Volume 2 — Mississippi Reports

At the January term, 1833, of the circuit court for the county of Hinds, in a suit instituted by Samuel T. King against Felix H. Walker, came the parties by their attorneys, and the defendant waives all service of writ and pleadings, and thereupon a jury were evnpannelled, who rendered a verdict for the plaintiff in said court; upon which verdict, judgment was rendered by the court. The plaintiff in error assigned the following errors: 1. There was no writ in said cause. 2.

This was an action of assumpsit, commenced by Young against Englehard and Silverberg in the circuit court of Lawrence county. In that court a verdict was rendered in favor of Young.

IN this case the circuit judge certifies, “that this is a motion by John Carraway for a mandamus nisi against the Board of Police of Yazoo county, and is founded on the affidavit of E. C. Wilkerson, the attorney for the appellant.” “There are two questions presented to the consideration of the court: “ 1st, Whether the affidavit shows a sufficient denial of justice on the part of the Board of Police, and whether they have so far refused to act, as to justify the court in…

This was a motion in the Circuit Court of Yazoo county by the present defendant against the plaintiff in error, as sheriff of said county, founded on the return to a “fieri facias” in favor of the defendant Campbell against the goods and chattels of Joseph Clark, and Elias G. Myers, and upon which the money was made by the said sheriff or his deputy. In bar of the motion the sheriff filed two pleas of payment, to which there were replications and an issue to the country.

THIS was an action of assumpsit in the circuit court of Co-vington county, by the defendant in this court against the plaintiff in error. A plea of non assumpsit was filed, upon which issue was taken.

IN ERROR. This was an action of assumpsit in the circuit court of Franklin county; declaration in the usual form, plea of non-assumpsit and issue. After the issue was made up, the plaintiff in error who was the defendant in the court below, filed a bill in Chancery for injunction, to which bill an answer was filed by both the nominal plaintiff, Weatherspoon, and Weathersby, for whose use the suit was brought.

This was an action of assumpsit brought by the plaintiffs in error against the defendant in the circuit court of Yazoo county, declaration was filed, to which there was a plea of non assump-sit, upon which there was issue to the country.

IN ERROR. This was an action of ejectment, commenced in the circuit court' of Wilkinson county by the plaintiff in error against the defendants; a declaration in the usual form, was filed, a notice of which was served upon the defendants, as tenants in possession. .The defendants were admitted defendants, confessed lease, entry and ouster, &c., and pleaded not guilty. A trial was had and a verdict for the defendants.

ON the second day of the April term, in the year 1832, of the circuit court of Lawrence county, three judgments were obtained against John Boyett, one in favor of William R. Boyett, one in favor of Major Newton, for the use of Englehard & Silverberg, and the other in favor of John Tuttle.

THIS was an action of assumpsit brought in the circuit court for the county of Jackson, in the name of Conway Oldham for the use of William B. Cocke against Henry Ledbetter. The plaintiff in the court below declared on a promissory note drawn by the defendant, dated the 18th day of May, 1828, due the 1st day of January, 1830, assigned on the 11th day of May, 1828, to the usee in the action for a valuable consideration.

ON the 15th day of January, 1831, Ellen Miles, administratrix of all, and singular the goods and chattels, rights and credits of David Miles, deceased, sued out of the clerk’s office of the circuit court of Adams county, a writ of fieri facias against the goods and chattels, rights and credits of Hugh Jones, deceased, in the hands of Thomas Jones, his administrator.

LEWIS CASON, administrator of all and singular the goods and chattels, rights and credits of Samuel Wright, deceased, commenced an action upon the case in assumpsit, in the circuit court of Wilkinson county against Alfred T. Moore and Mary his wife.

ON the 30th day of April, 1830, judgment was rendered in the circuit court of Wilkinson county, in favor of Lemuel Pitcher, administrator de bonis non of James Dixon, deceased, for the sum of seven hundred and sixty dollars and fifty cents, besides costs, against Lucy Shaffer, administratrix, and James Shaffer, administrator, &c., of Robert Spurlock, deceased.

