar order was made for them to appear at the October term of the same year. At the September term, a similar order was made for them to appear at the November term, in which the land, in controversy, was specifically mentioned.</p> <p>The record shows no further proceedings, until the March term, 1835, when the following entry appears.</p> <p>“An account of the sale of the real estate, belonging to David W. Vance, deceased, sold under an order of the probate court of Holmes county, on the 18th day of March, 1835, according to the statute in such case made and provided; to wit: (Here follows account of sales.)</p> <p>“I do certify, that the foregoing contains a true and full ■account of the sale of the real estate of David W. Vance, de-■eeased, sold by me under an order of the probate court of Holmes county, on the 18th day of March, 1835.</p> <p>John W. Myers,</p> <p>Administrator of David W. Vance, deceased.</p> <p>“Received and ordered for record.</p> <p>N. E. Rives.”</p> <p>This was all the record of the probate court touching the sale of the land.</p> <p>The defendant then offered to prove, by W. A. Purdom, who at the time the order of sale was obtained, was acting as clerk in the probate clerk’s office; that citation was legally issued to all persons interested in the land; that the same was returned ■executed, and an order of sale of the land thereupon granted by the probate court; that these several orders, citations, &c., have been lost or mislaid, also that the land was duly advertised and sold by the administrator. This proof was excluded by the ■court. The defendant excepted and appealed.</p> <p>If a record be lost, it can only be supplied by parol; there is no other conceivable manner in which it can be done. To decide that it cannot be so done, will be to encourage those whose titles are defective, to destroy the record evidences of title in their adversary, and they are safe.</p> <p>The records of the country would cease tobe “muniments of title” if they could be altered, abridged or enlarged by the recollections of their keepers. In. this case, not only was it proposed to establish the records, but also legal inferences, as that the citations were duly issued, duly served, <fcc.</p>

<p>In error from the circuit court of Lauderdale county; Hon-, Henry Mounger, judge.</p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>Cited 3 Phil. Ev. (Cow. & Hill’s notes) 828, 836, 844, 845 ; I Stark. Ev. 262 — 264; Co. Litt. 352, n. 6; Gardner v. Buck-bee, 3 Cow. Rep. 127; Burgess & Davis v. Sugg, 2 Stew, and Port. 342; Shafer v. Stonebraker, 4 Gill <fc John. 355 ; Vooght v. Winch, 6 B. & A. 662; Pace v. Dossey, 1 Stew. (Ala.) R. 20; Hitchen v. Campbell, 2 Wm. Black. 779; Dutchess of Kingston’s case, 11 State Trials, 261; Story’s Plead, by Oliver, tit. “ Recovery,” citing 3 Wils. 240; 2 Wm. Black. 779-831; Hñghes v. Blake, 1 Mason, 515-519 ; 7 Bac. Abr. tit. “Pleas,” 352 ; Co. Litt. tit. Estoppel: Adams v. Broughton, 2 Stra. 1078; Green, on Evid. 602 - 636; Loft on Ev. 533; White v. Martin,. 1 Porter’s Ala. R. 215 ; Peake’s Ev. 36 ; Chit. Plead. 1, 228 ; Chit, on Cont. 612, 613, and the notes cited ; Brown on Actions at Law, Lib. Sept. No. A. D. 1845, p. 558; Yiner’s Abr. tit. Judgment, 2 ; Ferren v, Arden, Oro. Car. 35 ; Lacón v. Barnard, 2 Yen tv. 169; v. Rooster, Cro. Eliz. 668.</p> <p>1 Chit. Plead. (9th Am. ed.) 602-604; Cok. Inst. 260; Hess v. Fieeble, 4 Serg. & Rawle, 246 ; S. C. 6 Ibid. 257; Duffy v. Lytle, 5 Watts, 120; Brockway v. Kinney, 2 John. Rep. 210; Wheeler v. Van Houlen, 12 John. R. 313 ; Bunnel v. Pinto, 2 Conn. 433; Rice v. King, 7 John. R. 20; Chit. Cont. 612; 6 Bac. Abr. 705, 706 ; While v. Martin, 1 Port. R. 215; YA/e v. Long, 6 Rand. 457 ; Hilchen v. Campbell, 2 Wm. Black. 827; Peak'e’s Ev. 36; Case of the Dutchess of Kingston, Chit, on Cont. 613; Ibid. 611; 6 Bac. Abr. Plea, 635.</p>

