Volume 20 — Mississippi Reports

<p>While the rule is well settled, that the probate court cannot order a sale unless every thing necessary to give them jurisdiction of the person and of the subject matter appears upon their records ; yet where an administrator made a sale of real estate of his intestate, gave the purchasers a deed, in which he recited that the steps required by law had been taken, and placed the purchaser in possession ; and thirty-four years afterwards the heirs of the intestate brought an action of ejectment for the,land ; held, that the court would presume from the lapse of time, and the defendant’s undisturbed possession, that the administrator had complied with the requisites of the law, though in some particulars the records of the probate court did not show that he had done so ; and this presumption will prevail, unless it can be shown affirmatively that the administrator did not sell according to law ; upon proof of which the presumption would yield.</p> <p>And it seems that such a presumption is strengthened by the proof that the sale took place in the infancy of the government; and that the officers who at the time and subsequently had charge of the records of the probate court, were careless and negligent in the discharge of their duties ; and such proof is legal, to show the probability of a loss of the record.</p> <p>An administrator of Stephen Stevenson, deceased, made a sale of real estate of his intestate in 1806, gave the purchaser a deed and put him in possession ; in 1840 the heirs of the intestate sued the purchaser in ejectment for the property ; the records of the probate court showed the appointment of the administrator, and the report of insolvency of the estate, and the publication of citations to those in interest to show cause against the sale, in the newspaper, but did not show that they were put up at three most public places in the county ; the order of sale on the rough minutes of the court followed a former order of sale of the estate of another person, and was in these words — “the same order respecting the estate of Stephen Stevenson, deceased ; ” there was no proof that the administrator gave the bond required by law, or that he gave notice of the time and place of sale, nor was there proof that he made a written report of the sale to the probate court; but the deed of the administrator recited the title, seizure, and death of Stevenson, the appointment of his administrator, the insufficiency of the personal estate to pay the debts, the report of insolvency, the order of court to sell the tract of land, the giving of due notice according to the statute, and the actual sale at public vendue to the highest bidder; held, that under the circumstances the court would presume that the requisites of the law were all complied with by the administrator in making the sale.</p> <p>It seems that the recitals in an administrator’s deed, after the lapse of thirty-four years from the date of the deed, accompanied with possession under it, v are entitled to great weight, if not primó, facie evidence of their truth.</p> <p>It seems that where an administrator has complied strictly with all the prerequisites of the law to his authority to sell his intestate’s realty, and has obtained an order of sale, subsequent irregularities of the administrator in making the sale, will not, in analogy to a sheriff’s sale, affect a bona fide purchaser ; the sale of the administrator is under a power derived from the order of the court, and if the power be defectively executed it is favored by the law.</p> <p>Whether a failure by an administrator to give bond, on obtaining an order of sale of his intestate’s realty, as required by law, will vitiate the sale — query l it would not vitiate the order of sale, if it did the sale; whether such a bond is part of the record or not — query l its execution after the lapse of thirty-four years from a sale by the administrator will be presumed.</p> <p>It is not error to refuse an abstract charge upon a point of law not material to the controversy; therefore the refusal to instruct the jury, in an action of ejectment brought by heirs to recover land sold by an administrator of their ancestor, that the' reservation of the widow’s dower in the order of sale, was evidence that the intestate left a widow, was not error, as it was immaterial whether he left a widow or not.</p> <p>Cohabitation of a man and woman, and the acknowledgment on their part that they are man and wife, and the raising and providing for their children, and the acknowledgment of them as such, are circumstances from which a marriage may be presumed between the man and woman, and are presumptive evidence of their marriage ; but where there is rebutting testimony on the subject which goes to disprove a marriage, it will be determining on the weight of evidence for the court to charge the jury, that such proof of cohabitation &c. are legal evidence of marriage, and they must find accordingly.</p> <p>n an action of ejectment by the heirs of an intestate whose administrator had sold his realty, and in the deed warranted the title “ excepting only the widow’s right of dower,” it was held, that the purchaser was not estopped from controverting the marriage of the intestate to his widow, nor from questioning the legitimacy of their children who were the plaintiffs.</p> <p>Recitals in a deed estop only the party making them, and those claiming under him ; and estoppels must be mutual; therefore where the heirs of an intestate refused to recognize the deed of his administrator to realty sold by him, and brought suit against the purchaser, it was held, that the purchaser was not estopped by the recital in the deed, excepting the widow’s dower from the warranty, from proving the illegitimacy of the heirs.</p> <p>In an action of ejectment brought by the heirs of an intestate against a person, claiming under a purchase by deed from his administrator, the court below properly instructed the jury, that if the defendant had held twenty years adverse possession, the plaintiffs were barred unless they were saved by infancy or coverture ; when the statute begins to run, it continues to do so ; and if the plaintiffs rely on the exceptions in favor of infants or femes covert, they must show that they are entitled to the benefit of the exceptions.</p>

<p>In error from the circuit court of Hinds county; Hon. George Coalter, judge.</p> <p>At the June term, 1845, the grand jury indicted Sidney S. Erwin and Daniel O. Williams, for betting two hundred dollars upon the result of the presidential election, which took place on the first W ednesday of December, 1844. The case was discontinued as to Erwin, and in November, 1846, a trial was had on the plea of not guilty by Williams. Samuel H. Charles proved, that some weeks previous to the presidential election of 1844, he had been requested by Williams to effect a bet for him with Erwin on the result of that election, saying to him, at the time, that he presumed that Erwin, in the event of Mr. Clay’s being elected president, would be pleased to attend his inauguration; and he (Williams) if Mr. Polk should be elected, would be gratified at’being present at Mr. Polk’s inauguration; and proposed that if Mr. Clay were elected, he (Williams) should pay Erwin’s expenses to Washington; and if Mr. Polk were elected, Erwin should pay Williams’s expenses there.</p> <p>The witness received from Williams, for the purpose of the bet, four United States treasury notes, each of the denomination of fifty dollars, which, after arranging the terms of the bet with Erwin, were put up with the two hundred dollars of Erwin in the hands of a third person; that the presidential election occurred as stated in the indictment, and resulted as there stated; after the result had been ascertained, Williams received back his stake with the two hundred dollars of Erwin’s.</p> <p>Williams excepted to the proof by parol of the result of the election. This was all the testimony.</p> <p>The court, on the part of the state, instructed the jury,</p> <p>1. That if they believed, from the evidence, that Williams, in making his bet, offered four fifty dollar treasury notes, as two hundred dollars, and Erwin, with whom he was making the bet, made no objection to treasury notes as money, but received them as money, that would be sufficient to satisfy the charge of betting two hundred dollars.</p> <p>2.If the parties intended to bet money, and the four treasury warrants, deposited by Williams, were intended to represent that amount of money, and were accepted by him as money, and Erwin bet money agáinst them, the allegation is sustained, even if the treasury warrants had no intrinsic value.</p> <p>The defendant asked these instructions.</p> <p>1. If the jury do not find it proved to their satisfaction, that money was bet as charged, they must find for defendant.</p> <p>2. Even though treasury warrants were proved to be valuable, if no money was bet, a conviction could not be had.</p> <p>3. If it is not proved that treasury warrants are valuable, or money, the jury cannot go out of the proof to presume it.</p> <p>4. If the jury believe, from the evidence, that the defendant did not make this bet himself, but procured another to make it for him, they must acquit under the indictment.</p> <p>5. The charge in the indictment being, that money was bet, if the jury believe that the proof only shows that United States treasury warrants were bet, they cannot find against defendant.</p> <p>The court gave the first three, but refused the last two, instructions. The defendant excepted. The jury found a verdict of guilty : the court fined the defendant forty dollars and costs, and he sued out this writ of error.</p> <p>1. Proof that United States treasury notes were bet, does not sustain the charge, in the indictment, that two hundred dollars ' were bet. McAuley v. The State, 7 Yerg. R. 523; Johnson v. The State, Mart. & Yerg. R. 129; Garner v. The State, 5 Yerg. 160.</p> <p>This court has itself recognized and expressly held in the following cases, that bank notes are not dollars or currency. Dowell v. Boyd, 3 S. & M. 592; Mitchell v. Hewitt, 5 lb. 361; Anketett v. Torrey et al. 7 lb. 467; Prewett v. Standifer, 8 lb. 493 ; Bailey et al. v. Dilwortk, 10 lb. 404.</p> <p>2. The court erred in permitting oral testimony to be given of a presidential election having occurred in manner and form as averred in the indictment, a matter which the witness could know nothing of, but from uncertain rumor; by such testimony it would have been an easy matter to have proved that either Weller or Ford was elected governor for the state of Ohio, in 1848, in accordance with the constitution and laws of the state of Ohio.</p> <p>3. The indictment should have charged the betting of two hundred dollars in United States treasury notes, purporting to be money, or purporting to be orders on the United States treasury for the payment of money, if the betting of treasury notes be indictable under the statute. 1 How. (Miss.) R. 262.</p> <p>A conviction under this indictment would not have exempted the defendant from another prosecution of betting United States treasury notes.</p> <p>The bet was made by S. H. Charles for Williams, Williams not being present. Hence, Charles alone is the guilty man, as Williams could not have committed the offence charged, by proxy.</p>

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

In error from the circuit court of Amite county; Hon. Stan-hope Posey, judge. At the March term, 1847, separate indictments were preferred by the grand jury against the following persons, viz.: Geo. H. Barney, Jacob Halfin, Augustus W. Forsyth, Wm.

<p>ON appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.</p> <p>David W. Connelly and Robert H. Buckner filed their bill to foreclose a mortgage on land in the county of Washington, described in the bill, as to five notes of three thousand and fifty-oae dollars each, all executed by William P. Stone; one due 1st January, 1838, belonging to Buckner; two due 1st January, 1840; and two due 1st January, 1841, belonging to Connelly. [The mortgage embraces other notes which have been paid off.] The bill is in the usual form, sets out the indebtedness, the forfeiture of the condition, and that William H. Robards is in possession of the land, and prays foreclosure, &c. The mortgage executed by Stone is dated the 16th of May, 1837, and recorded on the 23d of June, 1837. Stone and Robards are made defendants to the bill.</p> <p>The answer of Stone admits the notes, mortgage, &c., and avers that, some time in the month of January, 1837, he made a contract with Robards, to sell him one half the land mortgaged, in consideration of one half of twenty-one negroes then owned by Robards, and the one half of whom were then estimated as being worth about $12,000; and he executed Exhibit, A, filed with the answer of Robards, and which is in these words:</p> <p>“ State of Mississippi.</p> <p>'“This memorandum is to certify that I, William P. Stone, of Yicksburg, Miss., having sold to William Robards, of North Carolina, one half of a tract of land lying and being in Washington county, state of Mississippi, on Deer Creek, (and here follows a description of the land,) but have not made title thereto, because I have not yet received title to the same myself. And this is to certify, that for and in consideration of the consideration money paid, I, the said W. P. Stone, covenant and agree to proceed forthwith to Washington "county, and cause title thereto to be duly executed and recorded jointly in my name and that of his, in fee simple; and I warrant titles to the said tract of land as aforesaid.</p> <p>“ Given under my hand and seal, at Yicksburg, this 14th of January, A. D. 1847. W. P. Stone, [Seal.]”</p> <p>He then went to Washington county, where Connelly resided, to have title made to Robards, and Connelly made the agreement or bond marked B, filed with Robards's answer. Robards then conveyed the one half the negroes to Stone, and subsequent to this the notes were executed, and the mortgage upon the whole land given by him, instead of one half; he not reflecting at the time that he had previously sold Robards one half, and' had no right to mortgage that. Some time after this he sold the residue of the land to Robards, upon his agreeing to pay the notes, secured by the mortgage, due to Connelly and Buckner, except that one now held by Buckner, which he was to pay. He claims a set-off for principal and interest due on a note for $520, of Buckner, which Buckner agreed should be credited on the note held by him.</p> <p>He further answers, that E. F. Buckner, as principal, with Thomas J. Coffee, R. Cooper, S. M. Puckitt, R. I. Fitz, and complainant, Buckner, sureties, made their promissory note, by which, four months after 27th day of September, 1838, they agreed to pay to the Mississippi Union Bank the sum of $7162, which was discounted, for the benefit of E. F. Buckner for the sum of $6000, by the bank; this note at maturity was not paid .by E. F. Buckner, but by S. M. Puckitt; that Coffee had contributed his share to Puckitt, and Fitz and Cooper are insolvent, and Puckitt has a right to claim contributions from complainant, Buckner, to the amount of $2000, with interest; that respondent is now owner of said claim, amounting to about $2960, and he claims it as a set-off.</p> <p>Robards’s answer admits the mortgage, notes, &c., denies that since the giving the mortgage he purchased the land from Stone, with full notice of the mortgage; and he denies that he purchased one half of the land, with notice of said mortgage. He is advised that he has a title to one half of said land due from the incumbrance of said mortgage; that when Stone executed the mortgage, he only had title to one half of the land, the other one half being the property, of respondent. In January, 1837, respondent, then residing in North Caralina, came to Mississippi, and purchased of Stone one half of said land, in consideration of one half of twenty-one negroes owned by respondent ; and Connelly executed the paper marked B, which is as follows:</p> <p>“Articles of agreement concluded and entered into this seventh day of February, 1837, between David W. Connelly, of the first part, and William P. Stone and William H. Robards, of the other part; witnesseth, that for arid in consideration of the sum of twenty-four thousand three hundred and thirty-two dollars, agreed to be paid by the said Stone, in four equal annual instalments, on the first day of January of each and every year, the said Connelly, by these presents, does bind himself, his heirs, executors and administrators, in the penal sum of ten thousand dollars, to convey unto the said Stone & Robards, by deed in fee simple, the following described tract of land. [Here follows the description.]</p> <p>“In witness whereof, &c. D. W. Connelly, [Seal.]</p> <p>W. P. Stone, [Seal.]”</p> <p>The credit of Stone was relied on, and no idea was entertained of retaining any lien on the moiety which respondent had bought of Stone; and it was not till after Stone lost his credit, that complainants thought of security for their debt. Respondent, upon the execution of the bond, conveyed the one half of the negroes to Stone. Respondent did not know of said mortgage until three years after its execution, and he insists he is the owner of one half of the land, freed of all incumbrance; that he is the owner of a note of Connelly for $6842-72, filed with his answer, due 1st February, 1841, which he asks to be set off against the notes of Connelly. The answer was filed 6th February, 1845, sworn to 13th December, 1844.</p> <p>The note referred to is drawn by Connelly, as principal, and W. P. Stone and R. M. Williamson, sureties, for $6842-72, payable on the 1st February, 1841, to the order of G. W. Denton, dated July 6th, 1839, indorsed by G. W. Denton and J. Wilcox.</p> <p>The testimony filed in the case was as follows.</p> <p>David Suggett testified, that he was present in December, 1844, when Robards and John H. Robb were conversing about trading for a portion of the land; in which conversation Ro-bards stated he was indebted to Connelly some ten or twelve thousand dollars for said land.</p> <p>John H. Robb testified, that some time in December, 1844, W. H. Robards, at his own house on Deer Creek, proposed to sell him one half of his plantation, for the sum of seventeen thousand dollars, allowing the advantage of taking up his (Robards’s) paper to Connelly for about two thirds of the amount, upon the best terms he could make; stating that the land was bound for the debt due Connelly.</p> <p>Jacob Wilcox testifies, that he was the holder of a note, which he yet owns, of D. W. Connelly, for $6842-72, which at maturity Connelly said he had not the means of paying; after-wards, in February, 1842, he agreed to give him the note of W. H. Robards for $3000 in payment of it, and Wilcox agreed to, and did take the note, with the agreement that if, at maturity, the same was paid in good funds, he would surrender to Con-nelly his note of $6842-72; the note was not paid by Robards at maturity; he-afterwards delivered the note of $3000, and the note of $6842-72, to John M. Bell, and informed him of the agreement with Connelly, and authorized him, upon Robards’s note being paid, to deliver to Connelly his note, and this was the extent of authority given to Bell; Robards was yet indebted to deponent $2260-80, which will be reduced by the sum of $10,000, if a draft drawn on and accepted by McMahan, Trotter & Pearsall, due 16th and 19th December, 1846, is paid; after the agreement with Connelly, he had Robards’s note discounted in bank, and attached it to the note of Connelly, and directed the cashier, in case Robards’s note was paid, to deliver Connelly’s note to him.</p> <p>A letter, dated August 25th, 1843, from Robards to Connelly, was filed, in which Robards asks to be permitted to take up judgments on account of his indebtedness, and says: “ Do write me soon, saying that if I will take up these claims, that you will release the mortgage.”</p> <p>Accompanying the other proof are these papers.</p> <p>“Received, New Orleans, March 10th, 1842, from Mr. D. W. Connelly, the note of ffm. H. Robards for three thousand dollars, payable at the Canal Bank, in- the city of New Orleans, the 1st day of February, 1843; if the same be punctually paid, I have authorized G. B. Ogden to deliver to Connelly his note for $6842-72, due 1st February, 1841^ left in the hands of said Ogden. Jacob Wilcox.”</p> <p>“ $2260-80. New Orleans, February 3d, 1843.</p> <p>“Twelve months after date, I promise to pay to Jacob Wilcox, Esq., or order, two thousand two hundred and sixty dollars and eighty cents, for value received, -payable at the banking house of the Canal and Banking Company in New Orleans.</p> <p>(Indorsed.) “Jacob Wilcox.” ^®-0BARI)S-</p> <p>“ New Orleans, December 27, 1844.</p> <p>“Received, on account of the within, a draft of the maker on McMahan, Trotter & Pearsall, dated 16th December, at twelve months, for one thousand dollars. Jacob Wilcox.”</p> <p>11 New ' Orleans, February 12th, 1845.</p> <p>“Received of D. W. Connelly satisfaction in full for his note in favor of G. W. Denton, for six thousand eight hundred and forty dollars and seventy-two cents, which fell due 1-4 February, 1841, which note belongs to me, and now in the hands of W. H. Robards, in Mississippi, who is authorized to deliver the same. Jacob Wilcox.”</p> <p>There was also filed, as proof, a deed dated 5th day of October, 1837,' from William P. Stone to W. H. Robards, for one half of the land in contest, which was proven on the 13th day of October, 1837, filed for record in Washington on the 4th day of December, 1838; the deed was in the ordinary form, with covenants of warranty. Also a deed from Buckner and wife and Connelly, to ffm. P. Stone, in the ordinary form, with covenants of warranty, for all the land dated 15th day of May, 1837; proven and filed for record December 6th, 1837.</p> <p>There is also a letter from Robards to Connelly, dated Nashville, Tenn., 29th January, 1843, proposing to take up debts due by Connelly, in which he says: “If you desire me to make the arrangements for the whole, as far as my debt goes, please write me immediately, and the amount of my debt; also that you will release the mortgage on my land, if I will take up the claims.”</p> <p>There was filed a deed from Stone and wife to Robards, dated 27th day of February, 1840, for all the land; this deed was filed for record 5th of April, 1840.</p> <p>J. W. Ward testifies, that having a debt against Stone and Robards for overseeing, he called on Robards, at which time Robards informed witness that when he purchased the interest of Stone in the plantation, it was the agreement that Stone was to pay a note held by Buckner for about three thousand dollars, for which the land was liable; and that he (Robards) was to pay the balance of the debt due by Stone to Connelly and Buckner, secured by the mortgage.</p> <p>John M. Bell testifies, that he delivered the note of $6842-72 of Connelly to Robards, which he had received of Wilcox, in pursuance of the agreement between Wilcox and himself, attached to the agreement; the note of Robards for $3000 was paid by Robards by draft on him, due 5th February, 1844, for $1000, and by Robards’s note, due 5th February, 1844.</p> <p>The agreement referred to in said deposition is in these words :</p> <p>“Received, New Orleans, June 28th, 1843, from Jacob Wilcox, Esq., William H. Robards’ note, dated New Orleans, March 10th, 1842, payable to the order of D. W. Connelly, on the 1st day of February, 1843, at the Canal and Banking Company, for the sum of three thoiisand dollars; on account of which I have delivered and handed over to said Wilcox my acceptance of W. H. Robards’s draft for one thousand dollars, due and payable on the 5-8 February next, and will, if satisfactory to said Robards, hand over and deliver to said Wilcox Robards’s note now in my possession, dated New Orleans, February 5th, 1843, payable twelve months after date, to the order of said Wilcox, for $2260-80, which, when paid, will be in full satisfaction of said Robards’s note first above mentioned; and said Wilcox siso transferred to said Robards, D. W. Connelly’s note for $6842-72, which note I have also received from said Wilcox: should W. H. Robards- refuse to sanction the above, then the said Wilcox agrees and binds himself to pay promptly to said John M. Bell, the amount of the above draft 'of one thousand dollars on the day said draft falls due; and in default thereof, said Bell is hereby authorized to dispose of the note of said Robards for $3000 to the best advantage, so as to receive the said sum of one thousand dollars. Jno. M. Bell,</p> <p>J. Wilcox.”</p> <p>“Received, Nashville, Sept. 12, 1843, from John M. Bell, my note for three thousand dollars, and Dr. Connelly’s note for $6860-80, mentioned in the above agreement between Jacob Wilcox and said Jgjm M. Bell, and I hereby sanction the above arrangement. W. H. Robaiids.”</p> <p>The cause was referred to. a commissioner to ascertain the amount due on the mortgage. The commissioner reported, that on the day of the report, to wit, on- the 24th of January, 1846, there was due the sum of $17,326-06^, to Buckner the sum of $3956-28|, and to Connelly the sum of $13,369-78. The commissioner rejected the set-off claimed by Stone for the claim on the note of E. F. Buckner, &c., and allowed Robards a credit on account of the note of Connelly for $6862-72, for the sum of $3000 and interest.</p> <p>The defendants, Stone and Robards, severally excepted, and the exceptions were referred to another commissioner, who reported, and disallowed the exceptions, and the exceptions, by order of court, were disallowed, and the original report confirmed; and on the 27th day of March, 1846, a decree was rendered, foreclosing the equity of redemption, and ordering a sale, &c.</p> <p>This appeal was prayed by defendants.</p> <p>1. Can the mortgage be foreclosed, except for Stone’s moiety?</p> <p>The bond conveyed an equitable interest, as tenants in common, to-:Stone and Robards. There is no covenant or agreement on the part of Robards, to pay any part of the $24,000. Con-nelly agreed to receive and trust Robards on that, as the bond shows. The covenants of Stone and Connelly are independent. One does not depend on the other. Connelly does not agree to convey upon condition that Stone pays the money; but he agrees absolutely to convey immediately without limitation of time, and in equity could be made to convey long before the instalments were to be paid by Stone.</p> <p>The bill is filed to foreclose the mortgage made by Stone; the only interest which Stone had was an undivided equitable moiety. And although his mortgage does embrace the whole, yet, as he had only an equitable half, he only could convey such interest as he had, which was an undivided equitable half.</p> <p>Suppose Connelly had made a deed to tftem as tenants in common, and taken the notes of Stone, and afterwards Stone made a mortgage of all the land, without the .consent or knowledge of Robards, it is clear that Stone’s undivided moiety alone would have passed by the mortgage. There is no difference between the cases. Connelly knew Stone only had an equitable half; it was a legal fraud on Robards to get a mortgage for the whole. Surely a man has no right to convey any greater interest in land than he owns.</p> <p>The case can be tested by this principle. Suppose Robards had filed a bill against Connelly and Stone, and prayed that an undivided moiety might be decreed to be conveyed to him by Connelly, could Connelly resist it, by alleging Stone had not paid the'$24,000 ? Surely not. Because he took Stone alone, reserved no conditions, and his agreement to convey was distinct and independent, and did not depend on the payment of the $24,000. It is manifest, therefore,,he must convey, and if the answer in this case had been made a cross-bill, this court would have so decreed. See 1 Chitty, PI. 322, 323.</p> <p>In the agreement or bond for title, he, Connelly, agrees to convey immediately. No time being specified, reasonable time on request is all that is necessary. - The money was to be paid by Stone alone in four instalments. In such case, the covenants were independent. See cases collected in 1 Metcalf & Perkins, Digest, Covenant III.</p> <p>In addition to an argument presenting the same views discussed by Mr. George S. Yerger, contended,</p> <p>2. The set-off claimed by Stone against Buckner as co-surety, on the note of E. F. Buckner, should have been allowed, and the exceptions to the reports disallowing it-ought to have been sustained. Those reports disallowed it, because, it is said, there was no proof of the payment of the note by Puckitt, and of the right of Stone, the transferee of Puckitt, to the amount. This is clearly wrong. Here is Stone, a third party, in possession of a note of Buckner, executed by Buckner and others. Now being so in possession of the note, and unexplained in any way, he would have had a right in law to require payment of the whole of Buckner. But Stone himself furnishes an explanation, and it is the only one given in the case. It is in substance this: “ Here is the note of R. H. Buckner, for $6000, held by me; in legal presumption,. I am entitled to claim the whole of this note, but in fact only a contributive share is due; for it was paid by one of the sureties, from whom I got it, and it is his claim only that I am entitled to.”</p> <p>As the only evidence in the case is the possession of the note by Stone, and the only proof to defeat his right to claim the whole of Buckner is his explanation, I think it clear that the set-off claimed by him should have been allowed.</p> <p>3. I think an analysis of the proof will show that Robards was in fact entitled to have credit allowed him for the note of Connelly, held by Wilcox. It shows most clearly to my mind, that Robards purchased the note from Bell, the agent of Wilcox, and that the money so advanced was not intended by him as a payment of the note of Connelly, entitling him only to the amount advanced, but that it was intended as a purchase, giving him title and right to claim payment of the whole note from Connelly.</p> <p>The defence set up by Robards is, that after he had purchased the one half of the land from Stone, and taken Connelly’s agreement, (marked exhibit B with his answer,) to make title to Stone and Robards, that the mortgage was taken from Stone upon the whole of the land, which Robards insists can only bind one half. This defence, of course, cannot affect Buckner’s interest in the mortgage, because he was no party to the agreement; and any agreement made by Connelly alone could not affect Buckner, unless done with his knowledge or sanction, which is not pretended to be the case in this transaction.</p> <p>But this agreement B does not even affect Connelly’s right to foreclose the mortgage; 1. Because it will be seen that Robards subsequently accepted title under Stone, (see the deed,) and never relied upon agreement, exhibit B; taking title from Stone, he, of course, took, subject to the mortgage Stone had previously given for the payment of the purchase money. 2. But however this may be, the matter is put beyond doubt by the testimony of Ward and Suggett, who prove that when Robards purchased the other half of the land from Stone, one of the express conditions was, that he (Robards) was to pay, the amount due to Connelly on the mortgage, and Robards’s letters on file show that this was the agreement. Robards is entitled to a credit against Connelly, to the amount of money proved by Wilcox to have been paid on Connelly’s account, and no more. He is proved not to be the holder of the note, which he exhibits as a set-off; it canno't, therefore, be admitted as a credit. See Wilcox’s deposition.</p> <p>Stone, in his answer, sets up two credits as against Buckner. ]. A note of $520 of Buckner to him; this is a proper credit, and it should, therefore, be allowed against the note due to Buckner. 2. He claims, as a set-off, a certain pretended right of contribution, which it is said Samuel Puckitt has against Buckner; because it is said Puckitt paid off a note of E. F. Buckner for $6000, on which he (Puckitt), R. H. Buckner, Thomas J. Coffee, R. Cooper, and R. I. Fitz were joint sureties. One sweeping and unanswerable objection to this latter ground of defence is, that the matter is one in avoidance, and there is no proof that Puckitt ever paid a dollar; but if there was, there is no proof that any of the other sureties are insolvent, and until there is such proof, how are you to ascertain how much Buckner should pay? Nor is there any proof that Stone is the assignee of Puckitt’s interest, if he has any against Buckner. It is clear, beyond all controversy, that the possession of the note is not evidence of payment by Puckitt, rior of the assignment. Puck-itt’s claim does not arise out of the note, but independent of it. An assignment of the note would assign nothing, because the note was extinguished when paid by Puckitt. There was nothing to assign. 1 Story, Eq. Jur. 513, § 499. But suppose Puckitt had paid the note, we know, as matter of history, that the notes, of the, Union Bank were, and are, at a great discount, and certainly Puckitt could recover no more than he paid for the bank notes with which he paid off tfte note, if indeed he has ever paid it. But I suppose that the defendants have abandoned that ground, inasmuch as they have not attempted to make any proof, and as they evidently knew that Puckitt was in debt to Buckner, by a prior judgment, in a much greater amount than Buckner’s part of the note, even if Puckitt had paid it in good money. But even if there was proof full and clear on all these points, still the set-off could not be allowed;</p> <p>1. Because it is an unascertained liability, which can only be settled by a bill for contribution, and is not the subject of set-off. See 1 Munf. R. 529.</p> <p>2. Because there can be no contribution between co-sureties, until the principal debtor has been pursued to insolvency. There is neither allegation nor proof that such is the case here. See 3 Munf. R. 484; 1 Dessaus. R. 409; 2 Dana, R. 296; 3 Littell, R. 386; 5 Yerg. 264; 2 Comyn on Cont. 159 ; 1 Monroe, 47.</p> <p>3. The answer shows that the claim, if any, came to the hands of Stone since the commencement of this suit, and is not, therefore, the subject of set-oíf. 1 Munf. 529.</p> <p>4. Such a claim is not assignable. 1 Story, Eq. Jur. 477, § 499.</p> <p>5. Courts of equity do not set off mutual disconnected debts, unless there is some strong equitable ground, such as insolvency, &c.; it is not alleged or proved that Buckner is insolvent. 5 Mason, R. 201; 2 Story,' Eq. Jur. § 1435, 1436 ; 2 How. R. (Sup. Court U. S.) 390, 391.</p> <p>6. All the sureties to the note would have to be made parties, that tire court might settle and decree the respective rights and liabilities of each. This surely could not be done in this suit. But I am indulging in useless labor, because there is no proof upon which these questions can arise. Your honor will, of course, refer the case to the clerk to compute the amount due on the mortgage.</p> <p>7. The note of Connelly for .“16800 or more, which was transferred by Bell to Robards, cannot be admitted as a set-off against Connelly, because as to Wilcox, the original holder, that note was paid by the acceptance of Robards’s note for $3000. The case of Kellogg v. Richards, 14 Wend. 116, fully supports this proposition. See also 20 Johns. R. 76. Although a payment of a less sum than the whole debt is not a satisfaction, yet where the creditor takes less and gets security, either by indorsement of a third person, or by taking the note of a third person, then it is a satisfaction. This distinction runs through the whole class of cases on this subject.</p> <p>We say, then, that the note of $6800 of Connelly was paid to Wilcox, by his acceptance of the note of $3000 on Robards, and that when the note of $6800 was transferred to Robards, he took it subject to the same equity that attached against it in the hands of Wilcox, because Robards paid nothing for it, and did not take, it in the due course of trade, and is not, therefore, a bona fide holder for a valuable consideration. This last proposition is fully sustained by the case of Coddington v. Bay, 20 Johns. R. 637.</p>

