Volume 2 — Mississippi Decisions

W. S. Dodson being indebted to J. W. Iloman executed his note to him for $2,500, dated April 4, 1877, due twelve months after date; he gave a mortgage on certain lands in Jackson county, signed by himself and wife to secure it.

J. H. Field recovered a judgment in a justice of the peace court against Pat Garrett on May 21, 1818, and on the same day had execution issued on it an'd placed in the hands of the sheriff. The same clay, May, 21, Garrett sold and delivered a mule to appellants, Pope & McGehee. On tlie 25tli of tlie same month the sheriff levied Field’s execution on the mule and it was claimed by Pope & McGehee, who interposed their claim.

Appellants, Lee Burcb and Charlie Holbrook, were convicted in the Circuit Court of Noxubee county of grand larceny and sentenced to the penitentiary, and appeal. The opinion of the court states the facts. Appealed from Circuit Court, Noxubee county, Jas. M. Arnold, Judge. It was incumbent on the State to show a felonious taking. Larceny means theft — to steal, to take by stealth.

One Jack Johnson, a merchant at Holly Springs, Mississippi, made a general assignment for the benefit of his creditors, with some preferences to A. J. Wooten, assignee.

J. P. Pratt died'in July, 1879, teátate. J. 3VI. Held: rightly perhaps, that the executor must have had actual notice that constructive notice would not do. He erred, we think, in holding that the knowledge obtained from the invoice book of Pratt imparted to the executor only constructive notice. This subject is discussed in extenso by Hr. Wade in his recent work on Notice.

J. H. Walker and J. W. Ivey were partners in a mercantile business, baving a stock of goods estimated at $2,200. They owed some debts and had some debts due them. The firm owed Ivey about $6,000. On March 6, 1876, the stock of goods was sold to one Morgan. The evidence showed that a few days before the sale to Morgan he proposed to Ivey to trade for the stocks of goods if Ivey or the firm would take a tract of land at a price named by him.

Chas. Oruzat executed his promissory note to Smith Bros. .& Co. for $1,000 and secured it by giving a deed of trust on some property in Scranton, Miss. After this, some of Cruzat’s creditors attached him and secured judgments against him, and the property on which he had given the deed of trust to Smith Bros. & Co. was levied on and sold under execution. Stephen B. Thompson, a citizen of the State of Mississippi, bought the property.

Appellants were the owners of a number of bales of cotton which they had purchased for the purpose of re-sale, hut which were produced in this State. This cotton was regularly and legally assessed for taxes in the year 1881. The appellants filed their petition to the Board of Supervisors of Amite county, where the cotton was located, to correct the assessment roll by striking that item from it.

Dr. M. O’Reilly died in 1866 testate. J. R. Powell, appellee, was named as executor of tlie will, and he qualified as such and entered upon the duties of the office. St. Mary’s Orphan Asylum, of Natchez, was made the residuary legatee. The executor, after making a number of annual accounts, filed his. final account, showing an indebtedness to himself from the estate of $333.27.

Nimrod Hughes was convicted, in the Circuit Court of Noxubee county, of grand larceny and sentenced to the penitentiary for two years, and appeals. On the trial Hiram Webb testified that he had a hog stolen from him in the latter part of December, 1880, and he lived about a half-mile from Nimrod Hughes, and the hog stayed around where Nimrod lived; that it was a pet pig and easily caught and was worth about $2.

Bill in chancery by appellant against complainants. From a decree dismissing his bill complainant appeals. Held: in Moore v. Olayton, 13 S. & M. 380, that the mortgage, though but a collateral security, is the foundation on which the Chancery Court gets its jurisdiction, and that the relief is to be given on it and not on the note. That the note is only evidence of the debt, thus much for the pro confesso and its legal effect.

Appellant, Baker, filed the bill in this case in the Chancery Court of Holmes county against appellee and all others claiming or having any legal or equitable claim to the lands described in his bill to confirm liis title to said lands. Erom a decree refusing to confirm his title, but giving him a lien for taxes he had paid, he appeals.

Appellant, Millie Ratliff, was convicted of murder and sentenced to tbe penitentiary for life, and appeals. Tbe opinion of tbe court contains a full statement of tbe facts. Appealed from Circuit Court, Lee county, James A. Creen, J udge. I am clearly of tbe opinion tbat tbe verdict of tbe jury was not justified by tbe evidence. I know tbe rule of law on tbis subject, and speak advisedly wben I assert tbat tbe evidence is not sufficient to sustain tbe verdict.

L. Fox was a merchant at Durant, Miss., and he executed a deed of trust on his stock of goods to Willi am Shields, trustee, for the benefit of Bamberger, Bloom & Co., on December 31, 1878, to secure a debt he owed them of $3,976.53.

I. Sheppard and Henry Barger formed a partnership in 1875 to engage in the mercantile business in Lexington, Miss. They continued in business for several months, and Sheppard died testate, naming W. F. Cross and D. N. Foose as his executors. Under the partnership agreement, Sheppard furnished the capital and Barger managed tbe business. He bad some dealings witb M. Levy & Co. for tbe firm, and bad also an individual account witb them.

Ejectment by appellants against appellees to recover certain lands described in his declaration. Erom a verdict and judgment for defendant, plaintiffs appeal. Plaintiffs claimed the land as the children and only heirs of John McInnis.

Suit by appellant, Cox, against the. Board of Supervisors of Lincoln county. From a judgment sustaining a demurrer to his declaration and dismissing his suit plaintiff appeals. The facts are stated in the opinion of the court. Appealed from Circuit Court, Lincoln county, J. B. Chris - man, Judge. The only question in this case arises on the action of the court in sustaining defendant’s demurrer to the declaration.