PRESTWOOD SMITIi took out letters of administration in the probate court of Wilkinson county, upon the estate of Thomas Kelsey, deceased, but before a final settlement of his administration accounts, died intestate. The plaintiff in the court below, became administrator de bonis non of the said Thomas Kelsey, and the defendant became the administrator to the estate of Prestwood Smith.

DAVID DAVIS, administrator de bonis non of Henry Hunter deceased, commenced an action of debt in the circuit court for Wilkinson county, in the name of Thomas H. Prosser, judge of probate, for his… Held: or did hold in actual possession, and what the preceding administrator might have administered but neglected to administer.

AN action of assumpsit was commenced in the circuit court of the county of Franklin, by William Whitehead and Lydia his wife, formerly Lydia Cade, administratrix of all and singular the goods and chattels, rights and credits of Stephen Cade, deceased, against John Cade and John Baker, to recover the amount of a note executed by them to the said Lydia in her character of ad-ministratrix; declaration in the usual form, plea of payment with notice of offset, replication and…

AT the October term, 1829, of the circuit court for the county-of Franklin, in the suit before that time commenced by William Proby against William C. Weathersby and John F. Weather-spoon, in assumpsit, the only judgment which appears is in the following words; William C. Proby v. William Weathersby et al. “ Judgment confessed, reserving equity, subject to final decision in a bill in chancery, to be filed by William C. Weathersby, against Richard Bien and Judith and William…

BABCOCK, Gardner & Co. commenced an action upon the case in assumpsit in the circuit court of Yazoo county, against Thomas S. Scott and J. Robinson. To the declaration the defendant, Scott, pleaded non assumpsit, upon which there was issue.

JOHN SMITH having, as he alleged, paid for Prestwood Smith, deceased, the sum of two thousand five hundred and thirty-four dollars upon a judgment obtained by A. M. Scott, in the Wilkinson circuit court, upon a note given by said Prestwood and said John Smith as his security, entered his motion against C. P. Smith, the administrator of said Prestwood Smith, deceased, in the said Wilkinson circuit court, at the May term, 1830, of said court.

MENO AH BOSTIC, by his attorney, sued from the clerk’s office of the circuit court for Lowndes, a writ in case upon as-sumpsit, against Daniel Harvie. Upon the writ there was the following endorsement: “ The State of Mississippi, Lowndes county. “I acknowledge service of the within writ, the 31st day of September, 1833. Daniel H ah vie.” Declaration filed in the usual form, and judgment by default at the November term of said court, upon the second day of the term.

ON the 2d day of October, 1829, Nelson Gillespie filed his bill of complaint in the clerk’s office of the superior court of chancery of the western district at Natchez, against John B. Nevitt and George W. Nevitt.

MINERVA WREN, administratrix of Belfield Wren, deceased, at the time of his death, declared in the circuit court for the county of Warren, in debt, against Susan Span and Charles Span, administrator and administratrix of Robert M. Span, deceased, at the time of his death, upon a writing obligatory or bill single made by the said Robert M. Span, on the 31st day of August, 1832, to the said Belfield Wren then living, by which he promised to pay to the said Belfield Wren the…

<p>It is an invariable rule, that a party who seeks a recovery, or the avoidance of a recovery, in a court of justice, must sustain his cause of action, or ground of defence, by legal evidence; and in no case is the plaintiff or defendant required to disprove the allegations of his opponent.</p>

STEPHEN H. STRONG upon the 7th day of October, 1830, caused to be issued from the clerk’s office of the circuit court of Amite county, a capias ad respondendum in a case of slander, against Richard Hurst, bearing test of the second Monday in April, 1830, returnable to the second Monday in April, 1831.

THIS was an action of assumpsit, commenced by the defendant in error against the plaintiif in error, in the circuit court of Monroe county. The plaintiif in the court below declared upon an indebitatus assumpsit for one hundred dollars, for use and occupation. The defendant pleaded non assumpsit. Up'on the trial, several opinions were asked by the defendant of the court to the jury, which were all refused by the court.