<p>In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.</p> <p>This was an action of replevin, instituted in the circuit court of Madison county, by Marcus Hilzheim against Wesley Drane, under the act of 1842. The plea was not guilty.</p> <p>The plaintiff proved on the trial that he had purchased the barouche and horses for which the action was brought, of one P. D. Hilzheim, that he had the property in possession under the purchase; that Wesley Drane had taken the barouche and horses.from him, some time in 1842, subsequent to the purchase of P. D. Hilzheim. Drane, offered in evidence a bill of exchange, or draft, drawn by Thomas Latham, on, and accepted by P. D. Hilzheim, for |367^9¶, to the reading of which to the jury, the plaintiff’s counsel excepted. The court overruled the objection, however, and permitted this bill of exchange to go to the jury.</p> <p>It is not deemed necessary to set out more of the case; nor any of the instructions, in view of the opinion of this court.</p> <p>The jury under the proof and instructions given below found for the defendant, and the plaintiff sued out this writ of error.</p> <p>Besides the points made on the instructions, contended,</p> <p>1. That this instruction of the bill of exchange could only tend to confuse the jury. The court should have rejected it. It is well established, “that the admission of improper testimony to the jury when objected to at the time, is irregular, and good grounds for reversal and a new trial. Marquand v. Webb, 16 Johns, 89; Osgood v. Manhattan Co., 3 Cow. 612; 2 Hall’s Rep. 40 ; Graham on New Trials, 239-241; Bolvun V. Taylor, 6 Cow. 313; Foster v. Smith, 10 Wend. 377.</p> <p>2. That its introduction was illegal, unless the practice was to be introduced and sanctioned that one holding another’s, or, as in this case, a third person’s obligation for money, could seize on that other’s property and satisfy himself; it could be justified on no other ground.</p>

<p>In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.</p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>cited 3 Jac. I., c. 8; 12 Car. II., c. 2; 16 and 17 Car. II., c. 8, § 3; H. & H. Dig. 538, $39, p. 341, $60; 4 S. & M. 484-490; lb. 513-175.</p> <p>on the point that the equity of redemption could not be levied on, cited 4 S. & M. 163; and argued at length, that the supersedeas was properly retained, because of the injunction.</p>

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

In error from the superior court of chancery; Hon. Robert H. Buckner, chancellor.

<p>Doty v. Mitchell, 9 S. & M. 435; cited and confirmed.</p> <p>A married woman cannot part with her separate property in any other mode than in that which is pointed out by the deed of settlement; if that prescribe a different mode from the one established by the statute for the transfer of her estate, the mode designated in the deed of settlement must he followed; it will not be sufficient to pursue the statute, if it differ from the deed of settlement; it is the latter, in such ease, and not the former, which confers the power.</p> <p>Where a marriage contract was entered into, by which the separate property of the wife and its proceeds were secured to her free from the control of her husband, and the mode of alienation of her property pointed out by the contract; and, afterwards, the husband bought other property with the proceeds of the wife’s separate property, and took the title by mistake in his own name, but on discovery of his mistake, conveyed the property by deed of trust to a trustee, and, by the deed of trust, recited the facts and gave the same power and control over the property that she possessed before marriage; it was held, that the deed of trust must be construed in connection with the marriage settlement, in order to ascertain the wife’s power over the property conveyed by it; she could not aliene or dispose of the property embraced in the deed of trust in any other mode than that designated in the marriage contract; and she might have enforced, had she been so disposed, a legal title in herself to the land embraced in the deed of trust, and held it as she held her other property under the marriage contract.</p> <p>Where, therefore, under the marriage contract, the wife’s power to aliene was declared to be by deed signed by her, attested by two witnesses in her presence, and by her request; and she, in conjunction with her husband and the trustee in this subsequent deed of trust, executed a mortgage on the property embraced in the deed of trust, to secure a debt of her husband; and the mortgage was executed and acknowledged only in the ordinary mode; it was held, that it did not bind the wife’s property embraced in the deeá of trust, and could not be enforced against it.</p> <p>Where the first clause in a deed of marriage settlement gave the wife the power of disposition of her separate estate, and the second clause pointed out the mode of disposition; it was held, that the two clauses were not inconsistent with each other.</p>