Suit by appellant against appellee to recover the sum of $4,500, balance due plaintiff on a contract to build part of its railroad. Prom an order sustaining a demurrer to his declaration plaintiff appeals.

Tlie board of supervisors entered into a contract witb T. B. Turner, W. IT. Bounds and J. A. Jenkins in i860 to build a courthouse and repair the jail, and at the October term, 1866, levied a tax to pay for same. After the completion of the work the board of supervisors issued to the said contractors warrants of the county to the amount of $29,650.

Attachment for rent by appellee against her tenant. Appellant made affidavit of his interest in the property attached before a magistrate, who issued a writ of seizure under the provisions of the Act of March 17, 3 876, in reference to agricultural liens. On motion of appellee, the proceedings were dismissed in the magistrate’s court, and it was also dismissed in motion in the Circuit Court. From that judgment this appeal was taken.

Appellant, Robertson, secured a judgment against appellee, Mrs. C. A. Duncan, who was a married woman, and had it levied on her separate property. She filed a bill to enjoin the sale under the execution. The injunction was dissolved on motion of appellant and appellee appealed to tbe Supreme Court, where the cause was affirmed.

Thomas O. Pollock, surviving executor of the will of one Calcóte, filed the bill in this case in the Chancery Court of Copiah county, against A. M. and B. W. Buie, executors of Neil Buie, and J. M. Buie, administrator of Daniel Buie’s estate, deceased, one of tbe sureties on tbe bond of tbe said executors and tbe heirs at law of David Buie, another surety.

Mrs. Mary B. Pbelps and ber husband filed the bill in this case in the Chancery Court of Washington county in November, 1880, against Mrs. H. J. Harris and her husband, G. O. Harris, and W. E. Hunt, the administrator of the estate of Henry G. Vick, in which, they allege that said Henry Gr.

Appellees, widow and children of Freeman Jones, deceased, filed the bill in this case against Harriet Gurlie and the other appellees in the Chancery Court of Jackson county, in which they alleg’e that Harriet Gurlie, in January, 1878, gave Freeman Jones a bond for title to the following described land in Jackson county: “A certain lot of land in said county described as follows, to wit: Lot No. 1 on the east side and fronting the public road from Bandall’s store to Scranton,…

Ejectment by appellant against appellee to recover certain lands described in his declaration. Erom a verdict and judgment for the defendant, plaintiff appeals.

On the 21st day of February, 1857, Mrs. M. S. Clark and her husband, Robert Clark, executed their joint promissory note to the trustees of Jefferson College for $2,000, payable twelve months after date. To secure its payment they executed a deed of trust ■on land belonging to Mrs. Clark, one Oren Metcalf being the trustee. The deed of trust contained the usual power of sale in the trustee upon default.

Action by appellee against appellant to recover damages for trespass by cutting timber. From a verdict and judgment for plaintiff defendant appeals. Tbe opinion of tbe court states tbe facts. Appealed from Circuit Court, Jacksou couuty, J. S. Hamm, Judge. Tbe plaintiff in tbis action must prove actual exclusive possession of tbe land, or title to tbe same with right of possession under bis title.

The bill of complaint in this case was filed by Moses E. Mitchell, Nancy L. Watts, and Yan B. AYatts, her husband, and Everett J. Mitchell, and AY. N. Mitchell, adults, and the following named infants, through Everett J. Mitchell, next friend, to wit: James C. J. A. and M. L. Mitchell, and alleges that the infants have no legal guardian.

Calvin Douglas was convicted of murder in tbe Circuit Court of Adams county and sentenced to tbe penitentiary for life, and appeals. Tbe facts are sufficiently stated in the opinion of the court. Appealed from Circuit Court, Adams county, Ralpi-i North, Judge. The plaintiff in error was indicted for murder and tried and convicted of that offense at the June term, 1880, of the Circuit Court of Adams county, and sentenced to the penitentiary for life.

Appellant Moore was tried and convicted in tbe Circuit Court of Hinds county of poisoning a spring and sentenced to tbe penitentiary, and appeals.

On tlie 8th. day of November, 18Y 9, F. Anspaeh sued out a writ of attachment against the Life Association of America, a foreign corporation, domiciled in St. Louis, 3VIo., and on the same day a writ of garnishment was served on A. J. Frantz; no property was seized, and Frantz did not answer.

Ejectment by appellants against appellee to recover certain lands described in tbe declaration. From verdict and judgment for defendant, plaintiff appeals. D. N. Harris died in February, 1858, testate.

Bill in chancery by appellant against appellee to enjoin the sale of certain lands, described in the bill, under an execution issued under a judgment in favor of appellee. Brom a decree dismissing his bill complainant appeals. The opinion of the court contains a statement of the facts. Appealed from the Chancery Court, Jefferson county, TI.

Apellee, Ross, filed this bill in the Chancery Court of Marshall county against W. A. Roberts and Thomas Winborn to enjoin the prosecution of an action of ejectment then commenced in the Circuit Court by Roberts to recover possession of certain land described in the bill., From a decree overruling a demurrer to the bill and amended bill, defendants appeal. the bill alleges that complainant was the sole surviving beir of W. TI.