<p>In error from the circuit court of Hinds county ; Hon. George Coalter, judge.</p> <p>James Robert Young filed in the circuit court bf Hinds county, the following declaration, viz.:</p> <p>“In the circuit court of Hinds county, to April term, 1846, James Robert Young, state commissioner, duly appointed, qualified and empowered conformably to the acts of the legislature of the state of Mississippi, in such case made and provided, plaintiff by his attorneys, complains of Elijah H. Watson and Robert Hughes, who are summoned &c. of a plea of trespass on the case; for that at Natchez, to wit, in said county on the 15th day of September, 1836, the said Watson by the name of E. H. Watson, and said Hughes by the name of Robert Hughes, with E. T. Summers and John T. Knox, who are not herein sued, made and delivered their promissory note in these words, viz:</p> <p>‘ $1000. Natchez, September loth, 1836.</p> <p>!i Twelve months aftqr date, we, or either of us, promise to pay to the commissioners of the sinking fund of the state of Mississippi, and their successors, one thousand dollars, value received, payable and negotiable at the Planters’ Bank of the state of Mississippi, at Natchez, with ten per cent, interest, per annum, from date until paid, it being for a bona fide loan of money from said fund.</p> <p>E. T. SUMMERS,</p> <p>John T. Knox,</p> <p>E. H. Watson,</p> <p>Rob. Hughes.’</p> <p>“ And the plaintiff avers, that by force and effect of the statutes aforesaid, he succeeded to all the rights and powers of the said commissioners of the sinking fund, and became entitled to demand and have of the defendants, the sum of money and interest in said promissory note specified; and the defendants being liable to pay to him the same, they afterwards, to wit, on the 3d day of March, 1846, in the said county, in consideration thereof, undertook and promised the plaintiff to pay him said sum of money with said interest thereon, when thereunto they should be requested; yet the defendants, not regarding their said promise, &c., did not on, before, or since the maturity of said note, nor did the said Summers or Knox, pay to the commissioners of the sinking fund aforesaid, or-to the plaintiff, the said sum with said interest, or any part thereof, though thereto after requested; but so to do, the defendants have wholly failed, and still fail and refuse, to the damage of the plaintiff, two thousand dollars; so he sues.</p> <p>j, . Foote and Hutchison.”</p> <p>The defendant Hughes, at the return term, demurred generally; Watson plead non-assumpsit, and the statute of limitations of six years.</p> <p>At the December term, 1846, the following judgment was rendered: “This day came the plaintiff.by attorney, and the defendant Watson, pursuant to the statute in such case, having on the 29th day of July paid to the plaintiff, in his discharge, the sum of five hundred dollars, his portion of the amount demanded; the plaintiff now here, in consequence hereof, discharges the said Watson, and discontinues this suit, as to him, saving his rights, as against the defendant Hughes, and thereupon the demurrer of the said Hughes to the declaration being argued,” was sustained; and Young sued out this writ of error.</p> <p>[For the better understanding of the decision in this case, a brief history of the sinking fund is subjoined.]</p> <p>In the year 1830, the legislature incorporated the Planters’ Bank, with a capital stock of $ 3,000,000, to be divided into shares of $100 each, reserving 20,000 shares to the state of Mississippi, to be subscribed and paid for by the state in the manner pointed out by the charter. The seventh section of the act provides, that when the subscriptions shall be opened, the governor shall, on behalf of the state, subscribe for 10,000 shares, and that, after the appointment of the directors, the auditor of public accounts shall, in payment for the said stock, deliver to the president, directors and company, bonds of the state to the amount of $1,000,000, payable to the order of the said president, directors and company, bearing an interest at five per cent, per annum, payable half yearly, — the principal to be payable in four equal instalments at ten, fifteen, twenty, and twenty-five years from date; and provides further, that the bonds may be assigned by the indorsement of the president and cashier of the bank.</p> <p>The eighth section pledges the faith of the state to the punctual payment of the principal and interest of the bonds as the same may mature. The ninth section makes it the duty of the bank to sell the bonds.</p> <p>The tenth section makes it the duty of the president, directors and company to deduct from the semi-annual dividends that may be declared on the state stock in the bank so much as may be necessary to pay the semi-annual interest accruing on the bonds, and so to apply it; and provides, that “ the surplus of such dividends, if any there be, shall constitute a sinking fund under the management of the auditor and the president and cashier of said bank for the redemption of said bonds, and that, until the full payment and extinguishment of the bonds which shall first become due, amounting to two hundred and fifty thousand dollars, no part of such surplus shall be applied to any other purpose than the extinguishment of the principal and interest of said bonds;” and further, that after the payment of the principal and interest of the bonds first maturing, any surplus of such dividends may be applied to other purposes.</p> <p>At a subsequent session of the legislature, held in the same year, an additional amount of bonds not exceeding $500,000, was authorized to be issued and sold for like purpose with those first authorized.</p> <p>On the 5th of February, 1833, an amendatory act was passed, authorizing the issuance and sale of other bonds to the extent of $1,500,000, the proceeds to be applied to the stock reserved to the state.</p> <p>Under these legislative acts, bonds were issued and sold to the amount of $2,000,000, maturing as follows, to wit: $125,000 January 1, 1841; $125,000 January 1, 1846; $125,000 January 1, 1851; $125,000 January 1, 1856, and three instalments of $500,000 each, due March 1, 1861,1866, and 1871.</p> <p>For a time the bank was apparently prosperous, and large dividends were declared. The interest accruing semi-annually on the state bonds was paid up to about the year 1840. And the surplus dividends on the state stock, under the management of the auditor of public accounts, and the president and cashier of the bank, were loaned out at the highest legal rate of interest. ,</p> <p>Nothing has been paid on account of the principal of the bonds, or on account of the semi-annual interest accruing since 1840.</p> <p>On the 9th day of June, 1845, the charter of the Planters’ Bank was, by the judgment of the circuit court of Adams county, declared forfeited, and at the January term, 1846, that judgment was affirmed by the high court of errors and appeals. .</p> <p>On the 24th of February, 1844, an act was passed by the legislature, entitled “an act to appoint a state commissioner, and for other purposes.”</p> <p>The first section provides, that “there shall be appointed by the governor of the state, by and with the advice and consent of the senate, a suitable and competent agent, to be called and styled the state commissioner.”</p> <p>The second section gives to this agent the power to “manage, collect, and receive the sinking fund,” as well as certain other funds, and authorizes him to coerce, by suit or otherwise, a speedy and prompt payment of all debts due that fund.</p> <p>By the third section the commissioner is required to make quarterly reports to the governor.</p> <p>By the fourth section he is required to pay all moneys received by him into the “state treasury,” stating in his deposit receipt the account upon which such sum of money may have been received.</p> <p>The fifth, sixth, seventh, eighth and ninth sections provide securities to the state for the discharge of his duties, for his compensation, for the employment of counsel, and that the act shall take immediate effect.</p> <p>On the 18th of March, 1844, James R. Young was appointed state commissioner in virtue of the above act, to hold under the general law for the term of four years.</p> <p>On the 16th of February, 1846, an act was passed authorizing the state commissioner to sell the lands belonging to the fund, receiving Planters’ bank bonds in payment, authorizing him to compromise and compound with the debtors to the fund, and authorizing the release of any of several joint debtors.</p> <p>On the 4th of March, 1848, an act was passed appropriating the amount then in the treasury, belonging to the sinking fund, and such amounts as might thereafter be received “ to the payment of the coupons for interest issued by the state on account of the Planters’ bank.”</p> <p>1. The statute appointing state commissioner, authorizes him, upon giving bond, to receive and collect the fund, and for that purpose to bring suit. He is the successor in office of the commissioners of the sinking fund, and this court have decided that they had the power to sue in 'their own names, and hence the same power devolves on their successor. Comm’rs Sinking Fund v. Walker, 6 How. (Miss.) Rep. 143.</p> <p>2. The history of the fund and the statutes show that the state, by the president and directors of the bank, or such other officers as might be appointed, was to pay the interest and principal of the bonds, and that the duty of the commissioners was simply to manage the fund, and render' the same productive for the end proposed by the act.</p> <p>3. In the case of Commissioners of the Sinking Fund v. Walker, this court decided that said commissioners were authorized to sue and be sued in their own names, and to do all necessary acts in the management of the fund, to render the same profitable. In February, 1844, a statute was passed, establishing the office of state commissioner, and authorizing said state commissioner to manage, collect, and receive the sinking fund, and “full power and authority to compel and coerce, by suit or otherwise, a speedy and prompt settlement and payment of said fund ” was given to such commissioners. Laws of 1844, p. 149. By the third section, he is required to render a quarterly account to the governor; by the fourth section, he is required to pay the money he collects into the treasury; by the fifth, he is to give bond in the sum of $70,000; by the sixth, the penalty for a breach of his duties is-declared; by the seventh, he is authorized to employ and pay counsel. Here we see full power is delegated to receive and collect the fund by suit or otherwise, and the power to employ and pay counsel shows that the suits were to be in his own name; because if the suits were to be brought by the state, in the name of the state, the district attorney and attorney-general would be the proper officers to bring suits, and the employment of counsel would not be necessary.</p> <p>1. We deny the right of the state-commissioner to site for the sinking fund in his own name, or in his own name and official character.</p> <p>Granting that he can rightfully control the sinking fund, he must sue in the name of “ the state of Mississippi.”</p> <p>The law prescribes his powers and duties, which is, to settle, collect, sue for, and pay into the treasury certain funds. This law is his letter of attorney. There must be some direct power inserted in it, or something so peculiar in its very nature as to require it, to authorize the attorney or agent to sue in his own name; or he can no more sue in his own name than can the agent of a private individual, who is authorized to sue for and collect the debts of his principal, can drop the name of his principal, and bring the suits in his own name. That there is any such direct power, or that the nature of the case is thus peculiar, it will not, we presume, be pretended, or if pretended, cannot be sustained.</p> <p>2. But we deny the authority of Mr. Young to control the sinking fund, in any manner whatever. The “management” of that fund, in the legal and common sense meaning of the term, “manage,” had been at its very creation vested in other persons. See Commissioners of the Sinking Fund„ v. "Walker, 6 How. (Miss.) R. 186, where the court defines the force and meaning of the word “manage,” in reference to this very fund.</p> <p>At the creation of the sinking fund, and before it had an existence, in fact, “ there was a legal conveyance of the sinking fund, to persons capable of holding it, for the use and benefit of the state in the extinguishment of a certain debt.” See same case, p. 187, and the tenth section of the Planters’ Bank charter; Statutes from 1824 to 1838, p. 243.</p> <p>By what right does Mr. Young sue for it, thenl We concede that it is a general rule, and may be the law of this case, when it is put in a position to apply it; that no trust will be permitted to fail for the want of trustees to execute it. But does it appear by the act of 1844, that this trust (the sinking fund) was failing for want of trustees to execute it, and therefore Mr. Young was appointed trustee 1 Does it so appear on the face of this record 1 If it does not so appear, putting the power of the legislature out of the question, then the declaration is bad, and the demurrer was rightly sustained.</p> <p>But granting that, between the record and the statute, it sufficiently appears, that the trust was failing for want of a trustee, and that Mr. Young was therefore appointed to execute it, where did the legislature get the power to make the appointment?</p> <p>We need not argue at this time of day, we presume, that the legislature has no such power. -</p> <p>The charter of the bank created a trust, and provided for trustees to execute it; conveyed, in the act creating the fund, the trust property to trustees who were thenceforth its legal managers. The act of 1844, to use the language of the syllabus in The Commercial Bank of Natchez v. Chambers et al., 8 S. & M. 9, “’created a limited agency.” The first by its terms created a trust; the látter by its terms proposed to do nothing more than to create “a suitable and competent agent,” with certain prescribed powers.</p> <p>If the legislature had intended to appoint a trustee, because the trust fund required such appointment, to prevent its failure, it would doubtless have recited in the act some of the facts that a skilful attorney would insert in a bill in chancery for that purpose*</p> <p>Therefore, as the act of 1844 is not good in form to convey this property to Mr. Young, and as there was a defect of power in the legislature so to convey it, even if the form were good, we must conclude that, all that portion of the act, out of which this case grows, is a misprint, or, perhaps; a mere oversight of the enlightened law-making power. .</p> <p>3. But if we go out of the record, to matters ■ which may exist in pais, what then would be the state of facts? We would first, certainly, find that one of the original trusteeg to whom the'sinking fund was conveyed, namely, the auditor of public accounts, was in being and perfectly able, and no doubt willing to execute the trust; at least he has never signified his inability to do so. That he is an existing, trustee, is judicially known to the court; and as to the other two trustees, we would probably find that their powers, by some peculiar legislation, have passed into the hands of one of the sets of trustees, to whom, by legislative enactments, have passed all the interest and authority that the president and cashier of the bank had over the subject matter of this suit. Or, if we should find as to them, that their powers as trustees have been destroyed by the state, and not preserved to anyone else, then the auditor either has full powers as surviving trustee to execute the trust; or if not, it is his duty to apply to the chancellor for such power as will enable him to do it.</p> <p>1. The sinking fund is a collateral security pledged to the payment of the accruing interest on two millions of dollars (state bonds) and to $ 250,000 of the principal, vested in trustees responsible to the parties interested, only through the courts of the country for the faithful discharge of their duties; the state is only rémotely and contingently interested in this fund, and the contract under which it was created she specifically denied to herself the right to apply it to any other purpose, and reserved only by implication a general right of legislation over it as over the property of any individual in the community.</p> <p>The legislation on this subject is maintained on the ground of state interest in the fund. I understand the rule of law to be that, when a state contracts with individuals, she places herself as it regards the contract on an equal footing with them. When a state takes stock in a bank, or becomes otherwise interested therein, the bank does not thereby become a public corporation, subject to,unqualified legislative control, but the state as a stockholder has no greater rights or powers than any individual stockholder. If she contracts even by voluntary donation with individuals, she cannot revoke, annul, or qualify, such contract, or any of its stipulations by virtue of her sovereign power. Such contract is as sacredly protected by the constitution of the United States from violation by subsequent legislation as is any contract between individuals merely. Fletcher v. Peck, 2 Cond. R. 308 ; Commercial Bank of Natchez v. Chambers et al., 8 S. & M. 9; Angelí & Ames, 23, 24, 25; Bank of the United States v. Planters’ Bank of Georgia, 9 Wheat. 904; Allen v. McKeen, 1 Sumner, C. C. R. 276.</p> <p>On this point Mr. Paxton further argued at length that the appointment of the state commissioner was divesting the rights of the commissioners of the sinking fund, who were in the office when their successor is appointed.</p> <p>2. In 1846 there was a partial failure of the trustees by the forfeiture of the Planters’ Bank charter, yet one of the trustees appointed under the original contract, (the auditor of public accounts,) continued in being, holding his title to the trust fund unaffected by the failure of his co-trustees; and the legislature had no better right to divest his title to the fund than they had to divest that of the three holding jointly. Whether he had or not the power to act alone in the administration of the trust, I do not consider it important to inquire at this time.</p> <p>3. But admit that, by the failure of the president and cashier of the bank, the title of the auditor to the fund, and his character as one of the commissioners of the sinking fund, also expired; it presents merely the ordinary case of a trust without a trustee to execute it, and the remedy to the parties interested is to be found only in a court of chancery. If it was strictly a public trust, the legislature might appoint the trustee, or confer the right of appointment on an executive officer. But we have seen that the state had no such interest in the fund as to make this a public trust, and the law and the appointment are still void, because of the usurpation by the legislature and executive of judicial powers.</p> <p>4. There is another view in which I would present this question. At the time of the passage of this law, a large amount of interest on, and $125,000 of the principal, of these bonds was due and unpaid. The state was discredited to that extent. This fund was derived wholly from the sale of the bonds, it was, by the contract, under which the bonds were sold, specifically pledged to the payment of the interest and the two first instal-ments of the principal debt. It wa,s, as we have seen, merely collateral to the principal liability of the state, as evidenced by the bonds. The commissioner is directed by the law to pay the amounts collected into the state treasury, and this under heavy penal responsibilities. He does not even pay it in, nor is the treasurer required to place it to the credit of the bond holders. The collateral security has fallen into the hands, not of the creditor but of the debtor. What is the effect of this? The security is extinguished. Iu plain terms, the state has confiscated the sinking fund. Her creditors had originally the state bonds, the highest evidence of the state debt; they had numerous legislative resolves declaring the validity of their demands; they had a collateral security to which they could resort, and through the courts of the country coerce by execution, the payment of their demands to the extent of the security. What have they now? They have the bonds, a little older it is true, but none the better for their advanced age; they have a few more legislative resolves and gubernatorial messages, but by omnipotent legislation the tangible security which was once within their grasp, is transformed into another “pledge of the faith of the state.” What remedy have they against the state? A mere shadow. They may sue the state by bill in chancery. The chancellor may declare their rights in the form of a decree of his court, but they can have no execution upon it. They must go again to the legislature with their decree. They have established by a decree of the chancery court, what the legislature never denied, and there the remedy ends. The money cannot be paid from the treasury except in pursuance of an appropriation made by law.</p> <p>5. The act of the 4th of March, 1848, passed subsequent to the filing of the record in this court on the appeal, cannot affect this decision; but if so, it is itself void. It assumes to the legislature judicial powers, in determining the priorities of the creditors as amongst themselves, and is thus liable to objection on constitutional grounds. It is, moreover, wholly impracticable and unavailing when taken in connection with the condition of the bonds. It authorizes the payment of the “coupons ” only. The plan and form of the bonds and the contract of sale, and term, “ coupon,” implied that the coupons should be cut from the bond and presented separately for payment, and the bond holders have accordingly-cut all the coupons from the bonds. The law, however, provides that no coupon shall be paid “unless the same is presented attached to the bond, and cut from the bond by the slate treasurer.” Thus this law, apart from constitutional objections, may be safely held as of no effect, and not one dollar of this' fund can ever be paid to the holders of the bonds as coupons, without further legislation on the subject, and must be expended for general state purposes or remain locked in the treasury, instead of being paid to those entitled, or increasing at the rate of ten per cent; per annum, as originally contracted.</p> <p>Filed an argument of great length, reviewing the positions assumed by Mr. Paxton; and contended that they were not sustained by principles of law or common sense. He relied upon the case of the Commissioners of the Sinking Fund v. Walker, 6 How. 143, cited on the other side, as settling the law of this case, and conclusive upon the right's=of the parties.</p>

In error from the circuit court of Noxubee county; Hon. A. B. Dawson, judge. H. L. Jarnagin sued James H. Mosely and Sarah Barnes, alleging them to be executor and executrix of John Barnes, deceased, for one hundred dollars due by the testator for professional services, as attorney at law, rendered. The writ was returnable to the December term, 1846, and was indorsed, “ Executed on Sarah Barnes.

<p>If a verdict be rendered in a cause at one tdiiix.of the circuit court, and from any reason the judgment of the court thereon be not entered, it is competent for the court, at a subsequent term, to order a judgment according to the verdict to be entered nunc pro tunc; but if there be no verdict in the record, the court cannot at a subsequent term order a verdict and judgment to be entered nunc pro tunc; if the record do. not show that a verdict was rendered, it cannot be supplied at a subsequent term.</p> <p>A bill of exceptions to the ruling of the court at the trial, sealed at a term subsequent to the trial, though the exceptions were taken at the time, is incompetent.</p> <p>When an administrator is sued at law, he need not plead payment specially ; he is allowed by statute to prove it under the general issue.</p> <p>Where a note is payable to bearer, and the note is sued upon it, he may prove, by one through whose hands the note had passed in the course of business before it reached the plaintiff, that the note was paid.</p> <p>In an action on a note against the administrator of the maker, it is not competent for the defendant, by way of establishing the maker’s incapacity to make the note, to show that the maker had been declared incompetent to make a will; of date older than the note, by reason of insanity.</p>

<p>In an action of ejectment, where the plaintiff claims under a sheriff’s deed, he need only produce a copy of the judgment; he is not required to produce the whole record ; more especially is this the case, where it is a judgment of the court in which the suit is brought that is offered in evidence.</p> <p>Mere irregularities, either in the execution or judgment, will not affect a purchaser at sheriff’s sale ; they cannot be collaterally inquired into.</p> <p>When transcripts of judgments and executions are introduced as evidence, they must be accompanied by the proper certificates ; yet if no objection is made for the want of such certificates, they will be presumed to have existed, though they do not appear in the record.</p> <p>A certificate of the register of a land office, that W. C., the defendant in an action of ejectment, had purchased and paid for part of the tract of land in controversy, as appeared by the books of his office ; and that a patent was then in his office, in the name of J. C., assignee of C.; is not competent evidence to prove title in J. C. to the land, being neither a certificate issued in pursuance of any act of congress (How. & Hutch. Dig. 599, § 1), nor the copy of any record in the land office (lb. 605, § 36, 35).</p>

<p>In error from the circuit court of Rankin county; Hon. Thomas A. Willis, judge.</p> <p>- Leroy W. Alliston sued Helen M. Foote upon a promissory note, signed “ H. M. Foote, by her agent W. S. Foote,” and payable to Alliston. The process was sued on the defendant, and at the return term her death suggested, and scire facias against James B. C. Thornton, her executor, awarded. The executor plead, “That the said Helen M. Foote, deceased, in her lifetime, did not undertake or promise in manner and form as the said plaintiff hath complained,” &c., with the affidavit annexed to it, that the plea was true in substance and fact to the best of his knowledge and belief.</p> <p>On the trial the plaintiff read the note sued on, without objection, and rested his case.</p> <p>The defendant offered no proof, but moved the court to instruct the jury, “that in the state of the pleadings in this case, the mere production of the note is not sufficient to authorize the plaintiff to recover, and that in the absence 'of all other testimony, they must find for the defendant, which the court refused to do. The defendant excepted, and the jury found for the plaintiff, and the defendant prosecuted this writ of error.</p> <p>The law is correctly propounded in the instructions asked, for two reasons:</p> <p>1. By our law, the plea throws upon the plaintiff the burden of proving the execution of the note, by an authorized, agent,. which proof, the mere production of the note could not administer. 4 How. 263. And it was sufficient to object to its sufficiency, at any time before the jury retired. 6 S. & M. 367.</p> <p>2. A party has a right to determine the order in which he will introduce his evidence, and the failure of the other party to object to the introduction of testimony offered, because other material evidence has not been previously given, affords no reason for dispensing with the subsequent introduction of such material testimony. 4 S. & M. 207, 312.</p> <p>The defendant in error contends,</p> <p>1. That the plea and affidavit did not put him to the proof of the execution of the note. The 3d section of the act of Jan. 13, 1824, provides that the execution of a note cannot be denied by a person not the maker of the note, but by plea supported by affidavit, that he believes it was not executed by the person by whom it is alleged to have been executed. Neither the plea nor the affidavit in this case complies with the statute.</p> <p>The note as introduced was properly received. Sumpter v. Geron, 4 How. 267; Vicksburg Water Works and Banking Co. v. Washington, 1 S. & M. 540.</p> <p>2. The note was received as evidence without objection, and even if when offered it was subject to objection, cannot after-wards be objected to. Phillips v. Lane, 4 How. 127; Carter v. Taylor, 6 S. & M. 372.</p> <p>3. The instruction asked does not bring in question the competency of the evidence; but insists only, that being in evidence, it did not authorize a recovery. Clearly the note proved the debt sufficiently, and sustains the verdict and judgment. See 2 Stark. Ev. 475.</p> <p>4. The bill of exceptions does not set forth that the exception was taken at the time, and before the jury retired, and therefore cannot be considered an error. Patterson & Tyler v. Phillips, 1 How. 572. See Muirhead v. Muirhead, 8 S. & M. 211.</p> <p>On the whole, it appears that the only point of time at which the objection now raised could have been made, was before the note was read in evidence, and that even then it could not have been sustained for want of the affidavit required by the statute. Hutchinson’s Code, 851; Stat. 1824, sec. 3; Revised Code, 594, § 25; Stat. H. & H. 20. Sumpter v. Geron, 4 How. 263, decides that non-assumpsit with affidavit, “ that he did not execute the note,” &c., imposes on plaintiff the necessity of proving its execution. See 2 Stark Ev. 475. Vicksburg Water Works and Banking Co. v. Washington, IS. & M. 540, was non-assumpsit, and special affidavit, nul tiel corporation, which was held good on demurrer to plea.</p>

In error from the circuit court of Hinds county; Hon. George Coalter, judge. On the 30th of April, 1841, the Mississippi Union Bank, for the use of Hiram G. Runnels and John A. Grimball, administrators of William Trahern, deceased, sued Thomas Graves, James E. White, William J. Wells and Austin Morgan, partners under the style of Wells & Morgan, and George Finucane, as makers of a note payable to the bank for $500, dated May 6, 1839, and due on the first of January, 1840.

<p>On appeal from the probate court of Lawrence county; Hon. Matthew B. Cannon, judge.</p> <p>On the 3d of September, 1844, James S. Ratcliff filed his petition against Joseph Ratcliff, administrator of Agga Ratcliff, deceased, alleging that petitioner was a distributee of the estate, and the administrator had omitted to report to the probate court certain enumerated items of assets of her estate, and certain enumerated claims against himself. At the September term, 1844, the administrator answered in substance, denying the allegations of the petition. At the February term, 1845, leave was given the petitioner to amend his petition; and by consent of counsel, the deposition of William Ratcliff, a brother of both plaintiff and defendant, was taken.</p> <p>At the May term, 1845, the amended petition was filed, charging more specifically the alleged omissions to inventory assets of the estate/, the principal item of which was the sum of about $639-16; being the amount of a judgment recovered in the court of common pleas of Orangeburg district of South Carolina, by Agga Ratcliff, against the petitioner, and which the petitioner paid in full to the administrator on the 15th of August, 1836.</p> <p>The administrator admitted in his answer the reception of the money, but stated that the judgment on which this money was paid, had been rendered in a suit for the recovery of a negro man named Smart, whom the petitioner had in possession, but to whom Agga Ratcliff was entitled during'her life ; and that, previous to the commencement of the suit in South Carolina for the negro, Agga Ratcliff, in consideration of her love and affection to her grandchildren, (the children of the administrator,) had given the negro to them; and as their agent, and in trust for them, he had received the price of the negro from the sheriff, in lieu of the slave. He exhibited the deed of gift with his answer, which was dated the 12th of March, 1828, and purported formally to convey Smart and other negroes to the children, by name, of Joseph Ratcliff, reserving, however, to the donor the use and benefit, during her natural life, of the slaves thus conveyed.. The deed of gift was acknowledged on the day of its date in South Carolina.</p> <p>The deposition of William Ratcliff was taken, and at the June term, 1845, the cause was tried in the probate court, when various witnesses on both sides were orally examiued, and their testimony reduced to writing. It is not deemed necessary to set out the facts proved.</p> <p>After the examination of witnesses was closed, the record states the petitioner then introduced in evidence the will of William Ratcliff, deceased, and read as follows: [Here follows the will, dated the 17th of January, 1795, witnessed by three witnesses, and probated by one of the witnesses in South Carolina on the 10th of October, 1795, before L. Lestagette, ordinary. By this will the testator left one third of his negroes to Agga Ratcliff, his widow, for her life, with remainder to his children, of whom the petitioner and defendant were two; the other provisions of the will need not be stated.]</p> <p>The record then proceeds: “ State of Mississippi, Lawrence county. At a probate court for said county, held at the courthouse thereof on the fourth Monday of June, A. D. 1845, this day, came the parties, (James S. Ratcliff against Joseph Ratcliff,) by their attorneys, and introduced testimony for and against the petition of said complainant; and upon a full hearing and argument thereon, it is adjudged, decreed, and declared by the court here that the following fact was proved : that the said defendant received for the said Agga Ratcliff, deceased, the sum of six hundred and ten dollars, which he never paid over to her, and which was due to her at the time of her death by him, and that the said sum of money ought to be returned by him as a debt due said estate; it is, therefore, ordered,” &c., according to the opinion.</p> <p>Next follows in the record a bill of exceptions, filed by the defendant to the refusal of the court to permit him to read the bill and proceedings thereon of James S. Ratcliff, the petitioner, against Agga Ratcliff in the chancery court of Orangeburg district, in South Carolina. The bill and answer, and the decree of the chancery court dismissing the bill, are all spread out in the bill of exceptions. The chancery suit related to the slave Smart in part.</p> <p>No other exceptions were taken, so far as appears of record; nor was any other bill of exceptions sealed ; the testimony was all copied in the record, by whose order is not stated.</p> <p>The administrator appealed from the decree.</p> <p>The decree should be reversed.</p> <p>1. Because it is against the evidence in the case, and against law.</p> <p>2. Because the court assumed the power to determine the facts on the testimony, “ without the consent of the parties; ” and did not order an issue to be tried by the circuit court, or refer the matter, according to directions of the statute. See How. & Hutch. 404, sec. 67, 68; and Kelsey v. Smith, 1 How. (Mis.) Rep. 80, 81, 82, &c., and cases cited.</p> <p>3. Because the court determined the fact against evidence, and in violation of the rights of other parties, not before the court, and who had the principal and chief interest in the subject matter, as appears from the record.</p> <p>4. Because if Joseph Ratcliff had failed to return in his inventory, debts actually due by him to the estate of Agga Ratcliff, he could not be proceeded against in this mode, but must be sued on his bond, &c. Kelsey v. 'Smith, 1 How. (Mis.) Rep. 68 ; 2 lb. 617, 813.</p> <p>5. Appellant, Joseph Ratcliff, denies in his answer to the petition, that the negro man, Smart, or the value of him, was the property of his intestate, Agga; and proves that denial true by' the deed of gift, made part of that answer. No presumption of assets is allowed. 2 How. 617.</p> <p>6. The answer shows, that Agga Ratcliff had only a life estate reserved to herself in the slaves named in the deed, and that she herself was only a trustee during her life, of the particular estate for the benefit of the donees in said deed of gift. 2 Lomax on Ex’rs. 233, sec. 15.</p> <p>7. Agga Ratcliff, by the deed, on 12th of March, 1828, more than twelve years before her death, had created Joseph Ratcliff, the trustee, to hold and accept the title to the slaves therein named, and, of course, at her death, to retain or take possession of them as circumstances should require, for the benefit of his children, the beneficiaries under that deed.</p> <p>8. The petitioner, James S. Ratcliff, cannot claim against the solemn deed of his mother, who had long before her death by that deed disposed of the slaves therein named; the slave, Smart, being one of them, of course the value of Smart recovered at law, against James S. Ratcliff, petitioner, in South Carolina, for his unlawful and improper conversion or detainer of Smart, must go according td the disposition made by Agga Ratcliff, of the slave himself.</p> <p>9. The will of William Ratcliff, which was introduced as evidence by petitioner, James S. Ratcliff, in the probate court, was not admissible as evidence, because not proved or recorded in any court or office within the state of Mississippi, as required by law. And because the record does not show whether it was the original will, or a copy that was so offered and read in evidence; and whether it was the original, or a copy, was not proved, so as to make it admissible as evidence; or the proof thereof, if any was made, in Orangeburg district, South Carolina, was not certified or authenticated according to law, to authorize its admission as evidence in any courts in the state of Mississippi. How. & Hutch. 388, sec. 13, 14; 5 S. & M. 151.</p> <p>10. But if the will of William Ratcliff had been properly proved or authenticated, so as to have been made admissible evidence, it proves nothing, and does not tend to prove any fact in issue; it does not show that negro Smart, or any other named or designated slave, was devised by testator to Agga Ratcliff, for life or otherwise, and there is no proof that Smart or any other specific slave constituted part of the estate of testator, William Ratcliff; nor does it prove that Agga, by devise or otherwise, ever received the slave, Smart, from the estate of her husband, or, that she did not obtain the slave, Smart, by other title, and after the death of her husband; nor is there any other proof offered by petitioner to show that Smart ever was the property or constituted any part of the estate of his father, William Rat-cliff.</p> <p>11. To make good assets in the hands of the executor, the absolute property must have been vested in the testator. 2 Lo-max, Ex’rs. 233, sec. 15, citing Deering v. Torrington, 1 Salk. 79.</p> <p>12. The answer of Joseph Ratcliff shows clearly that Agga Ratcliff had no absolute property in the slave, Smart, since 12th of March, 1828, and that Joseph Ratcliff never held the money recovered from petitioner, James S. Ratcliff, as executor, but as a trustee. And there is .no proof that Aggy Ratcliff, during her life, after the receipt of said judgment by Joseph Ratcliff, ever claimed or demanded it as belonging to her; she acquiesced for many years in its retention by Joseph, as trustee.</p> <p>13. The probate court should have heard and allowed as evidence the copy of the record of the suit in the chancery court for Orangeburg district, in South Carolina, brought by the same James S. -Ratcliff against Agga Ratcliff in October, 1828, and set out in the bill of exceptions in this record; by which it is shown that the rights of petitioners, now sought to be asserted in this proceeding, were, in that suit, settled and adjudged against him by the chancery court of South Carolina, more than seventeen years ago, and we insist is a bar to petitioner, and concludes him as to the same subject matter.</p> <p>14. The right of trial by jury, on an issue, which should have been ordered by the probate court in this case, has been violated, and appellant has been deprived of a full and legal hearing of his defence, by an assumption of power by the court below, both oppressive and dangerous, and by the most erroneous exercise of that power, against the weight of the evidence in therecord, determined on facts without authority.</p>