DANIEL M‘GAIiEY declared in the circuit court for the county of Wilkinson, against John Jones, Harry Andrews, David Coon, Lewis Cason, and Daniel Slack, in assumpsit for one hundred dollars, for a barbecue or dinner furnished by him for a company, at their special instance and request. The defendants pleaded jointly non assumpsit, upon which there was issue to the county.

ACTION of assumpsit by Bartley Cox, the defendant in error, against the defendant in the court below, commenced in the circuit court of Warren county.

RICHARD WILLIAMS sued Samuel B. Marsh, Richard Hurst and David Lea, in the circuit court for the county of Amite, for trespass, and assault and battery, and false imprisonment. The defendants in the court below filed separate pleas, each of them a plea of not guilty, upon each of which issue was joined.

AN action of assumpsit was commenced in the circuit court of Wilkinson county by Jacob R. Holmes, survivor of the late firm of J. Remson, Holmes and Jeremiah Hunt, trading under the name and style of J. Remson, Holmes & Co., against Asher P. Slocumb, administrator of Charles C. Slocumb, deceased.

<p>In an action by an administrator de bonis non, against the surety of the former administrator, to recover a balance due upon the administration account, testimony offered to be introduced upon the trial by the defendants, is competent and admissible, which tends to show that the amount sued for was a debt due from the witness and another, to the estate, and that in the payment of it, the administrator, who was insolvent, took, in liquidation of so much from the witness, a debt due by the administrator to the witness, and if the proof shows,'that the act took place by collusion between the parties in fraud of the estate, there would not be an extinguishment of the debt due from the witness and another to the estate, for that part of it which was pretended to be extinguished by the receipt, by the administrator of the claim against himself, and the witness would be still liable, and the administrator de bonis non would have to resort to him, and could claim to recover of the sureties of the first administrator.</p> <p>A witness having no interest, in the record is not excluded from testifying, because he may or may not be affected by the result.</p>

RACHEL LEGRAND declared in the circuit court of Yazoo county, again Pinckney Merrell, upon a promissory note, dated 3d day of January, 1839, by which the said Pinckney Merrell promised to pay to her, the said Rachel Legrand, two hundred dollars, on or before the 1st day of January, 1830, for value received. The defendant in the court below pleaded non assumpsit, upon which there was issue to the country.

<p>The powers of an administrator de bonis non are limited to the administration of the goods and chattels, &c., unadministered by the first administrator; he has no power to make deeds for lands sold by his predecessor.</p> <p>A paper intended for a deed, although signed by the party, is not a deed unless it be sealed.</p>

JOHN AUSTIN in the circuit court of Yazoo county declared against Alfred Fowler. “ For that whereas heretofore, to wit, on the 15 th day of March, in the year of our Lord one thousand eight hundred and twenty-eight, in consideration that the said plaintiff, at the special instance and request of the said defendant, would take charge of four good hands of the said defendant, and would make a fifth hand on the plantation of the said defendant in the county aforesaid during the…

THIS was an action of trover commenced by Benjamin H. Jamison, in the circuit court of Simpson county, against James Welch, to recover damages for the conversion of a negro man named Dick.

THIS cause came up on a writ of error from Warren county. The prisoner, Byrd, a free person of color, was indicted at the Warren circuit asan accessory to a slave named Daniel, in the murder of Joel Cameron. The indictment further charged, that said Daniel had been convicted at a previous term of the county court, and that said Byrd did counsel, hire and procure said slave Daniel to murder the deceased.

WILLIAM B. MINOR, and Elizabeth his wife, who was executrix of the last will and testament of Benjamin M. Bullen, deceased, on the 5th day of Aprjl, 1828, commenced an action of assumpsit, in the circuit court of Adams county, against Joseph E. Davis. The plaintiffs in the court below declared upon a physician’s bill, due to the intestate, Bullen, in the year 1820, in his lifetime.