<p>Appellant Shaw owed Appellee Stribling $371, which was secured by a deed of trust on land in Itawamba county. In order to pay this indebtedness, Shaw sold the land to Asa Wallace for $550, and, by agreement with Stribling, had Asa Wallace, with J. D. and W. W. Wallace as sureties, to execute his note to Stribling, in consideration of wbicb Stribling was to surrender tbe note for $371 to Sbaw, and execute bis own note to Sbaw for tbe balance of tbe purchase money from Wallace. Sbaw executed tbe deed to tbe land to Asa Wallace, and received from Stribling tbe note to bim for $371, but, instead of Stribling giving bis own note for tbe balance absolutely, be executed a writing, promising to pay Sbaw tbe balance wben Wallace should pay bim off. Sbaw, being an ignorant man and unable to read or write, took this note on tbe statement from Stribling that it was bis individual note. Sbaw filed tbe bill in this case, setting up these facts, and alleging that tbe land note bad been paid off by Asa Wallace; that tbe contract, delivered to bim was fraudulently represented to bim as being tbe individual note of S. K. Stribling to pay at all events, and that be would not have accepted it if be bad known its true character. ITe prayed for a decree reforming the agreement and its enforcement. A demurrer to this bill was sustained, and complainant appeals.</p> <p>Appealed from Chancery Court, Itawamba county, L. Haughton, Chancellor.</p> <p>The bill certainly presents a case that appeals directly and forcibly to the equitable interposition of a Court of Chancery. The prayer of the bill is inartificially drawn, and doubtless misled the learned chancellor, but, under the general prayer for relief, if the bill shows on its face an equity, the court will overlook any special prayer inconsistent with the relief necessary, which the draftsman, in his misconception of the case, might have made, and grant such relief as' is proper and equitable. The writing which, by appellee, was fraudulently substituted for his individual obligation, should be so reformed as to make it contain the contract between these parties. This principle, as well as the practice in enforcing and applying it, is well settled in our State— that a Court of Chancery will interpose to reform contracts in all cases “where, through fraud, mistake, or accident, the writing has not been made to speak the agreement of the parties.” This is a case of fraud. 1 Story’s Equity Jurisprudence, §§ 152, 153, 154; Simmons et al. v. North et al., 3 S. & M. 67; Pegues v. Mosby et al., 7 S. & M. 340; Dunbar et al. v. Newman, 46 Miss. 231; Phoenix Ins. Co. v. Hoffheimer, 46 Miss. 646; Willis v. Gattman, 53 Miss. 721; Cummings v. Steele, 54 Miss. 648.</p> <p>The contract, when reformed, should, be enforced by a specific performance of it. That appellee should be compelled to execute his note for the balance due appellant on the land, with interest from the date of the contract, September 6, 1875, up to date of performance. 2 Story’s Eq., §§ 742,- 751, 768, 769, 770 A, note 3; Daniel v. Erazer, 40 Miss. 507; Phoenix Ins. Oo. v. Hoffheimer, 46 Miss. 654; Mosby et al., v. Wall et al., 23 Miss. 81; Carson v. Percy et al., 57 Miss. 97.</p> <p>The remedy is not at law, inasmuch as we could not have proved a contract fastening liability upon appellee, different from the written contract, which we seek to have reformed and enforced. Parol testimony would have been inadmissible. 1 Green-leaf’s evidence; Pegues v. Mosby et al., 7 S. & M. 340.</p> <p>The court, having taken jurisdiction of the case to reform the contract and enforce a specific performance of it, can grant full and complete relief and render a personal decree. In the case of Phoenix Ins. Oo. v. Hoffheimer, the contract was reformed on the ground of accident or mistake, the word “agent” having been omitted in the policy, and the court rendered a personal decree for the amount of complainant’s demand, with interest.</p> <p>This is a stronger case, inasmuch as we seek a reformation and specific performance of the contract on the ground of fraud. Again, if the contract is reformed, what question of fact could possibly arise that would require the decision of a jury ? 1 Storyjs Equity, §§ 64 K, 68, 72.</p> <p>The demurrer should have been overruled and appellant permitted to amend his bill.</p> <p>The facts stated in the bill, and admitted by the demurrer, present a good cause of action at law. Stribling, in consideration of Shaw’s sale of land to Wallace, and the latter’s payment of the purchase money to him, was to cancel the debt and mortgage, which Shaw had given him, and give Shaw his note for $172, the estimated difference between the value of the land and the face of the mortgage debt. Shaw conveyed to Wallace, who gave Stribling his note, secured by a trust deed on the land, for the purchase price, and Stribling cancelled his mortgage and gave Shaw his acknowledgment ■ for $152, payable after Wallace should pay him! The italicized words show the alleged mistake in executing the contract, which is sought to be re-executed by the bill. The bill alleges that Wallace has paid Stribling in full. It follows that Shaw can sue Stribling in assumpsit, either on the original contract or on the acknowledgment. In the most unfavorable light for the appellee, the case is that he agreed to execute his note, and has not done so. He has, however, given a written acknowledgment of the debt, and there is no obstacle to the plaintiff’s recovery at law. It is not alleged that Stribling is insolvent or unable to respond in damages. Allegations as to usurious interest, etc., which Stribling has charged Wallace, have no bearing on the case, which presents the simple question whether the Chancery Court will compel one, who acknowledges the debt, to execute a promissory note upon the ground that he agreed to make such a note. When executed, the note is nothing but a promise to pay the debt, and Stribling’s original contract is such a promise. No lien is reserved on the land, and the personal decree of the Chancery Court will be no better than the judgment of the Circuit Court. Shaw’s claim is inequitable. The land is worth $200, for which sum it has since been sold. Shaw owed Stribling $3Yl. It is evident that it was a very hard bargain for Stribling.</p> <p>The variance between the way in which the contract was executed and the way in which it was agreed to be executed — between the contract and the execution thereof — is immaterial. The plaintiff has all the substantial benefits agreed to be given, and has a right of action at law, which is all the note would confer. Story Eq. Jur., § 151.</p> <p>If, after reforming the contract, it will < be so inequitable that equity will not decree its specific performance, its reformation will not be decreed. Story Eq. Jur., § 161.</p> <p>The making of a note is immaterial. Its absence does not affect the plaintiff’s remedy at law. It is a mere evidence of the debt. Unlike a mortgage, or insurance policy, or deed, it has no effect but to evidence a debt, which the defendant already acknowledges and promises to' pay. ' A suit on the oral promise admitted is as good as one on the note.</p> <p>The debt is due, the right of action has accrued, and a suit at law can be maintained for the money. A bill will not lie to compel the execution of a simple note to evidence a debt which is already due, and to recover which a suit can be maintained. No case, I think, can be found in which such a useless decree has been made. An oral promise to pay money is as binding as a written one, and is easily sued on at law.</p> <p>If it was an investment note, to run a long time, tbe necessity of perpetuating tbe evidence might be a ground for granting tbe relief; but this bill asks an execution of tbe note, and an immediate enforcement of tbe payment thereof. This debt is due, and tbe remedy at law for its collection is unembarrassed, and would not be improved by tbe execution of a note.</p>