<p>Appeal from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.</p> <p>On the 13th of December, 1843, Robert H. Cage, assignee in bankruptcy of Philip B. Pope, for the use of William E. Pugh, sued William Phillips in an action of assumpsit upon an open account, contracted in the years 1837- and 1838, by Phillips with Pope before he was a bankrupt. The defendant plead several pleas, among .others, the statute of limitations of three years. The plaintiff demurred, the demurrer was sustained,.and a trial had upon the issues joined on the other pleas, which resulted in a verdict for the plaintiff. These proceedings need not be stated. The defendant appealed.</p> <p>1. Under the fourth section of the act of 1822, “all actions of account and upon the case, except actions for slander, and such actions as concern the trade or merchandise between merchant and merchant,” were barred within six years next after the cause of action occurred. By the eleventh section of the same act, “ all suits or actions founded on any account for goods, wares, and merchandise, or for any articles charged in any store account, shall be commenced and sued within two years next after the cause of such suit or action,” &c.</p> <p>The fourth section of the act of 1822 was repealed by the second section of act of 1827, and by the latter act, all actions enumerated in said fourth section, except actions on promissory notes, were to be prosecuted in three years. By same act of 1827, the limitation of two years mentioned in the eleventh section of act of 1822, was repealed, and in lieu thereof, all actions founded upon any account for goods, wares, and merchandise, or for any articles charged in any store account, shall be commenced and prosecuted in three years, and not after.</p> <p>By the act of 1828, the second section of act of 1827, which repealed the fourth section of the act of 1822, was repealed, and said fourth section of the act of 1822 was expressly revived. See H. & H. 569, 570, 573.</p> <p>Now, does the act of 1828 repeal by express terms or by implication that section of the act of 1827, which provided, that all actions founded upon any account for goods, wares, and merchandise, or for any article charged in any store account, should .be commenced and prosecuted in three years'! We'think not. The second section of the act of 1827, is expressly repealed, and the fourth section of the act of 1822 is expressly revived, but it cannot operate to repeal that section of the act of 1827, upon which we rely. It merely revived the fourth section of the act of 1822, and being revived, it stands as though it had never been repealed, and derives its force from the date of its passage in 1822, and not from the date of the act repealing the second section of the act of 1827, which repealed it. 1 Kent, Com. 466, 467; 6 Wheat. 294; 4 T. R. 109. ' ■</p> <p>If, then, the fourth section of the act of 1822 stands revived by the repealing act being repealed, it must necessarily exist as though it never had been repealed. If this be true, and the act repealing the repealing act does not repeal expressly the act limiting actions on store accounts, &c. to three years, it is still in force, because the revival of the fourth section of the act of 1822 cannot operate as an implied repeal of it, for it was passed subsequently in 1827.</p> <p>2. It is an established rule in the exposition of the statutes, that the intention of the lawgivers is to be deduced from a view of the whole and of every part of a statute, taken and compared together. And several acts in pari materia, and relating to the same subject, are to be taken together and compared in their construction. If we apply these established principles, or rules of construction to the various acts of limitations, the question before the court is, it seems to me, easily solved. The intention of the legislature is manifest. It is evident that the legislature intended to fix a different limitation or period of time, in which actions founded on store accounts, &c., should be instituted, from that which is provided for other actions upon the case. This intention is apparent from the fact, that the eleventh section of the act of 1822 (being the eleventh section of the same act which limits in its fourth section all actions of account and upon the case, to be brought in six years) provided that all suits on store accounts, &c., should be commenced in two years. Both of these sections would now be in force, if the eleventh section had not been repealed or modified by the act of 1827.</p> <p>After citing the different acts of limitation, contended that the act of 1828, (acts of 1828, p. 108,109, sec. 2, and How. & Hutch, p. 573, sec. 108,) repeals the second section of the act of 1827, and revives the fifth section of the act of 1822, which it recites as the fourth section of the act of 1822.</p> <p>The act of 1829, (acts of 1829, p. 83, 84, sec. 1, 2, and How. & Hutch. 573, sec. 109,110,) explains the acts of 1827 and 1828, and does not affect the act of 1828, but to recognize and re-enact it.</p> <p>It follows, then, that the fifth section of the act of 1822 was in full force at the time of the contracting of the account sued on, and of the trial of this cause in the court below. It also appears that the eleventh section of the act of 1822 was changed to three years in 1827, and that the fifth section of the act of 1822 was revived and re-enacted in 1828. The act of 1828 not only repeals the act of 1827, and thereby restores the fifth section of the act of 1822, but expressly revives the fifth section, which is a re-enactment of it. From this it is clear, that the fifth section being re-enacted in 1828, is a later statute than the eleventh section, which was even modified by having its limitation changed from two to three years, only as late as the act of 1827. The eleventh section is the act of 1827; the fifth section the act of 1828. The fifth section being a later statute than said eleventh section, now let tis inquire whether this action in the court below is one of the forms of actions intended to be embraced in said fifth section. The action of indebitatus assumpsit is in form and substance one species of action upon the case. The action of assump-sit is an action of trespass on the case. 1 Wheat. Selw. 44; 6 S. & M. 326. In the declaration, according to all precedents in pleading, it is styled an action of trespass on or upon the case.</p> <p>An action on or upon the case is wholly different from an action of case or in case, and the former is usually styled trespass upon or on the case.</p> <p>. Now the language of said fifth section is : “ And all actions of account and upon the case, except actions for slander, and except also such actions as concern the trade or merchandise between merchant and merchant,” &c. We know that an action of account could not have been instituted in this case. That is a peculiar form of action which lies between administrators, &c. and tenants in common. But the language, “all actions upon the case,” embraces every species of action upon the case, and amongst others the action which was instituted in this case. Especially so, as the language immediately following excepts certain species of action upon the case. The language used in the statute is comprehensive and strong,— “all actions upon the case,” except actions of slander, and between merchant and merchant.</p> <p>If then the fifth section embraces the form of action adopted in this case, as it must on every legal rule of construction, it is inconsistent with, and repugnant to, the eleventh section.</p> <p>Two statutes of limitation upon the same cause or species of action, the one of six and the other of three years, must be inconsistent and repugnant. If the two statutes are repugnant to each other, the rule in such case is, that “ where two statutes are passed inconsistent with and repugnant to each other, the one last enacted will operate as a repeal of the other by implication.” 5 Hill, (N. Y,) R. 221, 225, note (a); 1 Kent, 463; 5 Pick. R. 168, 169; 1 Pick. 43, 45; 12 Mass. R. 537, 545; 5 lb. 380, 382; 13 lb. 324; 21 Pick. 373, 377.</p> <p>If the two are repugnant, of course the last act governs, upon the principle that it is presumed to express the last intention of the makers. 5 Hill, (N. Y.) R. 225, note (a); 7 Kent, 463.</p> <p>The invariable rule of construction, in respect to the repealing of statutes by implication, is, that the earliest act remains in force, unless the two are manifestly inconsistent and repugnant to each other, or unless, in the latest act, some express notice is taken of the former, plainly indicating an intention to abrogate it. 5 Hill, (N. Y.) R. 225, 226.</p> <p>The act of 1829 re-enacts the act of 1828 in the last part of the statute, and establishes the construction contended for. In the preamble it says: “ And whereas the said act of 1827 was repealed, and the original provisions of the said fourth section (meaning fifth section) of the twenty-first chapter of the said code, revived by the said act of 1828.” Acts of 1829, p. 84; How. & Hutch. 573, 574.</p> <p>A subsequent statute, revising the whole subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as reason and common sense, operate to repeal the former. 12 Mass. p. 545 ; 1 Hammond, (Ohio) R. I; 8 Am. Com. Law Cases, 149; 4 Pick. 399, 404; 13 Mass. 324; 1 Kent, Com. 463; 12 Mass. 537; 5 Hill, R. 221; 1 Bl. Com. 89; 1 Tucker’s Com. 13, 14; 6 Bac. Abr. tit. Statute, 373; 3 Tomlin’s Law Diet. 522; 3 Halst. 48; 4 Mass. 570; 7 Cow. 536, 537 ; 1 Bl. Com. 90; 1 Kent, 466.</p> <p>Every statute derogatory to the rights of property should be construed strictly. 2 Dali. R. 316; 2 Mass. 143; 4 Hill, (N.Y.) R. 76, 92.</p> <p>Perhaps the two sections (5th and 11th) maybe reconciled by construing the Jatter to refer to actions between merchant and merchant. And there is good ground for this construction; for though the fifth section excepts “ all actions concerning the trade or merchandise between merchant and merchant,” yet there is no limitation provided for such actions, unless it be in the eleventh section. This court has decided, (Hazlip v. Leggett, 6 S. & M. 326,) that to a medical account sued in as-sumpsit, the limitation is six years.</p>

Henry Dickinson, vice-chancellor. On the 30th of April, 1844, James R. Enloe filed his bill, in which he alleges, that in January, 1838, Charles L. McGehe obtained a judgment in the Holmes circuit court against him for $1738-63, which was bonded with James Hurst as his surety; that Hurst agreed, for a consideration paid him by Enloe, to pay this judgment, and had ample property in Holmes county for its payment; Hurst, however, failed to pay it, and an execution in the year…

In error from the probate court of Greene county; Hon. John Mclnnis, judge. At the June term, 1846, Samuel Gasque, of South Carolina, filed his petition, showing that in the latter part of 1834, Ebene-zer Tart died intestate, leaving a considerable personal estate in several counties of this state, but the greater part thereof in Greene county.

<p>A judgment obtained upon a gaming contract, is void by the statute ; and equity will give relief, although the defence might have been made at law.</p> <p>Nor will it make any difference, that a note given for a gaming consideration has passed into the hands of an innocent holder, for a valuable consideration without notice ; the statute makes the contract absolutely void.</p> <p>N. and L. played at cards, and the latter lost a considerable sum, which he did not pay at the time; N. being in debt to R., the latter knowing the facts as to the money lost, at the instance of L., and with the consent of R., procured L.’s note, payable to R., for the sum thus lost by L. to N. ; R. transferred the note to F., who sued L. upon it in the name of R. for his use, and obtained a judgment upon the note for principal and interest; L. filed his bill for an injunction against the judgment; held, that it should be granted and made perpetual.</p>

<p>In error from the circuit court of Adams county; Hon. C. C. Cage, judge. '</p> <p>On the 18th of April, 1842, the president, directors, and company of the Agricultural Bank sued William Ferriday and Henry L. Bennett, surviving partners of Shipp, Ferriday & Co., John Routh, and Austin Williams, as joint makers of several notes, amounting in the aggregate to nearly one hundred thousand dollars.</p> <p>As the suit was subsequently discontinued as to Ferriday, Bennett, and Williams, it is not deemed necessary to notice the pleadings and progress of the case as to them.</p> <p>Routh, besides the plea of non-assumpsit, plead as follows, to wit:</p> <p>“ And for a further plea in this behalf, this defendant says, that he did not make and execute the said promissory notes as either set forth in the plaintiff’s declaration in manner and form as therein set forth, and this he prays may be inquired of by the country, &c.</p> <p>■ Quitman and McMukiun,</p> <p>Maxwell and WalkeR, att’ys for Routh.</p> <p>“ And the said John Routh in support of his said pleas saith, that the signature of this defendant was affixed to said promissory notes by William Ferriday, professing to act as attorney of this defendant, under and by virtue of a written power of attorney in possession of said plaintiffs, authorizing said Ferriday to sign the name of this defendant in transactions with said Agricultural Bank for the benefit of this defendant; which power of attorney this defendant is advised, and believes, did not authorize, in any manner, said Ferriday to sign the name of this defendant in any manner, except for the use or benefit of this defendant, or in the concerns of this defendant with said bank; that said notes sued on in this action were not made or given to said plaintiffs for the use or benefit of this defendant, or in arrangement of any of the business of this defendant with said bank, but solely for the benefit of said Ferriday, as the commercial firm of Shipp, Ferriday & Co., in which said Ferriday was a partner, and in which he was interested; and said notes sued were received and discounted by said plaintiffs with full knowledge that they were not applied, or to be applied, used, or discounted for the use or benefit of this defendant, or in the business or transactions of this defendant with said bank; that said written power was lodged with said plaintiffs and remained in their possession, and constituted the only authority under which said plaintiffs received the signature of said Ferriday for this defendant upon said notes sued on; that although this defendant had also executed, in the state of Louisiana, to said Ferriday a general power to sign the name of this defendant, the same was given solely to be used in the city of New Orleans, and not elsewhere. Nor were the bills sued on, discounted by said plaintiffs upon the faith of any authority possessed by said Ferriday, except the said power of attorney given and lodged with the the said plaintiffs as aforesaid. Wherefore, this defendant says that he is advised, and believes, that said Ferriday had no authority to affix the value of this to said notes, and this defendant denies, that executed the same, <fcc,</p> <p>John Routh.</p> <p>“Sworn to and subscribed before me this 15th December, 1842.</p> <p>Samuel Wood, Clerk.</p> <p>By James D. Galbraith, Deputy Clerk.”</p> <p>On which pleas issues were taken. On the trial, had at the November term, 1842, the plaintiffs offered to read in evidence to the jury the following instruments'of writing, with their certificates, having previously notified the defendant to produce the original, to wit:</p> <p>“ State of Louisiana, Parish of Concordia.</p> <p>“ Know all men by these presents, that I, John Routh, of the parish of Concordia, and state of Louisiana, have made, ordained, constituted, and appointed, and by these presents do make, ordain, constitute, and appoint William Ferriday, of the city of Natchez, state of Mississippi, to be my true and lawful agent, and attorney', in fact, general and special, giving, and by these presents granting unto my said attorney full power and authority for me, and in my name, or in the name and for the use and benefit of him, my said attorney, or for the use and benefit of, or in the name or names of any other person or persons whatsoever, to make, indorse, draw, accept, and negotiate all promissory notes, bills of exchanges, drafts, and other securities of any and every kind whatsoever. To issue letters of credit, to transact all banking business, to make all manner of renewals and in-dorsements of my name on all promissory notes, bills of exchange, drafts, or other securities of any kind whatsoever, consequent, or in any wise appertaining to such renewals, whether the same be payable to me or to my said attorney, or, to any other person or persons, or corporation, or company whatsoever, and generally to do all lawful acts and things whatsoever, concerning, or in any wise appertaining to the premises, as I might or could do, if I was personally present and acting therein, and any attorney or attorneys under him, for any or all the purposes aforesaid, to make, and at his pleasure, to remove or displace; hereby ratifying, allowing, and confirming all and whatsoever my said attorney in fact, shall in my name legally do, or cause to be done in and about the premises, by virtue of this act of procuration, which is to be taken and understood in its fullest and most comprehensive sense and construction.</p> <p>“ In witness whereof, I have hereunto set my hand and seal, at the parish of Concordia, state of Louisiana, on the twenty-ninth day of November, one thousand eight hundred and thirty-seven.</p> <p>John Routh, [Seal.]</p> <p>“Signed, sealed, and delivered in the presence of</p> <p>Thomas Alexander,</p> <p>Edward Sparrow.”</p> <p>“ State of Louisiana, Parish of Concordia.</p> <p>“ I, William L. Poindexter, a notary public in and for the parish of Concordia, in said state, duly commissioned and qualified, do hereby certify and attest unto all whom it may concern, that the foregoing power of attorney was duly signed and sealed by John Routh, in the presence of Thomas Alexander and Edward Sparrow, witnesses.</p> <p>“ To the due execution thereof an act being requested, I have granted the same, under my notarial form and seal of office, to serve and avail as occasion shall or may require.</p> <p>“Done and passed at my office, in the town of Yidalia, this twenty-ninth of November, eighteen hundred and thirty-seven.</p> <p>[Seal.] William L. Poindexter, Not. Pub.”</p> <p>“ United States of America, State of Louisiana. ■</p> <p>“ By Edward D. White, governor of the state of Louisiana.</p> <p>“These are to certify, that William L. Poindexter, whose name is subscribed to the instrument of writing herein annexed, is now, and was at the time of signing the same, a notary public, in and for the parish of Concordia, and that all his official acts as such are entitled to full faith and credit.</p> <p>“ Given at New Orleans, under my hand and seal of the state, this second day of December, one thousand eight hundred and thirty-seven, and of the independence of the United States the sixty-second.</p> <p>“ By the governor. d. White.</p> <p>[Seal.] MaRtin Blache, secretary of state.”</p> <p>“I certify the foregoing to be true copies of the original power of attorney and governor’s certificate annexed to an act of deposit of said documents passed before me on the second day of December, eighteen hundred and thirty-seven.</p> <p>“ In faith whereof I grant these presents, under my signature and the impress of my seal of office at New Orleans, this thirteenth day of December, one thousand eight hundred and forty - two.</p> <p>[Seal.] H. B. Cenas, Not. Pub.” •</p> <p> “ United States of America, State of Louisiana. </p> <p>“By A. B. Roman, governor of the state of Louisiana.</p> <p>“ These are to certify, that H. B. Cenas, whose name is subscribed to the instrument of writing herein annexed, is now, and was at the time of signing the same, a notary public, in and for the parish and city of New Orleans, state of.Louisiana; that his signature is genuine, and that the said Hilary B. Cenas is the proper officer to certify the instrument herewith annexed, and that the attestation is in due form of law.</p> <p>“ Given at New Orleans, under my hand and the seal of the state, this thirteenth day of December, one thousand eight hundred and forty-two, and of the independence of the United States, the sixty-seventh.</p> <p>“ By the governor. A- R Roman-</p> <p>[Seal.] Levi Levin, secretary of state.”</p> <p>The defendants objected to their introduction, but the objection was overruled.</p> <p>The plaintiff then offered to read the notes' sued on, one of which was in these words, viz.:</p> <p>“$50,000. Natchez, Aug. 24, 1839.</p> <p>“On the twenty-fourth day of August, A. D. eighteen hundred and forty, we, or either of us, promise to pay, without defalcation, to the order of the president, directors, and company of the Agricultural Bank of Mississippi, for value received, fifty thousand dollars, payable and negotiable at their banking house, in Natchez. Renewable.</p> <p>Shipp, Ferriday & Co. in liquidation,</p> <p>John Routh, by his attorney, Wm. Ferriday,</p> <p>Austin Williams, by his attorney, Wm. Ferriday.”</p> <p>The other notes were of similar form. The defendants objected to their introduction, but the objection was overruled, and exceptions sealed.</p> <p>The defendants then read the following power of attorney, the same being produced by the plaintiffs, on notice to that effect, to wit:</p> <p>“Know all men by these presents, that I, John Routh, of Adams county and state of Mississippi, have constituted and appointed, and by these presents do hereby constitute and appoint, William Ferriday, D. C. Miller, and John Boynton my true and lawful attorneys, for me, and in my name and behalf, to transact the following in and with the Agricultural Bank of Mississippi, in Natchez, viz: to sell and transfer any stock standing, or which hereafter may stand in m.y name on the books of said institution, to receive and sign receipts for all dividends now due, or which may grow due on the stock as aforesaid; to deposit money in' the said institution, and to draw checks in my name; to lodge promissory notes, bills of exchange, and other obligations for collection, and to withdraw the same at discretion; to borrow money, and to contract with the said institution in my name, whether on promissory notes, bills of exchange, or obligations drawn in my favor, or drawn in favor of any other person or persons, without limit as to the amount; and to receive and acknowledge notices of protest of all or any bills of exchange, drafts or promissory notes; and to do and perform all such other acts as may be necessary in transacting my business with said institution ; finally, empowering the institution as aforesaid to receive my said attorney’s signature for me, on all bills of exchange or drafts, as drawer, indorser, or acceptor, and on all promissory notes, or other obligations, as maker or indorser; hereby binding my heirs and assigns to all the acts of my said attorney touching the premises, as fully as were I personally present, or were the signatures in my own proper handwriting.</p> <p>“ In witness whereof I have hereunto set my hand and seal. Done at Natchez, this 14th day of April, 1834.</p> <p>Witness, John Routh. [Seal.]</p> <p>A. M. Griffin,</p> <p>D. H. Tenpin.’’</p> <p>Also the following agreement:</p> <p>“ Agreement between John Routh, of Adams county, state of Mississippi, and the president, directors and company of the Agricultural Bank of Mississippi.</p> <p>“I, above named, have given a power of attorney to William Ferriday, D. C. Miller, and John Boynton, dated the 4th day of April, 1834, to draw and indorse promissory notes and bills of exchange, and for other purposes; it is hereby agreed by and between the said John Routh and the president, directors and company of the Agricultural Bank of Mississippi, that the signature of the said John Routh, by his said attorney, on bills of exchange or drafts, as drawer, indorser, or acceptor, and on all promissory notes, checks, or other obligations, as maker or indorser, shall be good and available against him the said John Routh, his heirs, executors, and administrators, notwithstanding the revocation of said power, express or implied, by death- or otherwise, until notice thereof shall be given to the president, directors and company of the Agricultural Bank of Mississippi. And I, the said John Routh, do hereby covenant and agree with the president, directors and company of the Agricultural Bank of Mississippi, that I, the said John Routh, my heirs, executors and administrators shall, and will, pay all such notes, bills of exchange, or other obligations signed and indorsed, before notice as aforesaid, notwithstanding such revocation or determination of the power, as fully as if the same had been indorsed or signed while the power was in full force; and will fully indemnify and keep harmless the president, directors and company of the Agricultural Bank of Mississippi.</p> <p>“ In witness whereof, the said John Routh has hereunto set his hand and seal the 4th day of April, 1834.</p> <p>John Routh.</p> <p>“Signed, sealed and delivered in presence of</p> <p>A. M. GRIFFIN,</p> <p>D. H. Tenpin.”</p> <p>Ayres P. Merrill, for defendant, proved that he was cashier of the plaintiffs at the time the notes sued on were discounted, and that the power of attorney of April 4, 1834, was held by the plaintiffs from its date until that time, and the plaintiffs acted on it as Ferriday’s authority to affix the signature of Routh to ■the notes sued on, as far as he knew; he did not know what might have operated on the directors’ minds in discounting the notes sued on; he knew of no other authority to Ferriday to sign Routh’s name, than the one held by the bank; the notes sued on were all discounted by the plaintiffs, and the proceeds applied to the discharge of the liabilities of Shipp, Ferriday & Co. to the plaintiffs.</p> <p>This was all the evidence. The jury found for the defendants. Routh & Williams, (as to the latter of whom there was the same testimony before the jury as to Routh,) the plaintiffs, moved for a new trial, because the verdict was against law and evidence; it was granted by the court below, and the defendant embodied the evidence in a bill of exceptions thereto.</p> <p>On the 5th of December, 1843, a second trial was had, at which, after proving that all the signatures to the notes sued on were in the handwriting of William Ferriday, the plaintiffs offered the deposition of William L. Poindexter, who testified, that on the 29th of November, 1837, Routh appeared before him, a notary public, duly appointed for the parish of Concordia, in the state of Louisiana, and executed a power of. attorney to William Ferriday, to the original of which he affixed his notarial certificate of the appearance and execution of the power. This original was deposited with H. B. Cenas, a notary public in the city of New Orleans; he had demanded the originals of the notary for the use of the plaintiffs in this suit, but the notary refused to deliver them for the reason that they formed a part of his notarial records, and could not be taken from his office. That he has an authentic copy, which he files with and makes part of his deposition of the power of attorney of Routh, executed as stated, which he had compared with the original in the office of Cenas; and it was the same executed by Routh before the witness.</p> <p>This copy, with the certificates, is the same identically with the one set out in the first bill of exceptions, except the governors’ certificates.</p> <p>It was admitted that Sparrow and Alexander, the witnesses to the power of attorney, and Poindexter the deponent, were citizens of Louisiana. The court, notwithstanding the objection of the defendants, admitted the- evidence of Poindexter, the power of attorney, and the notes sued on, and the plaintiffs closed their case.</p> <p>The defendants then proved that the firm of Shipp, Ferriday & Co. consisted of William Ferriday, William Shipp, William Bullitt, and Henry L. Bennett; and that Shipp died in 1834, Bullitt in 1835.</p> <p>The defendant then read the power of attorney of agreement of the 4th of April, 1834, as already set out and proved by Ayres P. Merrill, in addition to the proof made on the first trial, that he was present with the board of directors when they discounted the notes sued on; the power of attorney of April, 1834, was on their table, and he believes was the only authority the plaintiffs then had for receiving the signature of the defendant Routh.</p> <p>On cross-examination he stated, that the notes sued on were executed in renewal of others of Shipp, Ferriday & Co.; that Routh’s name was upon it, signed by Ferriday as agent. The following letter he stated to be signed by Williams & Routh; the body of it was in the handwriting of Ferriday, viz:</p> <p>“ Natchez, 7th March, 1838.</p> <p>“ William Ferriday,</p> <p>“ Sir, — A remark in the report of the commissioner, relative to the affairs of the Agricultural Bank being calculated to induce the belief on the public mind, that you have used our names as indorsers, under our power of attorney, to an extent not known to us; we hereby state that the use of our names on your paper, or that of your firms, has had and now has our entire approbation and consent; and that we are and have been fully aware of the extent of our liabilities on that account.</p> <p>We are Sir, yours, truly,</p> <p>Austin Williams,</p> <p>John Routh.”</p> <p>That this letter was published by William Ferriday, with comments, in the Natchez Free Trader, about the time of the date of the letter; this publication of Ferriday’s was also read to the jury. The witness and several of the directors of the bank had seen this publication and letter when they were made.</p> <p>Stephen Duncan was then introduced as a witness by the plaintiffs, and being sworn on his voir dire, stated that his wife owned stock in the Agricultural Bank, which had been transferred to her within the last eighteen months, as one of the distributees of her mother’s estate; he had always considered it as the separate property of his wife, but there was no marriage contract of ante-nuptial agreement, or any other agreement, by which the stock was secured to his wife as her separate property, but he of his own free will had chosen to consider it as hers, never intermeddled with it, and had not claimed or intended to claim it or receive any dividend from it, and at his death it would remain with her, and not go to his children. The court below, the defendant objecting, admitted Duncan as a witness; he proved that Routh had admitted to him his liabilities to the plaintiffs as surely for Shipp, Ferriday & Co., and expressed his intention to pay them, &c.</p> <p>William Ferriday, as to whom the plaintiff’s action was discontinued, and who had been discharged as a bankrupt, was offered as a witness for plaintiff, objected to and admitted. He proved that the notes sued on were executed to take up liabilities of Shipp, Ferriday & Co., on which Routh was surety; and that Routh had had from the first full knowledge of this use of his name, &c., and never objected to it, and knew also who composed the firm, and when the other partner died.</p> <p>The court below refused to let him answer whether or not the power of attorney executed in Louisiana was granted to him only to be used in that state.</p> <p>This being all the testimony, the plaintiffs asked the court to instruct the jury as follows, viz.:</p> <p>1. If defendants show that Shipp & Bullitt were dead before the notes were made, they cannot set that up to avoid the note.</p> <p>2. If Ferriday & Bennett were in the habit of signing the firm’s name, it bound them; and Routh & Williams, becoming surety with a knowledge of the fact, were bound also.</p> <p>3. It was not necessary to prove that plaintiffs ever saw the powers of attorney executed in Louisiana.</p> <p>4. These powers were sufficient to bind defendant, whether they were known to the bank or not.</p> <p>5. If defendants gave the powers, and these powers gave Ferriday power to sign their names, the jury must find for plaintiffs.</p> <p>6. The acknowledgment that they knew the extent of their liability, was sufficient evidence that they did know it.</p> <p>7. If Ferriday had competent power, it is immaterial that there were insufficient powers in possession of plaintiffs.</p> <p>These instructions were given and exceptions taken.</p> <p>The defendants asked these instructions.</p> <p>1. If Ferriday signed the name of Routh in virtue of the powers dated 4th April, 1839, and the plaintiffs received the signature alone by virtue of said powers, and said notes were taken in' discharge of the liabilities of Shipp, Ferriday & Co. to plaintiffs, and did not relate to the business of Routh, the plaintiffs cannot recover.</p> <p>2. That the powers of attorney made in Louisiana are void, and not sufficient to authorize Ferriday to sign defendant’s name.</p> <p>3. That if the partnership of Shipp, Ferriday & Co. did not exist at the date of the note sued on, and that Williams Sc Routh' are only sureties for Shipp, Ferriday Sc Co. on said notes, they are not liable.</p> <p>4. That if two of the members of the firm were dead, the partnership was dissolved, and the survivors had not authority to sign the firm’s name; and if Routh Sc Williams’s names were signed merely as sureties for Shipp, Ferriday & Co., they were not bound.</p> <p>All of which were refused and exceptions taken.</p> <p>Routh & Williams sued out a writ of error, which was after-wards dismissed as to Williams.</p> <p>contended,</p> <p>I. That if the first verdict was right, and the new trial improperly granted, the last verdict should be set aside and the parties left to their condition on the first verdict. Act of 1830; How. & Hutch. 493; Wood v. Am. Life Ins. Sc Trust Co., 7 How. 609.</p> <p>II. That the new trial ought not to have been granted. On this point they argued,</p> <p>1. That the court erred in permitting the copy of the power of attorney to go in evidence to the jury without any attempt to account for the loss or absence of the original, or diligence to get it produced. The power was not in Routh’s possession; it was not properly his paper; it belonged to Ferriday, and no attempt was shown to procure it from him.</p> <p>2. If the court admitted the copy on the ground that it was duly authenticated under the act of Congress, it was error; as, 1. The power of attorney was not an instrument of such dignity and character that it could be proved by copy under the act of Congress. Torrey v. Filler, 1 Mass. 524; How. & Hutch. 791, 792. 2. The copy does not purport to be made by any one who has a right by law to give a copy that may be receipted in lieu of the original. 3. It no where appears in the first bill of exception that Mr. Cenas, who certifies this copy, is the keeper of the original. 4. It does not appear that the original ever existed, as Mr. Cenas does not pretend to have seen it executed. 5. Poindexter was the notary before the original purports to have been made; it is not shown what connection Cenas has with 'it, except that it was deposited with him, (the inference is a fair one,) for safe keeping. Marie Louise v. Cauchoix, 11 Martin, Louis. R. 243, and cases cited.</p> <p>3. Even if this copy was evidence, proof of the import and force and effect of the power of attorney in Louisiana should have been offered before it was received as proof of agency in Ferriday. Melan v. Fitzjames, 1 Bos. <fc Pull. 140; l P. Wms. 431; Cowp. 174; Story, Confl. Laws, 261, 263, 282, 298; 1 Met. 82; 8 Pet. 73; 9 lb. 622; 6 Cranch, 38; 2 lb. 787.</p> <p>4. The testimony of Merrill shows that the notes were executed under the special power of attorney, which must be strictly pursued; and the bank knowing both principal and agent, and crediting the agent, as appears to have been the case here, cannot resort to the principal. Patterson v. Gandesequi, 15 East, 62; Addison v. Same, 4 Taunt. 574.</p> <p>5. The notes were in the partnership, name of Shipp, Fer-riday & Co., two of the members of which were dead when the note was made; the note was then void. Lamb v. Saltus, cited 1 Nott & McCord, 561; Foltz v. Pourie, 2 Dess. 40 ; Sandford v. Mickles, 4 John. 224; Marlin v. Walton, 1 McCord, 16; 1 Hill, R. 572; H. Black. 155; Bell v. Morrison, 1 Pet. R. 351. Being void as to the principals, the note was void as to the surety. Theo. Prin. & Surety, 3.</p> <p>6. The verdict was not against weight of evidence, nor was there any valid reason offered why it should be set aside; it ought to stand: 1 Term R. 84; 2 lb. 113; 2 Stra. 1106, 1142.</p> <p>III. The second verdict they contended was incorrect, for many reasons which applied to the first; and they further argued,</p> <p>1. Sworn copies were but copies, and not evidence, unless it was in proof by the laws of Louisiana that the originals were in the custody of a “public depositary.” Owings v. Hull, 9 Pet. 626.</p> <p>2. The fact that Cenas is a notary public does not constitute him the keeper of the original power; it is only the protest of foreign bills of exchange that carries with it evidence proprio vigore. Philips v. Flint, 3 Lou. R. 149.</p> <p>3. No legal attempt was made to procure the originals of Cenas.</p> <p>4. A power of attorney making A. the agent of B. in Louisiana, does not make him so in Mississippi. The fact that one power wa's executed for Mississippi, and another for Louisiana, shows that they were designed to be united to each state; while Merrill’s testimony proves that the Mississippi power was the one under which the liability was created and received, by it it should be judged.</p> <p>5. The deposit of the special power with plaintiffs, and its remaining with them and being used by them, is evidence that the general power was not designed to be used in contracts with the bank.</p> <p>6. Duncan was an incompetent witness. He was directly interested in the event of the suit.,</p> <p>7. The letter of Routh & Williams was improperly admitted in evidence; it was written one year before the liability was incurred.</p> <p>8. Ferriday'was an incompetent witness; though declared a bankrupt, he had not released the benefit of any surplus that might be in his assignee’s hands.</p> <p>9. The question as to the limitation on the use of this power of attorney, should have been allowed to be put to Ferriday. It could not prejudice the plaintiffs to prove a limitation on it, as they did not contract with reference to it or knowledge of it.</p> <p>10. Upon a fair construction of the so-called power of attorney in Louisiana, it will be found to be but an unlimited letter of credit, and Routh should have had notice of all debts contracted under it to bind him. Russell v. Clark, 7 Cranch, 69; 13 Mass.’ 181.</p> <p>1. The power of attorney was certified according to the laws of Louisiana, and was in the nature of public or authentic acts, according to the law of Louisiana. Civ. Code, art. 2239; lb. art. 2231; lb. art. 2961.</p> <p>This document comes within the provisions of our statute, and was properly admitted. Hutch. Code, 864, latter clause of art. 2. But if the word state in this statute does not mean one of the states of the Union, as will be contended, still we insist that these copies are evidence under the act of congress. 2 U. S. Stat. at Large, 298.</p> <p>But as the verdict on that trial was in favor of the party reserving the exception, it ceases to be of importance. What order or judgment can the court now give if it sustains the objection 1 The party has received all the court could give him, a second trial freed from the irregular evidence of which he complains.</p> <p>2.'If, from the evidence before the jury, the verdict was right, it ought to stand ; but it is not competent to withdraw a part of the evidence, because it was wrongfully permitted to go to the jury, and uphold the verdict, on the ground that it would have been right if the illegal evidence had been excluded. How can this court know that other sufficient evidence would not have been produced if the illegal had been excluded 7</p> <p>3. The substance of the defence, on the first trial, seems to be that the bank officers had possession of certain special powers of attorney, which did not authorize the use of the constituent’s name in the case, which they probably thought were sufficient, and may have believed were the only powers; and therefore they are not at liberty to invoke the aid of other powers which were in existence, and all-sufficient to authorize the use which was made of the names of defendants.</p> <p>A sufficient power will even be inferred from the acquiescence of the constituent in the acts of the agent, which clearly transcend the scope of his original powers. Wilkins v. Commercial Bank, 6 How. 220; Dunlap’s Paley’s Agency, 171, notes 1, 2.</p> <p>4. But Routh’s power of attorney, deposited in the bank, had been revoked, and he subsequently, by written agreement, ratified the act of his agent. These notes were given subsequent to this agreement, and therefore could not have been received in virtue of either the powers which were in bank, or included in the ratification. They were received in virtue of the general powers, either upon the faith of Perriday’s respectability, or from a knowledge of the directors, that he had other authority.</p> <p>The testimony of Merrill does not disprove the existence of other powers, or the ignorance of their existence among the directors, but merely his own state of mind, and the belief that the powers deposited in bank were regarded as the authority of the agent.</p> <p>5. The notion that these general powers were to be exercised only in Louisiana is not tenable. The language shows they were intended for universal use. The agent resided in this state, and the business to be transacted was spread all over the world.</p> <p>6. Was the copy of the power of attorney properly admitted at the second trial? It did not belong to the plaintiffs, although they have given credit on the faith of it. Being general powers, in which numerous persons and corporations are or may be interested, the agent, under ordinary circumstances, would be the proper keeper; but as they have been, either for convenience or in accordance with the laws of another state, deposited with a private individual, or public officer, and are not subject to the control of the party interested in using them, secondary evidence is admissible. Phil. Evid. Cow. & H. ed. note, 1215; 3 Mon. Rep. 532; 7 Pick. R. 10; 9 Cow. R. 115; 1 Port. R. 131; 6 Peters, R. 352; 13 Johns. R. 58; 1 Phil. Ev. 436, 439, 440, note to Cow. & H. ed., 832; lb. note, 1214, 458, 461; also notes 1046-1048 ; 6 Carr. & Payne, 206; 25 Eng. Com. Law R. 358; 1 Stark. Evid. 167.</p> <p>7. Dr. Duncan was a competent witness. The only interest he could have, was the right to the income, but there was no evidence there was any income or dividends, and profits are not matters of course; and if there were any, he disclaims them. Hence, he had no interest in the event of the suit, and it is too late to make other objections to his being sworn. The party must be confined to the record; if the objection had been taken, that his wife was interested, and from public policy, he ought not to be allowed to testify in a case in which she had an interest, it would have presented a different subject for consideration, and the party offering the witness might have withdrawn him, rather than risk the question. As that objection was not made, it must be considered as waived. The record shows that another witness proved the same facts, to wit, Ferriday, and if the objection had been stated, Duncan would have been withdrawn, rather than risk the question.</p> <p>8. Ferriday was admitted to be a certificated bankrupt, and the suit'as to him was dismissed. This was not a case in which the bankrupt’s estate was involved in any way. His discharge rendered him competent. Murray v. Marsh, 2 Hay w. 290.</p> <p>9. Ferriday was asked by defendants, if the general powers were not given to be used in Louisiana, to which plaintiffs objected. It certainly cannot be necessary to read authorities to show that written instruments must speak for themselves, and parol evidence cannot be admitted to enlarge, vary, explain, or limit them.</p> <p>10. The first and second instruction, that if defendants knew that Shipp and Bullitt, of the firm of Shipp, Ferriday & Co., were dead before the notes were made, they could not set that up to avoid the notes, was correct.</p> <p>The notes bound the survivors at least, for Ferriday proves that Bennett and himself were in the habit of using the firm’s name, and Routh & Williams knew that fact, and consequently were the sureties in fact of Ferriday <fc Bennett; that Ferriday & Bennett were bound, &c. 3 Mont. & Ay. 87.</p> <p>11. As to the third instruction, that it was not necessary that plaintiffs ever saw the general powers, &c.; the parties had a right to take Ferriday’s word that he had power, or to take it for granted he had them, from his presuming to exercise them ; and when they claim to enforce contracts made with him, it is only necessary to show that he was in fact authorized, without showing that the party took the precaution in the first instance to require proof of his power.</p> <p>12. As to the instructions asked for defendants below and refused, the refusal was correct.</p> <p>1st. It cannot be important to the validity of a contract, that the parties should have their minds fixed on the facts which were necessary to give validity to it. What odds can it make in law or morals, whether the parties acted on the faith of one power of attorney or the others if one of the powers gave authority to do the act 1</p> <p>2d. We cannot conceive what circumstance is relied on to show that the powers executed in Louisiana are void.</p> <p>3d. It was shown in proof that Ferriday <fc Bennett, respectively, used the name, Shipp, Ferriday & Co. in their business, and that Routh knew they were the only members living; hence, it would have been an error of fact, to tell the jury that Routh & Williams were sureties for Shipp, Ferriday & Co.</p> <p>' 4th. This is of the same nature; both the third and fourth instructions were mere abstract questions, not applicable to the case before the court, if true. Although it was proved by Buckner, that the firm of Shipp, Ferriday & Co. originally consisted of Shipp, Ferriday, Bennett & Bullitt, yet it was proved by Ferriday, that himself and Bennett had conducted business under the same firm name since the death of Shipp and Bullitt.</p> <p>But we do not admit the doctrine contended for in these third and fourth instructions. If a person becomes surety for a firm, and one of the partners use it for his private purposes, it does not bind the firm, nor the surety, but that is on the ground of fraud, in which the holder participated.</p> <p>Although it may be true, that a surety is not bound when the principal is not, that rule does not apply, because the principals were bound. Who were the principals 1 Ferriday & Bennett; and the sureties knew they were the persons bound by the notes.</p> <p>1. I would call the attention of the court to the affidavit of John Routh, in support of his plea of non est factum, in which he says, “that he had also executed, iii the state of Louisiana to said Ferriday, a general power to sign the name of this defendant.”</p> <p>In other words, Routh thus admits upon the record, that his attorney had full power to bind him in any bank any where, but maintains that it was the intention and understanding of the parties, dehors the instrument, that it was only to be used in New Orleans. It may be that signing Routh’s name elsewhere than in New Orleans, was a breach of the confidence reposed by the principal in the agent, but if the agént had the power, it is enough for us. The reckless use of the power will not render void acts which that power authorized the agent to perform. Story on Agency, § 128.</p> <p>With this admission in the record, by the defendant, that Fer-riday had a general power to sign his name, and there being no proof that the bank knew that this general power was given, as he alleges, to be used in New Orleans only; and there being neither allegation nor proof on the part of the defendant that the power was restricted in its authority to New Orleans, or to any other place; what necessity was there, that the plaintiff in the court below should produce any other evidence of the right of Ferriday to sign the name of Routh to the notes in question 1</p> <p>It was right to set this first verdict aside,</p> <p>1st. Because it was against the admission of the defendant himself in the record.</p> <p>2d. Because if, upon reflection, the court was of opinion that the copies were not competent testimony, it was but common justice to set aside the verdict; for had these copies been ruled out, better evidence might have been offered.</p> <p>3d. If the copies were properly admitted, as we contend they 'were, the verdict was against this accumulated evidence of power in the agent.</p> <p>And in order to show what such a power of attorney is, under the laws of Louisiana, and that it is one of those instruments which may be proved by certificate of the keeper, under the act of Congress, we ask the attention of the court to the memorandum of authorities which accompanies this, furnished'by one who understands the jurisprudence of Louisiana better than we profess to do.</p> <p>4th. If it is possible that the intention of the grantor not expressed in the instrument, can restrict a general power of attorney, then the same intention, although not expressed in the instrument, may be invoked by us in aid of the special powers which were lodged with the bank, to enlarge them.</p> <p>It was the intention of Routh, in making those special powers, to lend his name to Shipp, Ferriday & Co., to authorize the indorsement of his name by Ferriday upon notes of the character of those sued on. This is apparent, from his agreement with the bank.</p> <p>2. As to the proceedings upon the second trial, we make the same point, that the affidavit of Routh relieves the plaintiffs in the court below from the obligation of producing the written general power to Ferriday.</p> <p>“ In the case of a general agent, the principal will be bound by the acts of his agent within the scope of the general authority conferred on him, although he violates, by those acts, his private instructions and directions which are given to him, by the principal limiting the exercise of the authority,” &c. Story on Agency, § 128.</p> <p>The production of a written instrument may be superseded by an admission in the pleadings. 3 Phil. Evid. 1213 ; Allen’s Lessee v. Parish, 3 Hamm. Ill; 4 Littell, 219; 3 Phil. Evid. 1221; 12 Mod. 564; Holt, 461.</p> <p>We call the attention of the court to the following facts which appear from this instrument; proved by a sworn copy.</p> <p>1st. That this enlarged general power was given four years after the date of execution of the special powers.</p> <p>2d. That at the date of this second power, John Routh was, and recites himself to be, a citizen “of the parish of Concordia, state of Louisiana.”</p> <p>The first of the above facts is an answer to any argument that a general power is to be restrained by a special power to the same person. Of course that last executed must govern, and the fair presumption is, an intention to enlarge the powers of the agent.</p> <p>The second fact accounts for the execution of the instrument in Louisiana, as being more convenient to the grantor, and furnishing facility for giving notoriety to the act by the aid of a notary.</p> <p>We took the deposition of Poindexter instead of that of the subscribing witnesses to the original power.</p> <p>Where the attesting witness is beyond the jurisdiction of the court, inferior evidence may be resorted to. 3 Phil. Evid. and cases cited, 1262, 1294; 1 Greenl. Ev. 232.</p> <p>The party before whom the acknowledgment was made is a competent witness. Jackson v. Phillips, 9 Cow. 94; Munns v. Dupont, 3 Wash. C. C. R. 42.</p> <p>3. The only remaining point upon which any doubt may exist, is as to the competency of Duncan; and here we ask the court to adhere to the rule that no other objection shall be heard in. this court than such as was made in the court below. The sole objection made to this witness was that he was interested. Of this he purged himself, and it is now too late to suggest that the policy of the law is against the husband being examined when the wife is interested.</p> <p>The following is the brief referred to by Mr. Eustis.</p> <p>The instrument under consideration is called an act par brevet. The law does not require instruments'of this kind to be left or depqsited with the notary; on the contrary, the original is delivered to the party, to be made use of wherever he wishes his attorney in fact to act. As a matter of evidence, it is an authentic act in the sense of art. 2231 of the Louisiana Code. See arts. 2233, &e.; 1 Merlin, Rep. de Jurisprudence, verbo authen-tique (acte). “En general, il est prescrit de garder minute de tous les actes, et ce n’est que, par exception, que les notaires sont autorisés á remetlre aux parties les minutes des actes dont lecon-tenu, la nature etles effets ne presentent qu’un objet ou un interet simple en lui méme et passager, tels que les procurations, actes de notoriété, etc.” Cours de Notariat par Augan, c. 6, sec. 1, p. 52.</p> <p>“Brevet (acte en) C’est un acte notario que la notaire remet aux parties sans en garder minute.” 1 Merlin, Repertoire de Jurisprudence, verbo Brevet.</p> <p>In order that persons transacting business with the attorney in fact may be acquainted with the full extent as well as limitations of his powers, the procuration is deposited with a notary. The office of notary is of great antiquity, and one of its principal functions is to receive instruments, titles, &c., in deposit. It is a duty incumbent on notaries so to receive them and to retain them, and appertains to no other public officer. “ Les depots que Ven fait aux notaires de pieces dont on veut assurer Vexistence, ne sont pas, á proprement parler, des dépóts, mais des Remises pour minute. Aussitót qu’il est dressé acte de ces remises, elles font partie du depot public, dont le notaire n’est que le gardien,” &c. The author then shows that the original cannot be delivered up. “ C’est aussi dans le méme sens que la loi caracterise les notaires ; ils sont les functionaires publics eta-blis pour recevoir tous les actes et contrats auxquels les parties veulent faire. donner le caractére d’authenticité attachée aux actes de l’autorilé publique, et pour en assurer la date, en con-server le depot, en delivrer des grosses et expeditions.” 8 Merlin, Rep. de Jurisprudence, verbo Notaire.</p> <p>See also Las Caygas v. LariondaV s Syndics, 4 Mart. La. R. 2S5; Mauri v. Hejfernan, 13 John. R. 58, 73, 74, 75.</p>