IN the circuit court of Adams county, at May term, 1833, “ Margaret Biggs, by attorney, complained of James Berthe, in custody, &c. — of a plea, that he render unto her the sum of six hundred and ninety-nine dollars, which he owes to, and unjustly detains from her, for that whereas the said defendant, heretofore, to wit, on the 12th day of April, 1829, in Jefferson county, to wit, in the county aforesaid, made his certain writing obligatory, sealed with his seal, and now…

CALEB HOWELL for the use of William Stumps, commenced an action of debt in the circuit court of Wilkinson county, against H. Eggleston, administrator of Horatio N. Gildart, deceased, and complained of “ a plea, that he rendered unto him the sum of five thousand three hundred and forty-two dollars and sixty cents, which he unjustly detains from him; for that whereas, the said Horatio N. .Gildart in his lifetime, to wit, on the 18th day of February, in the year 1833, at the…

THIS was a suit by bill in the superior court of chancery, for the western_district, commenced by John and William Brooks, minors, under twenty-one years of age, by their next friend, Winston Gilmore against Samuel W. Lewis. Upon filing the bill process was issued, by which the defendant was enjoined and -restrained from further enforcing his execution on said bill, mentioned against the property therein described, until the further orders of the court.

SCIRE FUCMS in the circuit court of Adams county, by Sion G. Rowand to charge Horace Gridley as the special bail of Washington R. Griffin.

ACTION of assumpsit in the circuit court of Hinds county, by Suball Tillotson, against James S. Montgomery. The defendant below pleaded non assumpsit, and a special plea of the failure of consideration; upon both of wliich pleas there was issue to the country.

WILLIAM H. LANE, who sued for the use of John W. Maulding, recovered a judgment in the circuit court of the county of Warren, against Grey Vick, executor of the last will and testament of Willis B. Vick, deceased. After the rendition of the judgment, a bill was filed by the defendant at law in the court below, upon which an injunction was obtained to said judgment, which injunction was subsequently dissolved by the court upon bill and answer.

ACTION of debt in the circuit court of Claiborne county, by Abraham K. 'Shaefer, assignee of the coroner of said county, against William B. Minor et al, on a bail bond.

THIS was an action of assumpsit in the circuit court of Yazoo county, tried at April term, 1834.

THIS was an issue made up and tried at the November term of the Washington circuit court, 1832, before the Hon. Alexander Montgomery, between Cocks the plaintiff in an execution against Somax Brasher and Penrice, who claimed the cotton levied on by the sheriff as Brasher’s property.

THIS was an action of assumpsit at the Warren circuit court, November term, 1834, before the Hon. A. Montgomery, judge.

ON the 3d day of the April term of 1831, of the Hinds circuit court, Ship, as assignee of Noble, obtained a judgment by default against Thomas J. Smith, for 9308 dollars and costs; on the same day, in the same court, Smith and Pickett obtained a judgment by default, against Thomas J. Smith, for 508 dollars, 53 cents, and costs. Ship’s judgment, however, appeared as first entered on the minutes and docket of the court.

THIS was an indictment filed at the Wilkinson circuit court, in 1832, against James Shaffer, the defendant below, for the murder of Benjamin Turbeville. In forming the jury for the trial of the prisoner, the special venire was exhausted when eight jurors had been accepted by the prisoner; the court directed the sheriff to summon bystanders and call the names of the original venire to that term of the court. Four other jurors were then called and. accepted by the prisoner.

IN error from Hinds circuit court. A change of venue, was had in this cause and the trial took place in Hinds county. Byrd was indicted as an accessary to a slave named Daniel, for the murder of his master Cameron. The following assignment of errors by the plaintiff in error, together with the opinion of the court, contain a sufficient statement of the facts arising in the cause. 1.

THIS was an indictment in Warren county against Serpentine, for the murder of Dubois. It was tried before Judge Montgomery, and came-up on exceptions to the opinion below. The facts are sufficiently stated'in the opinion of this court.

IN error from the Hinds circuit court. This was an indictment against Damewood, for larceny of a pocket book and certain bank notes on the Planters Bank, the property of J. Caldwell. The facts are sufficiently explained by the assignment of errors, and the opinion of the court. The counsel for plaintiff in error made the following assignment of errors in the pleadings. 1.