On June 17, 3 862, Jonathan and Mary, D. Smith conveyed, by deed, a certain tract of land in Hinds county to Mary A. Smith, wife of Lemuel H. Smith, “and the heirs of her body begotten by the said… Held: unless in that case, to hold otherwise would be incompatible with the face of the deed or will. It has been so held in cases like these, which I wish to develop distinctly, as I shall hereafter have nse for the principles in reviewing Mississippi decisions.

Suit by appellee, Warrick, against appellee, Mrs. E. M. Anderson, for damages for breach of a contract. Erom a verdict and judgment for plaintiff for $1,105.85 defendant appeals. On February 9, 1881, Mrs. E. M. Anderson made a contract, in writing, with D. O. Warrick to manage and control her plantation, and for his services agreed to give him the use of one hundred acres of land and tbe dwelling bonse on tbe place. Tbe contract was for five years.

J. H. Gilliland was sheriff of Attala county in 1881, and appellee, Wade Harvey, was his deputy. The sheriff collected the taxes and loaned to Harvey $1,040 of that money. This money was never accounted for by the sheriff. This suit is brought by Wirt Adams, State revenue agent, against Wade Harvey to collect this money. The trial resulted in a verdict and judgment for the defendant. Plaintiff appeals.

Mrs. E. S. MoDougal filed ber bill in the Chancery Court of Lauderdale county against the Peoples Savings Bank of Meridian and Joel P. Walker, in which she avers that she is a married woman, owning certain property in Meridian, and had conveyecl it, by trust deed, with power of sale, to J. P. Walker, trustee, to secure a certain promissory note for $445, payable to the Peoples Savings Bank, the consideration of which was money loaned by said bank to her husband; that the…

Replevin by appellee against appellant to' recover jiossession of a mule. From verdict and judgment for plaintiff, defendant appeals. Held: if only as bailable, his claim was good as against Heard or his trustee. The most that can be said on the facts of the case must still leave the questions as open and the evidence as conflicting, thus leaving it for the jury to decide.

J. J. Montgomery, under a decree of the Chancery Court of Bolivar county in favor of J. E. Heard, sold the lands of the defendants therein… Held: against a great array of authorities to the contrary, that money collected on execution was liable to be garnished in an attachment while in the hands of a constable or sheriff, prior to the return day of the execution, but the reasoning upon which that conclusion was ar-' rived at has no application to the case of a commissioner…

Appellant, J. C. Clark, superintendent of education of Attalla county, secured a judgment against J. ,T. Durham, D. L. Smythe, and N. Thomas, and had execution levied on some land belonging to N. Thomas, and sold. Mrs. R. E. Tims, who was the assignee of an older judgment against Clark, was present at the sale and bought the land at the sale, with the understanding that she would pay the judgment in favor of appellant.

Ejectment by appellee against appellants to recover possession of certain land described in his declaration. Erom verdict and judgment for plaintiff, defendants appeal. Held: that an absolute power of disposal was given to the widow. Atty. Geni. v. Hall, Fitz. 114; Jackson v. Bull, 19 Johns. 20; Pamsell v. Pamsell, 21 Miss. 280.

Bill iii chancery by appellee against appellant for the sale of a lot described in the bill for partition of the proceeds. From a decree, granting the relief sought, defendant appeals. Complainant, E. J. Bowers, filed the bill in this case against Bachel Graves, praying for the sale of a lot in Canton, Miss., for partition of the proceeds, claiming to be the owner of an undivided half interest in the land.

Appellee, Radford, filed tbe bill in tbis case in tbe Chancery Court of Lauderdale county, against appellant, alleging that be bad a verbal agreement with J. J. Shannon, tbe owner, to 'purchase tbe land described in bis bill, on November 1, 1879, for $200.

Suit by appellee, TIart, against the appellant, the Chicago, St. Louis & New Orleans R. E. Co., to recover damages for the negligent killing of one yoke of oxen. From a verdict and judgment for plaintiff for the value of the oxen, and an additional amount of $15 for the attorney’s fee paid by plaintiff in the prosecution of the claim, defendant appeals. Appealed from Circuit Court, Holmes county, C. H. Campbell, Judge.

Ejectment by appellee, Mrs. E. O. Ross, against appellants, to recover possession of the lands in Claiborn county, described in the declaration. From verdict and judgment for defendants, plaintiff appeals. It appears from the evidence and the admitted facts that Adam Gordon died in 1836, leaving a last will and testament.