<p>On appeal from the vice-chancellor’s court at Monticello; Hon. James M. Smiley, vice-chancellor.</p> <p>William S. Lloyd and others, the heirs and distributees of William W. Lloyd, deceased, several of whom are alleged to be minors, and appear by their next friend, filed their bill against George W. Grant, and Jacob K. Hilt, alleging, that the deceased left a will, nominating his widow, Elizabeth, and son, John H. Lloyd, executors; both of whom are co-complainants.</p> <p>The deceased was indebted at his death about $20,000, and had incumbered his real estate, by taking stock in the Hinds County Real Estate Bank, and giving a mortgage to secure it.</p> <p>The widow and John administered, and not being much acquainted with business, sought the aid of the defendant Grant, a distant relative, and permitted him to manage the estate as he thought fit.</p> <p>It was always the intention of the executors to pay the honest debts of the deceased, who left ample assets for that purpose.</p> <p>Grant induced the executors to believe that the banking company was a fraud, and to enter into his arrangements to avoid the payment of the stock subscribed for by deceased; and by conversations with them, and letters, he induced them to get an order for the sale of the whole of the estate of the deceased; and to induce them to this course, Grant agreed to purchase certain of the negroes for the widow, Elizabeth. !</p> <p>Various letters of Grant, and other papers, are exhibits to the bill, and referred to in support of this allegation.</p> <p>That Grant agreed, that the sale should be to the benefit of all just debts, and the property then inure to complainants.</p> <p>To carry out this fraudulent arrangement, he executed an agreement with the executrix, made exhibit D. to the bill, and to prevent bidding at the sale, made known to all the bidders his friendly intentions, and wrote the executrix to notify all persons that no security but undoubted, and no persons but of the greatest punctuality, would be taken as purchasers.</p> <p>The executrix and executor were thus persuaded by Grant to procure orders of sale of the whole estate, in violation of the will of the deceased ; the sale was advertised, and took place.</p> <p>That Grant, to carry out his fraudulent intentions, had bidders to bid for him, and purchased at the sale certain named slaves, and at private sale certain others, and, subsequently, the real estate.</p> <p>The property sold for a nominal sum compared with its real value, and what it would have sold for at a fair open sale. To cover the fraud, Grant procured the defendant (Hill) to execute his notes for the purchase money, with Grant as surety, but had the deed for the property made to himself, and executed his notes for the land, which are exhibits to the bill, except one note for about $1100, settled in .some way with W. S. Lloyd, one of the complainants, and which, they charge, has not been paid. The land was sold on one, two, and three years; part for one dollar and sixty-two and a half cents per acre, and part for less.</p> <p>Grant gave no notes for the slaves, horses, furniture, &c., and has not paid, so far as complainants are aware of, the purchase money; but pretends to have arranged some papers of the deceased in some banks, but charges that the money was at a great depreciation, and the payment on Grant’s own responsibility.</p> <p>Grant having acquired title thus, refuses to account to complainants, but claims the whole property; the real estate alone •estimated at upwards of $25,000.</p> <p>After the sale the letters testamentary were revoked, and administration granted to W. S. Lloyd, one of complainants, who cannot procure a settlement with Grant, who refuses to pay over the purchase móney, alleging frivolous pretences of offsets, &c.</p> <p>That the lands are well improved, and the negroes worth an annual income of $1500, and Grant has enjoyed the same since the will.</p> <p>Complainants charge, that their object is to pay all legal debts against the estate, and that the executor and executrix were actuated by no improper motives; but seduced by Grant, who holds on to the whole property.</p> <p>The prayer of the bill is for an account of the hire of the negroes, and rents of the land; and that Grant deliver up the negroes or pay for them to the administrator, or to complainants as heirs ; and that the sales be annulled, and a receiver be appointed.</p> <p>Many of the letters of Grant are exhibited with the bill in support of its allegations, touching the fraud of Grant. The follow-in g are all that need be noticed:</p> <p>■EXHIBIT B.</p> <p>“Mrs. Lloyd or Mr. J. H. Lloyd, it would be well, perhaps, to make known to bidders that the best, of security will be required, and no other taken than will be perfectly satisfactory to the executors; that the times and situation of the estate require that the property should be sold to the most punctual men, such as pay always up at- the time and without being sued, and to keeping off at law the payment of money that the estate would be suffering for. The four negroes, had of Speed, had better be sold as the others, and all to remain together on the plantation until other arrangements, &c. I cannot think of going into cash arrangements, in settling debts against the estate, and take property at any other price than a fair cash valuation under all circumstances, and then to allow it to remain to cultivate and keep up the place, &c. until I know Whether you return from Texas or not, and until I see what prospects there will be for good crops or a crop, and the prospects of the legatees repurchasing or reimbursing me as required. It will be well, perhaps, for me once more to give you my opinion, that you should take nothing but your clothing and money to bear expenses to Texas, until you see whether you stay there or not, and after the sale, all the sales necessary for the settling up the estate are made, for you and Mr. J. H. Lloyd, who are authorized here, by the will, to go on by water to Texas, &c. Settle up the business there by sale or division of the property there, and in that time you will see, yes, in three months, perhaps, you will be able to say whether you will stay there or return to your old place. I again repeat, that it is on your, Francis Benjamin, Thomas, and Washington’s account that I am induced, for these are dreadful times, and prospects too bad for me to run into any arrangements where money is to be paid out. I write and send in haste late this evening, inasmuch as I find the ill health of our infant will not allow me to leave it in the morning.</p> <p>“ Respectfully, your obedient, George w. Grant<</p> <p>“Mrs. Elizabeth Lloyd, Copiah County, Miss.</p> <p>“ Per Henry.”</p> <p>“ EXHIBIT 0.</p> <p>“At home, 19th March, 1840. 'Dear Madam,— The bad health of my infant, and the unwillingness of its mother that I should leave it, prevents my coming over. Mr. Benj. Williams will therefore represent me in bidding off for you the two ne-groes, beds, (carriage and horses, if you want them.) If your son, Wm. S. Lloyd, Thomas G. Lloyd, D. McRae and others, accede to what is wished and expected of me by you (to wit) that I buy all the rest of the negroes if they don’t go too high, and the horses, wagon and oxen, farming utensils, milk cows, and such of the household and kitchen articles as may be necessary for, Thomas G. Lloyd, Washington and Benjamin to make out with, while they stay here1 and go to school, and Francis here or at her brother William’s or D. McRae’s, while you and John H. Lloyd go to Texas, and settle up the business there; and if you like, stay there; and if not, come back; while Thomas stays on the place, and makes all he can in corn and cotton, and take care of the plantation, that it maybe seen what can be done, and how far the business of the estate can be settled up in that time. Thomas G. Lloyd or J. H. Lloyd can fix upon term or hire for the negroes after the titles are made to me, which I presume are good, and free from incumbrances. With Mr. J. H. Lloyd I can make the arrangement about the settlement of debts, in part or entire, against said estate, to the amount of said property, as may be just and right. I will here add, that it is not, I hope, to be expected that I will buy property at a very extravagant rate, run upon me by irresponsible persons, when my only 'object is to turn said effects'into active means towards settling the debts against said estate to prevent sacrifice, and to keep up and take as good care of the plantation, as the means will allow. You know I settle my engagements punctually. I never buy property at public sale at extravagant rates, on account of credit, and after my paper is due put off by promises as long as possible, and .then keep off at law as long as I can. I therefore say, if the property is scattered about at this unfavorable time, and bought up by irresponsible men, who may give some half score of irresponsible securities, the result will be ruinous to the estate; for the amount of the personal property, at a fair valuation for the times, is imperiously demanded by the condition of its affairs as well as your own situation. I must, therefore, get your son, William S. Lloyd, D. McRae, or Jacob K. Hill, to act for me if any thing should prevent Mr. Williams doing so. Please send over to Mr. Williams this evening, or early, very early, in the morning. Observe, however, that this is proposed on condition that you can do no better; if there are any other arrangements that can be made more to your satisfaction, please do so.</p> <p>Respectfully, your obedient,</p> <p>GEORGE W. GRANT.</p> <p>“Mrs. Elizabeth Lloyd.</p> <p>“ Where men bid off property, and do not give the security required, it should be sold over again at their risk, &c.</p> <p>“Mrs. Elizabeth Lloyd,‘Copiah.</p> <p>“ Per Henry.”</p> <p>“ EXHIBIT E.</p> <p>29 tk Oct. 1840.</p> <p>“Dear Sir, — After I wrote you yesterday, I can only say again that I will relinquish my bid for the land to you, if you and your brother John can agree as to the arrangement to keep the land from under your debts, so that it may not be incumbered with any thing else but the mortgage to the Clinton affair, and all of us to go to work to get it cleared upon the best terms from under that, even if it should cost us from seven or eight or ten thousand dollars. I think it would be better than to lose the lands altogether, which will do if we go on in this way, and if that will not do,' and you will'not go into writing as to the understanding between you, myself, and Mr. J. K. Hill, why I do not feel myself bound to do so, nor will I do any thing else but give my notes, which have been ready some time, take a deed and go to work to save that part if I can. What I proposed on first sale was two or three times agreed to until the sale was over, and after all sorts of bidding and my negotiating around, all proposals made and agreed to were broken off, and just such parts as suited you, and in just such ways I had to arrange matters, and to take the Planters’ Bank debts, as large as they are, upon myself, which will be as hard to pay nearly as so much gold, and relieve you; and although what I complied with at that time was only such parts as suited you, and not what I had agreed to at no time before, yet I was sent for and called upon to go security for your distressed mother for what she would drag away to Texas, although she had three different times agreed to go there as I thought best, and leave all here until she could see what was best, for her to remain in Texas or to return. Ungenerous was it to take up only with such parts of my proposals about sending off the property, and in such way as it was done, and then to try and saddle upon me not only the Planters’ Bank debts, but such as that which I only had proposed upon conditions, which were not complied with; then and now I was trying to do for the best; and if you still complain to me of the hardship which I know to be hardship, though by the unfortunate go se on your father’s paper and no fault of mine, why I must complain too, and show you that I am not in fault. If I could have had my way, I should have had the suit in chancery under way, the land sold under some of their bills, and if equity and justice can be done, have but little to pay on the mortgages. It may now be toó late, but we can yet try to do the best we can. Come üp and see me this morning if you can, and come by Mr. Short’s and see if Mr. T. Shaw is come up, as I would like to see. While I am trying and giving all the time I can, then it seems there is not satisfaction, when I know I suffer for my means, and know I do not nor never intend to sell or sacrifice a mule unless I am compelled to do so; but I really believe T. B. Shaw is aiming to get the cotton crop to himself for his own purposes instead of its coming to me.</p> <p>Respectfully your obedient,</p> <p>GEORGE W. GRANT.</p> <p>“Mr. Wm. S. Lloyd.”</p> <p>“EXHIBIT F.</p> <p>Oct. 29th, 1840.</p> <p>“ Dear Sir, —Your account against your father’s estate ought to be made out entire and probated for all that is justly due you, and come in as other claims; and you ought to see that my object has always been to turn the tangled business of the estate to the best advantage for the benefit of all those debts which ought to be paid, except the swindling Clinton aifair, and all of us to unite and aid in getting out of that, on the best possible terms, to save as much as possible of the estate; and I do confidently believe that if my advice had been taken the day your mother and son called on me, a few days after your father’s death, that we could have enjoined those swindlers, and advertised and forewarned them from or passing of the mortgages, as it would have kept the land clear of the arrangement made soon after in New Orleans by the bank agent with the partner of the New York house. Both yourself and Mr. McRae said perhaps it would be best to let it remain as it was, that the bank might perhaps advance means to relieve the estate. Your brother John went up to see, and • requested and urged him to hang on, and that the bank would advance the money required, or in part. It is now come to what it has in despite of all my efforts, and it is impossible for me to get things' done, as even we agree upon one day, is abandoned the next, while I am trying, heart and soul, to do all I can for the best for the heirs and those debts which ought to be paid; but having no control over the business, I have not been able to do half as well by it, under these circumstances, as I might have done. One wants such parts as suits him done, and another to suit him, and really I do not see that I can do any thing more than offered you. It was agreed between you, myself and Mr. Hill, that the land should be bid off, one or the other of us or both, and to be thrown into a joint stock, to save you, him and myself from loss on all claims, except the Real Estate Bank of Hinds county, which you said you asked no odds, for you never could pay a dollar to that concern; and then, after you, myself and Hill were satisfied out of the joint land stock, after going to work together to get it out and clear of the Clinton concern the best way we could ; and if we could so save the land, after reimbursed by the heir or any one of them in five years, to reconvey the land to such one or more of said heirs as paid up the money, interest and costs, we might ' out either jointly or separately for his and the other heirs mutual benefit, saving to such heir or heirs the lands in their hands as security to them until reimbursed by the other heirs. Now, if after you have bid off the land upon these terms, you object to go into the arrangement and to put it into writing, what is that agreement 1 It is lamentable, and a difficulty between you, Hill and myself, if there is none between you and your God. What I can do yet, is only to see by another trial to fix upon something again for a third time, and will see you, your brother and Mr. Hill to-day.</p> <p>Respectfully, &c. G w G “ Mr. Wm. S. Lloyd.” UE0- VV‘ RANT'</p> <p>The following is the agreement referred to as exhibit D. to the bill:</p> <p>“Be it remembered that this agreement is entered into this 26th day of March, 1840, between Geo. W. Grant of the one part, and the undersigned, securities of the late Wm. W. Lloyd, deceased, and some of whom are heirs of said Lloyd, deceased: Wituesseth, that for and in consideration of the several sums of money paid out, and which said Grant may hereafter pay out, or have it in his power to liquidate and settle to the best advantage by the aid of said securities and legatees, as well as the executors who have hereunto subscribed, that they jointly and severally agree that said Grant shall be allowed ten per cent., as is allowed by law, for his interest upon all of said debts he may so take up and arrange; and to be so advanced by paper or money as he may find it convenient to do, and with the consent and order of one or both of said executors of said Wm. W. Lloyd, deceased, as such will be so much loaned to save the property of said estate from being sacrificed as far as he can, and to prevent the securities of said Wm. W. Lloyd, deceased, from having money to pay upon his debts, and in particular to prevent, if possible, the fraudulent concern called the Hinds County Real Estate Bank from swallowing up and sacrificing the real estate of said deceased, to which it is mortgaged; that said subscribers agree to save harmless said Grant from all loss, and to allow and pay him all expenses which he may necessarily have to pay out in going to and from, and attending, as he may find necessary to do, to said business; and that whereas said executors did sell, according to law, to the highest bidder, on the 20th March, 1840, all the negroes belonging to said estate, which were bid off by A. Scool,'J. H. Benton, Wm. S.</p> <p>Lloyd and George Dees, who all surrender their bid and transfer their right to George W. Grant to comply with said sale, and to aid said executors to settle up that amount by such means as he has in his power, said Grant having J. H. Putnam’s, and other paper, that the Planters’ Bank and Sinking Fund commissioners agree to take for the amount of said Lloyd’s debt in that fund; said Grant having the negroes conveyed to him by said executors, and hold them and to hold all other property at public sale by right in his own name and possession, and to work it on the plantation of the late Wm. W. Lloyd, deceased, under the care of Thomas G. Lloyd or some other person, if necessary hereafter to get any, until the debts against said estate, and the amount taken up by Geo. W. Grant, and the several sums legally and justly due to him with interest, and all expenses are paid; when he agrees to reconvey all of said slaves then living, and the land to said heirs of Wm. W. Lloyd, deceased, that may be living at the time, to be equally divided among them, including D. McRae. It is however further understood, that said Geo. W. Grant will require the one third of all he may advance for the benefit of said estate, to be paid in the month of January, 1842, the other third in January, 1843, and the last in January, 1844; which amounts are to be shown by his vouchers, and particularly the certificates of the executor, or those to whom and with whom said debts are settled; then and in such case said Grant agrees to reconvey to said legatees all and properly. If, however, any thing should turnup that said Grant should not become the purchaser of the plantation of said deceased,- said negroes are not to be kept on it longer than this year; that it is the intention of said Grant to buy in fairly and openly and honestly the place when sold at public sale, for the purposes aboye stated, to save it from sacrifice, and that it may be turned to the best advantage to pay the debts against said estate, and afterwards reconveyed for the equal benefit of those expressed above. But that said Grant does not here agree to do this, unless he sees proper and fit, and is willing to give what it goes at said sale under all incumbrances ; and that the undersigned hereby agree that at the end of the year, if said Grant should not become the purchaser of said plantation, and has to take home and oif the place said negro slaves here bought as above, he is to be allowed to do so at a fair valuation for all such as may be living; and if it should amount to more than said estate is in arrears with said Grant, for him to pay up; on the contrary, for all that he may have paid over and above to be paid up to him. As witness our hands and seals this day and year above written.”</p> <p>One of the deeds of the land by the executor and executrix to Grant recited that the vendors had “been compelled to sell the real estate of said deceased to pay the debts against the same, which real estate was under heavy mortgage to the Hinds County Real Estate Bank; ” and in reciting the sale stated that they offered to “the highest bidder on a credit of one, two and three years, all the real estate of the deceased, which being incumbered sold but for little, as follows, viz:”</p> <p>Similar recitals are contained in the other deeds from the executor, and executrix to Grant.</p> <p>Many other papers are exhibited with the bill; but it is believed that the substance of them is to be found in the foregoing.</p> <p>Grant and Hill filed a joint demurrer to the bill, which was overruled by the court.</p> <p>Grant then answered, stating, that as he was security for the deceased for about $6000, he was interested in a faithful administration of the estate; had friendly feelings towards the family, but denies that he managed the affairs of the estate as he chose, or ever advised any arrangement to defeat any just debt, or used any means to procure a private or public sale of any property ; states that executor and executrix, and-Thomas G. Lloyd represented to defendant the embarrassments of the estate, and that they were authorized to sell by the will, at private sale, and importuned him to purchase, that they might pay the debts, and realize the rest of the estate.</p> <p>Desirous of befriending the family, defendant gave the proposition, that he should purchase, and pay, and arrange the debts, a favorable consideration ; and with a view of ascertaining the situation of the estate,, and the best mode of arranging the debts, if he should become the purchaser, he wrote the memorandum and one of the letters, exhibits to the bill, to get information from the executors and the record.</p> <p>He further took the opinion of E. G. Peyton, Esq. as to the will, and he doubting the power of the executors to sell under it, this ended all negotiation.</p> <p>The executors obtained an order of sale, and under it all the personal estate was sold on the 20th of 'March, 1840.</p> <p>Some time before the sale, it was represented to defendant, that if he did not purchase some of the slaves, and let Mrs. Lloyd and the younger children use them, they would be left destitute, and he was entreated by the family to become purchaser with this view.</p> <p>He was thus induced to agree to become the purchaser of some of the property, if not bid up top high, on the conditions, that the purchase money should be applied directly to payment of the debts; that W. S. Lloyd and others should sanction it, and become responsible for the slaves to be left in possession of T. G. Lloyd for the benefit of the .family. Exhibits B and C were written while these views, offers, and propositions were existing, prior to the sale, but none of them ever consummated, as the condition was, that W. S. Lloyd, &c. should be responsible, as already stated, but they did not sign the agreement, which was the paper marked D.</p> <p>No proposition was carried into effect, and the personal property was purchased by sundry persons at the executor’s sale.</p> <p>Defendant was not present at the sale, but afterwards procured the bids of most of the purchasers, by his complying with the terms of the sale, and at the earnest request of W. S. Lloyd.</p> <p>The bids for the personalty, which he thus assumed, amounted to $7150, and he files various exhibits with his answers, showing the bills of sales from the executors, the transfers of the bids; the payment of the purchase money, and the sources through and by which payment was made. These need not be noticed farther.</p> <p>Insists that he thus paid a full and fair consideration for the negroes as a bona fide purchaser, above their real market value, free from any conditions whatever.</p> <p>Denies that he used any means to prevent bidders at the sale, and insists that no such inference can be drawn from his letters.</p> <p>As a creditor and friend of the family, in a time of general bankruptcy, was desirous that most unquestionable security should be taken, and urged it on the executors, knowing them not to be strict.</p> <p>Denies that he authorized many bidders to bid for him, but only one, and on contingencies, Archibald Scott to bid, in the event of W. S. Lloyd and others signing the draft of the agreement aforesaid; and if it was not signed, to bid on the property only to make it bring a fair price. They refused to sign the agreement, and the negroes purchased by Scott for defendant were purchased unconditionally, and at their highest value.</p> <p>Denies that he had purchased in the two negroes and other property, of which Mrs. Lloyd was the purchaser. He only became her surety, and the purchase money had been paid to the estate.</p> <p>Denies that he purchased any of the negroes at private sale, but got them by relinquishment of bids to him.</p> <p>He purchased the home place at the public sale of the land on the 28th of September, 1840, at $l-62£, and W. S. Lloyd, according to the executor’s report, purchased the other tracts, and the sale was bona fide and conducted legally.</p> <p>John H. Lloyd and Thomas G. Lloyd urged defendant to procure W. S. Lloyd’s bids, as he was insolvent, (fee., and for these reasons W. S. Lloyd relinquished to him the other tracts, and the widow relinquished her dower.</p> <p>States it to be untrue, that he has not paid the purchase money of $7745, for the slaves; avers that it was paid when due, and states in detail an account showing a balance due defendant; states that he is still liable, as surety of the deceased, for upwards of $2400; that it was discovered that there was an omission to sell several small tracts of the land, and W. S. Lloyd, as administrator, procured an order for their sale; they were sold in December, 1842, and defendant became the purchaser, and has paid for them, and insists on the sale as fair and valid.</p> <p>Denies that he fraudulently procured Hill to execute his notes for the land, as charged in the bill.</p> <p>He states that the bidding at the sale was fair, open, and bond fide ; lands sold for a fair price with the incumbrances on them, &c.; insists upon his purchases in bar of the bill as if pleaded.</p> <p>After the purchase of the lands, to save himself, as surety, (fee., he, W. S. Lloyd, and J. K. Hill entered into the agreement made exhibit 16 to the answer; some conversations had taken place previously, and this agreement -is the only one touching a re-conveyance of the land, which afterwards, on the 10th of December, 1841, was cancelled.</p> <p>In concluding the purchase of the land, gave his three several notes, with W. G. Foster as surety, and the notes were to go towards paying debts of the estate.</p> <p>J. H. Lloyd, one of complainants, is indebted to him in some $1540.</p> <p>Defendant could not rent the lands at $150 per annum, and the slaves have scarcely realized more than their support, taxes, and other expenses.</p> <p>He pleads the representation by the executors of the insolvency of the estate, in bar of any relief.</p> <p>J. K. Hill answers, that the slaves were sold at six months’ credit to the highest bidder, and to different bidders, • as he believes; Grant not at the sale.</p> <p>Knows of no arrangements between Grant and Lloyd, but what is contained in Grant’s answer.</p> <p>Grant, in conversation before the sale of the land, said he would buy the home place, if it did not go too high, and advised Hill and W. S. Lloyd to buy some of the lands, as they were all sureties of the deceased.</p> <p>There were heavy mortgages on the lands, &c. It was sold publicly to the highest bidder.</p> <p>His answer generally sustains Grant’s.</p> <p>Grant afterwards filed a supplemental answer and cross-bill, in which he states that suits have been instituted on W. W. Lloyd’s mortgages to the Real Estate Bank, for foreclosures. He sets forth other matters not material to be stated, and prays that complainants may reimburse to him the amount of moneys paid out, and assumed for the estate, and all the costs and expenses incurred; also the amount due by the individual complainants, and in default thereof, they be compelled to execute quit-claim deeds to him.'</p> <p>A great deal of testimony was taken in the case. That which relates to the sale of the personalty will be omitted.</p> <p>Daniel McCaleb testifies, that he went to the sale of the real estate for the purpose of bidding.</p> <p>He there understood from W. S. Lloyd, that the sale was had as the best mode of saving the indorsers of the deceased, and that they intended to purchase. He understood the indorsers were Grant, Hill, and W. S. Lloyd; also understood there were mortgages on the lands.</p> <p>He thinks the land was worth from three to four dollars per acre.</p> <p>The object of the witness in going to the sale was to buy an eighth of land.</p> <p>W. S. Lloyd, his informant as to the above matters, purchased the land witness went to buy, at thirty or thirty-two cents an acre. Witness understood also from Grant, that the indorsers were to purchase the land, which caused him to decline buying.</p> <p>Grant bought the old place and most of the lands on that side of the creek; thinks McRae bid against Grant.</p> <p>S. P. Cockerell testified that he was present at the sale of the real estate, and thinks there was bidding against Grant for the home place; some twelve, fifteen or twenty persons were at the sale.</p> <p>’ J. K. Hill proves that the proposition that the land should be resold, and after paying debts, balance should go to the family, was made after the sale.</p> <p>It was agreed, that after the lands were clear of the Hinds County Bank, the heirs might redeem in seven years, by paying advances and interest.</p> <p>The witness agreed to buy a part of the land bought by Grant, for which he was to pay for part three dollars, part five dollars per acre.</p> <p>Grant, Hill, (witness,) and Lloyd had a conversation before the sale of the real estate, which resulted, that Grant would risk his money for the home place, that the widow, on her return from Texas, might have a home.</p> <p>Grant suggested to W. S. .Lloyd and witness to buy the lands at the sale, but witness said he could not buy the lands incumbered as they were.</p> <p>James Speed was present at the sale of the real estate, and thinks, embarrassed and incumbered as it was, that it sold at a full price.</p> <p>There is much other testimony in the record, as to the accounts between the parties and other matters, which need not be stated.</p> <p>The chancellor decreed, that the sales "of the real and personal estate of William W. Lloyd, deceased, as set forth and described in the pleadings made by the executors of said Lloyd, to the defendants, and those under whom they claim, be, and the same are hereby set aside. But because a final decree cannot be rendered herein without the taking an account, it is further ordered, adjudged, and decreed that it be referred to Jacob S. Foute, Esq., who is appointed a commissioner for that purpose, to take an account between the parties; and in taking such account, the said commissioner is to charge the defendant Grant with the yearly hire of the negroes in dispute, and of the rent of the land, and with the price of any or either of the negroes which may have been sold by said defendant, with interest thereon, making rests at the end of each year. Apd the complainant is to be charged with the amounts that were1 legal payments to the executors of said Lloyd, by said Grant, with interest on such payments, and make report; and if, upon the coming in of said report, it be ascertained that the balance on said account is in favor of said Grant, then the complainants shall pay the same; and'a lien is hereby declared on the estate, real and personal, for the said balance, and all other matters are reserved until the coming in of said report. August 4, 1846.”</p> <p>Grant appealed.</p> <p>1. The demurrer to the bill ought to have been sustained-by the chancery court, and the bill dismissed.</p> <p>1st. The chancery court had no jurisdiction. The whole subject matter of the controversy belongs to the probate court of Copiah county. The matters complained of in the bill regard exclusively the administration of W. W. Lloyd’s estate, as conducted in and through the probate court of that county. The administration is still open in that court, which has ample power to afford a corrective, if one exists in any court. 5 How. Rep. 662 ; 7 lb. 80.</p> <p>2d. The complainants cannot maintain the suit. They sue as heirs and .distributees, in the face of the representation of insolvency, remaining in full force in the probate court. They state themselves out of court, by showing no interest in the subject matter. The administrator da bonis non, W. S. Lloyd, and the creditors alone, are interested. But the creditors are not parties, and the heirs and distributees show they have no title to what they claim. Admit the sales to be void, no one can have them set aside, except the administrator de bonis non, (or he with the creditors,) at least as to the personalty. 3 How. R. 252, 258; Mitf. Plead. 181.</p> <p>3d. With regard to the real estate, if the heirs could maintain a suit to set aside the sales thereof, (which we insist they could not as long as the estate is insolvent,) they could not unite in the same bill the real estate and the personal estate, and seek relief as to each in the same suit. The characters of complainants as heirs and as distributees are distinct, the subject matter in each character is different, and they cannot be joined any more than ejectment and detinue could be united in the same suit. “ The bill contains several matters of distinct natures,” in the language of the court in the case of Carmichael et al. v. Browder, 3 How. R. 252, 258.</p> <p>2. The interlocutory order, setting aside the sales under the orders of the probate court to Grant and to Hill, and directing an account between them and complainants, is erroneous.</p> <p>1st. The orders of the probate court,are left in full force touching those sales, the administration of the estate is still open in the probate court, and yet the chancery court takes jurisdiction, sets aside the rules, orders an account of the negroes, and rents of lands sold, &c., and must, according to this interlocutory proceeding, decree, in the final decree, that Grant re-convey and deliver the land and negroes to the complainants, as heirs and distributees ; just as if the estate were not insolvent, as if there were not a debt or creditor whatever, when the record shows the reverse.-</p> <p>2d. The mode in which the account is ordered is erroneous. The order directs interest to be charged, in taking the account, “ making annual rests,” that is, Grant shall be charged with compound interest. There could be no other meaning or object in such an instruction to a master. Raphael v. Boehm, 11 Yes. Jr. 91, 94, 97, 98, 111.</p> <p>Compound interest is not allowable except in special cases, involving a trust, &c., and this is not a case of that nature. State of Connecticut v. Jackson, 1 John. Ch. R. 13, et seq.</p> <p>3. But the decretal order is wholly unsupported and unwarranted by the proof. On this point, Mr. McMurran reviewed at length the pleadings and proof, and insisted that there was not a particle of proof to show that the answer is false in any material denial or statement. There is no proof whatever to show, in contradiction of the answer, that Grant procured the orders of sale of the probate court to be made, either with the design of obtaining any of the property of the estate improperly, or for any other purpose, and that the sale of the personal estate was clearly bona, fide and fair.</p> <p>So also with reference to the sale of the real estate, the testimony with reference to which he reviewed, and especially that of McCaleb, and insisting that there was nothing to impair or invalidate that sale.</p> <p>4. But admitting, for argument’s sake, that the orders of sale were fraudulent and void, can the complainants seek a remedy in this court? We say no, — we say they are without remedy; or, if they have any, it is in the probate court.</p> <p>Who are the parties to these proceedings in the probate court, touching the representation of insolvency, the orders of the sale of .the real and personal estate, Which constitute the judgments •.and decrees .of that court? The executors, the heirs and dis-tributees of W. WV. Lloyd, deceased.</p> <p>The sale of the estate, real or personal, through the probate court, - “ is> a proceeding in rem, to which all claiming under the intestate are parties.” 11 Serg. &• Rawle, R. 429, 430. The granting a license to sell is an adjudication upon all the facts, and conclusive on all parties in interest, unless reversed or set aside in the same court for fraud.</p> <p>Indeed the statute requires that the heirs should be cited on an application for a sale of the real estate; thereby expressly making them parties. In fact, all the world are parties to a proceeding in rem.</p> <p>Then the complainants being parties to the probate proceedings, if fraud has been committed,- that court alone has the power to correct it, and set aside its proceedings. Peck v. Wood-bridge, 3 Day, Rep. 30; 3 Doug. 313; Townsend v. Kerns, 2 Watts, 180, 183; Osborne v. Moss, 7 Johns. R. 161; 3 Phil. Ev. (Cow. & Hill’s notes,) 854, note 610.</p> <p>1. The demurrer was properly overruled. The charge of fraud is the basis of the bill, and a general demurrer will not be allowed unless the charge is answered. 1 How. R. 558; 5 lb. 365 ; 5 S. & M. 20; 1 Ran. 76.</p> <p>2. He denies jurisdiction of this case in the chancery court. This is not a case of mere administration. See 1 How. R. 558, which is conclusive; see also 4 How. 455, and 1 S. & M. 208. The probate court is tumble to give full relief, even if it had jurisdiction in such a case. It cannot take accounts, settle conflicting rights, change titles by its decree, and reach third persons, who are strangers to the administration of the estate, and whose rights are beyond its control. To show jurisdiction in chancery, see 1 How. 108.</p> <p>3. He charges multifariousness in the bill. In the bill unconnected parties having a common interest centeringjn the jioint in issue in the cause, have united, viz., to take Grant, who holds it in fraud of all their righi 423; 71b. 630; 1 lb. Ch. 399.</p> <p>4. He objects to decree charging Grant vM the account. Grant has fraudulently placedlhijnji the executor, and such rule always appliesw> tr he has misapplied or misused assets. See o cases cited.</p> <p>5. He says two of us reported this estate insolvent, and that this is a bar to the bill. We answer that this was done through the fraudulent procurement of Dr. Grant, and by means of his deception towards us. Hence it is null and void, no bar to us, and he is estopped from setting it up. 5 How. 386; 1 John. Ch. R. 406; _ Mitf. Eq. PL 128, and’ note.</p> <p>6. If there are any errors in this decree, (which I deny,) this court can correct them.</p> <p>7. Finally, the facts of the case show .fraud. See particularly bill, Exhibits A to X, letters of Grant; see testimony of McCaleb and others first in the record, the manner of the sale, agreement of Grant to reconvey the property; see deposition of J. K. Hill, who, subsequent to Grant’s purchase at the executor’s sale, gave him four or five dollars an acre for land for which he only paid an average of some seventy-five cents; see ^receipt of J. H. Lloyd to Grant for a loan of two hundred dollars. The property is worth ten times as much as Grant ever paid for it.</p> <p>The record presents a strong case of fraud. The party guilty should be made to disgorge and settle upon fair and equitable principles. Such are contained in the decree of the vice-chancellor, and I hope the high court will affirm that decree.</p> <p>The counsel for the appellee contends that equity has not-jurisdiction; that the probate court has, and that its jurisdiction is exclusive.</p> <p>This ground is not maintained for these reasons: .</p> <p>1. The sales, both of the realty and personalty, were made by the executors. Their letters have been revoked, and they are no longer before the probate court. The administrator de bonis non only represents that part of the estate which remained unadministered by the éxecutors. As far as the executors proceeded and administered, the power of the probate court ceased when they ceased to be before it. For this reason the probate court could not set aside the sales.</p> <p>2. Part of the property purchased by Grant was acquired by him indirectly through others who were the purchasers at the probate sales, and part of it he had aliened. These third persons could not have been brought before the probate court jointly with Grant.</p> <p>3. The probate court could not decree, and enforce that decree, that Grant & Co. should return the slaves and account for the hire, and reconvey the land and account for the rents and profits.</p> <p>4. It is a case of fraud which has ever been peculiarly the subject of equity jurisdiction. With far more force it might be contended that the constitutional provision, that the superior court of chancery should have full jurisdiction in all matters in equity, gave to that court exclusive jurisdiction, than that exclusive jurisdiction is vested in the probate court.</p> <p>The position next assumed by the appellee is, that the estate had been declared insolvent, and from this the inference is sought to be deduced that the complainants have no interest. It appears to me that the conclusion is much broader than the premises.</p> <p>A declaration of insolvency cannot be conclusive of the fact of insolvency; the declaration concludes no one as to the fact. Distributees might question it; creditors might question it. The fact of insolvency may exist, and yet there may be a large estate to distribute, for creditors may not present their claims. In case of bankruptcy the bankrupt still has interest. The distributees, when they sue, cannot be denied the privilege of investigating the facts on which they found their right, by the allegation that the investigation will be fruitless, as there will be nothing to distribute. As well might I plead in bar, when sued on my note or bond, that I have no goods or chattels, lands or tenements, subject to execution, and contend that my creditor has no interest in the matter.</p> <p>The next position of the complainant is, that if there was a fraud, the executors were parties to it, and therefore the complainants can have no relief.</p> <p>1. To exclude a party on this ground, such party must not onlyb e particeps fraudis, but in pari delicto. If executors were guilty of an attempt at fraud, they were seduced into it and stimulated by complainant. They were defrauded into an attempt at fraud.</p> <p>2. If guilty, the other complainants cannot be affected, and the executors being, one an heir, and each distributees, were necessary parties.</p> <p>3. They really attempted and intended no fraud; they intended from the beginning, and are now laboring in conjunction with the administrator de bonis non, to pay every debt of the estate. They had been induced to believe that the mortgage to the real estate bank was no debt; that it was wholly a fraudulent claim, and that the only mode to avoid becoming victims of the bank, was to pursue the course they did; and thus, to use an hackneyed phrase, in avoiding Scylla they fell into Charybdis.</p> <p>4. If they were guilty of the grossest fraud, and equity would not relieve on account of any merit in them, it would have been a perversion of a rule ; sensible and just, when sensibly applied, to have sustained the demurrer. The administrator represents the personalty, and the heirs the realty. The creditors will receive the estate real and personal through them. The executors are but conduits. But the bill is said to be multifarious, and Carmichael v. Browder is referred to. That case is wholly different. There were distinct persons representing distinct subjects, and the object sought to be attained with respect to each subject was a distinct object or thing. Here is a unity of character and claim on each side, and one fraud, (the trunk with -its various branches,) and that only to be removed.</p> <p>It is objected, that the vice-chancellor directs the computation of hire after Grant sold the slaves. And why not? In detinue we would recover the slaves or their value, in the alternative; with hire, by way of damages for the detention.</p> <p>In Kentucky an executor may, by statutory provision, sell slaves, when necessary, for the payment of debts. When he sells unnecessarily, equity compels him to pay hire to the time of the decree. Henning v. Conner, 2 Bibb, 188; Carrol et al. v. Connet, 2 J. J. Marsh. 202; Chaplin et al. v. Simmons’s Heirs, 7 Mon. 339.</p> <p>The same remarks and authorities apply to rent for the land. Larues’s Heii's v. Larues’s Ex’rs, 3 J. J. Marsh. 161,162. Annual rests are objected to, and 11 Yes. 91, and 1 Johns. Oh. R. 13, are referred to.</p> <p>The case in 11 Yesey supports the decree, that in 1 Johns. 13, only relates to the ordinary case of debtor and creditor, not to executors or trustees. Tire distinction is taken in Schieffelin v. Steioart, 1 Johns. Ch. R. 628. These cases will in all probability, with others, be relied on, on the coming in of the master’s report, to show that the interest should be allowed, and converted into principal at the end of each year; but as yet, the, chancellor has directed no calculation of interest, simple or compound. He has directed an accounting with annual rests only. That account will enable him, when the report comes in, to decide on the subject of interest, with the proper data before him. This, and this only, is the object of the rests. Schieffelin v. Stewart, 1 Johns. Ch. R. 624; Raphael v. Boehm, 11 Yes. 110.</p> <p>It is assigned for error, though not mentioned at the bar in argument, that it was error to direct compound interest against Grant, and simple, interest for him. No direction as'to interest having been given, the assignment- is premature. But as this court may settle the principles which are to govern, I would observe, that such direction, if it turn out to be a case for interest at all, would be strictly correct. If the balance fall against Grant, he, standing as trustee, may be charged with compound interest in favor of his cestuis que trust. But neither principle nor precedent justifies charging the cestuis que trust with compound interest in favor of the trustee.</p> <p>It is said to be an objection to relief, that there may be some difficulty as to what shall be done with the money and property, arising from the decree. Not the least. All the personalty goes to the administrator de bonis non, to be disposed of in due course of administration, and the land goes to the heirs, subject to be sold for the payment of debts. The administration by the executors being set aside, all will stand as 'if this part of the estate had never been administered. It was because of this destination of the assets, that some of the distributees condemned the course of the administrator de bonis non.</p>