<p>In error from the decree of the district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor.</p> <p>On the 20th day of October, 1846, John D. Freeman filed his bill, in which he states, that on the 21st day of July, 1845, a bill was filed in the superior court of chancery, by the attorney of the state, on behalf of the state, and all other creditors of the Mississippi railroad company, against that company; staling that it was totally insolvent, and unable to construct the railroad, or pay its just debts. That bill contained prayers for an injunction, and for the appointment of a receiver to collect the assets of the company, and hold the same subject to the order of the court. An order was granted, restraining the company and all its agents from disposing of and meddling with the effects of the company; and complainant was appointed a receiver in the cause, “ with full power to take into his possession the bills, bonds, notes, and other evidences of debt, belonging to said company, with power to sue for and collect all moneys due on the same.</p> <p>The bill further states, that in 1837, George Winchester subscribed for twenty shares of stock, of one hundred dollars each, in the company. It also proceeds to state the periods at which the subscription was payable, and the amount yet due; and prays for a discovery of the amount due on account, and that he may be decreed to pay the complainant the amount found due by him upon such subscription to stock.</p> <p>Winchester demurred to the bill; the vice-chancellor sustained the demurrer; and Freeman prosecuted this writ of error.</p> <p>Argued at length in behalf of the bill, and cited the following authorities: Stat. of 1844, p. 138; 3 Mason, 308; 16 Mass, 9, 15; King v. Elliott, 5. S. <fc M. 428; 1 Barbour’s Ch. Prac. tit. Receivers, 658-663; 2 Sto. Eq. 134-135; 6 Hill, 269; 1 Peters, 55; 14 Wend. 24; Laws of 1836, pp. 175-6; Laws of Miss. 702, § 1; lb. 830-1, <§> 3; Ang. & Ames, 420, § 5, et seq.</p> <p>Cited Sto. Eq. PI. sec. 508; sec. 260, 261; 1 Smith’s Ch. Prac. 638; 2 Atk. Rep. 213; 1 John. Ch. Rep. 60; Smiley v. Bell, M. & Yerg. Rep. 378; Ang. & Ames on Corp. 411-412; Ang. on Lim. 420; Sto. Eq. PI. § 484; Dunlap v. Gibbs, 4 Yerg. Rep. 94; Foster v. Hogsden, 19 Yesey, 180; Hoare v. Peck, 6 Simons Rep. 51; Cv.thbert v. Cressy, 4 Bligh’s Rep. 125; Tysonv. Pole, 3 Young & Coliyer, 266; Humbertv. Trinity Church, 7 Paige, 195 ; Vanhook v. Whitlock, 7 lb. 373.</p> <p>Cited 3 Am. Eq. Dig. 555, §§ 18, 19, 20 ; 1 Smith’s Ch. Prac. 638; 1 John. Ch. Rep. 60; Stat. of 1836, p. 173, et seq., § 4; 1 Bro. Ch. Rep. 27; 1 Met. & Perk. U. S. Dig. 556, §§.74, 75, 76; 2 Term. Rep. 373; 2 Bibb, 575; 14 John. Rep. 238; Ang. & Ames on Corp. 409-423, chap. 15.</p>