Bill ill chancery by appellants, against appellees to subject certain lands described in the bill to the payment of their debts.

The original bill in tbis case was filed by P. J. Nevin, against J. Ii. Sutton. It charges that the land in controversy was purchased from the United States, in 1859, by Mrs. Catherine Leían d, and she conveyed it to complainant in 1881; that Sutton asserts title and claim to the land under two tax titles, one-half of tlie land in each; that part of tbe land was sold to tbe State under tbe Abatement Act, in May, 1875, and the State sold it to Sutton in 1876.

ApjDellee owned several lots in Biloxi, Miss., encumbered by two mortgages, one for $2,000 and another for $1,000 in favor of B. Amare. Held: under a formal decree, that the evidence touching said note was not relevant to the issue, but must be made as a cross-bill and set.np as new matter; that a party cannot set np the defense to the bill, by answer, that the money claimed as annuity bad been paid before the bill was filed (the very issue in the case), but must be set up…

Ad execution was issued by a justice of tbe peace on a judgment in favor of appellant against appellee. The execution was for $84.30, and it recites that tbe judgment was rendered January 13, 1875. It was issued January 20, 1881, and was made returnable February 1, 1881. ■ Tbe sheriff levied it on some land and made bis return.

. In October, 1875, A. M. Buie and B. W. Buie, executors of tbe will of tbeir father, Neil Buie, also legatees, filed a petition in the Chancery Court of Copiah county, making the heirs and (Jevisees of the will parties defendant.

Unlawful entry and detainer by appellee, Moore, against appellant, Bradford. Prom verdict and judgment for plaintiff, defendant appeals. On the trial the plaintiff introduced his deed to the land, which was a tax deed, showing sale for taxes, April 28, 1881, for the taxes of 1880; defendant objected to the introduction of the deed. Plaintiff then rested. Defendant introduced the assessment roll of 1879, which showed that the land was assessed to the State, and rested.

Suit in the Circuit Court of Hancock county by appellee, Mitchell, against appellant, Slaydon, for slander. Prom a verdict and judgment for plaintiff for $50, defendant appeals. The facts are sufficiently stated in the- opinion of the court. Appealed from Circuit Court, Hancock county, J. L. Hamm, Judge. In the court below, Mitchell, appellee, sued Slaydon, appellant, in action for oral slander.

Mrs. F. M. Currier died testate in 1877, naming J. D. Stewart as executor of her will. Stewart filed his final account and 'asked to be discharged as executor; all the distributees of tbe estate were, made parties and summoned to show cause why bis final account should not be allowed and he be discharged.

Appellant, Jack Seal, was indicted in tbe Circuit Court of Hancock county for slandering one .Adeline Whitfield. He was charged in tbe indictment with having of and to said Adeline 'Whitfield said: “Yon are a damnec| lying bitch.” He pleaded a former conviction in °a justice of the peace court of the same offense and the payment of ‘a fine.

The mayor and board of aldermen of Brookhaven brought this suit against Lawrence county to recover taxes collected from the inhabitants in the town of Brookhaven, in 1869, while Brook-haven was a part of Lawrence county, for the support of paupers. A list of the persons from whom the taxes was collected was filed with the original declaration and made an exhibit to the declaration and this declaration by averment made this list a part of tbe declaration.

Appellant, Pfeifer, filed bis bill in the Chancery Court of Lincoln county against appellees, who were legatees under the last will and testament of Bartlett Smith, deceased, in which he seeks to subject lands devised to defendants to the payment of a debt to him contracted with him by the executor of Smith’s will after the death of the testator. The will was made an exhibit to the bill.

Bill in chancery, by Jeíñe E. Davis, against John Morgan, to set aside and cancel a tax title held by defendant to certain lands described in the bill. Erom a decree for complainant, defendant appeals. The complainant, Jeffie E. Davis, owned the land in controversy, and it was sold by the sheriff of Chickasaw county on the 1st day of February, 1875, for the taxes of 1874, and knocked off to the State.

Bill in chancery by appellant, Bramlett, against The Southern Mutual Aid Association, a matrimonial mutual insurance company. From a decree dissolving his injunction complainant appeals. Affirmed.

Distress for rent by J. J. Stookard against J. W. Eckford and W. A. King. From a verdict and judgment for defendant, Eckford, plaintiff, appeals. Ill 1878, appellant, Stockard, rented bis plantation in Olay county, Mississippi, to W. A. King for twenty bales of cotton, King executing Ms note tberefor on January 1, 1878. In October, 1878, King and Stockard made a verbal agreement for King to rent tbe place for the year 1879 on the same terms.

The charter of the town of Verona, a municipal corporation, conferred on the mayor and councilmen the power to “fix the license on all merchants, trades, professions, and callings in said town.” Appellant, Moneghan, obtained a license from the State to sell vinous and spirituous liquors by the pint in the town of Verona, lie paid the privilege tax fixed by law to the State, which was $100.

• Suit by appellant, William H. Olopton, against appellees, to recover damages for wrongfully suing out a writ of injunction against Mm. Defendants’ demurrer to plaintiff’s declaration was sustained, and plaintiff appeals. The facts are sufficiently stated in the opinion of the court. Appealed from Circuit Court, Monroe county, J. A. Green, Judge.

Appellant, Blumer, instituted an action of unlawful entry and detainer against appellee, Tena Jones, to recover possession of certain land and improvements in Jackson county. Tena Jones filed tbe bill in tbis case in tbe Obancery Court of said county to enjoin tbe prosecution of said suit. Blumer made a motion to dissolve tbe injunction, which has been granted. Tbe motion was beard in vacation and was overruled.