<p>In the action of replevin, under the act of 1842, the right to immediate recovery in the plaintiff, and the wrongful taking or detention by the defendants, are involved.</p> <p>Where, therefore, an action of replevin was brought by one who had a life estate in slaves, against a person, who, at the instance of the remainder-man, had taken them into possession, a verdict for plaintiff, for the full value of the slaves, or their restoration to the plaintiff, together with damages for their detention, was held to be erroneous; the plaintiff having but a life estate, the jury should have assessed the value of his interest, and no more ; to be assessed by them as nearly as may be in view of all the facts.</p> <p>Tn an action of replevin, brought by one who had an estate in slaves, for the life of the wife of the remainder-man, which estate had been conveyed by deed by the remainder-man to the life tenant, the plaintiff having established his interest, the defendant proved that he had taken possession of the slaves, at the instigation of the remainder-man ; and offered to introduce the remainder-man as a witness, to prove title in himself by way of justifying the taking ; held, that the remainder-man was an incompetent witness to prove, that fact.</p>

<p>Whatever doubts may once have existed in England upon the subject, it is at this day settled, that the word “ credible” in the statute of wills, means competent, and that the question of competency, relates to the time of attestation.</p> <p>Under the statute of this state, (Hutch. Code, 651,) which provides that, if any person shall be a subscribing witness to a will, wherein any devise or bequest is made to him, and the will cannot be otherwise proved, such devise or bequest shall be void, and he shall be compelled to appear and give testimony on the residue of the will, a direct legatee under a will, who is a subscribing witness, is competent to give testimony in behalf of the will.</p> <p>Two of the subscribing witnesses to a will, were direct legatees, and also named as executors in the will; the will was proved, and they qualified as executors; afterwards upon an issue devisavit vel non, it was held, that the executors were competent witnesses to prove the will; not being disqualified by the commissions to which they were entitled by law as executors, and the direct legacy to them being void under the statute.</p> <p>The right of an executor to commissions, does not accrue till the performance of services; and the allowance to him is not made until the final settlement of the estate or the close of the administration ; when they are allowed upon the whole estate administered ; and if, in point of fact, the executor do not administer the estate, he is entitled to no compensation.</p> <p>The testator, by a clause in his will, provided as follows : “ I wish the property which I bequeath and bestow on Sarah A.. Truly, to be given and secured to herself and her bodily heirs, should she marry, and at her death, should she have no issue, it is to go to her brothers and sisters ; ” held, that this was not an estate tail, but an executory devise, coming within the provisions of the statute of this state, (How^ & Hutch. 349, sec. 26,) in regard to that species of limitation, and protected by it.</p> <p>Therefore, the sister of Sarah A. Truly would have such an interest in the property bequeathed, as to disqualify her hushand who had intermarried with her since the act of 1839, securing the property of the wife to her sole and separate use, from being a competent witness to prove the will, as one of the subscribing witnesses thereto.</p> <p>Where a man’s wife, since the act of 1839, known as the woman’s law, is a legatee under a will of either real or personal property ; and he is also a subscribing witness thereto, the legacy becomes her sole and separate estate, and does not fall within that provision of the statute, which declares a legacy or bequest to a witness to be void ; yet on the general principle which excludes a husband from testifying in a matter in which his wife has an interest, he will not be a competent witness to prove such will, to which he was a subscribing witness.</p> <p>A testator by the fourth clause of this will, provided as follows : “ I will my executors to pay the necessary expenses of supporting my cousin Sarah A. Truly, until my estate is able to purchase a girl and boy negro slaves to wait on her ; and after that, should she live, I wish my executors to purchase and give her six young negroes, whenever my estate is able so to do. I wish the property which I bequeath and bestow on Sarah A. Truly, to be given and secured to herself and her bodily heirs, should she marry, and at her death, should she have no issue, it is to go to her brothers and sisters ; ” by the sixth clause of his will, the,-testalor constituted Sarah A. Truly one of his residuary legatees, both of his land and personalty, in these words, viz : “ the balance of my property to be divided between Sarah A. Truly and Mrs. Martha Truly held, that the general words in the fourth section were to be transferrred to the sixth, and were broad enough to apply to every disposition contained invthe will in favor of Sarah A. Truly ; and there was therefore a valid executory devise over to the sisters of Sarah A. Truly of the realty devised to her in the will.</p> <p>It is necessary to the due and proper execution of a will, that the witnesses should attest it in the presence of the testator.</p>

In error from the circuit court of Hancock county; Hon. Thomas A. Willis, judge. Willis H. Arnold sued Benjamin S. Leonard on a note for one hundred dollars, payable to Arnold or bearer. The declaration was in the common form, and alleged the non-payment of the note of the plaintiff as the ground of suit. The defendant plead non-assumpsit; there was a trial and verdict for plaintiff, a new trial granted, and, upon the second trial, a verdict for the defendant.

In error from the vice-chancery court, at Mississippi city; Hon. James M. Smiley, vice-chancellor. John Tillman, of Bedford county, Tennessee, filed his bill against Jesse Cowand, claiming certain slaves in possession of the latter in Hancock county, in this state, on the ground that Leonard C. Temple, on the 6th day of March, in the year 1838, in Bedford county, Tennessee, executed a deed of trust to him upon the slaves, then in Madison county in this state.

<p>The admissions or declarations of the assignor of a chose in action, made while he is the holder, and before assignment, are evidence against .his as-signee, and all claiming under him; in this state this rule is universal.</p> <p>Therefore, in an action on a note against the maker and payee, wherein the maker only-has plead, on the trial of the issue, it will be competent for the maker to prove that the payee, while holder of the note, Acknowledged that the note was given to secure a bet upon an election; which, if true, would defeat the action under the statutes of this state against gaming ; and it will be immaterial whether the indorser is a party to the issue or not.</p>

<p>On appeal from the probate court, of Amite county; Hon. J. F. Lowry, judge.</p> <p>Edwin Byrd and William L. Huff, administrators of Salina Byrd, deceased, filed their petition for the distributive share of their intestate in the estate of Thomas Bradley, deceased. Hamden Bradley, the administrator of Thomas Bradley, in his answers, admits that the petitioners are the administrators of Salina; that he is administrator of Thomas Bradley, and Salina was one of the distributees of said Thomas, but denies that he has in his possession, as administrator, the slaves mentioned in the petition, or that as such administrator he has had any control whatever since the division of the slaves belonging to the estate of Thomas Bradley. He states that the probate court of Amite county ordered a division of the slaves of said Thomas, and appointed commissioners for that purpose, and that the commissioners so appointed did make a division of the personal estate, .and set apart to Salina the slaves mentioned in the petition; that Salina, at the time of the division, was present, and fully competent to act for herself so far as her legal right to do so was concerned. And that the report of the commissioners was confirmed by the probate court of Amite county. This report shows a division of the estate into three parts; one of which, the slaves claimed in the petition, was allotted to Salina Byrd. The petitioners introduced two witnesses who had acted as commissioners to divide the property, who testified that on the‘day of the division, Salina was present, and by one of the commissioners was informed that the slaves now in controversy were her portion; that the slaves were left on the plantation where the division occurred; and on the day of the division, Hamden Bradley, as administrator, hired to one of the commissioners one of the slaves that was set aside to Salina, and had admitted in conversation since the division, that he had in his possession the slaves of Salina, as administrator, stating that he was attending to Salina’s business for her as guardian.</p> <p>The defendant below proved that on the day of the division of the property, all of the distributees were present, and after the division the commissioners informed each of the distributees what portion was allotted to each, when two of the distributees took their portions, and Salina’s was left on the plantation where the division took place, she not being a housekeeper, and also -being very infirm; Salina, with the consent of Hamden Bradley, gave one of the witnesses the use of one of her slaves set aside to her by,the commissioners, for her board and clothes; that Hamden Bradley was her only brother, and acted for her as her agent and friend, and had admitted to one of the witnesses that he held the property as administrator of Thomas Bradley since the death of Salina; that Hamden Bradley transacted the business of Salina in reference to tíre slaves set apart to her, acted as the adviser of Salina, and did not exercise control over the property as administrator. The court ordered the defendant below to deliver the property to petitioners; a bill of exceptions was signed, and an appeal granted.</p>

C. L. Dubuisson, judge. John Calvit and J. J. Galtney, two of the heirs of Abram Galtney, deceased, petitioned the Adams probate court to compel Pearce Noland to render an account of his acts, &c., as one of the executors of said Abram Galtney.

<p>On appeal from the circuit court of Warren county; Hon. George Ooalter, judge.</p> <p>On the 16th day of February, 1846, Fulton Anderson, Esq. district attorney of the third judicial district, (upon the relation of Mark Valentine, whose affidavit had been presented to him according to law,) lodged an information in the nature of a quo warranto against the president, directors, and company of the Commercial and Railroad Bank of Vicksburg; alleging an illegal exercise on their part of corporate privileges. Upon the filing of the information, the clerk issued a summons and an injunction ; both of which were executed on the proper officers of the corporation, and also upon Thomas E. Robins, William S. Bodley, and William C. Walker, as the assignees of the corporation. At the May term, 1846, the corporation moved to quash the information, writ and injunction, because it was not embraced in the law under and by virtue of which the proceedings had been instituted. The motion, after argument, was sustained, and the information and proceedings quashed.</p> <p>At the same term the assignees entered a similar motion, on the ground that the corporation had by deeds of assignment of the 11th of February, A. D. 1840, transferred to them all the bills receivable, bonds, accounts, assets, and other property, real and personal, of the bank, in trust for the payment of its debts, and for other purposes set forth in the assignments, which had been duly proved and recorded; which motion, on argument, was also sustained. The state took a bill of exceptions, embodying the deeds of assignment; (they are the same reported at length in the case of Arthur v. The Commercial & Railroad Bank of Vicksburg, 9 S. & M. 394:) and prayed this appeal.</p> <p>Contended that, in the case of The State v. The Commercial Bank of Manchester, 4 S. & M. 439, the court had decided this case by holding that the statute only exempted the railroad privileges, not the banking' privileges, from the operation of the act.</p> <p>1. The proviso or exception in the act of 1843, exempts banks having railroad privileges from its operation, so far as the railroad is concerned. If the charter of the bank is destroyed or adjudged forfeited, it of course destroys the corporation. The railroad is held by the corporation; the railroad cannot be assigned, and has not been. If the corporation or corporate rights are destroyed by a judgment, what is to become of the railroad 7 As the exception exempts it from being proceeded against, if the railroad is affected, and as a judgment of ouster of its corporate rights would affect it, it would seem to come within the exception.</p> <p>But, 2. The assignment in this case was made before the act of 1840. In the cases heretofore decided in this court, the assignments were made after the passage of that act; and the court, upon a motion of this kind, would not inquire into the fact, whether the act prohibited a general assignment or not, but leave that for future determination. But in this case, the assignment having been made before that act, there can be no question that the notes, bills, bonds, &c. were legally transferred to the assignees, so that the dissolution of the corporation would not prevent them from suing or collecting. The fact, therefore, that the bank had forfeited its charter can have no effect on them. They cannot be enjoined; the injunction therefore, as to them, was rightfully quashed.</p>

<p>On appeal from the southern vice-chancery court, held at Monticello; Hon. James M. Smiley, vice-chancellor.</p> <p>John McDonald, administrator de bonis non of Elias Ford, deceased, states in his bill, that in the year 1844, diking the life of James McDonald, who was administrator in chief of Elias Ford, suit was commenced against said James as administrator in the circuit court of Marion county, in this state, by the defendant, Isaac A. Myles, founded on a judgment obtained in Louisiana by Myles, as the tutor of Mary Ann Kiziah, John and Pamela Carman, on the 27th day of March, 1827, for $924-50, with interest at ten per cent, from 1821.</p> <p>That process issued to Copiah county, where James McDonald then lived, returnable to the October term of the Marion circuit court, and was duly served on complainant; that a judgment by default was rendered at said term, against the said James, on the 16th of October, 1844, as such administrator, for $1485-S7£ principal, and $ 1622-22 damages.</p> <p>That at the time of the service of process, James McDonald was seriously and dangerously ill, and so continued until the next December, when he died; that said James was so disabled by disease, as to be wholly unable to attend the court at Marion county, or to contest the action, or take any' steps for that purpose.</p> <p>That Myles filed, with his declaration, a transcript from the records of the district court of Louisiana, for the parish of Washington, purporting to be the transcript of the record of a judgment rendered therein, in favor of said Myles against Elias Ford; by which it appeared that judgment was rendered in favor of Myles as curator, and not as tutor.</p> <p>That the office of curator in Louisiana is the same as administrator in this state; that the minors, for whose use the suit was brought, were of full age at the time of its commencement, and that defendant had ceased, by reason of their majority, to be such tutor. The original claim was a promissory note, made by the said Elias and one Ebenezer Ford, and Elias was security thereon.</p> <p>That in the year 1841, the records of the district court of Washington Parish were burned, amongst which was the record of a judgment in favor of defendant against said Ebenezer Ford, for $ 946, which judgment was rendered 23d Sept. 1822, with stay of execution for one year, by said Ebenezer giving approved security; that said Ebenezer died afterwards, and the defendant in 1824 became curator of his estate, which consisted of real and personal property, sufficient to pay off all debts against it of equal dignity with said judgment; that defendant received from said estate funds sufficient to satisfy the judgment against Eben-ezer, or that, if he did not, it was owing to his own laches; that the judgment against Ebenezer was for the same cause of action sued on against Elias Ford. The bill prays discovery as to all these facts, perpetual injunction, or that the judgment by default be set aside, and complainant be allowed to make defence to said action in the circuit court of Marion county, and for general relief.</p> <p>The defendant states in his answer, that he knows nothing of the death of James McDonald, nor of the grant of letters de bonis non to complainant; suit was commenced as stated; the action was founded on a judgment obtained by him in the district court of Louisiana, in a suit commenced by him as tutor of Mary Ann Kiziah, John and Pamela Carman, against Elias Ford, for the sum charged; that judgment by default was rendered against James McDonald, on the 16th October, 1844, in the circuit court of Marion, as the administrator of Ford. The capias may have been directed to Copiah county; but James was a resident of Marion county a short time before the writ issued.</p> <p>The answer proceeds to deny the allegations of the bill as to the nature of the defence sought to be interposed at law. It is not necessary to set it out in detail.</p> <p>John Campbell proved that he was acquainted with James McDonald; he lived in Copiah county, and from 4th October, 1844, to December of that year, he was sick nearly all the time; and died early in December, 1844. From 4th October, 1844, to his death, he was not in a condition, on account of his health, to have performed a journey, or to attend to business.</p> <p>William McDonald proved, that James McDonald lived at his house; his health was bad; he died 3d December, 1844; from 4th October, to his death, his health was such as would not admit of his performing a journey, or attending to business affairs.</p> <p>John C. Wade proved, that James McDonald lived in Copiah county on the 29th of August, 1844? to the best of his knowledge; he was in feeble health from 4th October to his death; does not know that McDonald’s health was such as to render him incapable of making a journey or attending to business. He served the writ on him; at that,time his health was very feeble.</p> <p>There was no other evidence.</p> <p>The chancellor dismissed the bill, and the complainant appealed.</p> <p>Cited Acts of Lim. 1844, sec. 12, p. 107; H. & H. 571, sec. 100, and insisted, that the presumption of payment was complete ; and the excuse for not defending at law made out.</p> <p>made these points.'</p> <p>1. The power of the court to grant a new trial, when by accident, mistake, or want of notice the complainant is prevented from setting up a valid defence, is undoubted. 5 S. & M. 464; Joslin v. Coffin, 5 How. 539 ; Herring v. Winans¡ S. & M. Ch. 466; Walker v. Gilbert, Freém.' 85.</p> <p>2. The power of the court to enjoin the collection of moneys improperly recovered, where there is no adequate remedy at law, is also unquestionable.</p> <p>3. It appears that the judgment rendered against James McDonald was by default.</p> <p>On this I remark, 1st. The debt in the declaration mentioned, was $924-50.</p> <p>2d. In action of debt, interest is no part of the debt, but damages for detention of it. Tidd, 922, (ed. 1828,) 573, 874, 880, in Buckley’s ed.</p> <p>3d. Interest cannot be recovered in an action on a foreign judgment. Tidd, 573, 874, 880, Buckley’s ed. 619, 632, ed. 1828.</p> <p>4. The damages in an action of debt are nominal in general. 1 Chit. PI. 114, 115, 374.</p> <p>5. It appears from pleadings and proofs, that respondent held two trusts, tutor of the infant Carmans, and curator of the succession of Ebenezer Ford.</p> <p>6. Exhibit B admitted to be the only evidence of debt upon which the damages were assessed, and judgment final entered up, was not a judgment in favor of respondent as tutor of the infant Carmans, although he declared upon such a judgment.</p> <p>7. Our statute, (H. & H. 594,) is in derogation of the common law, and is therefore to be strictly construed. The word “ writing,” there used, was not intended to include an irregular foreign judgment record.</p> <p>8. If this be denied, it cannot be pretended that exhibit B was described in the declaration, so that James McDonald could have been willing that judgment should go against him on that account. Exhibit B was not the “writing” mentioned in the declaration.</p> <p>9. The long time elapsed since the pretended rendition of the said judgment, renders it liable to suspicion of fraud.</p> <p>10. A writ of error cannot be sued out except by parties or privies. Tidd’s Prac. 1135.</p> <p>John McDonald was not a party to the suit in circuit court, and has not been made one by any subsequent procedure.</p> <p>He is not privy; he is not responsible for assets in the hands of James McDonald.</p> <p>Privies are defined in Bouvier’s Law Dictionary to'be “ Persons who are partakers, or have an interest in any action or thing, or any relation to another.”</p> <p>John McDonald, as administrator de bonis non administratis, had no interest in the goods administered by James McDonald, and execution cannot be levied properly on the goods and chattels in his hands upon a judgment against James McDonald. The judgment, though to be levied of the intestate’s goods, is against the person of James McDonald. He being dead, no execution can issue against him, and no such execution issues in rem ; it issues against the person, and is to be levied of goods in his hands; if he is dead he has no goods in his hands, but they may be in the hands of his personal representatives.</p> <p>An administrator de bonis non, has in his hands goods not administered upon by a former administrator. Respondent is trying to get satisfaction of his judgment, not of the goods in the hands of his judgment debtor, to be administered, but of the administrator de bonis non. This he has no right to do.</p> <p>11. Complainant has no remedy otherwise than here; he cannot sue out writ of error, as we have seen. No other course could be pursued than this. ' If he could supersede the execution, this course would only defeat an execution, and another might immediately issue afterwards, and he be constantly harassed in this way from term to term. In this court alone can he have adequate relief.</p> <p>insisted,</p> <p>1. That no sufficient excuse had been shown for not defending at law; 2. That the answer denied all the merits set up in the bill, and there was no proof to sustain the defence.</p>

In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. Albigence W. Putnam sued Richard T. Archer and David J. Ely on a joint note made by Thomas & Ely and the defendants, dated June 20, 1839, for $1000, payable in three years, with interest annually, at six per cent. Archer pleaded, 1. non-assumpsit; 2. usury; and 3. payment. The suit was dismissed as to Ely at the trial, and verdict and judgment given against Archer in April, 1847, for $1000.