<p>Tn error from the circuit court of Rankin county; Hon. John H. Ro lins, judge.</p> <p>At the June term of the Rankin circuit court, 1843, William H. Haralson moved the court to erase a credit of J$800 entered by the sheriff of Rat kin county, on the 4th day of May, 1838, upon an execution in his favor against Nevil Holcombe and others, which issued from the said circuit court on the 20th day of January, 1838, and was returnable on the 3d Monday of April, 1838.</p> <p>The circuit court, on hearing, overruled the motifen, and the plaintiff excepted, and in his bill of exceptions is contained the evidence on the trial of the motion.</p> <p>The plaintiff read to the court the fieri faeias, on which the credit was indorsed, returnable on the 3d Monday of April, 1838, and a forthcoming bond taken from the defendants in execution, which was forfeited on the return day thereof; and also read the return of the sheriff, giving the credit in the following words and figures, viz. “Received eight hundred dollars on account of this fi. fa., May 4th, 1838. W. P. Coleman, sheriff; ” — and the following further return ; “ Revied on fivp negroes, to wit, Henry, John, Ann, Mary and Elvira, and bond taken with H. Holcombe and Daniel D. Holcombe, security, — W. P. Coleman, sheriff, by W. R. Parker, D. S.”</p> <p>The defendants read in evidence an execution on the forfeited bond, returnable on the 3d Monday of October, 1838, which issued on the 15th June, 1838, with the following memorandum, indorsed on the same: “ This execution is entitled to a credit</p> <p>of eight hundred dollars, paid 4th May, 1838, as per indorsement of the sheriff on the first fi. fa. issued — Teste, Hugh L. French, clerk.” The defendants “ also read a receipt by Rives and Hughes, attorneys of record, in the following words, to wit: “ Received on this execution one hundred and thirty-three dollars forty-eight cents. — October 18th, 1838. — Rives and Hughes, for plaintiff.” This receipt was entered on the sheriffs docket, where said execution was docketed, immediately under the words, “Received |j800 on account of this Ji. fa., 4th May, 1838,” which memorandum was not signed by any person; —and this was all the evidence on the trial of the motion.</p> <p>The plaintiff also moved the court to allow the sheriff to amend his return on the execution, on which the credit was indorsed, according to the truth of the case. This motion was disallowed.</p> <p>The plaintiff sued out this writ of error.</p> <p>The receipt of the eight hundred dollars by the sheriff of Rankin county, on the 4th May, 1838, indorsed on the fi. fa., returnable to the 3d Monday of April previous, which was satisfied by the forfeiture of a forthcoming bond to that term, was clearly unauthorized, and void as to the plaintiff. Without an operative execution in his hands at the time, no receipt by the sheriff could bind the plaintiff; the record shows that on the 4th May, 1838, no such execution was in the officer’s hands. Planters Bank v. Scott, 5 How. 246; McFarland v. Wilson, 2 S. &. M. 269.</p> <p>1. The lapse of five years from the entry of the credit to the motion to erase it, is conclusive agaiiist the motion. Prewelt v. Standifer, 8 S. & M. 493.</p> <p>2. The reception of part of the money by the attorney of the plaintiff, was a ratification of the whole payment.</p>

<p>In error from the circuit court of Madison county; Hon. Morgan L. Fitch, judge.</p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>Oil the point, that the execution under which the sale took place, was improperly admitted in evidence because of the previous levy, cited Arnold v. Fuller, 1 Ham. 458; 1 Pirtle’s Dig. 406, § 1; 3 McCord, 429; Kershaw v. Merchants Bank of New York, 7 How. (Mi.) 386; 4 Man. 402; 2 Pick. 586; 6 Wend. 562.</p> <p>On the point, that there ivas no proof of defendant’s possession, cited Pickett v. Doe, 5 S. & M. 470; Newman v. Foster's heirs, 3 How. (Mi.) 383; Wallis v. Doe, 2 S. & M. 220; West v. Taiman, 4 Wash. C. C. R. 200.</p> <p>In reply to first point, contended, 1. That the levy had been disposed of by the subsequent sale; 2. Even if it had not, an innocent purchaser under a subsequent execution would hold the property. Bibb v. Jones, 7 How. (Mi.) R. 397.</p> <p>On the second point, he contended, that the tenant’s possession was that of the landlord, and cited 2 S. & M. 225.</p>

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge. Daniel Griffin, in his declaration, describing himself as assignee of S. S. Tyer, filed his declaration in debt to the March term, 1846, of the Tippah circuit court, against John B. Griffin.