Appellee, Mrs. Barbara A. Vail, filed her bill in. the Chancery Court of Noxubee county against appellant, in which she charges that Bush owned a large tract of land in Noxubee county and sold it to Henry Vail, complainant’s husband, for $14,500, and took a deed of trust on the land and crops for a number of years, and a large amount of personal property, to secure the payment of the money; that complainant had a separate estate, some land in Alabama, which she sold to one…

E. G. Mohler sued out a distress warrant for rent against Alfred Pacely, under section 1620 of tbe Code of 1871, and it was levied oh property oh tbe leased premises. Pacely gave bond under section 1621 of said Code.

In 1875 E. O. Young sold a tract of land in Attalla county to Mrs. J. A. Eullex, wbo was a married woman, and sbe and ber husband executed a note for part of the purchase money for $780 to Young, and a vendor’s lien’was reserved on the land sold to secure same. The note was afterwards assigned to J. T. Oatron and part of it was paid.

C. H. Williams filed bis petition in tbe Chancery Court of Lauderdale county for tbe probate, in tbe common form, of tbe last will and testament of bis son, Dr. Tbomas E. Williams, wbo died in said county in September, 1880.

J. G. Conwill, as administrator of tlie estate of George Schumpert, filed in tbe Probate Court of Itawamba county his final account at the February term, 1866.

<p>On the 27th day of July, 1868, J. G. Oonwill, administrator of the estate of J. J. Livingston, filed his final account as such, and on the 18th of August thereafter citation Avas served on J ames B. Livingston and M. L. Livingston, the heirs at law of the deceased, who were minors, returnable August 4, 1868, a regular term of tbe Probate Court of Itawamba county. Tbe account was at that term of tbe court allowed, approved and confirmed and tbe administrator discharged.</p> <p>Joseph G. Conwill died in July, 1879, and in August following appellants, W. J. and J. P. Conwill, were granted letters of executorship on his estate by the Chancery Court of Itawamba county.</p> <p>In February, 1880, James B. Livingston and M. L. Livingston filed the petition in this case, praying that said, executors of J. G. Conwill be required to make a final settlement of the estate of J. J. Livingston. The executors answered the petition, • setting up the final account and the decree confirming same and discharging the administrator. At the April, 1880, term of the Chancery Court of said county the cause was heard on bill, answer and proof. A decree was rendered, requiring the said executors to make a final settlement for their testator in the estate of J. J. Livingston. From that decree.they appeal.</p> <p>Appealed from Chancery Court, Itawamba county, L. IIauoi-jton, Chancellor.</p> <p>If the decree of the Probate Court, made in 1S68, allowing the final account of J. G. Conwill, as administrator of the estate of J. I. Livingston, deceased, and discharging said administrator, be not voi d, it cannot be vacated or disregarded at a subsequent term. It is final and valid for all purposes unless reversed by the Supreme Court or attacked by bill of review.</p> <p>If the court rendering the decree had jurisdiction of the subject matter and of the person, its decree, however' erroneous, is not void. Wall v. Wall, 6 C. 413.</p> <p>That the Probate Court, at the time of rendering the decree allowing the final account and discharging the administrator, had jurisdiction of the subject matter, will not be questioned, and, the proceeding being under the Probate Court law of 1857, the defendants being minors, the court, by virtue of the statute, had jurisdiction of their persons and was the guardian and protector of their interests. Burrus v. Burrus, 56 Miss. 94.</p> <p>The record does not show the appointment of a guardian ad litem for the minors, and while the rendition of the decree without such appointment may have been an error for which the Supreme Court would have reversed it on appeal, yet such omission in no wise affects the jurisdiction of the court, and, at most, amounts only to an erroneous judgment. Smith et ux. v. Bradley et ux., 6 S. & M. 490.</p> <p>The appointment of a guardian ad litem is only for the purpose of an appearance; failure to appear cannot render void a decree of a court of competent jurisdiction.</p> <p>The Chancery Court could not in this manner vacate and annul the final decree of the Probate Court. Such final decree can only be vacated by the Supreme Court on appeal, and, unless so vacated .or attacked by a bill of review, remains conclusive. Hendrick v. Pugh, 57 Miss. 162.</p> <p>The appellants, by answer, set up this decree of the Probate Court of August, 1868, as a discharge of their testator from his trust. Before courts can render a valid judgment or decree, they must obtain jurisdiction of the person as well as of the subject matter. Bid the court which rendered this decree obtain jurisdiction over the persons of these minors ? Were they ever properly represented in court ? Unless counsel has intended to argue that the Probate Court could render a valid decree against these minors without either citing them to appear, or without their being represented by a guardian, I am at a loss to apprehend his position, and yet such a position certainly would not be urged before a court of such learning.</p> <p>If we take either construction of the Probate Court system, as expounded in Burrus v. Burrus, to be correct, and apply to the case at bar, the same result will be reached. Let us apply each construction of this law, as found in the opinion and dissenting opinion of Burrus v. Burrus, with other adjudications, to this case, and see whether the court ever had jurisdiction of the person of these minors.</p> <p>We will first take the dissenting opinion of Justice Chalmers, which decides “that the minors must be personally cited, and also represented in court by a guardian.” The sheriff’s return shows that the citation was “executed in person by copy on J. B. Livingston and Mary L. Livingston.” Now, in equity suits the statutes require the sheriff’s return to show that the process was served on the infant personally, and his father, mother, or guar1 dian, if any in the State; and, if the infant have neither in the State, the record, must affirmatively show the fact.before the court can appoint a guardian ad litem. Code 1871, § 704; Code 1857, p. 489, art. 64; Code 1857, p. 548, art. 52; Code 1871, § 1006; Ingersoll v. Ingersoll, 42 Miss. 162; 'Johnson v. McCabe, 42 Miss. 258; Mullins v. Sparks, 43 Miss. 131; Price v. Crone, 44 Miss. 557; Erwin v. Carson, 54 Miss. 282.</p> <p>But, under the Probate Court system, the return of process “executed” or “summoned,” without more, is sufficient. Code 1857, p. 428, arts. 20 and 21; Burrus v. Burrus, 56 Miss. 96 (overruling Munday v. Calvert, 40 Miss. 181) ; Martin v. Williams, 42 Miss. 210.</p> <p>When, however, the sheriff, in making his return, attempts to comply with the requirements of the Circuit Court law, and the return shows that he had not so complied, the rights of the parties must be governed strictly by the Circuit Court law. Burrus v. Burrus, 56 Miss. 96.</p> <p>Here the sheriff attempted to set out fully the manner in which he had executed the process, and.the record shows that in its execution he did not meet the requirements of the law. The return shows only personal service on the infants, and fails to show that they did not have a mother, father, or guardian in the county. If, then, it had been necessary, under the old Probate Court system, to cite the infant in order for the court to proceed by the appointment of a guardian ad litem, we see that this decree would be void on account of the fatal defect in the service of the process. In legal effect, these infants have never been summoned.</p> <p>Again, in Burrus v. Burrus, supra, the court says “that our Probate Court system, which was complete in itself, did not require an infant to be summoned in any proceeding had before it, but his guardian; and if the guardian failed to appear, or was personally interested, or if the infant had no guardian, the court was authorized to appoint a guardian ad litem, which gave the court complete jurisdiction.” The record shows that these infants were not represented by a guardian in any of the ways known to the law. The decree, therefore, is void, whether you apply the one or the other construction of this law to it. Burrus v. Burrus, 56 Miss. 96; Winston v. McLendon, 43 Miss. 254; Saxon v. Ames, 47 Miss. 565; Hendricks v. Pugh, 57 Miss. 157.</p> <p>This decretal order and account amount only to an annual settlement. Crawford et ux. v. Kedus et al., 54 Miss. 700.</p> <p>A bill of review is the remedy where there is a final decree sought to be reviewed; in this case there is no decree. This pro-ceding is not only proper, but the only one known to our practice; the appellants should be required to file a final account of their testator’s administration of said estate.</p>