<p>The heirs of P. having filed their bill to set aside a purchase of part of the real estate of their ancestor by Z., his administrator, under a fraudulent judgment against the administrator, to which bill S, the vendee of the administrator, was a party, and charged with notice of the fraud of the administrator, after the cause was argued and submitted to the chancellor for a decree, the administrators of Z., who had died before the institution of the suit, sought by petition to be made parties to the litigation ; held, that the subject matter in controversy, lay between the heirs of P. and S., the vendee of the administrator, and at so late a stage in the cause, it was not error to refuse the representatives of Z., the deceased administrator, to be made parties, since any decree in the suit between the heirs of P. and the vendee of Z. could not prejudice any defence, which Z.’s administrators might legally possess to any action to be brought by S. for the recovery of the purchase money paid by him to Z. for the land.</p>

In error from the southern district chancery court, at Natchez; Hon. James M. Smiley, vice-chancellor.

In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. William Lile sued Martin O. Hopkins in assumpsit for money had and received. On the trial the plaintiff gave in evidence the following assignment: “ Archibald McLean v. Alexander McGilvary.

<p>On appeal, from the probate court of Warren county; Hon. M. B. Cannon, judge.</p> <p>Charles Pendleton and others, heirs of Joseph Pendleton, deceased, on the 10th of August, 1846,filled a petition in the probate court of Lawrence county, to open an account and final settlement, made on the 27th of March, 1845, by Melissa Prestridge, administratrix de bonis non of Samuel Prestridge, deceased.</p> <p>" The object of the bill and nature of the account sought to be opened, is sufficiently stated in the opinion of the court.</p> <p>The probate court in September, 1846, dismissed the bill, and the petitioner appealed.</p> <p>Stated briefly the reasons why he had prosecuted this appeal; but that the case of Hooker v. Hooker, 10 S. & M. 599, had settled the rule differently; yet he insisted that the record did not in this case show affirmatively, as he contended it ought to do, that the proper parties had been notified of this settlement; without which the settlement would be void. Without this notice, it would not be a final and a conclusive settlement. He did not so regard or speak of it in his petition, but only as a fraudulent settlement.</p> <p>He cited How. & Hutch. 403; North on Prob. 3 65; and referred to the various decisions of the court on the subject of notice in such cases.</p> <p>1. Probate court have no jurisdiction to set aside a settlement by a guardian or administrator, at a term subsequent to that at which the decree was made. 5 S. & M. 422; Ib. 130, 751. If there is fraud there is a remedy in chancery. Turnbull v. E?idcot, 3 S. & M. 302.</p> <p>2. The operation of act of 1846 is prospective, and does not affect this case. Hooker v. Hooker, 10 S. & M'. 599, exactly covers this case.</p> <p>3. Even if the act covered such a case, it could not take from us the defence we have in the conclusive nature of the settlement we have made in the probate court. It is a vested right beyond the power of the legislature. 1 How. 189.</p> <p>4. In Hooker v. Hooker, the court says, that “ by law in force at the time this settlement was made, it was final and conclusive as far as the action of the probate court was concerned; ” generally in -support of this proposition, I refer to several Virginia cases, where this matter seems to have been most elaborately and ably handled. 4 Call, 460; 3 Munf. 305 ; 4 lb. 110, 369; 2 Leigh, 76; 3 lb. 348, 407 ; 4 H. & Munf. 255; 2 lb. 245, 261; 5 Ves. 566 ; 2 Bro. Ch. Ca. 62.</p>

James M. Smiley, vice-chancellor. On the 14th of August, 1844, Gardner Holcomb filed his bill, in which he alleges that he purchased of William P. Lenoir and Allen Barnes, in March, 1838, a stock of goods for $6110, at twelve months’ credit, for which he gave his note. Previous to and after maturity of this note, he made large payments to them, so that on the 15th day of August, 1839, there remained due thereon $3571-73.

In error from the circuit court of Copiah county; Hon. Thomas A. Willis, judge. John McLemore, on the first day of May, 1838, recovered a judgment against John W. Arnis in the Copiah circuit court, for $>212-53; upon which execution issued, and was levied by the sheriff. A forthcoming bond was given by Arnis with John Coor as'security, which was forfeited on the third Wednesday of October, 1838. On the 11th of September, 1844, in vacation, a scire facias issued against Geo.

<p>On appeal from the probate court of Claiborne county; Hon. William M. Randolph, judge.</p> <p>Margaret Robinson, the widow of Reddick Robinson, deceased, filed her petition in the probate court of Claiborne county, praying the appointment of commissioners, tq select and set apart for her one year’s provision, from the estate of said Robinson. Commissioners were appointed, who reported an allowance of $600, “for the support of herself and family.” To this report, the following exceptions were filed in the probate court, by ffm. McReary, the executor of Robinson: and his residuary legatee, to wit :</p> <p>1. Because the said Robinson left at the time of his death a last will and testament, in which he made a bequest to his widow, which she did not renounce within six months after the probate of the will, and she is therefore barred from any other share of her husband’s estate.</p> <p>2. Because the allowance made by the commissioners to. the widow, even if she was entitled to any thing, is exorbitant and excessive, and is not sanctioned by the testimony produced before the commissioners.</p> <p>The evidence shows that Robinson left a will, containing a bequest to his widow, which she did not renounce. It was also in proof, that the widow’s family consisted of two sons under age, one being fourteen and the other seventeen years of age, and three daughters over the age of twenty-one. There was conflicting testimony as to the sum necessary for the support of the widow and family for a year; but the commissioners reported first one'thousand dollars; and upon exceptions being filed and sustained, they made the second report, the exceptions to which were overruled, and the allowance confirmed, and this appeal taken therefrom.</p> <p>Cited Hutch. Code, 621, sec. 45, 46; lb. 680, and commented on them.</p> <p>Relied on the statute Hutch. Code, 680, as embracing this case.</p>

In error from the circuit court of Adams county ; Hon. Stan-hope Posey, judge. Joseph A. Hawley, sued Osborn K. Field and Sarah Field his wife, upon their joint note for $276, payable Feb. 25, 1845, and due Jan. 1, 1846. The defendants plead non-assumpsit and a special plea. The plaintiff did not reply tp the former, but demurred specially to the latter; the demurrer was confessed at the cost of the defendant, and the cause submitted.to the jury on the plea of non-assumpsit.

<p>In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.</p> <p>On the 2d day of January, 1846, Joseph H. Bentley, agent for Margaret Smith, made oath before a justice of the peace of Adams county, that “ John Bobb, administrator of the estate of Peter Mintzer, was justly indebted to her, the said Mrs. Margaret Smith, in the sum of one thousand dollars, for rent due and in arrear of Apple or Fairchild’s Island,” &c. A writ of attachment issued, and was levied on two slaves; whereupon Bobb, as administrator, sued out of the circuit court of Adams county a writ of replevin, upon which the slaves were restored to him; and at the return term of the writ, the circuit court, on motion of Bobb, quashed the distress warrant and proceedings, and Smith sued out this writ of error.</p> <p>1. As to the right to the writ, cited Hutch. Code, p. 899, sec. 20, 22; 1 Yirg. Code, p. 113, sec. 1; 32 Hen. 8, ch. 37, sec. 4; 2 Lomax, Ex. 403, 404; Toller, Ex. 476 ; Braiihwaita v. Cook-sey, 1 H. Black. 465 ; Com. Landl. & Ten. 371.</p> <p>2. As to sufficiency of affidavit, Hutch. Code, 808, art. 5, sec. 1.</p> <p>Take the first provision of the statute, How. & Hutch. Dig. 558, sec. 46, and the remedy is confined to the writ against the tenant alone. So the next section is confined to the replevy of the property by the tenant, and the law never intended an administrator to be put to the giving a bond and replevying. But in the 49th section, where there is a distress and no rent due the owner, his executors and administrators have a remedy.</p> <p>Again, p. 563, sec. 64, gives an action of debt against the executor or administrator of the tenant, and a distress for arrear-ages, in favor of the executor or administrator of the landlord, while the premises continue in possession of the tenant in demesne, who ought to have paid the rent, or in the possession of any one claiming by descent, &c., but no remedy against'the executor or administrator, by distress; so the 66th section only extends the preceding remedies to cases where the lease has determined.</p> <p>The affidavit is in substance and in fact, that John Bobb is indebted to Margaret Smith in the sum of $1000, and the attachment is issued and levied on the goods and chattels of Peter Mintzer, deceased. It is true the words, “ administrator of the estate of Peter Mintzer,” are added, but they are merely descriptio persones.</p>

<p>In error from the circuit court of Wilkinson county; Hon. Stanhope Posey, judge.</p> <p>Amos T. Dwight and others, under the firm of Dwight & Trowbridge, sued Rufus R. Richardson as drawer, and Chester A. Bulkley as indorser of the following bill of exchange, viz :</p> <p>“$100.</p> <p>“ On the first day of April please to pay C. A. Bulkley, or order, the sum of one hundred dollars for value received, and charge the same to account of your obedient servant,</p> <p>Rufus R. RichaRdson.</p> <p>“ To Stephen Franelin, New Orleans, La.</p> <p>“ This the 29th January, 1846, indorsed 1 C. A. Bulkley.’ ”</p> <p>The defendants plead non-assumpsit, and on the trial the plaintiffs read the bill sued on, and the protest attached to it; the latter being signed “ H. B. Cenas, notary public; ” and reciting in the body of it that the presentment and demand of payment was made by M. Aime, his duly appointed deputy, to whom the drawee refused payment.</p> <p>The plaintiffs then read the deposition of Cenas, who testified that it appeared from his records that his deputy, Michael Aime, demanded payment of the bill sued on at the proper time; whereupon he, the notary, protested it, and gave due notices, &c. to the defendants, who lived at Woodville, Mississippi.”</p> <p>The plaintiffs then read the lavr of Louisiana, giving 'the notary power to appoint deputies, as recited in the opinion of the court; and read also the evidence, duly certified, of Aime’s appointment and qualification as deputy notary; and then read the deposition of Aime, proving due presentment and demand of the bill.</p> <p>The court instructed the jury, that if it was proved from the evidence that the deputy notary was duly authorized, by the laws of Louisiana, to protest bills of exchange, his power was equal to that of his principal, and his acts, as such, are as binding as if the principal had done the same; but that bills of exchange must be presented for payment by the notary himselfj it could not be done by his agent.</p> <p>The jury found for the defendants; a new trial being refused, the plaintiff excepted and sued out this writ of error.</p> <p>Cited Parker v. Kett, 1 Salk. R. 95 ; 5 Bac. Abr. “ Offices & Officers,” L. p. 206-209; Allen on Sheriffs, p. 72; 2 Wash. R. 126; 2 Johns. R. 73.</p> <p>Reviewed the case of Chew v. Read, 11 S. & M. 182; and cited Story, Prom. Notes, p. 292, § 246; Kyd on Bills, ch. 7, p. 136; Chitty on Bills, ch. 8,.p. 362, 363; lb. ch. 10, p. 490, 496, and notes; lb. 508, 509; Carter v. Union Bank, 7 Humph. 550.</p>

<p>Under the statute of this state, (Hutch. Code, 801,) which provides that, “ all words which from their usual construction and common acceptation, are considered as insults, and lead to violence and breach of the peace, shall hereafter be actionable,” the words “ C. swore a lie, and I can prove it,” are actionable ; though not so at the common law.</p> <p>It seems, that, to an action brought under the statute referred to, which also provides that, “no plea, exception or demurrer, shall be sustained in any court of this state, to preclude a jury from passing thereon, who are hereby declared to be the sole judges of the damages sustained,” an ordinary plea of justification would not be a good plea; it must be accompanied by the traverse of the allegation in the declaration, “ that the words were spoken in a manner to insult and lead to a breach of the peace.”</p>

<p>It seems, that, where a note is payable in a different city from that in which the indorser resides, and on the day the note is protested, the in-dorser happens, in the knowledge of the holder, to be in the city where the note is payable and protested, the holder must give him personal notice; notice through the post-office, addressed to him at his place of residence, would not be sufficient.</p> <p>An indorser (who resides in the town of F.,) upon a note payable in the town of R., was in the town of R. on the day of the maturity of the note, lying ill at the house of the notary who protested it; the notary took a written notice of the protest to the indorser’s room, approached his bed, and remarked to him that he had that'day protested a note on which he was in-dorsor, but did not describe the note; the notary could not say that the indorser heard the remark; he then left the written notice on the mantelpiece in the room ; held, that the notice was sufficient to bind the indorser.</p>

In error from the circuit court of Warren county; Hon. George Coalter, judge. Samuel Luckett, administrator of James Luckett, sued John Henderson, in assumpsit on this note, viz.: “ $5000. Wari'énton, May 16, 1836. “One day after date we promise to pay James Luckett or order, five thousand dollars for value received, with interest from date at nine per cent.

<p>Where in an action for breach of warranty of soundness of a slave, the proof was that, shortly after the sale, the slave was attacked with dysentery, and died, notwithstanding careful treatment, and the attending physician testified that, for various reasons given by him, he believed the slave was of scrofulous habit, and died of scrofula existing before the sale; and there was no other medical evidence given, but on the other side, the testimony of several witnesses, that they had known the negro in Virginia for years, where he was sound and healthy, with no development of scrofula and the slave had been brought from Virginia to Natchez in this state, but a few months prior to his death, and the jury found for the plaintiff; held, that the weight of positive evidence was greatly against the verdict, and apart from the opinion of the attending physician, there was no evidence to support it; and from the testimony alone, the court were inclined to be of opinion, that a new trial should be granted.</p> <p>If, in an action for breach of warranty of a slave, it appear in the proof that the slave was brought to this state as merchandise, and for sale, and sold here in violation of the law prohibiting such sales, the sale will be void, and the warranty of soundness, as part of the contract, likewise void, and cannot be made the foundation of a recovery ; and the high court of errors and appeals will so decide, though the point be not made in the argument.</p> <p>If a slave be brought to this state as merchandise, and for sale, and sold here in violation of the law prohibiting such sales, the date of the bill of sale in Louisiana will be an ineffectual effort to evade the law, if in truth the transaction took place in this state.</p>

<p>Where upon an application to the circuit court of Yalabusha county, for a mandamus, to compel,the board of police of that county, to sign a bill of exceptions, with the wiew of taking up a case by appeal to that court, the defendants answered that no appeal had been prayed by the party seeking the mandamus, either at the term when the judgment, from which the appeal was sought, was rendered, or the next succeeding one ; and upon this answer the plaintiff moved for a peremptory mandamus ; it was held, that the truth of the answer was admitted by the motion, and showed that the application was made after the period limited by statute, which says that the appeal “ shall be taken at the term at which the judgment is rendered, or at the next succeeding regular term, and not after; ” and could not therefore be granted.</p>

In error from the circuit court of Claiborne county;- Hon. George Coalter, judge. Mary L. Clarke, an infant, by her next friend, Charles B. Clarke, brought an action of replevin to recover from William McCreary seven negro slaves. McCreary gave bond in conformity with the statute, and the slaves were' left in his possession. .

Henry Dickinson, vice-chancellor. The facts of the case sufficiently appear from the following opinion delivered by the vice-chancellor : By the Chancellor. The complainant, the administrator of Hector McNeill, filed this bill to recover from Lavisa McNeill certain slaves, to wit, Abel and his wife Columbia, and their six children.

IN error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge. Thomas S. Land filed bis petition in the circuit court, alleging that on the 15th of November, 1843, a judgment in that court was rendered against George A. Thompson, Phebe Pitts, and Isaac Thompson, for $2459'53.

<p>In error from the probate court of Choctaw county; Hon. John Snow, judge.</p> <p>Walton Moss, by his next friend, Nathaniel Moss, filed his petition, stating that Johnson Moss, by his last will, bequeathed' to petitioner eight hundred dollars. This will, on the 22d of May, 1841, was duly proved in the probate court of Choctaw county, where Moss died; no executors were named in it. Wiley Quinn, and Nancy his wife, late the widow of Johnson Moss, had been appointed administrator and administratrix of his estate, and, as such, possessed themselves of all his estate; that there are funds of the estate on hand to pay the legacy; he has often demanded it in vain; is ready, by his next friend, to give a refunding bond; is married, and needs the money; defendants refuse to pay it; and he prays that payment may be ordered.</p> <p>He filed a copy of the will, showing its due probate and record, on the 31st of May, 1841, in the probate court of Choctaw county.</p> <p>The defendants demurred to the petition, because it did not describe the character in which they were administrators. This being overruled, they plead, in substance, that the probate of Johnson Moss’s will, in May, 1841, had been set aside by the probate court in July, 1841, and a division of his property ordered among his heirs, which they had made. To this petitioner replied, that the order setting aside the will was made without notice to petitioner or any one else, without an issue to try its validity and without proof. To this replication defendants demurred; the demurrer was overruled, and on leave given, the defendants answered.</p> <p>They admit the will and their general administration, but insist that they have paid the legacy; and the payment was allowed by the court at its May term, 1843, when they had a final settlement with the court, a copy of which they exhibit; and which they insist discharged them from further administering and accountability to the probate court.</p> <p>The account rendered at the alleged final settlement contained this item: “By special legacy paid Walter Moss, ordered by the will, with interest thereon, $ 917'” At its conclusion were these words : “May term, 1843. This account having been reported for allowance, and the same having been advertised according to law, and no exceptions made thereto, it is therefore ordered and decreed that the same be allowed in all things as therein stated, and that the same be recorded. Ordered by the court, that the final settlement- of the administrator and administratrix, accounting in full for all the estate, both real and personal, of the said estate, be and the same is hereby received, allowed, and ordered to be recorded.</p> <p>“ Be it further ordered, that the said administrator and ad-ministratrix of said estate be discharged so far as the statute will allow, and that they pay no further debts against said estate, of claims held by citizens of this state, with the exception of court fees; and after sixteen months, to pay no claims held by citizens of other states against said estate.</p> <p>“ Be it further ordered, that the said administrator and ad-ministratrix, (there being suits pending against said estate,) pay no further sums to the distributees of said estate, without an order of this court.”</p> <p>Nathaniel Moss testified, that he was the father of the petitioner; the legacy had never been paid to him (Nathaniel.) He had once employed an attorney to collect it, and had promised to give him five per cent, to do so; the legacy had been collected. Exceptions were sealed to his admissibility by the defendants.</p> <p>The probate court decreed the legacy to be paid by defendants, and they appealed.</p> <p>Cited 2 S. & M. 30; 1 Murphy, 99; 4 Dev. 430; Jacob v. Pul-liam, 3 J. J. Marsh. 200; Coiuden v. Dobyns, 5 S. & M. 82; 7 How. 808; 1 S. & M. 546; Harper v. Archer, 9 S. & M. 71; Hooker v. Hooker, 10 S. & M. 599; Stubblefield v. McRaven, 5 S. & M. 130; Jones v. Coon, 5 S. & M. 751; Griffith v. Verifier, 5 How. 736; Gildart v. Starke, 1 How. 450; Washburn v. Dorsey, 8 S. & M. 214.</p> <p>Cited, 5 Paige, Ch. R. 303; Cook v. Bay, 4 How. (Miss.) 485 • 1 S. & M. 22.</p>