THIS cause came up on appeal from the Franklin circuit court. The appellant, as administrator de bonis non, of Charles Pickett, sued out a scire facias against the appellees as executors of the last will and testament of William Pickett, deceased, to revive a judgment obtained by him against the defendant’s testator, to which the appellees demurred, and assigned the following special causes: 1.

<p>It is a tegular proceeding to Sue out a scire facias on a judgment, against an administrator, and obtain an award of execution de bonis propriis, by proving a devastavit.</p> <p>It will be error unless there is proof of a devastavit.</p> <p>The allegations of the scire facias are not of themselves sufficient to justify a final judgment by default.</p> <p>Scire facias against the executor, is in the nature of an original action against him, and he can make his defence by plea.</p> <p>In England, it is the practice to incorporate fieri facias, inquiry and scire facias in the same process against the executor or administrator.</p>

Caroline Mellon, administratrix, and J. Caldwell, administrator of William Mellon, sued out a scire facias against J. P. Gilbert and Eliza Breckenridge, administrator and administratrix of Meredith S. Breckenridge, which was duly served on Gilbert, but no return as to said Eliza. Judgment was rendered against them both individually, in the court below.

Houston and M’Murran, for Mrs. Mahon, excepted to certain credits which were allowed in administrator’s account by the probate court. The facts are sufficiently stated in the opinion of the court.

<p>When the promise to pay is independent of the covenant to make title, the vendor may maintain his action for the perchase money, without having executed a deed to the land, or offered to do so.</p>

<p>ERROR to Lownds circuit court.</p> <p>cited 1 Phil. Ev. 224. 226. 228; Starkie’s Rep. 78; 2 Com. Law Rep. 305; 15 Johns. Rep. 409; 2 Stewart, 298; 15 Johns. Rep. 422; 3 Gow. on Partnership, 69.71, 72; also, Walker’s Reports, 97, 98,99,and note; Johns. Rep. 252.</p> <p>cited 2 Johns. Rep. 300; 4 Johns. Rep. 250; 1 Johnson’s Cases, 171; 16 ib. 34; 19 ib. 154; Foote v. Sabin, 3 Wendell’s Rep. 415; Williams and Others v. Walbridge, 1 PhiLEv. 210, 211. Starkie’s Ev. 137, 135, 144, 145, sec. 28; also Part IV, page 1753; also Dana v. Tucker, 4 Johns. Rep. 486, 487.</p>

<p>APPEAL from the chancery court.</p>

IN error. This was an action on the case instituted by the plaintiff in error in Claiborne county, against the defendants, for the fraudulent sale and warranty of an unsound slave, named Amy.

This was a motion by Banks, against Cage and Stevens, as attorneys, to cause them to pay over certain moneys. It appeared by the'evidence, that Cage and Stevens, as the attorneys of Banks, obtained a judgment from him in his suit against Hudry for 1,182 dollars and five cents, on the 2d of February, 1825, in satisfaction of which execution, Cage and Stevens received certain notes and claims of said Hudry.

<p>THIS case came up on an appeal from the probate court of Franklin county.</p>

This suit was instituted by the judge of probate of Claiborne county, at the instance of Samuel D. Wells, one of the legatees, and only legal representative of William Wells, who sued for the use of Enloe, H. G. Johnston. Mildred Wells, who afterwards intermarried with Robert M’Donald, and Philip Alston, deceased were the joint obligors in the bond given by Mildred Wells, as executrix of the estate of William Wells.

<p>Charles K. Brown was stricken from the roll of attorneys and counsellers of this court for obliterating a record and antedating a writ to avoid the effect of the statute of limitations.</p> <p>The high court of errors and appeals has the power to strike the name of an individual from the roll of attorneys and counsellors, who has been guilty of unprofessional and criminal conduct in his profession.</p>

This was an action of assumpsit brought by plaintiffs as indor-sees of a promissory note executed by defendants and C. C. West, one of the plaintiffs, as “ security.” The defendants pleaded several pleas of the general issue, and the jury found a verdict for the plaintiffs.