In error from the Claiborne circuit court; Hon. Stanhope Po-sey, judge. Alvarez Fisk sued George G. Torrey on the following note, to wit: “ Port Gibson, January 1, 1839. “ $8,800. Twelve months after date we promise to pay to the order of Alvarez Fisk, eight thousand eight hundred dollars, value received payable at the Agricultural Bank at Natchez. “ Signed, H. & H, O. Anderson, G. G. Torrey.” The defendant plead the general issue.

<p>A note given to a person occupying public land, with the purpose of becoming a preemptor, under the act of congress of June 22,1838, for the purchase of the land from such occupier when his right of preemption is perfected — to perfect which, the occupier agrees to occupy the land the prescribed time, and take the required steps, and then convey the title to the purchaser — is given for an illegal consideration, is in violation of the preemption act referred to, and is void.</p> <p>And if the maker of the note suffer a judgment at law to be rendered against him on the note, he cannot afterwards obtain relief against the judgment, in equity, on the ground that the intended preemptor, by his negligence, which occurred after the judgment at law, lost his preemption; the note being void, the defence at law was good, whether the other party carried out his contract, or not.</p>

James S. Johnston, judge. Nathan Hooker, jr., and his wife, filed their petition in the probate court, against Nathan Hooker, sen., on the seventh day of September, 1846, to impeach and set aside for fraud, the final settlement of the latter as guardian of the wife of Nathan Hooker, jr., made at the February term, 1842. The defendant demurred to the petition, for the want of jurisdiction in the court; the demurrer being overruled, he appealed. 1.

Stephen Cocke, chancellor. Edward C. Wilkinson filed his bill in the superior court of chancery, in which he states that he executed his note for a certain consideration, which came lawfully into the hands of Hiram G. Runnels, who pledged it as collateral security to certain persons unknown to complainant, who had assigned it to John M. Anderson, for whose use complainant had been sued on the note.

In error from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge. The facts are sufficiently stated in the opinion of the court. Cited 5 Cow. 222; 3 Wheat. 200; 9 Wend. 129; 5 Hayw. 85; 4 Rand. 346; Peters Cir. Ct. Rep. 85; S Wend. 435; 8 Pick. 9; 6 Har. & John. 273; Ib.297; 1. Ib. 444; 2 Wend. 90; 2 Hill, 132. contended that if Coppage was injured or wronged, he must look to Bradford for redress and not to Brown:

Henry Dickinson, vice-chancellor. Eliza White, describing herself as administratrix of James White, deceased, of Washington county, Virginia, alleges in her bill in substance, that Joseph Trotter, a non-resident, is indebted to her in about the sum of twenty-five thousand dollars, on notes payable to her, to secure which amount he executed to her in the state of Louisiana, a mortgage on upwards of fifty slaves, and between seventeen and eighteen hundred acres of land, on…

<p>Ia this state contracts and liabilities of copartners are joint and several; and any one of the partners may be sued and is liable for the whole indebtedness.</p> <p>Where, therefore, a firm, consisting- of three persons, was sued upon an account, for which it was proved that two of the firm had executed to the plaintiff their note ; and the suit was dismissed as to those two, and stood against the third partner alone : it was held, that it was a question of fact for the jury to say, whether the note of the other two was received by the plaintiff in extinguishment and satisfaction of the debt of the three; if it were, the third partner would be discharged from the debt; otherwise not.</p>

- In error from the Yalabusha circuit .court; Hon. Francis M. Rogers, judge. Thomas Greenwood sued Joseph Ligón in debt upon the latter’s bond, conditioned in the penalty of sixteen thousand dollars, “ to make to the said Thomas Greenwood, his heirs, &c. a good and perfect, deed” to the lands described in the bond. The defendant plead, 1. That the plaintiff had not demanded a deed ; 2.