Appellant, George B. Lenoir, filed the bill in this case in the Chancery Oonrt of Lawrence county against appellees to confirm his tax title to certain lands described in the bill. From a decree dismissing his bill he appeals. Tbe bill alleges that complainant purchased the land at a sale for the taxes due on it in February, 1875; that it was sold as the property of FL II.

Margaret White was tried and convicted of an attempt to commit arson, in tbe Circuit Court of Monroe county, in tbe burning of a dwelling bouse of a Mr. Dalrymple. Sbe was sentenced to tbe penitentiary for three years, and appeals.

Frank Lewis was convicted of murder in the killing of his wife, Lizzie Lewis, in the Circuit Court of Wilkinson county. He was sentenced to the penitentiary for life, and appeals.

Appellee, Tinsley, filed bis bill in tbe Obaficery Court to remove a cloud from tbe title to certain property alleged to bave been sold by bim to one Roberts, and subsequently to bave been purchased by appellant, Doggett, from tbe county tax-collector at a tax sale.

I. C. Levy sued out a writ of attachment against appellee, W. W. Frazier, which was placed in the hands of the sheriff, and it was by bim levied on a wagon and four yoke of oxen belonging to Frazier. No bond bad been given wben tbe attachment was issued and executed, but afterwards a bond was given and approved by tbe justice of tbe peace wbo issued tbe writ. Frazier made demand on tbe sheriff for a release of tbe property levied on. His demand was refused.

.Appellants, heirs at law of Andrew Davidson, filed the bill in this case against J. R. Gilmore and some heirs of said Davidson who did not join in the bill, in which they allege that some time prior to September 28, 1859, Andrew Davidson died in Monroe county, intestate, leaving considerable real and personal property in said county; that on the 28th of September, 1859, all the heirs of said decedent who were then of full age entered into an agreement, in writing, between…

J. E. Old was the owner of a decree of tbe Chancery Oonrt of Tunica county against W. P. O. Lyon and wife for $225, and he asigned this decree to his daughter, Mrs. Julia J. Lyon. Appellants, Day and Proudfit, who were creditors of J. E. Old, filed the bill in this case against J. E. Old and Mrs. Lyon to set aside this assignment and to subject the decree to the payment of their debt, alleging that the assignment was voluntary and void as to them.

Appellant, Amos Williams, was indicted in tbe Circuit Court of Itawamba county for assault witb intent to rape a little girl two years old, named Theresa Strauss. He was tried and convicted and sentenced to tbe penitentiary for ten years, and appeals.

Sylvan Ladner filed the bill in this case in the Chancery Court of Harrison county against Alfred Ladner, in which he charges that he had purchased the lands described in the bill on September 22, 1877, from Jalouse Whitfield and Helion Whitfield and W. A. Whitfield, guardian of W. W. Post and V. M. Post, minor heirs of Irene Whitfield; that it was swamp and overflowed lands which they had purchased from the authorities of Harrison county in 1859, and that they delivered to…

A. 11. Paxton and a number of others, taxpayers of Warren 'county, brought suit in the Circuit Court of Warren county against A. IT. Archer, a member of the board of supervisors of said county, and the sureties on his official bond, as such, to recover the sum of $2,000, the penalty of the bond, for appropriating the money belonging to the county for illegal purposes.