<p>A, for a stipulated consideration, entered into a written agreement with B, to pay certain debts for B, mentioned in a schedule. B drew up the agreement, and schedule of debts, and inserted in the schedule two bank debts, which A had not contracted to pay; and in reading over the schedule to A, omitted to read the said bank debts. The sureties for one of the bank debts, having paid the same, filed their bill against A, to charge him as trustee.</p> <p>The court held the conduct of B to be fraudulent, and affirmed the decree of the chancellor dismissing complainants’ bill.</p> <p>A decree to account should not be made, unless an indebtedness appears.</p>

AN appeal from the circuit court of Claiborne county. Charlotte Hale, (a married woman Separated from her husband, who is still living So far as appears,) sued Thomas Berry in deti-nue for a negro boy named Joe, of the value (as the writ and declaration state) of 400 dollars, and recovered a judgment on a verdict for his value of 450 dollars, and damages 50 dollars.

THIS was an appeal from a decision of the court of probate of the county of Monroe. A motion was made in that court to revoke letters of administration de bonis non granted to Roberts, on the estate of William Martin, on the grounds that Roberts was not next of kin; and that at the time of granting the letters, Edmundson was surviving executor; having married the widow of Martin, and qualified under the will. The motion was overruled by the judge of probate.

THIS was an action instituted on a sheriff’s bond, in Franklin county, at the instance of M’Intyre, the former sheriff of said county, to recover fees of his successor in office. Upon the trial of the cause in the court below, the plaintiff offered in evidence the executions and bonds upon which money had been collected, to establish his fees, which testimony was ruled out by the court below, and an appeal taken to this court by the plaintiff.

<p>Where a cause was brought to hearing on bill and answer, without replication, and it not appearing to have been set down at the instance of the complainants: Held, there was no ground for taking the answer to be true to its full extent.</p> <p>The act of 1828 was intended to expedite proceedings in equity; and after answer or plea, either party may proceed to take depositions; and the cause is made triable at the succeeding term. When the cause is triable, either party may set it down for hearing. But if set down by the defendant, it is no reason for admitting his answer to be true.</p> <p>An ex parte affidavit is not admissible to prove an exhibit.</p> <p>It seems questionable, whether exhibits can be .proved in open court, and whether proof ought not to be made before an examiner.</p> <p>Where one of the co-defendants did not answer, a decree against him without taking the bill pro confesso was held to be irregular.</p> <p>When, in the progress of a suit in equity, a third person is found to be interested, he should be made a party to the suit.</p>

<p>In 1829 G. executed and published his will, in Alabama. He subsequently removed to Mississippi, and in 1831 duly executed a second will.</p> <p>A short time previous to his demise, G. expressed an intention of revoking' his last will, and applied to B. to write a new will. For this purpose G. handed to B. the will of 1831, in which there were interlineations and erasures, which G. pointed out, and objected to other provisions. G. declared to B. that he had “ done away that will,” and that the interlineations and erasures, were made by his directions. B. having made a memorandum of the additional alterations desired by G. received the will thus interlined and erased, as a guide for drafting another, which was never executed.</p> <p>During the interview G. expressed a desire to B., that if a new will should not be published, his will of 1829 should go into effect; the court held the .JKÍ11 of 1831 revokedjrbut that the circumstances were not a sufficient republication of the will of 1829.</p> <p>The revocation of a subsequent will does not ipso facto revive a former will, which has been expressly or impliedly revoked by the latter.</p> <p>When a will is revoked expressly or impliedly,.it is gone forever, and it requires some express and direct act to revive or adopt it.</p>

This suit was instituted on two writings obligatory given, with one other before paid, to secure payment of the purchase money of a lot in the town of Vicksburg. The defendant below pleaded two special pleas in bar. The pleas alleged, that the plaintiff below promised to make a good, unincumbered, indefeasible title, to said lot of ground. That the defendant had paid one of said notes, and had always been ready to pay the others, but that the plaintiff would not make titles.

This was an indictment in Wilkinson county, against Bryant, for practising medicine without a license from the board of medical censors, and came up to this court on a writ of error.