<p>An indictment, which charges the accused “ with an assault and battery, with a deadly weapon upon a certain slave, with the intent to commit manslaughter,” can be construed to be an indictment for only an aggravated assault. It is not an indictment for an assault with intent to hill, by which is understood and has been held, an intent to commit murder.</p> <p>On the trial of a man, indicted for an assault and battery, with a deadly weapon on a slave, with intent to commit manslaughter, the proof by a single witness that the prisoner was seen with a knife in his hand in pursuit of the slave when he was stopped by the witness, and then made threats against the life of the slave ; held, to be entirely insufficient to warrant the prisoner’s conviction.</p>

<p>It is competent for a volunteer in the army of the United States, in Mexico, who is a citizen of this state, to make his last will and testament while abroad in Mexico.</p> <p>And a letter, written by such volunteer, from Mexico, throughout in his own handwriting, in which he expresses his desire and intention, in case of his death, that his property should go to his niece, will be properly admitted to probate off his death, as his last will.</p> <p>While a letter from the same person, in which he expresses his-willingness to aid his brother, who was in difficulties, with all his property, was not testamentary, and therefore not entitled to probate.</p>

<p>On the death of a father without having- appointed a testamentary guardian, his widow, under the statute, (H. & H. 336) has the first right to be guardian of the estate of his children; yet if the widow marry again, and her husband, who has taken out letters of guardianship, resign the trust, it will be regarded as a relinquishment of the right on her part; and the next of kin to the deceased, if qualified, and he apply, is next entitled to the letters.</p> <p>In judging of the qualification of the applicant for guardianship, great discretion is necessarily allowed to the probate court; yet, if the next of kin be an applicant, and be admitted to be qualified, the court must prefer him to a stranger; and if letters of guardianship have been already granted to a stranger, though at the instance and on the petition of the husband of the mother, yet, on the application of the next of kin for the guardianship, it is the duty of the probate court to remove the stranger, and appoint the next of kin, where the children are under fourteen.</p> <p>The appointment of guardians is a matter so peculiarly within the discretion of the probate court, that it will be difficult to interfere with its appointment.</p>

<p>On appeal, from the circuit court of Marshall county ; Hon. Stephen Adams, judge, presiding.</p> <p>In this case, a recognizance was taken by the vice-chancellor, conditioned, that James Wofford should appear at the next term of the circuit court of Marshall county, to answer a charge of stealing a slave. Wofford did not appear; judgment nisi was taken, and, on return of the sci. fa. the recognizance was quashed, on the motion of the sureties, on the ground that the vice-chancellor had no jurisdiction to take the recognizance, and the district attorney appealed.</p> <p>The law establishing the vice-chancery court, makes the vice-chancellor a conservator of the peace. As such, he is clearly authorized to take a recognizance in a criminal case, otherwise his authority to conserve the public peace would be inoperative.</p>

<p>In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge.</p> <p>cited the Acts of 1840, p. 58; 1 How. (Mi.) Rep. 24; 6 Ibid. 193; 1 S. & M. 660; Greenl. Evid. 315.</p>

John H. Rollins, judge. On the 4th of March, 1842, Barnabas Herrod filed his hill against George W. Henderson, S. D. Livingston, and A. G. For-ney, in which he states that, on the 10th of December, 1839, S. D. Livingston executed his three notes to A. G. Forney, each for the sum of $3,333.33§; the first due 1st January, 1841, and the other two on the 1st of January, 1842 and 1843, respectively ; and at the same time executed a mortgage, which was duly recorded, on certain…