Bill in chancery by appellee, Phillips, against appellant, Nash, to enforce specific performance of a contract to purchase land. From a decree granting the relief sought defendant appeals. F. M. Nabors sold appellant, Nash, one hundred acres of land in Tunica county for $1,500, taking his two notes for $750 each; one payable in November, 1870, and tbe other in November, 1871.

Bill in chancery for partition of personal property by appellants against appellees. From a decree sustaining defendants’ demurrer to the bill, complainants appeal. The bill alleges that H. IT. Hopper, the father of the complainants and two of the defendants and the husband of Nancy Hopper, died intestate on the 28th of September, 1881, and T. II.

Suits by appellants, Menken Bros., against J. L. Combs, on a conditional acceptance of an order. From a verdict and judgment for defendant, plaintiffs appeal. Tbe opinion of tbe court states tbe facts. Appealed from Circuit Court, Yalobusha county, first district, W* S. Featherson, Judge. Combs so delayed, his settlement with Duke that his liability becomes absolute.

Appellant, Joel J. Perrin, filed this bill in tbe Chancery Court of Olay county against A. B. Oonnel, James M. Prewett and his wife, Sarah A. Prewett, in which he charges that Horace J. Perrin, in January, 1878, loaned to James M. Prewett $1,200, and to secure it said James PL Prewett and his wife, Sarah A. Prewett, executed a deed of trust on certain lands, described in tbe bill, situated in Clay county, with John O’Connor as trustee; that said O’Connor was a citizen of…

Appellants, some of the heirs of Joseph Dean, filed a bill in the Chancery Court of Marshall county against appellee, Joseph E. Dean, and other heirs of the said Joseph Dean, for the partition of certain lands held by the parties complainant and defendant as tenants in common. All the heirs of said Joseph Dean were made parties, the land having descended to them at his death. Process was executed on all the defendants returnable to the July term of the court, 1881.

Bill for divorce, by appellant, N. C. Wriglit, against bis wife, Mrs. A. O. Wrigbt. From a decree,- dismissing bis bill, complainant appeals.

Appellant, Dave McIntosh, was convicted of grand larceny in the Circuit Court of Chickasaw county and sentenced to the penitentiary for two years, and appeals.

Abernethy & McOarley, merchants at Okolona, Mississippi, made a general assignment for the benefit of their creditors on the 5th of March, 1881, to Jerry Seale as assignee. Appellees, who were creditors of Abernethy & McOarley, sued out a writ of attachment against them, which was levied on the goods assigned to Seale.

Bill in chancery by appellant, Smith, against appellee, Bell. From a decree dismissing his bill, complainant appeals. The bill was for a cancellation of a deed held by Bell to certain lands described therein, as a cloud on complainant’s title, and was filed in tbe Chancery Court of Alcorn county in March, 1882.

Robert Clayton was convicted in the Circuit Court of Marshall county of grand larceny and sentenced to the penitentiary, and appeals.

J. H. Pierce, Sr., obtained a judgment in April, 1875, against J. H. Pierce, Jr., & Bros, for $3,221.67, which firm had dealt with Joel W. Jones & Co., commission merchants of Mobile, Ala., from February, 1873, up to January, 1881. Joel W. Jones died, and the firm was continued by his .surviving partners under tlie style of Jones & Depras, of which firm Winston Jones was a member. July 5, 1880, J. H. Pierce, Sr., filed a suggestion that Jones & Depras were indebted to J. Ii.

Attachment by appellee against appellants in the Circuit Court of Hinds county. From verdict and judgment for plaintiff, defendants appeal.

J. II. Keller brought suit in a justice of the peace court on an open account against Wolfe Aaron, to which an affidivit was made as provided by section 1627 of tbe Code of 1880, and the defendant appealed to the Circuit Court from a judgment against him. No counter affidavit was filed by the defendant. Plaintiff moved the court for a judgment against the defendant because the account sued on was sworn to according to statue and the defendant had filed no counter affidavit.

Ejectment by appellee against appellant. Prom a verdict and judgment for plaintiff, defendent appeals. On the trial plaintiff introduced a deed to one Mrs. M. D. NeSmith, and claimed as her heir, showing that she died several years prior to the bringing of the suit.

Ejectment by appellant against appellee to recover possession of certain land described in tbe declaration. From a verdict and judgment for defendant plaintiff appeals. On tbe trial plaintiff offered in evidence tbe receipt of tbe receiver of tbe United States Land Office for tbe fees paid by him for tbe entry of tbe land sued for, for a homestead. Tbe defendant objected to tbe introduction of this receipt and bis objection was sustained.

Appellant, Moore, sued out a writ of attachment in a justice of tbe peace court against one Everett, wbicb was levied on two bales of cotton as tbe property of… Held: in Eenn v. Harrington, that the demand determines the jurisdiction. In this case the jurisdiction was settled by the demand, and then all presumptions in favor of the correctness of the proceedings applied that apply to any other courts of record, and its judgment must remain valid until superseded by appeal.

Appellants filed their bill in the Chancery Court of Monroe county against appellees, J. M. Acker and A. S. Tubb and his wife, Mary E. Tubb, alleging that John B. Harris died in 1862 intestate, leaving Ms wife, Mary E. Harris (now Tubb), and complainant’s cMldren bis only heirs at law; that he owned a large estate, both real and personal, in Monroe county; that in November, 1862, his widow, Mary E. Harris, married A. S. Tribb, and in August, 1863, letters of administration…