THIS cause came up on appeal from the chancery court. The facts are given in the opinion of the court. cited 2 Bridgeman, 617-18; 1 Johns. Chan. Rep. 582; 12 Johns. Rep. 276; 4 Ibid. 118-136; Johns. Ca. 205; 1 Johns. Chan. Rep. 23; 4 Ibid. 303; 6 Ves. 278; 6 Cranch, 148; 1 Wheat. 208; 2 Johns. Chan. Rep. 405; 15 Yes. 50; 1 Atk. 59; 2 Ibid. 71-148.

<p>APPEAL from the superior,court of chancery.</p>

The Mayor and Aldermen of the city of Vicksburg filed their bill in the court of chancery, to quiet their title to a lot of ground designated as Commons and Levee street on the recorded plat of said town, and to enjoin and restrain the appellants from prosecuting several actions of ejectment, pending in their favor against the complainants below, in the circuit court of Warren county, for the recovery of the same tract of land, which, from the upper to the lower end of the…

<p>The probate court has the unquestionable right to decide all probate matters; and whether its decisions be erroneous or correct, its judgments must be regarded as obligatory by every other court, unless reversed in due course of procedure.</p>

THIS was a suit by Lyons and Gilmore against Hamilton and one Williams as partners; process was issued to Madison county for Williams, which was not returned; but the writ was duly executed… Held: that a plaintiff cannot proceed against one defendant in a joint action, unless he has proceeded against the others, as far as the law will authorise; unless the law dispense with the necessity of proceeding against the other defendant beyond a certain point to force an appearance.

THIS action was brought by- the Natchez Steamboat Company against Calvin Smith, a stockholder, to recover certain in-stalments or requisitions made by the directors for a portion of the amount subscribed. In 1818, the company was organised, and the requisite amount of stock subscribed, of which the plaintiff in error took twenty shares.

<p>It must appear affirmatively on the record, that the jury to whom the issue was submitted were sworn, or it will be error.</p>

The complainants filed their bill in the chancery court to enjoin a judgment at law and for a specific performance of contract. The bill was dismissed and an appeal taken to this court. The facts are sufficiently stated in the opinion of the court below, delivered by Chancellor Quitman, which is given at length. Opinion of the Chancellor: — In 1810, Thomas L. Norris died leaving a widow Anne Norris and several children, and an estate considerably embarrassed.

This cause was tried before the Hon. Thomas A. Willig, at the September term of the Hinds circuit court, 1834. The plaintiff in error sued out avwrit of replevin, to recover a lot of cotton wliich had been wrongly distrained for rent. The writ was never executed, nor the property delivered to the claimant; but an issue was made up, and judgment rendered against the claimant, to twice the amount of the rent due.

Plaintiffs brought their suit in equity to aid a judgment at law. The debt on which judgment was had, was contracted by Joseph King. After his death Joseph King administered, and gave Henry Cassells and Agrippa Gayden as sureties. In 1817 the orphans’ court annulled the first bond, and directed a new one to be given, which was accordingly executed with David Lea and Richard Hurst as sureties.

THIS cause was tried before the Hon. A. M. Keegan at the November term of the Wilkinson circuit, 1S33. Moss sued Glass before a justice of the peace for 40 dollars. The defendant tendered a note of 70 dollars as an offset, which was ruled out by the magistrate and judgment given. The defendant then took an appeal to a jury, who confirmed the decision of the magistrate.

The defendant in error in 1834 brought suit against Stevens & Pillet as partners. The writ was duly served on Pillet, and on John Henderson as agent for Stevens.' The defendant, Pillet, pleaded in abatement, that the writ was not tested in the name of Cotesworth P. Smith, the presiding judge of the third judicial district, but in the name of C. P. Smith; to which plea plaintiff replied, and defendant demurred thereto.

This was an action of assumpsit instituted at the March term of the Hinds circuit court, 1835, by the Planters’ Bank against Pittman & Gwin, on a partnership note for 1000 dollars. The writ was executed on Pittman, but no service as to Gwin. Judgment was rendered against both defendants. This was an action of assumpsit brought by the President, Directors & Company of the Planters’Bank of Mississippi against • Pittman & Gwin as makers of a note for 1000 dollars.