<p>On appeal from the district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor.</p> <p>■ David A. Comstock, James A. McCampbell, George Robbins, Samuel Painter, and Nathan Green, state in their bill, that complainant, Comstock, as assignee of complainant, James A. McCampbell, in April, 1842, recovered judgment in the circuit court of Benton county, Alabama, for the sum of $898, against defendant, Reizen R. Chilton, who took an appeal to the supreme court of Alabama, when the judgment was affirmed, 14th of June, 1842, against the defendant and his surety in the appeal bond, James Baugh, for the judgment and ten per cent, damages, amounting to $1028'22; that complainants, George Robbins, Samuel Painter, and Nathan Green, (Robbins, Painter & Co.) obtained judgment in Benton county, Alabama, on the 14th of April, 1841, against said Chilton and Sterling Price, for $1114-48, and costs, from which they took an appeal to said supreme court, when the judgment was affirmed on the-day of June, 1842, with ten per cent, damages, amounting to $1252-73; that at the date of the affirmance of said judgments (which are unpaid,) the said Reizen R. Chilton was the owner of the following slaves, viz: Letty, forty years old, worth $100; Eliza and two small children, worth $600; Harriet, worth $250; Anderson, worth $450; Thomas, worth $300; that executions were issued and placed in the hands of the sheriff, and that said Reizen R. secretly, and for the purpose of preventing a levy; run said negroes off from Benton county into some othér county in the state, and then into Marshall county, Mississippi, where they now are in possession of defendant, Rayford. That by the laws of Alabama, complainants had a lien from the time these executions were in the hands of the sheriff: that the negroes were run for the express purpose of hindering its enforcement; that the other parties to the judgments are insolvent, or worth but little; that Chilton was the principal debtor; that the only chance to make their money is out of the negroes; that said Chilton, after placing the negroes in possession of Rayford, a citizen of Marshall county, returned to Benton county, Alabama, where he resides. Complainant, McCampbell, states, that he transferred the note, on which the judgment against Chilton was obtained, to complainant Comstock, as collateral security for a judgment which Comstock had against him, which is unsatisfied that he pursued the negroes thus run, and found them in possession of Rayford; believes that Chilton will run them again, or dispose of them to some person unknown, and will defeat the claim of complainants.</p> <p>Complainants further show, that Rayford sometimes pretends that he has bought two of the negroes, Thomas and Anderson, of one Pelatiah Chilton, father of Reizen R., of Benton county, Alabama, who made no claim to said negroes in Alabama ; that they were then held by Reizen R. as his own, as will appear by record evidence of a bill of sale to be produced; that Reizen R. has not sold said negroes, Thomas and Anderson, to Rayford, and that said pretended sale of Pelatiah Chilton is fraudulent; that they have no remedy at law by attachment, inasmuch as themselves and said Chilton are non-residents; wherefore, they pray discovery and answer, process of attachment and injunction against Rayford from paying over any funds of property of Reizen R. in his hands, which was granted, on giving bond &c.</p> <p>Transcripts of the judgments in Alabama were annexed to the bill.</p> <p>Bill was demurred to, and demurrer sustained January term, 1S43, a writ of error taken to the high court, and judgment of the vice-chancellor sustaining the demurrer reversed at the July term, November 17, 1843.</p> <p>The answer of Rayford, filed July 3, 1844, states that he knows nothing of the judgments mentioned in.the bill, but has no reason to doubt them. Admits the negroes were in his possession at the filing of the bill, but does not know in whose possession they were at the time of the judgments; does not believe they were put into his hands for a fraudulent purpose; knows nothing until the negroes were brought to this state; positively denies that Reizen R. sold him the negroes Thomas and Anderson, but alleges that he bought them of Pelatiah Chil-ton the last of July, 1842, who claimed them, and who he believed and believes to be the real owner. Some ten weeks afterwards Reizen R. and Robinson Hogle brought the other negroes in the bill from Alabama, and left them in his possession, to remain until the arrival of Pelatiah, who was expected in a few days; was informed at the time, and believes they were all the negroes of Pelatiah; for the negroes, Thomas and Anderson, he gave Pelatiah $1000, paying him $150 in cash, and giving his notes for the balance, which were not due at the institution of this suit; that, solely from distaste of litigation, he applied to Pelatiah, who agreed to rescind the purchase, giving up his notes and paying back the $150; disclaims all interest; asserts that the sale was bond fide; has always believed, and now believes, the negroes were the property of Pelatiah; admits they are the same negroes brought from Alabama; admits the return to Alabama of Reizen R.; denies all fraud, &c.</p> <p>The answer of Reizen R., filed July 3, 1844, admits the judgments as set forth in the bill, and that they are unpaid ; denies that at the affirmance of either of the judgments, any of the negroes were in his possession, or were his property, or claimed by him; admits the value of the negroes alleged in the bill j admits the issuance of executions, but denies that they came to the sheriff’s hands before the 2d August, 1842, when Anderson and Thomas were in Mississippi and the other negroes in Georgia ; denies that he ran the negroes at any time or for any purpose; asserts they were the property of Pelatiah; admits the judgments cannot be satisfied out of the property of defendants thereto; that there was never any lien of complainants on said negroes, even if they had been his property, inasmuch as they were out of Alabama before such lien could have attached; requires proof that Comstock is assignee of McCampbell; denies that he has claimed any of the negroes since May 2,1842; denies that he brought Anderson or Thomas to Mississippi, or offered to sell them to Rayford; is informed that his father Pelatiah did sell them to Rayford and rescind the contract in the manner stated by Rayford in his answer; asserts that his father was the owner, and openly claimed the negroes after 2d May, 1842; states that Nathaniel Parks, guardian of Julia Harding, and Benjamin Selman, guardian of Mary Harding, now wife of respondent, obtained a judgment against one Moses L. Barr, the former guardian, and Pelatiah Chilton, his surety, for maladministration in the guardianship; that Barr was insolvent, and Pelatiah, to obtain time, executed twelve promissory notes and a deed of trust on his land, on the 2d October, 1839; the deed of trust is filed as exhibit No. 3, describing more fully the notes and land; that on the 1st April, 1840, Pelatiah sold to him the negroes mentioned in the bill, and five others, and one wagon and team, forty head of cattle, one hundred head of hogs, and executed his bill of sale, exhibit No. 1; that the only consideration was, that he should pay said twelve notes, and release the land from the trust, his father being about to go to Arkansas ; that his father’s anxiety was so great, that he required of respondent a bond conditioned in the penalty of $ 1200 to pay said notes, of same date as the sale, filed as exhibit No. 2. His father returned in July, 1840; he continued to promise the payment of said twelve notes, and made every reasonable effort to do it, but could not, when in the winter of 1842 the trust property was advertised for sale; and at the remonstrance of his father, as he could not pay, he resold and conveyed the negroes to his father May 2, 1842, and delivered possession; refers to the bill of sale as exhibit No. 4, to Pelatiah Chilton’s answer; since that time he has had no interest in and asserted no claim to the negroes, but they are the property of Pelatiah; that the consideration of said bill of sale, exhibit No. 4, is expressed to be $2600, but its real consideration was his failure to pay the twelve notes; that of the negroes originally conveyed to him he has sold four; their names and the price he was to give to Pelatiah for them are as follows — Wesley, f 1000, Jane and child, $700, Bob, $900; in May, 1841, respondent married Mary Harding, and thereby discharged the amount due by his father to B. Selman, her guardian, to wit, $2696’67; that by the sale of the four negroes, the wagon and team, the hogs and cattle, and $520 loaned him by his father, he has been more than repaid said sum of f 2696'67.</p> <p>That said notes to Selman, though fully paid, are in possession of complainant, McCampbell; that he obtained them thus: In 1843, respondent went into bankruptcy; he had in possession the notes of Selman, (he having given them to him on settlement of his guardianship,) and though fully discharged by Pelatiah, his lawyer advised him to return them in his schedule, and his father could plead his payments when called on to pay; he did so return them, and at the assignee’s sale McCampbell became the purchaser; hence he cannot produce them though fully paid.</p> <p>That being unable to pay the $3000 due to Parks as guardian, he reconveyed to his father; that there was this farther inducement to said reconveyance, viz. that his father represents that he desired to sell said negroes to raise money to release his land. That he is informed, that afterwards his father sent the boys, Anderson and Thomas, to Mississippi, under charge of Asahel Chilton, for sale; the others he sent to Georgia, under charge of William Fullingham and Robinson Hogle, for sale.</p> <p>That he, respondent, had nothing to do with sending off said slaves, but they were sent to raise specie to pay the debt due to Parks, who would receive nothing else, there being no other currency in that county but Alabama paper, which was at a heavy discount.</p> <p>That Asahel Chilton could not effect a sale in Mississippi; that Fullingham and Hogle failed to make a sale in Georgia, and at his father’s request, respondent went to Georgia, obtained possession of the negroes and took them to Rayford, in Mississippi, disclaiming for himself any ownership or claim to said negroes; said Pelatiah was not able to effect a sale of the negroes in time to prevent a sale of his land under the deed of trust. Admits his insolvency, denies the fraud, alleges his right to prefer his father as a creditor; the land was sold under the deed of trust July 12, 1842, and all the proceeds applied to the claim of Julia Harding.</p> <p>Exhibit No. 1, is the bill of sale of Pelatiah to Reizen R., dated April 1, 1840.</p> <p>Exhibit No. 2, is the bond of Reizen R. to, Pelatiah Chilton, conditioned to pay the amount due Selman and Parks, $6000, including costs and interest.</p> <p>Exhibit No. 3, is the deed of trust of Pelatiah Chilton to Sel-man and Parks, dated 7th October, 1839.</p> <p>Answer of P. Chilton, filed July , 1844, contains the same allegations and denials that are contained in the answer of Rei-zen R.</p> <p>Exhibit No. 4, is filed with this answer, and is the bill of sale of Reizen R. to Pelatiah Chilton, dated May 2, 1842.</p> <p>The deposition of Matthew M. Heriston states, that Reizen R. Chilton brought him the bill of sale of Pelatiah Chilton to Reizen R. Chilton of the following negroes: Letty, Robert, E; Eliza, Jane, Anderson, Thomas, Harriet, Newton, Elizabeth, Wiley, Fowler, and Elizabeth, to be recorded in his office as clerk of the county court a short time after its execution; knows nothing of the possession, or their being carried away, except from rumor. There is no record in his office (the proper place) of a reconveyance; knows nothing of the circumstances under which the negroes were carried off, except that Reizen R. and Pelatiah were in embarrassed circumstances; that a part of the negroes were attached, and several of them for some time in possession of the sheriff, levied on under process a short time before they were carried off in the summer of 1842; there were various judgments in the county court of Benton county against Pelatiah Chilton, amounting to $9000; has heard “Reizen R. say the ne-groes were his property, and forbid the sheriff selling them, or a portion of them, and that he would hold him responsible; knows nothing of the judgments of complainants’ but from rumor. In the year 1842, heard Reizen R. say, the negroes were his, and he was then exercising ownership over them.</p> <p>The deposition of Benjamin C. Wyley.— In 1842, witness, acting deputy sheriff, went to the plantation on which Pelatiah Chil-ton had lived, with executions against him and Reizen R., whom he found in sole possession of the farm and several negroes, all of which he said he had bought from Pelatiah; he paid the executions against himself, but prevented witness from levying those against his father, by saying the negroes all belonged to him. At that time Pelatiah lived about three miles from the place occupied by Reizen R.; witness went there and found but one negro on the place, a boy, called Bob; levied on him as the property of Pelatiah and Reizen R.; filed an affidavit and claimed him, saw several negroes in R'eizen R.’s possession, but cannot identify them further than this, that he said he had purchased them from his father, and they were all his father had owned except Bob; heard Reizen R. say he had been security for his father, and that he had to buy the negroes to save himself from loss. At the spring term, 1842, in a trial of right of property in ne-groes between Reizen R. and James A. McCampbell, witness heard Pelatiah swear he made bills of sale, one in 1836, another in 1840, by which he conveyed all his negroes to Reizen R., and that Reizen R. had paid a debt of some $3000 for him in Georgia, and a bank note, and some other debts which witness cannot specify. One of the negroes was named Letty, and one Bob, but Pelatiah was speaking of the negroes, concerning which the trial of right of property was then pending; the swearing was at the spring term, 1842, which commenced the third Monday after the fourth Monday of March, and continued two weeks.</p> <p>Deposition of James Crow. — Was and is clerk of circuit court of Benton county, Alabama; recollects the swearing of Pelatiah in the case of McCampbell against Reizen R., claimant; there was but one negro levied on, Bob; a bill of sale was introduced, conveying Bob with other negroes from Pelatiah to Reizen R.; he can only recollect the names of Bob, Fowler, Letty, and Anderson in the bill of sale; Pelatiah swore the bill of sale was bona fide; that Reizen had paid a debt of $3000 for him in Georgia, and a bank debt in Alabama, and divers others which witness could not now recollect, and that these debts were the consideration of the bill of sale which has been withdrawn from his office, and does not know where it is; at the same time Pela-tiah swore that he had received full consideration for the ne-groes, and that Reizen R. did not owe him a dollar; knows of the judgments referred to in the bill; there are judgments in his office against Pelatiah, amounting to $2700 or $2800. The swearing of Pelatiah was before the 2d of May.</p> <p>Deposition of Edward Harnden. — In the spring of 1842, before the trial of right of property, was ah the house where Pelatiah formerly lived; Reizen R. then possessed and controlled the land and negroes; Pelatiah was living with him; both told him that Pelatiah had sold farm and negroes to Reizen R., and that he owned them; don’t know the names of the negroes; at the trial of right of property, heard Pelatiah say that he had sold them to Reizen R.; had often told him to take them off and sell them, and if he had done so there would have been no lawsuit.</p> <p>Deposition of William B. Martin.'— Obtained judgment some years since as attorney for complainant, McCampbell, against Pelatiah Chilton; had execution levied on one of the negroes in the bill of sale to Reizen R., who filed an affidavit claiming him, and a trial of right of property was had in the spring of 1842, when Pelatiah, as a witness, swore that the consideration of two bills of sale produced, to Reizen R. was sums of money advanced, and services rendered by Reizen R.; that they were made in good faith, and on a fair consideration; the bill of sale had the name of the negro, Bob, in it, about whom the trial was had.</p> <p>Deposition of Nathaniel Parks. — At one time, does not recollect when, Reizen R. told him he had bought his father’s negroes and had paid for them in money; some time in the summer of 1842, Pelatiah, who had proposed to pay him a debt due from Pelatiah and Reizen R. in negroes, and which witness refused to take, unless Pelatiah signed the bill of sale, referring him to the trial about Bob, in which Bob had been subjected to the execution against Pelatiah; he abused the jury who rendered the verdict, said the negroes belonged to Reizen R., and he had no interest in them; testifies to the deed of trust. When he was about to sell the land, under the deed, both Pelatiah and Reizen R. applied to him for a postponement; does not recollect Pelatiah promising to sell the negroes or carry them off, and appropriate the proceeds to the payment of his debt; he refused to take any thing but par money in payment of his debt; no Alabama money was offered; it was difficult at times to procure gold and silver; the land in the trust was sold, and proceeds appropriated to pay him.</p> <p>Deposition of William J. Willis. — Has frequently seen all the negroes mentioned in the bill, except Anderson, in possession of Reizen R. on the place formerly occupied by Pelatiah; Anderson was in possession of Asahel Chilton, but Reizen R. claimed him and all the other negroes who had belonged to his father. In the summer of 1842, with various processes from court in his hands, as deputy sheriff of Benton county, he went to the plantation where Pelatiah resided, and found Reizen R. in possession of plantation and negroes; at that time and other times levied on all the negroes mentioned in the bill in the possession of Reizin, except Anderson, who was claimed by him; this was in the summer of 1842; Reizen R. filed an affidavit to try the right of property ; the negroes were carried off suddenly in July, I think the early part, 1842; have frequently heard both Pelatiah and Reizen R., in the presence of each other, say, that the negroes mentioned in the bill were the property of Reizen R. in the summer of 1842; unless to avoid the payment of debts, does not know for what purpose the negroes were carried off. The executions in favor of McCampbell, use of Comstock, and of Robbins, Painter & Co. were placed in his hands, as deputy sheriff, after the negroes were carried off; heard both of the Chiltons say, they had run off the negroes to avoid these executions; they said they took the cases to the supreme court, expecting to reverse them, and that their security, James Baugh, need not be alarmed though the negroes were carried off. The negroes were in possession of Reizen R. from the time witness commenced acting as deputy sheriff, on the 8th of March, 1842, until they were run off in July; during this period the negroes were claimed by Reizen R., and his claim acquiesced in by Pelatiah; during this period witness went several times with executions against Pelatiah, and he disclaimed owning any property, and said the negroes belonged to Reizen; Pelatiah’s swearing in court was at spring term, 1842; supposes no sale was made on the 2d of May, 1842, as both the Chiltons after that time said the negroes belonged to Reizen R.</p> <p>The deposition of Thomas A. Walker. — Was the attorney of complainants in obtaining the judgments in Alabama, since the latter part of 1840; does not know how long before Reizen R. Chilton claimed and exercised acts of ownership over all the ne-groes, and Pelatiah Chilton confirmed his acts and claims. The last time he saw Reizen R. Chilton in possession of the negroes was in July, 1842, said he had sold some of them to Green ; at the October term, 1841, Comstock obtained judgment; at the April term, 1841, Robbins, Painter & Co. obtained judgment; both cases were taken to the- supreme court, and immediately, or a short time after the news of their affirmance reached Benton county, Reizen R. and the negroes disappeared; does not know who conveyed the negroes off; they were overhauled at Holly Springs : Reizen R. Chilton has resided ever since I knew him in Benton county, Alabama, until 1842; heard the testimony of Pelatiah in Benton county, who swore that he sold certain slaves to his son in 1836, as shown by bill of sale of that date, also that he sold and delivered in April, 1840, the negroes mentioned in the bill, and others mentioned in a bill of sale then produced, of the date of April, 1840, and on record in Benton county; said the sale was bona fide; stated -the exact sums Reizen R.- had paid for the slaves, which witness cannot now recollect; states he delivered possession to his son, and had not exercised acts of ownership since; has heard Pelatiah at other times say, that the negroes belonged to Reizen ; never heard of Pelatiah claiming them until the negroes were overtaken in Holly Springs; Reizen R. Chilton exercised acts of ownership from 1840 up to July, 1842; had a conversation with Reizen R., July, 1842, about the negroes, a few days before they were run; the last time he saw them in possession of Reizen R. he said nothing of his sale to his father; we spoke of the rumor, that he would run his ne-groes ; he said he did not intend to do so, but would let them remain to pay his debts.</p> <p>Deposition of William Fullingham. — Knows that Reizen R. exercised acts of ownership over the negroes mentioned in the bill up to the spring of 1842. They were under his control and management; he claimed them during a part of that time; Pel-atiah lived in the same house before they were carried away; Pelatiah moved to a place two or three miles distant from where Reizen R. worked the negroes, they remaining under Reizen’s control, who claimed them; witness carried off five of the negroes, to wit, Old Letty, Eliza, Harriet, Newton, and Letty, a child, at the request of Reizen R.; started on the 1st of July; according to direction, went down the road leading south from Jacksonville, about four miles from Reizen R.’s house; rvaited for the negroes, who were brought through the woods by Warren Baker, Reizen R.’s overseer, and Pelatiah Chilton; Warren Baker told me to take them to a man named King, in Barbour county, 200 miles off, and Pelatiah gave direction as to the route, telling me to go “ pretty fast; ” carried them to King’s; gave him a letter handed me by Reizen R. the morning I received the negroes; the letter instructed King to take charge of the negroes until further orders; Reizen R. had called at my house to see me; on learning that, I went over to his house; Asahel, Pelatiah, and Reizen R. were there; Reizen R. said, “We have a family of negroes here, and there’s an old debt owing against the negroes, and we want you to put them out of the way; ” he wanted me to start in the morning; after some hesitation, I consented; on the next morning I started; met Reizen on the road, and her handed me the letter; repeated that morning the instructions he had given me the evening before, as to where I should take them ; I then went to the place designated, and waited until the negroes were brought as before stated ; returned on the 22d of July from Barbour county, where I had taken the negroes; on the 23d reported to Reizen R.; on the 24th Pelatiah came to my house and told me the property in Benton county was levied on by Parks and Selman, and McCampbell and others, and he was afraid it would be found out where the negroes were I had carried off; he wanted me to go and get them, and take them to Georgia and sell them; I consented: Pelatiah came to my house that night, and insisted I should start that night; I consented, and went with him over to Reizen’s house; Reizen R. authorized me,' by power of attorney, to sell them ; it was signed by him and handed to me; I was instructed to sell them for $1600; started that night, the 24th of July, in company with John R. Hogle; went and got the negroes and carried them over to Georgia, and tried to sell them; failing to sell them, left them with the power of attorney with Hogle in Randolph county, Georgia; have not seen the power of attorney since; I kept an account in writing (containing the dates,) for my services, which enables me to speak of dates with so much certainty; Reizen got the negroes from Pelatiah.</p> <p>Deposition of Warren Baker. — Knows that Reizen R. exercised ownership over the negroes from 1840 to 1842; was overseer, and called on to witness the contract in 1840; the contract was rehearsed to him by both Reizen and Pelatiah; both .said it was a fair sale for the consideration of $5400; from that sale and delivery, up to 1842, Reizen R. had the possession and entire control of the negroes; they were run off to avoid executions, he thinks, of complainants and others, he thinks, in July, 1842; he heard Pelatiah swear in relation to the slaves in 1842; he said it was a fair sale; he thinks the consideration $5400; the negroes were run to avoid complainant’s judgments; they were in possession and control of Reizen R. from 1840 until they were run in 1842; resided with Reizen R. in 1842 as overseer; knows of no sale on 2d of May, 1842, to Pelatiah.</p> <p>Defendants having taken proof to impeach the character of Benjamin Willis, the following rebutting proof was introduced by complainants.</p> <p>Deposition of John A. Tercday. — Has known Willis seven or eight years; he served three years as deputy sheriff, and ten years last past as high sheriff of Benton county; never heard his character questioned; would believe him; have always regarded him a high minded and honorable man.</p> <p>The depositions of John D. Hoke, Thomas A. Walker, M. M. Heriston, J. C. Francis, George Hoke, James Crow, and Benjamin Selman.</p> <p>Deposition of Thomas Hindman, of Tippah county, Missis- - sippi. — Has known Willis since 1834; was a citizen of the same county nine years; has had many business transactions with him, and knows his general reputation; would believe him as soon as any man living; would consider his statements entitled to the fullest credit, whether on oath or not.</p> <p>Deposition of Benjamin Howes. — Has known Willis well; lived in the same county with him five years; would consider him entitled to the fullest credit.</p> <p>The proof of defendants was as follows.</p> <p>Deposition of Wm. P. Chilton. — Obtained judgment for Morgan and son in Benton county, on the 12th July, 1841, for $1403-79, and on 12th April, 1841, for $1380-72, against P. Chilton; executions returned “ no property found; ” got power of attorney to act for clients; gave indemnifying bond to sheriff, who levied on the land on which P. Chilton levied, and on six negroes, Jim and wife, .Nancy, Adam, Frances, Wiley, and Amanda, in the spring of 1842; the land sold for $30, October 3d, 1842; the negroes sold 6th February, 1843, for $1818, leaving, after deducting costs, &c., $1781-35 to credit of defendants; redeemed the land sold under the deed of trust, and allowed a bid of $150 on the fieri facias, making $1931-35, leaving due 6 th of February, 3843, $1243-06, on the two judgments ; I kept the property at request of clients, and accounted for the bids; Reizen R. claimed the negroes when levied on: don’t remember precise date; Parks’s guardian levied attachment against Reizen R. on the negroes pending the litigation; Reizen abandoned his claim; Parks filed bill to enjoin sale under Morgan’s execution, 5th of September, 1842; injunction was dissolved; bill afterwards dismissed; Parks took it to the supreme court; decree of chancellor was affirmed ; on the sale of the negroes, J. A. McCampbell, who had levied execution in his favor against P. Chilton on Amanda, claimed a portion of the proceeds; I indemnified the sheriff; McCampbell has since made some ineffectual attempt by motion to get the money. After the negroes were gone, I had a conversation with P. Chilton, and advised him to sell the negroes and redeem a part of his land with a mill on it, which had been sold under the deed of trust; previous to the negroes being taken off,. I advised Reizen and Pelatiah to pay the just debts by selling property, and liquidate such a deep rot; does not know the pecuniary condition of P. Chilton in 1840; is inclined to think his property would have paid his debts if well managed; does not know the pecuniary condition of Asahel; does not know about Reizen R. possessing the property up to July, 1842; did not visit the place until after that time; live twenty-three miles distant; there is no law requiring bill of sale of negroes to be recorded in Alabama; knew nothing beforehand of the intention to run off the negroes; after they were run, Pelatiah told him they were to be sold to raise money to redeem the land; I supposed they were Reizen’s negroes, or would have levied the Morgan executions on them; as far as I know, there was but one trial of right of property, and that was about Bob; in 1840, was employed by Reizen to enjoin Parks from selling the negroes now in dispute under attachment; bill was afterwards dismissed; the deed of trust is an exhibit with his deposition.</p> <p>Deposition of Asahel Chilton. — Twelve negroes were sold April, 1840, by Pelatiah to Reizen R. Chilton, Robert, Anderson,Thomas, Wiley, Fowler, Newton, Letty, Elizabeth, Eliza, Jane, Harriet, and Elizabeth, for which Reizen was to pay the debt to Parks and Selman, and executed bond to that effect; exhibit No. 2 to Reizen’s answer, is the bond ; this was the only consideration; the land was sold to Parks under the deed; Reizen never paid Parks; Reizen married Mary Harding, for whose portion of the debt Pelatiah paid Reizen in the property, as stated in Reizen’s answer; Pelatiah is not indebted to Reizen; the land was worth $7000 or $8000. Pelatiah went to Arkansas in May or June, 1840; knows of the resale in 1842 ; the negroes are those mentioned in exhibit No. 4 of Pelatiah’s answer; Pelatiah had to take them back; Pelatiah sent the negroes from Alabama; Reizen did not claim them after May 2, 1842; I brought Anderson and Thomas to Mississippi; was to sell them for $1200 in specie; Parks refused to take any thing but specie; all the negroes left July 1, 1842, except Anderson and Thomas, who left July 2, 1842; the two sales were open and generally known; they were the property of Pelatiah before they left; placed the negroes with Rayford as the property of Pelatiah; Pelatiah could have paid much more than he owed in 1840; Reizen was then solvent ; there are no judgments against Pelatiah unsatisfied that I know of; there was a trial of right of property between McCampbell and Reizen, and the property made subject to Pela-tiah’s debt; was present at the signing the bill in 1840, but did not see Pelatiah sign it; the twelve negroes were worth $6000; the crop, com, cattle, hogs, &c., worth $800; Reizen sold some negroes to Judge Green; I started from Benton county, Alabama, with Anderson and Thomas, and went straight to Marshall county, Mississippi, distant 300 miles; it is not an indirect way; I left with the intention of taking Anderson and Thomas to Marshall, unless sold before I got there; the only object I had was to sell; they could not be sold in Benton county for the value in specie; the two were worth $1000 in Alabama money, or $750 in specie; Pelatiah and Reizen R. lived about forty or forty-five miles from Georgia line; I did not take Anderson and Thomas into Georgia; left Benton county in the morning about six or half-past; I was eight days on the road; tried to sell them on the road ; had power of attorney from Pelatiah, witnessed by the clerk of county court, to sell; was limited to $1200, and not authorized to sell for less; Reizen R. was insolvent May2,1842; in May or June, 1842, thinks in June, Judge Green bought Wiley and wife and child; the payment of $3000 was made by Reizen marrying Mary Harding; Pelatiah let him have Wiley and wife and child and Fowler in payment of the debt extinguished by marrying; these were worth $2500; Pelatiah and I had six or seven times as much property as would have paid the debt of $1700, on which we were sued in 1839 or 1840; the trial of right of pro-, perty was in the fore part of 1841; the parties in the deed of trust offered further time on conditions; I think in 1842, before I left, Pelatiah was to take off the negroes and sell them, and redeem the land from the trust; it was generally known that they would be sent from Alabama.</p> <p>Deposition of John R. Hogle. — The resale in 1842 was be-, cause Reizen R. had not paid the trust debt and some others he was to pay; took off five of the negroes, Letty, &c.; Fulling-ham went with me; Pelatiah sent me with them, to sell for. $1600 in specie; Reizen made no claim after May 2, 1842; could not get the amount; did not hear them say they were afraid the negroes would be sold for Reizen R.’s debts.</p> <p>Deposition of William Fullingham. — About last of June, or 1st of July, Reizen left word with his family, for him to come and see Pelatiah; he went next day. Reizen told him that he and Pelatiah wanted him to take off some negroes; their names were Letty, Liza, Harriet, Newton, and little Letty. The power of attorney spoken of in his former deposition was signed “Pela-tiah, by Reizen R.; ” was handed him by Reizen R. in presence of Pelatiah; the letter was written by Warren Baker; Pelatiah could not write nor read writing; Reizen R. transacted his business and signed his name; he attaches to his answer the power of attorney. Pelatiah desired him to take the negroes to Georgia, to sell for specie, with which he wanted to redeem his land. Pel-atiah paid me for running them; he and William J. Willis were unfriendly.</p> <p>Deposition of Benjamin Selman. — Was a party to the deed of trust; in 1840 or 1841 Pelatiah said he had sold twelve negroes to Reizen, to indemnify him as security to Parks and Selman; heard Pelatiah swear in court that he sold the negroes for this debt and sundry others. Peiatiah frequently craved indulgence on the debt; thinks, in 1842, he said he would run off negroes, and sell to raise the money. Gold and silver was scarce; Parks said he would receive nothing but silver. The land was sold in 1842, and bought by Parks for $ 1750.</p> <p>Deposition of M. M. Houston, clerk of county court. — Speaks of various unsatisfied judgments against Peiatiah Chilton, in his office; says there are some also in the circuit court. Asahel and Peiatiah Chilton, in 1840, were not worth six or seven times $1700.</p> <p>Deposition of Nathaniel Parks. — In 1840, Peiatiah told him he had sold the negroes to Reizen, to pay the trust debt by selling the negroes. The negroes offered to witness in 1802, by Peiatiah and Reizen R. Chilton were Wiley and Israel; Peiatiah never told him these two were sold to Reizen R.; demanded specie on the sale of lands.</p> <p>Deposition of Fletcher Fullingham. — In the fall of 1802, at his father’s house, Peiatiah settled with William Fullingham for running the negroes. Peiatiah wanted to go to Reizen’s, and get him to make the calculations, which Fullingham refused to do, saying that Peiatiah owned the negroes. Peiatiah exercised acts of ownership, both before and after running the negroes.</p> <p>Deposition of R. L. Porter. —There was but one trial of right of property, and that was for Bob; there never was but one bond given to try the right of negroes sold by Peiatiah to Reizen. In the summer of 1842, as sheriff, witness levied on James and his wife Nancy, and Adam, Frances, and Wiley, their children, to satisfy two writs of fieri facias in favor of Morgan and son ; they were claimed and bond given by Reizen R., who afterwards withdrew his claim, and the negroes were sold.</p> <p>Deposition of James Crow. — Heard Peiatiah swear on the trial, and that he had sold the negroes to Reizen, to indemnify him for paying a debt in Georgia, and having assumed the payment of sundry other debts, one of which was to the Bank of Montgomery; there was but one trial, &c. Is clerk of the circuit court and has been since the court was organized. There never was but one bond given to try right to negroes sold to Reizen by Peiatiah.</p> <p>Deposition of Warren Baker, taken in December, 1845. — In; 1841 and 1842, frequently heard Pelatiah complain that Reizen did not pay the trust debt; also heard him, in 1842, say that Reizen had not complied, and he had taken the negroes back; was a witness to the bill of sale in 1800. The consideration was the payment of the Parks and Selman debt. He meant to say, heretofore, that Pelatiah swore that Reizen had assumed to pay, not that he had paid some $5400 ; he also swore he was to pay the debt to Parks and Selman.</p> <p>Deposition of Warren Baker, taken in-June, 1846. — Knows William J. Willis, but does not know his character as a man of truth.</p> <p>The deposition of Edmund Samuels, Elisha Samuels, William Samuels, Aaron Green, Augustus-Yeo. — Know the general character of William J. Willis, and would not believe him on oath.</p> <p>Deposition of Asa Skelton. — Would be bound to believe him on oath, from knowledge of his character.</p> <p>Deposition of Reizen R. Chilton. — As to the transactions of sale, reiterates his statements in his answer. McCampbell gained the boy Bob in the trial of right of property. Pelatiah told Parks', in 1840, that he had sold me the negroes to pay the trust debt. I told him the same thing in 1840 and 1842 ; gave bond to try right of property to only one negro embraced in the bills of sale, viz. Bob. I did pay a debt in Georgia, in 1835, of six or seven hundred dollars, and one to the branch bank of the Montgomery Bank of four hundred dollars; in consideration of these, Pelatiah gave me lands in Benton county. I was not to pay any other debts than the trust debts for the negroes. Pela-tia^'employed Fullingham; he and Willis were unfriendly. Is acquainted with the character of Willis, and would not believe him on oath. Heard Pelatiah swear; he said the consideration of the sale was my assuming to pay the trust debt, and that for the Georgia debt and bank debt he had given me land. I transacted my father’s business; I brought Eliza, Letty, &c. to Mississippi as agent of Pelatiah; the trust debt was between five and six thousand dollars; all the negroes were on the premises lip to July 1, 1842, except Anderson, who was at my brother’s, four miles off. Don’t know that they were removed to avoid debts; when they were removed, I owed, exclusive of the Parks debt, about three thousand dollars, and my father not exceeding two thousand dollars; the negroes in the bill are worth twenty-five hundred. Pelatiah was embarrassed in 1840, but his property, at a fair valuation, would have more than paid his debts; has taken the benefit of the bankrupt law in 1843; was pretty well acquainted with Willis; don’t think he made a good officer; am satisfied he acted partially as an officer, which partly causes me not to credit his oath; but there was a great complaint against him; had an unfavorable opinion of him before he went into office. The negroes were really under Pelatiah Chilton’s control; (this was objected to on re-examination.)</p> <p>Deposition of Philip Hogle. — Would not believe Willis on oath.</p> <p>Deposition of Asahel Chilton. — Would not believe Willis on oath ; was not present when Fullingham was employed to carry, off the negroes.</p> <p>On July 7, 1846, on this state of pleading and proof, the ,case was heard and taken under advisement. July 18, taken under advisement during vacation. February 23, 1847, the decision of the court was made, dismissing the bill with costs. March 8, 1847, ordered that execution issue against securities in attachment bond for costs, and this appeal prayed and prosecuted.</p> <p>Argued the case orally, and filed an elaborate written brief, reviewing the testimony, and commenting on it. He cited also the following authorities. Rankin v. Holloway, 3 S. <fc M. 614; Harney v. Pack, 4 lb. 229 ; Pope v. Andrews, 3 lb. 135; Doe ex dem. Roberts v. Roberts, 2 B. & A. 369; Stark v. Littlepage, 4 Rand. 368.</p> <p>Also argued the case orally, and in writing at great'length; and cited 1 Greenl. Ev. § 95, 200; Hutch. Code, 876; 5 S. & M. 622.</p>

Stephen Cocke, chancellor. Richard M. Johnson, on the 8th of February, 1845, filed his petition, alleging that in the case of Tillman M. Tucker, governor of the state, against the heirs of H. W. Runnels et al., a decree was made to sell, on behalf of the state, a tract of land, part of which was situated in section thirty-two, township nine, north of range four, west, which part petitioner wished to buy.

<p>Where dower has been set apait to the widow, she has but a life estate in the realty allotted her ; and upon her death, the heirs of the intestate or testator, are entitled to it; therefore, a sale under an order of the probate court, by the administrator of a deceased widow, to whom dower has been allotted, “ of the dower interest of the widow,” passes nothing; and is no bar to a decree for a sale of the same lands, as part of deceased husband’s estate.</p>

In error from the circuit court of Rankin countyHon. Stanhope Posey, presiding judge. Sam, a colored man, filed his petition, charging that he is unlawfully held in servitude by Wright Fore, and praying that he may be set at liberty.

<p>On appeal from the equity side of the circuit court of Attala county; Hon. Robert C. Perry, judge.</p> <p>William E. Pugh alleges in his bill, that on the 27th March, 1839, John T. Simmons recovered in the circuit court of Attala county a judgment against the defendant, James R. Winn, and others, for $2053-74, upon which an alias fieri facias issued to the April term, 1840, of said court, which was levied by the sheriff on several pieces of property of Winn, both real and personal, among which were lots eighty and one hundred and one, in Kosciusko; that at the sale of said property, the defendant, Foster, bid off said lots, one for five dollars and the other for ten dollars, and was also the apparent purchaser of nearly all the other property sold as Winn’s; the sheriff executed deeds to said lots to Foster; in April, 1841, the complainant and John O. Hunter recovered in said court two judgments, amounting to about $900, against said Winn et al.; executions issued on said judgments, and on the 3d day of March, 1842, were levied on said lots eighty and one hundred and one, and they were sold on the 11th of April, 1842, and were purchased by complainant, and a deed made by the sheriff to him for the same, which was duly recorded; that Foster was present at the last sale, and did' not set up his title. The bill charges that the sale made- under Simmons’s execution was made for the benefit- of Winn, and to shield his property froto his debts; that at the sale-the execution was either Winn’s, or he was permitted to- use it to- defraud his creditors; that Foster did not pay one> cent for- all1 said purchases, or if he did Winn has paid him back, or accounted with him for it, according to an agreement either expressly or impliedly entered into between them before the sale; if Simmons ever-received the money bid by Foster, he did not receive it from- the sheriff or Foster, but from Winn or some agent of' his; that it was well known on the day of sale, that Winn had his matters so arranged as to have all his property bought in for him, and the sale was a fraud, &c.; Foster did not pay the purchase money to the sheriff; since the purchase of Foster, Winn retained the property, rented the lands, and received the rents with the consent of Foster; though to the world he gave the possession to Foster, Foster now holds said lands for the use of Winn, and to defraud Winn’s creditors; the sale was conceived and executed in fraud, by the combination of Simmons, Foster, Winn, &c.</p> <p>The bill prays that the deed to Foster for lots eighty and one hundred and one may be declared null and void, and complainant be put in possession, &c.</p> <p>Winn was not served with process; publication was made, and a pro confesso taken against him.</p> <p>Simmons answered that he had such a judgment as is described: he was informed he could trade such judgment to George Wilson; he went to Leake, and was informed that one Parker was indebted to George Wilson, to whom he might trade the said judgment; that he saw Wilson and Parker at their house, and made a trade; Parker acknowledged he was indebted to Wilson; he brought three negroes, and transferred the judgment to Wilson, by Wilson’s agreeing to pay Foster his fees; afterwards Foster assented to it, and gave Simmons a receipt against his claim; does not know of his own knowledge what became of the judgment afterwards; all he ever received from Winn on this judgment was three mules, at $325, for which he gave Winn credit; denies any fraud or agreement with Winn or any person else, to defraud Winn’s creditors.</p> <p>Foster in his answer says, he did on 2d March, 1840, buy lots eighty and one hundred and one, as set forth in the bill, and received a deed, &c.; does not recollect whether he was present at the sale at which complainant purchased, nor whether he forbade the sale; nor does he deem it material. Does not believe Winn had control of said judgment or owned it, or if he did, he was ignorant of it at the time of his purpose. Believes the execution belonged to George Wilson at the time of sale; he was the attorney of record in the judgment, and it was not necessary for him to pay the purchase money to the sheriff. Denies any agreement between him and Winn, before the sale, to pay back the purchase money of the lots; that they were purchased by him, and are still held by him for his own use, nor was there any contrivance or combination to defraud complainant or any other person.</p> <p>Dominick Barrett testified, that he knows something of the purchase of the west half of lots thirty-one and fourteen, in Kosciusko, by John F. Short, by being told by Winn, Foster, and Short,' the defendants. His office was on thirty-one at the time Winn first told him he had sold the lot to Short. After-wards said it was sold to Short, without saying who sold it; and that he (Winn) was to receive payment in cattle, and named the price of lots thirty-one and fourteen, but witness does not recollect what it was; Short afterwards told witness he had bought the lots, and wished witness to rent the property for him. Some time afterwards Winn and others brought cattle through town, which Winn told witness he had from Short in payment for said lots; Winn was on his way to Arkansas, and witness is certain Winn told him he had bought them to take to Arkansas; has heard the same in substance from Short. In these conversations they made occasional reference to Foster, in relation to the titles, but witness did not pay much attention, knowing Foster had purchased at execution sale. Witness applied to Winn for the use of the house on said lots. He spoke of witness’s paying rent; witness refused to pay rent, and Winn then referred witness to defendant Foster. He first asked witness if he had spoken to Winn concerning the house; witness informed him he had ; he then gave witness permission to use the house; this was in June or July, 1841. The negro woman Nancy and her child, and a negro boy named Isaac, and several horses and oxen and wagon, were sold at execution sale as the property of Winn; bid off by Foster, and continued in possession of Winn, up to the time he removed from this state, and were carried off by him; a part or all of this property was carried off by Winn shortly after the sale of said lots by Winn to Short, and, as he told witness, to Arkansas, where he lived when witness last saw him, last fall or winter. Foster left Kosciusko in 1843, and told witness he was going to settle in Georgia; witness had since received letters from him, dated Columbus, Georgia, in which he informed him he had settled there.</p> <p>Richard Henry testified, that in March, 1840, negro woman Nancy, child Elizabeth, boy Isaac, and several horses .were sold by the sheriff as the property of the defendant, Winn; they were bid off by Foster; were all sent out to Winn’s, and remained in his possession until he removed to Arkansas, when he took said property with him, together with a boy George, also1 claimed by Foster, and which Foster had brought from Georgia. Foster was boarding at 'Winn’s, making that his home before and after the sale; when Winn left this country, he left none of said property in possession of Foster.</p> <p>Robert M. Cade, sheriff, testifies that, as well as he recollects, lot eighty, and ten and a half of lots thirty-one and fourteen were sold together; the negroes were all sold in one lot; the horses, he believes, were sold separately; the oxen were sold separate from the wagon; the bed and bedding sold separate; hogs sold in one lot; corn sold by lot, and so much per bushel; sheep sold separately; the hogs, corn and sheep were not present, but sold by consent of Winn. After the levy on said property, it was all left in possession of defendant, Winn, by the consent of Foster, and delivered to witness on the day of sale by Winn; all the personal property was carried back to Winn’s house after the sale; Winn was present at the sale, and made no objection to the manner of selling; negro Nancy was twenty or twenty-five years old, child eighteen months or two years, boy Isaac from twelve to sixteen years; all had the appearance of being sound, healthy, and good looking; Isaac was no relation of Nancy. Lots thirty-one and fourteen adjoin, but lot eighty is on the opposite side of the square; Winn had not property enough at the 'time to pay the executions against him; when Winn left the state, he carried all this personal property with him. Does not think George Wilson was present on the day of sale; Foster did all the bidding; Winn exercised acts of ownership over, and controlled the personal property until he left the state, kind claimed rent from the real.</p> <p>Robert Huntington testifies, that at the sale under Simmons’s execution he understood and believed, and still believes, that all of Winn’s property, real and personal, was sold and bid in principally by Foster; the personal was all carried back to Winn’s house, where Foster boarded. Does not know any acts of ownership to lots eighty, and ten and a half of thirty-one and fourteen, either by Winn or Foster after the sale, except that Foster claimed an undivided half of lot one hundred and one; does not know whether said claim was before or after April, 1843. Winn was decidedly insolvent in January, 1840. Is not aware that James Wilson owned any property, and if he had any, it was from the bounty of his brother.</p> <p>Austin W. Harvey testifies, that the negro woman and child, at the time of sale, was worth 8650, and the boy, as described, worth $500.</p> <p>On cross-examination stated, that he knew that in September, 1841, John T. Short carried about one hundred and fifty head of cattle to the state of Arkansas; thinks they were Short’s cattle. Sold him a part of said stock; started with about $ 500, and got back with about twenty dollars in about six weeks.</p> <p>A. G. Anderson testifies as to the value of the slaves.</p> <p>James A. Groves, defendant’s witness, testifies, that he has, as agent for Adam Foster, rented out lot eighty nearly the whole of last year, (1845,) collected the rent, and, as such, sold lot eighty and one hundred and one, received the money, and sent part to Foster in Georgia, and applied the balance according to his instructions, and that no part has been paid to Winn.</p> <p>Andrew Adkinson, for defendants, testifies, that in 1840 or 1841, he hauled cotton for Foster from a place called Slandard’s Place; saw the negroes that had been Winn’s, and bought by Foster at execution sale, and a boy brought here by Foster; Foster paid him for hauling the cotton, and spoke of it as his own. He sold Short two cattle, and he got another from his house to carry to the west, and three for Winn, which they drove to Short’s, who said they were going to take them west of the Mississippi; thinks this was in the summer of 1840.</p> <p>J. L. C. Flowers, for defendants, testifies, that he knew of John T. Short driving cattle to Arkansas; they were in his mark and branded with his name, and he exercised acts of ownership over a portion of them. On proposing to Winn to mortgage some of his property, viz. negroes Nancy and Isaac, he said they were not his property; said proposition was made to raise money to speculate on in 1843, some time during the fall; this was in Arkansas; never heard Foster say any thing about it. Winn and witness came here in the fall of 1842; Foster returned with them to Arkansas; the second visit was in 1843. In June, 1843, Foster took George away from Winn’s possession, and carried him to Georgia, as he understood.</p> <p>On cross-examination, he stated, that Short sold the cattle to Winn the same fall he left here; all the property Winn carried from here is now in his possession in Arkansas, except the boy George aforesaid. Foster has never made but the two visits to Arkansas to his knowledge; witness left Winn’s in Arkansas on 1st September, 1845; witness understood from Short and Winn, that Winn paid Short for the cattle (in whole or part) with a house and lot in Kosciusko, Mississippi; it was the house on the north of the public square, standing (as appears by reference to the map of said town) on lot thirty-one, as witness understood.</p> <p>On this proof, the court below decreed in favor of the complainant, and the defendants appealed.</p> <p>Cited Freem. Ch. Rep. 458 ; 3 Madd. Rep. 232 ; 7 Ves. 30; Freem. Ch. Rep. 105; 3 Johns. Dig. 396; 4 Cow. 461; 5 lb. 390; 3 Ves. 4; 1 Madd. Ch. 225, 226; Fonbl. Eq. 127, n. d; 5 Ves. 845; 2 Johns. Ch. Rep. 23; 4 Dess. Ch. Rep. 687; 2 lb. 636, 639; 3 lb. 292; 3 Cow. 445.</p> <p>Cited 6 Monr. 23 ; 7 lb. 845; 1 Pet. 449; 2 Munf. 341; 5 Rand. 211; 4 Leigh, 535; 2 Bibb, 67, 69; 3 Monr. 187; 3 A. K. Marsh. 6; 4 J. J. Marsh. 89; 3 Wend. 61S; 1 Freem. 43.</p>

<p>Under the fourth article of the treaty of 1834 with the Chickasaw Indians, which provides that the reservations therein admitted shall not be permitted to be sold, leased or disposed of, unless certain stipulations are complied with, and which further provides, that after these stipulations are complied with “ the deed of conveyance shall be valid, provided the President of the United States, or such other person as he may appoint, shall approve the same, and indorse it on the deed ; ” a deed having all the other requisites of the treaty, except the approval of the President indorsed on it, does not pass the title of the Indian in the reservation to the vendee, so as to enable him to maintain ejectment for the land; the approval of the President is essential to pass the legal title.</p>

<p>The original surveys, by which the government' sold its land and conveyed it to the purchaser, establish the rights of parties as to boundaries; no line which will vary the rights thus acquired can afterwards be established without the consent of all parties.</p> <p>Therefore in an action of trespass by one against his neighbor for entering upon the plaintiff's land, and taking away a dividing fence, upon proof that the fence, according to government surveys, was on defendant’s land, other proof of surveys not in conformity with government surveys should have no weight.</p> <p>While it is competent to establish boundaries by parol, yet the establishment of a different boundary than the surveys called for, by partition or other agreement, cannot be by parol; it is within the statute of frauds; and in a suit in which the question of boundary is involved, parol proof of the establishment of such different boundary could have no weight.</p> <p>In this case a question of boundary was involved, the court review the testimony, and set aside the verdict below, because it was based upon proof of a boundary in conflict with the surveys of the government.'</p>

<p>In this case a bill was, filed to have a judgment at law against the complainant set aside, on the ground, that though the writ was returned executed, yet in point of fact it was not executed ; and on the farther ground, that the attorney who filed a plea for him did it without authority, and was insolvent. The chancellor decreed in favor of complainant; but the high court of errors and appeals review the facts, and arrive at the conclusion that the attorney who filed the plea was duly retained to do so by the complainant; and that his bill must be dismissed.</p>

In error from the circuit court of Claiborne county; Hon. George Coalter, judge. Wm. M. Randolph, judge of probate of Claiborne county, successor of Nicholas McDougall, for the use of Alexander Cunningham, sued Ann J. Singleton, and D. S. Humphreys and Wm. Bridgers, her sureties, on a bond given by Mrs. Singleton, as administratrix, with the will annexed of John G. Singleton, deceased, dated April 23, 1838, in the penalty of $70,000.