This cause was tried before the Hon, John A. Quitman, at the July term of the chancery court, 1834, and complainant’s bill dismissed, from which decree an appeal was. taken to this court. The complainant filed her bill against the respondent, her husband, to recover possession of two slaves, and the proceeds of a note for 600 dollars, which she claimed in right of a marriage contract, with the defendant Kimball.

John P. M’Niel bequeathed to his brother three-eighths of his: estate in the following language: “ I bequeath and give to my brother, Malcolm M’Niel, of Christian county, Kentucky, three-eighths of all my estate.” Malcolm M’Niel petitioned the probate court of Adams county for an order upon the appellants as executors, to pay over to him three-eighths of the whole estate of their testator; which the appellants resisted on the ground that the petitioner was entitled to only…

'THIS cause was tried before the Hon. James Walker, at the May term of the Wilkinson circuit court, 1836. It was a suit by Farrislrs administrators on-a medical account for 455 dollars, due from defendant’s testator in 1832. A plea of payment was relied on by defendant, and an offset proved of the sale of a negro woman sold by defendant’s testator to plaintiff’s intestate in 1832. The value of said slave was not-proved on the' trial.

<p>APPEAL from the Warren circuit court.</p>

On the part of the defendant it was alleged, that the defendant in error brought an action of trespass in the court below against the plaintiffs in error, for seizing, taking and conveying away certain goods, wares and merchandise of the plaintiffs below, with force and arms. The plaintiffs in error pleaded two pleas. 1.

The appellants filed their bill in equity, as the heirs of Jacob Cable, to recover a number of slaves. The defendants answered the bill, which was dismissed on the hearing by the chancellor, and an appeal taken to this court. The facts are sufficiently stated in the opinion of the court.

<p>By the statute of this state, husband or wife and distributees have, a legal right to administer; but as regards others, appointment is a matter within the sound discretion of the probate court.</p>

<p>An attachment creditor cannot coerce payment of a garnishee, without first executing a bond, in pursuance of the provisions of the statute. Revised Code, 167. And if the garnishee pays money without such bond, it will be regarded as a mere voluntary payment.</p> <p>Where the defendant pleaded in bar, payment of the demand on a garnishment, and issue joined by the plaintiff, it was held, only an admission that the matter is well pleaded in bar, and that the plaintiff could require proof of the material facts pleaded.</p>

<p>The bill of exceptions must show affirmatively, that the exception was taken pending- the trial, and if it does not so appear, the error will be fatal.</p>

<p>By express statutory provision a writ is abateable for certain defects on plea of the defendant, and oyer is not necessary to entitle him to plead.</p> <p>A variance between the writ and declaration may be taken advantage of by demurrer, as well as by plea in abatement.</p>

<p>ERROR to the Hinds circuit court.</p> <p>This cause was tried at the March Term of the Hinds circuit court, 1834, before the Hon. Edward C. Wilkinson.</p> <p>cited 1 Starkie on Ev. 355; 2 Ibid. 135; 3 Common Law Reports, 383.</p>

<p>ERROR to Warren county.</p>

<p>THIS was an appeal from the circuit court of Wilkinson county.</p>

Lloyd filed his bill in equity to enjoin a judgment obtained against him by appellant, as the administrator of George Barnes, in the Copiah circuit court, at the September term, 1832, for 1765 dollars 77 cents. It appeared by the bill, answer and proofs, that the note, which was the foundation of the judgment at law, was for the delivery of 59S1 pounds of cotton, being the consideration of 500 acres of land, which was alleged to be deficient in quantity.

This was an action of ejectment brought for the recovery of 240 acres of land, and tried in IS32, at the February term of the Adams circuit court, before the Hon. Henry Cage. The cause is sufficiently stated in the opinion of the court.

This action was instituted by the plaintiff below against the defendant, on a note of hand for 228 dollars. The defendant filed his bill of disco very at law, and alleged that, some time in 1827, he bought of the plaintiff a negro man named Arthur, for which he executed his note for the sum of 650 dollars, payable in January, 1828, with interest.