<p>The chancery court has power under the statute (Hutch. Code, 769) to set aside a pro confesso, upon good cause shown and payment of costs, and should do so when a proper case occurs; and upon its refusal it will be ordered, on appeal from the decree of the chancellor, by this court.</p> <p>A bill was filed to foreclose a mortgage in the 'superior court of chancery, and on the 18th of May, 1847, process was served by leaving a copy at the residence of the defendant; on the 21st of June ensuing, the bill was taken for ■ confessed, submitted to the clerk to compute the amount due on the note and mortgage, the clerk’s report received, confirmed, and final decree of foreclosure rendered; on the 25th of August after, the defendant applied to have the pro confesso set aside, and his answer allowed, stating in his affidavit that he was in Texas when the process was served ; and his answer disclosed that his defence was the illegality of the transaction for which the note was given, being for the purchase of negroes introduced into this state as merchandise, in violation of law. The chancellor ordered the pro confesso and decree to be set aside on the-4th of September^ and the answer filed; afterwards-, upon rehearing, he -set aside the last order, reinstated the original decree, and ordered the answer to be taken from the files ; held, that this last order was erroneous; the first order should have been permitted to stand, and the defendant allowed to make his defence.</p> <p>And on a writ of error from the decree of June, 1847, the whole subsequent proceedings will be subject to review in this court; because that decree has its validity by its subsequent reinstatement after it had been once set aside.</p> <p>A decree to foreclose a mortgage signed on the same day the bill is taken for confessed, the case referred to a master, and the master’s report confirmed, if not erroneous, is, to say the least, a very hasty one.</p> <p>Whether a decree to foreclose a mortgage will be erroneous if the defendant has not been notified of the taking of the account upon the note and mortgage by the clerk ; and if the clerk has not assigned a day to the parties to appear and examine his report, but his report has been confirmed without either — Query.</p>

<p>IN error from the circuit court of Warren county; Hon. George Coalter, judge.</p> <p>William Finney, John Finney, and John Lee sued out a writ of attachment on the 11th of May, 1840, for $512-60, against Jacob Peters, described as the captain and owner of the steamboat Manchester, returnable to the October term, 1840, of the circuit court of Warren county. In the affidavit made by John Lee, one of the plaintiffs, he states that they are citizens of the state of Missouri.</p> <p>The writ of attachment was issued, and levied with others on the steamboat Manchester, which was sold, as appears by the sheriff’s return on the writ of attachment, by him, by virtue of the writ; leaving a balance of $914 in his hands, after paying expenses.</p> <p>The declaration in assumpsit for goods, wares, and merchandise was filed to the October term, 1840; when an order of publication was directed. At the April term, 1841, the defendant, • by Alexander R. Depen, Esq., his attorney, plead in abatement the non-joinder, as co-defendant, one C. T. Buckley, an alleged joint contractor. G. W. A. Culton swore to the truth of the plea. A demurrer to this plea and joinder therein were filed, when, on the 30th- day of the April term, 1841, the defendant moved to quash the attachment. The motion was sustained; but this court, at its July term, 1843, reversed the decision of the circuit court, and reinstated the attachment. On the 16th day of April, 1844, the order of reversal was filed in the court below; and on the 3d day of June of that year, the defendant filed a plea to the jurisdiction in these words, viz: “And the said Jacob Peters, in his proper person, comes and says, that this court ought not to have or take further cognizance of the action aforesaid, because he says that the said supposed'cause of action, and each and every of them (if any such have accrued to the said Finney, Lee & Co.) accrued to the said plaintiffs out of the jurisdiction of this court, that is to say, at, to wit, at St. Louis, in the state of Missouri, and not at Vicksburg, in' the county of Warren and state of Mississippi, or elsewhere within the jurisdiction of this court; and that the said plaintiffs were, at the time of suing out the writ of attachment in said suit, citizens and residents of the city of St. Louis, in the state of Missouri ; and that the said defendant, Jacob Peters, was a citizen of the town of Pekin, in the county of Tazwell, and state of Illinois; and that the steamboat Manchester, attached in pursuance of said writ of attachment, was, at the time of suing out said writ, plying and trading between the ports of St. Louis, in the state of Missouri, and New Orleans, in the state of Louisiana, upon the Mississippi river, which river is a navigable stream: and said boat so plying and trading, as aforesaid, and while on her voyage on the river aforesaid, stopped temporarily at the port of Yicksburg, in the state of Mississippi, when and where the said Jacob Peters was wrongfully attached, and this the said Jacob Peters is ready to verify; wherefore, he prays judgment, whether this court can or will take further cognizance in the action aforesaid, &c. Jacob PeteRS.”</p> <p>“Personally appeared in open court, G. W. Guitón, and made oath, and says, that the plea hereunto annexed is true in substance and in fact. May 31, 1844.</p> <p>R. R. Randolph, Clerk.”</p> <p>On the 4th of June, 1S44, the plaintiffs below obtained leave to withdraw their demurrer, and filed a replication to the plea in abatement, denying Buckley’s liability.</p> <p>The record then recites, that “ at a court held in and for the county of Warren aforesaid, on Friday the 12th day of June, A. D. one thousand eight hundred and forty-six, on motion of the defendant, by his attorney, leave is granted him to withdraw the plea in abatement filed in this case; and on motion of the plaintiff’s attorney, the defendant’s plea to the jurisdiction in this case is rejected; exceptions by defendant’s attorney.”</p> <p>The record proceeds as follows: “ Afterwards, to wit, at a circuit court continued and held as aforesaid, on Friday, the 19th day of June, in the year last aforesaid, came the plaintiffs by their attorney, and it appearing to the court that the attachment herein has been duly levied on certain property of the said defendant, and the same not having been replevied by the owner thereof, and publication having been made against said defendant according to law; therefore it is considered by the court that the said plaintiffs recover of the said defendants such damages as they haye sustained in the premises ; but because those damages are unknown to the court, it is ordered that a jury be émpannelled to inquire thereof.” To the rejection of the plea to the jurisdiction and, the rendition of the judgment by default, the defendant excepted, and the bill of exceptions was regularly sealed. It recites the motion to reject the plea to the jurisdiction, and the reasons urged against its rejection, which were, that it had been on file for two years without objection, and depositions on original and cross interrogatories had been taken to sustain it, were on file, and proved all its allegations. The depositions are made parts of the bill of exceptions, are addressed to the question of residence of the parties and the place where the boat was attached, were taken on original and cross interrogatories, and show conclusively that the plaintiffs were citizens of Missouri, and the defendants of Illinois, at the time of the suing out of the attachment at law.</p> <p>The court rejected the plea to the jurisdiction, on the ground that the plea in abatement had been previously filed.</p> <p>The jury assessed the damages at $512'65, and the defendant prosecuted this writ of error.</p> <p>Cited Hosey v. Ferriere, 1 S. & M. 663; State v. Roberts, 1 Play. 176; Wagoner v. Grove, Cam. & Nor. R. 516 ; Hart v. Mallett, 2 Hay. 136; Burroughs v. McNeill, 2 Dev. & Batt. Eq. 297; Wright v. Guy, 10 Serg. & R. 277; 1 Binn. 142; Bingham v. Cabbot, 3 Dal. 19; Ketland v. The Cassius, 2 Dali. 368; Wyatt v. The Judge, 7 Port. 37; Bell v. Tombigbee Railroad Co., 4 S. & M. 549; Bloom v. Burdiclc, 1 Hill, 130; Moore v. Wait, 1 Binn. 220; Latham v. Edgerton, 9 Cowen, 229 ; Borden v. Fitch, 15 John. 141; Mills v. Martin, 19 lb. 33; Amos v. Allnutt, 2 S. & M. 218; 12 lb. 664. See also Kincaid v. Francis, Cooke’s Rep. 49; Preston v. Boston, 12 Pick. 7; Slate v. Turner, 1 Wright, R. 20; Coffin v. Tracy, 3 Caines, R. 129; Strieker v. Mott, 6 Wend. 465; Norton v. Cook, 9 Conn. R. 314; Bissell v. Briggs, 9 Mass. R. 469 ; Pawling v. Bird, 13 John. R. 207; Moore v. Spademan, 12 Serg. & R. 287; 6 East, R. 583 ; Lawrence v. Smith, 5 Mass. 362 ; 1 Chit. PI. 476, 479 ; Rea v. Hayden, 3 Mass. R. 24; Jones v. Winchester, 6 N. Hamp. R. 497. See Kincaid v. Francis, Cooke’s R. 49; Dumoussay v. Delevit, 3 Har. & McH. 151; Wood v. Mann, 1 Sumn. 578; De Wolf v. Rabaud, 1 Pet.’ 476; Childres v. Perkins, Cooke, 87; Pharis y. Cornier, 3 S. & M. 87; James v. Dowell, 7 lb. 333.</p> <p>Cited Hutch. Code, 853; 1 Stat. L. of Kentucky, 325; Hutch. Code, 846; Shields v. Perkins, 2 Bibb, 228; Colyer v. Hutch-ings, lb. 405; Tarlton v. Briscoe, 4 lb. 73; Adams v. Hogden, 1 Monroe, 87; Beale’s Adm’rs v. School’s Ex’rs, 1 A. K. Mar. 477; Hulett v. Hall’s Adm’rs, Litt. Sel. Cas. 83; Bowling -v. Ewings, 3 A. K. Mar. 616; Bell y. Morehead, lb. 159 ; Calk v. Daniel, 4 Litt. 287. See also Roberts v. Tennell, 4 Litt. 287; Malone v. Clark, 2 Hill, N. Y. R. 657; 1 Petersd. Ab. tit. Appearance, A; Smith y. Herring, 10 S. & M. 520; Co. Lit. 303; Graham’s Prae. 224; 1 Johns. Cas. 101; 2 Cowen, 417; Smith v. Commercial Bank of Rodney, 6 S. & M. 85, and authorities referred to in that case; Tidd’s Prac. 564; 1 Chit. R. 525, 526, in notis ; 4 Taunt. R. 66S.</p>

<p>Under the act of the legislature of February, 1841, which levies an ad valorem tax of one-fotiTth of one per cent, on all money loaned at interest by individuals, a loan by the Bank of the United States of Pennsylvania, to the president, directors, and company of the Commercial and Railroad Bank of v icksburg, will be subject to the tax ; a bank, incorporated by another state, being included, in view of the object, scope and terms of the whole statute, in the word individuals.</p> <p>Nor will it make any difference that the loan was made prior to the passage of the act; the law operates upon 'all property within the state which comes within its provisions, without regard to the time of its introduction.</p> <p>Whether if the loan be not paid by the debtor according to the contract, it becomes an ordinary debt, and not subject to the tax — Query ?</p> <p>However this may be, it seems that the creditor cannot properly be taxed for more than the loan is worth ; if the debtor be insolvent, and the debt valueless, it cannot be the subject of taxation.</p>

<p>In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.</p> <p>Cornelius Fellows and others, partners, under the firm of Fellows, Johnson & Co., sued William C. Harris in assumpsit for money paid, on account of a bill dated July 16,1846, drawn by Harris, addressed to plaintiffs, requesting them to pay, five months after date,' to Batte & Huntingdon, or order, $1000.</p> <p>The plea was non-assumpsit.</p> <p>On the trial the plaintiff introduced the bill, which was drawn as stated, dated at Yazoo city, and addressed to Fellows, Johnson & Co., at New Orleans.</p> <p>The deposition of Huntingdon, of the firm of Batte & Hun-tingdon, was taken upon original and cross interrogatories. He testified that no consideration was given or received for the bill of exchange sued for; it was a fictitious transaction, merely lent to Batte & Huntingdon, which they were to protect and return to the drawer; it was never negotiated, but deposited with other papers in the hands of plaintiffs for the time being, until Batte & Huntingdon could make good their account. At the time the bill was left with plaintiffs, Batte & Huntingdon were indebted to them, but not having the books of Batte & Huntingdon before him, he was unable to state what amount, if any, was advanced at that time; it was understood at the time that the plaintiffs should hold the draft and other notes deposited with them, until Batte & Huntingdon could make collections from their business in Yazoo city, and reduce their indebtedness to plaintiffs; it was not understood that the plaintiffs were to appropriate the proceeds of said bill to their own use, as it was not expected that the draft was to be paid by Harris.</p> <p>Q.. D. Gibbs proved that Batte & Huntingdon were indebted to plaintiffs in about $ 9000.</p> <p>The plaintiffs then offered in evidence the mercantile books of Batte <fc Huntingdon, to show advances made by Fellows, Johnson & Co. to Batte & Huntingdon, at the time the draft sued on was placed in their hands, and to show advances of large amounts subsequent to that time, while they held the draft; but the court below refused to allow the proof.</p> <p>Daniel P. Logan and William Bell proved that this bill was placed in possession of plaintiffs by Batte & Huntingdon, as collateral security for their indebtedness to them.</p> <p>Accompanying Huntingdon’s deposition was á receipt signed, “Fellows, Johnson & Co., per Daniel P. Logan,” reciting that the draft referred to, with other papers, was received from Batte & Huntingdon “ for collection.” '</p> <p>The plaintiffs asked these instructions in substance.</p> <p>1. If the jury believe, from the evidence, that Batte & Hun-tingdon passed the draft to plaintiffs to secure an indebtedness then due to plaintiffs by them, and the plaintiffs had no notice of the want of consideration of the draft, they must find for plaintiffs.</p> <p>2. If the jury believe, &c. that at the time of, and subsequent to, the reception of the draft, plaintiffs made advances to Batte & Huntingdon upon it, without notice of its want of consideration, they must find for plaintiffs.</p> <p>3. If the jury believe, &c. that the draft was made for the accommodation of Batte & Huntingdon, and was used for that purpose by plaintiffs, they must find for plaintiffs, though defendant received no value for it.</p> <p>These were refused.</p> <p>But for defendant the court gave this instruction :</p> <p>If the jury believe, &c. that the defendant executed the draft without consideration, as a mere accommodation for Batte & Huntingdon, and the draft passed to the plaintiffs without any consideration, and for the purpose of collection or a collateral , security for a debt due .them by Batte & Huntingdon, the law is for defendant.</p> <p>The jury found for defendant; and a new trial being refused, plaintiffs sued out this writ of error.</p> <p>Cited Story on Bills, § 191, and cases cited in note; 2 Paige, 510; 5 Cranch, Rep. 142.</p> <p>Cited Freem. Ch. Rep. 412, 415, 416 - 41S; and the argument of Mr. Miles in that case.</p> <p>Cited Doss v. Armstrong, 6 How. 258; Harney v. Pack & Clifton, 3 S. & M. 229. See also Bay v. Coddinglon. 5 John. Ch. R. 54; Coddington v. Bay, 20 John. R. 637; Rossav. Brothersen, 10 Wend. 85; Ingham v. Vaden, 3 Humph. R. 51; 10'Yerg. 417, 429; Wormley v. Lowry, 1 Humph. 468; Harrisburg Bank v. Meyer, 6 Sei'g. & Rawle, 537; War dell et al. v. Hoivell, 9 Wend. 170; 12'Ib. 503; Payne v. Cutler, 13 lb. 605 ; 6 Howl. & Ry. 120; De la Chaumette v. Bank of England, 9 Bam. & Cress. 208; Ware et al. v. Childress, 6 Humph. R. 443 ; 7 lb. 239; Dorsey v. Agricultural Bank, Freem. 338; lb. 408.</p>

<p>In error from the district chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor.</p> <p>Israel W. Pickens alleges in his bill, that John Finney, on the 21st of April, 1841, obtained judgment against Robert Cook, for $450 debt, and $202 damages; an execution, on which was bonded with complainant as surety, and the bond forfeited on the 20th of October, 1845; at which time, Cook had property in his possession, sufficient to have paid this judgment, and all of an older date, and had Finney enrolled his judgment so as to have preserved the lien, the money thereon could have been made out of the property of Cook; but by omitting todo so, Finney gave younger judgments, a list of which is given in the bill, priority of lien, and all of Cook’s property was taken by executions on them, and sold for more than enough to pay Fin-ney’s judgment, and'all older.</p> <p>. There are other allegations in the bill, which need not be noticed.</p> <p>Finney’s answer did not alter the case, as presented by the" bill on this point; the vice-chancellor granted an injunction on the bill, which contained other grounds of equity, but dissolved it, on the answer, denying their truth.</p> <p>Pickens, sued out this writ of error.</p> <p>Cited Acts of 1844, p. 97, § 1; Freem. Ch. Rep. 548; Smedes, Dig. 402, § 33.</p> <p>Cited Hutch. Code, 891; Newell v. Hamer, 4 How. (Miss.) 684.</p>

In error from the circuit court of Warren county; Hon. George Goalter, judge. On the 6th of March, 1846, Miles C. Folkes, mayor of the city of Vicksburg, recognized William Mayhew, Joseph Butler, J. J. Rawls, Robert Wilson, Frederick Rogers, Henderson Markham, and W. J. Fotheringham, Mayhew in the sum of fifteen hundred dollars, and each of the others in the sum of two hundred and fifty dollars.

In error from the circuit court of Warren county; Hon. George Coalter, judge. On the 24th of October, 1842, Emanuel & Barnett, for the use of Smith W. Anderson, recovered a judgment in the circuit court of Warren county against Anut S. Van Rensalaer for $204-86, upon which an execution was issued, returnable to the April term, 1843, and returned “ nulla bona and no other execution was afterwards issued thereon.

IN error from the circuit court of Kemper county; Hon. A. B. Dawson, judge. On the 8th of August, 1845, M. A. Galloway sued out an attachment for $62-19 against the effects of Peter A. Douglass, who had removed out of the state, so that process could not be served on him; and at the same time summoned Obadiah Ma-theny and others, as garnishees.

In error from the circuit court of Choctaw county; Hon. Francis M. Rogers, judge. Held: and had possession, the defendant made claim of title to the land, and asserted his right against Davis’s claim, and plaintiff supposing the defendant had the right and title, accepted the deed and covenant therein, not knowing that Davis could make him a title in pursuance of his contract of purchase of Davis; and while the…

<p>In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.</p> <p>On the 16th of October, 1840, the president and directors of the Grand Gulf Rail Road and Banking Company brought suit in the circuit court of Claiborne county against Curtis Wood and William H. Hamer, on a note dated March 29, 1838, for $6160, due four months after date, for money loaned Wood. Pleas were filed and issue joined.</p> <p>At the April term, 1848, the defendants made a motion that the suit be abated, and at the same time Alfred Ingraham and George Read moved to revive the suit in the name of Ephraim A. McLean, William M. Randolph, and David M. Massie, for the use of said Ingraham and Read. The court overruled the motion of Ingraham and Read, and sustained the motion of the defendants, and ordered the suit to be abated, to which judgment Ingraham and Read filed a bill of exceptions; from which it appears that on the hearing of the two motions, it was agreed that the plaintiff, by a deed of assignment executed the 31st of December, 1842, transferred with the great mass of its effects, the note which is sued on in this case to said Ingraham and Read. That at April term, 1846, of Claiborne circuit court, judgment of ouster from all its corporate franchises was rendered against the plaintiff, and McLean, Randolph and Massie appointed trustees of said bank; from which judgment the plaintiff appealed; and on the trial of the appeal in the high court of errors and appeals at January term, 1848, it was adjudged that the judgment of the circuit court of Claiborne county, so far as it related to the forfeiture of charter by the plaintiff, should be affirmed; but that the judgment of said circuit court, so far as it related to the property vested in the trustees appointed by said circuit court, should be reversed ; and it was by said high court adjudged that said trustees should only take into possession such property, effects, dioses in action, bills receivable, &c. which were not previous to said judgment assigned by said president and directors of the Grand Gulf Rail Road and Banking Company to Ingraham and Read.</p> <p>Ingraham and Read sued out this writ of error.</p> <p>Cited Baldwin v. Payne, 6 How. S. C. Rep. 301; How. & Hutch. 585; 6 S. & M. 528; Commercial Bank of Natchez v. Chambers, 8 lb. 17; 5 Yerg. 280; 6 lb. 493; 11 Wheat. 280; 7 Mass. 291; 1 Pick. 224 ; 18 lb. 257; 4 S. & M. 357; Dent v. Coleman, 10 S. & M. 83; and argued at length upon the right to revive, in the name of the trustees of the bank, under the law for the benefit of the assignees.</p> <p>Argued contra, and cited 6 S. & M. 613; Commercial Bank of Natchez v. Chambers, 8 S. & M. 43-51; Act of 1843, p. 55, sec. S; 6 S. & M. 530; 10 lb. 428; 3 Bos. & Pull. 40; 3 East, 317; l.Chit. PL 10; 2 How. (Miss.) R. 647; 9 S. & M. 510; Planters' Bank v. Sharp K 4 S. & M. 25, per Sharkey, C. J.; 4 Yerg. 202; 5 lb. 320; 4 Mass. 611-613; 2 Story, Eq. Jur. 392, § 1056, 1057, 1057a.</p>

<p>Where a suit was instituted in the name of a bank for the use of its assignees, by deed, of its choses in action, for the benefit.of creditors, upon one of the notes thus assigned, and afterwards a judgment of ouster was rendered against the bank, no revivor was necessary to continue the suit; the dissolution of the bank, like the death of a nominal plaintiff, did not under our statute abate the suit; but upon the suggestion of the bank’s dissolution, the suit should progress in the name of the assignees for whose benefit it was instituted.</p> <p>Where a suit was instituted in the name of a bank, for the use of its assignees, on one of the notes assigned, and by the deed of assignment, the property assigned vested in the assignees, or the survivor of them,, and judgment of ouster was afterwards rendered against the bank, the suit will continue, if one of the assignees be dead, in the name of the survivor.</p>

<p>In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge.</p> <p>Samuel Thompson and his wife sued out an attachment at law against William Chambers, whom they allege in their affidavit to be “an inhabitant of the state of North Carolina, without the limits of this state.” The affidavit contained nothing else but a statement of the indebtedness. The circuit court on motion quashed the attachment, and the plaintiff sued out this writ of error.</p> <p>Cited James v. Dowell, 7 S. & M. 333; Raymon v. Thompson, 7 How. 186; Page v. Ford, 2 S. & M. 266; H. &. H. 548; lb. 556; Dunn v. Myres, 3 Yerg. 414; McCidloch v. Foster, 4^Ib. 162; Bank of Alabama v. Berry, 2 Humph. 443 ; Conrad v. McGee, 9 Yerg. 428; H. & H. 550, sec. 19 ; Conklin v. Harris, 5 Ala. N. S. 215; McIntyre v. White, 5 How. 298; Amos v. Allnut, 2 S. & M. 216.</p> <p>Cited Thompson v. Raymond, 7 How. 186; Page v. Ford, 2 S. & M. 266 ; James v. Dowell, 7 S. & M. 333; How. & Hutch. 16, 19.</p>

Hugh R. Miller, judge. Henderson F. Robertson sued Horace R. Ward and Eliza W. Ward his wife, on a note made by Eliza W. the wife, for seventy-five dollars, on the 2d of November, 1846 ; the declaration averred that the note was given for a certain bay ball-face mare, which she bought to use and work upon her farm in that county. There were also common counts in the declaration for the price due for the purchase of a horse for her plantation.

In error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge. Mark Prewett sued Thomas M. Caruthers upon a note dated October 30, 1830, due on the first of February, 1840, for two thousand dollars. The defendant plead, 1. Non-assumpsit; 2. His discharge under the bankrupt law on the 11th of July, 1842, by the northern district court of the United States for Mississippi; to which last plea the plaintiff replied a subsequent promise; on which issue was taken.

In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge. J. J. Meek sued Jeremiah G. Walker on a note for three hundred dollars, dated on the 6th of September, 1839, and due two years after date. The pleas were “ non-assumpsit, payment, and failure of consideration in short by donsent.” On the' trial, the defendant proved by Thomas Coleman, that, as he was informed by both parties, the note was given for Brandon money.

In error from the circuit court of Lafayette county; Hon. Francis M. Rogers, judge. John Doe, on the demise of Andrew Hodge, Jr., sued Richard Roe, that is, Robert Wilson, for the north-west quarter of section number nineteen, township number ten, and range number four, west, in that county. On the trial, the lessor of the plaintiff having read a patent from the general government to himself to the land in- controversy, and proved the possession in Wilson, closed his case.

<p>In error from the circuit court of Attala county; Hon. Robert C. Perry, judge.</p> <p>Friley Jones sued Louis A. Powell on a bond or bill single for $9L26, dated 19th of January, 1841, and due one day after date.</p> <p>The defendant plead in substance, 1. That the obligation on which the suit was based, was given by Powell to Jones for a note on one John Pierce for the same amount, which note, “ at the time of giving said writing obligatory, was, and still is, utterly worthless; the maker being then and still wholly insolvent.5'</p> <p>To this plea Jones demurred. The demurrer was sustained, and a judgment of respondeat ouster awarded.</p> <p>The defendant then pleaded in substance, that the writing sued on was given for a note on John Pierce, which arrangement was made on condition that Powell could make, it available in his defence in a certain action at law brought in the name of said Pierce for the use of Lewis G. Bryant against said Powell; but that he could not make it available, the note having been ruled out on the trial, and by reason thereof the note became utterly worthless, and the consideration of the writing wholly failed.</p> <p>On this plea the plaintiff took issue.</p> <p>By leave of the court the defendant filed another plea, in which he sets up in substance, that the writing obligatory was given for an illegal consideration; having been given for a note on Pierce, upon condition that defendant Powell could make said note available as a defence in a suit expected to be brought by Pierce for the use of Lewis G. Bryant, “ being for the maintenance of said Powell against Pierce, use, &c.,. Jones not being a party to that suit, nor in any way interested therein.”</p> <p>Upon this plea the plaintiff took issue.</p> <p>There were two trials, and verdicts for defendants, but set aside. On the last, the defendant offered to prove that the writing obligatory sued on was given to Jones, for the accommodation of plaintiff, for a note of the same amount on Pierce, held by Jones, and upon the express condition that Powell could make the note on Pierpe, available in a suit expected to be brought against Powell by Pierce, who was then and yet insolvent. The defendant also offered to prove that suit was brought, and that he attempted to use this note, but failed; he also offered the record of this suit; all of which was ruled out by the court. The defendant excepted, and upon the verdict for plaintiff prosecuted this writ of error.</p> <p>Cited Story on Cont. 131, 132, § 328; Hutch. Dig. 640, 641.</p> <p>Cited 2 Kent, Comm. 478; Heaverin v. Donnell, 7 S. & M. - 244; and authorities cited; Story on Prom. Notes, 26, 27; 10 Barn. & Ores. 729 ; 21 Eng. Com. Law Rep. 156; Thallhimer v. Brinckerhoff, 3 Cow. Rep. 643.</p>

Henry Dickinson, vice-chancellor. Archibald Cameron, Elijah S. Watson, and Elkana Sawyer, state in their bill, that on the 7th of March, A. D. 1842, Watson sold and conveyed to Cameron, for the sum of thirty-two hundred dollars, certain land described in the bill; the deed being recorded on the 5th of April, 1842, and exhibited with the bill; that Cameron contracted with Sawyer to sell him the land, gave him a bond for title, on payment of the purchase money, and delivered…

<p>If an attachment bond given by plaintiff, on suing out the attachment, be insufficient, the substitution of another bond afterwards, under an order of the court, to which the attachment is returnable, will' not cure the defect; nor it seems will the waiver of the parties to the bond of an alleged defect in it, do so, so as to uphold the attachment.-</p> <p>Where an attachment was sued out, returnable to the March term of the circuit court, and in the recitals in the attachment bond, it was described as being returnable to the September term ; it was held, that the mistake did not destroy the validity of the obligation ; ■ nor should the attachment be quashed for that reason.</p> <p>The attachment law must be construed in the most liberal manner, for the benefit of creditors.</p>

Stephen Cocke, chancellor. On the 15th of May, 1847, John Bacon and other assignees of the Bank of the United States, of Pennsylvania, filed their bill against Perry Cohea and others, alleging that on the 13th of May, 1841, the defendants executed this note,'viz: “$4670.

Stephen Cocke, chancellor. The Planters’ Bank of Tennessee filed its bill to enjoin a sale under a decree of the superior court of chancery, foreclosing in favor of C. Ford a mortgage executed by John B. Conger to B. Hughes, and by the latter assigned to Ford. There are various parties to the case, but the facts are set out at length in the opinion of the court. The injunction was granted, but afterwards, upon answers filed and proof, dissolved,, and the bank appealed.

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

Robert 0. Perry, judge. John T. McGee filed his bill against John T. Metcalf and others, to obtain an injunction at law to an execution against him upon a forthcoming bond, as surety for Robert Cook. He obtained an injunction on the face of the bill, which was after-wards, on the answer of one of the defendants, dissolved, and he appealed. The particular facts are detailed in the opinion of the court.

Hugh R. Miller, judge. Joseph W. Brooks and others filed their bill under oath for an injunction, and obtained it against an execution at law in favor of Angus Gillis and Thomas H. Allen, as agents of the Talla-hatchie Bridge and Turnpike Company, and which they had assigned to William F. Mason and E. A. Keeling, who were seeking to enforce it against them.

Henry Dickinson, vice-chancellor. Orr states in his bill, in substance, that in November, 1841, the Union Bank of Tennessee, being the owner of the north-east quarter of section seventeen, township… Held: and has made valuable improvements upon it; that Wynne, at the time of the purchase, executed to Orr a deed for the land, signed “A. H. Wynne, agent and attorney for the Union Bank of Tennessee,” intending thereby to convey to Orr the title of the bank to the land.

In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge. Daniel C. Crawford sued Owen F. Jackson on the 16th of September, 1844, for $>981, money had and received. The defendant plead non-assumpsit.

Stephen. Cocke, chancellor. On the 30th of May, 1844, A. Mizell, administrator de bonis non of John Gibbons, deceased, alleges in his bill that his intestate died in July, 1841, the owner of a slave named Isaac ; leaving no heirs but his brother Matthew, William, and complainant's wife. William administered, but neglected to render an inventory until April, 1844, when he returned one and resigned, and complainant was appointed on the 23d of April, 1843.

In error from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge. On the 6th of October, 1847, Thos.

In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge.

John J. Choate, probate judge. John L. Lansford and others, at the July term, 1847, of the probate court, filed their petition, in which they state that James T. Lansford died in 1844, in Yalabusha county, seized of certain personal estate. In February, 1845, his alleged nuncupa-tive will was probated. The, decedent left no issue; his widow had since died, and' petitioners were his heirs at law.

John T. M. Burbridge, judge. Duncan C. Williams, alleging himself to be a creditor of the estate of Edward M. Hale, deceased, filed his petition against Jane G. Hale, his administratrix, who was also the widow-of decedent, charging that the defendant had not returned a true inventory of assets, and specifies, in exhibit A,” a list of goods and chattels not returned; consisting of two horses, a wagon, and a variety of furniture, in the aggregate, amounting to $413-46, of…

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. The Commercial Bank of Natchez sued William Hoy and others on the 24th day of April, 1845, on a note in favor of the bank, made by defendants, for $1000, due June 13, 1839. Process was issued, and returned executed on defendants.

In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge.

Stephen Cocke, chancellor. James S. Terrell filed his bill against Norman Martin to be relieved of a judgment at law against him upon a note payable to the latter, which he alleged had been given in lieu of one given by him for a bet lost upon a horse-race to Allen Page. The chancellor, upon the final hearing of the cause, decreed a perpetual injunction against the judgment at law, and Norman appealed. The facts will be found fully stated in the opinion of the court.

<p>In error from the probate court of Marshall county; Hon. Tryon M. Yancey, judge.</p> <p>At the April term, 1843, on the 24th of the month, Peter McQueen, administrator of William M. Bostwick, deceased, reported his estate insolvent, and commissioners were appointed to audit claims; and twelve months were allowed to creditors to present them.</p> <p>In April, 1844', on the 22d of the month, the commissioners made their report, in which, after enumerating the claims allowed, they say, “Besides the foregoing claims, there has been submitted to us a claim or account against the said decedent, founded on a bill of exchange for $671'62, drawn by William M. Bostwick and John Morgan, on Price, Johnson &■ Co. in favor of Trezevant, Carr & Chester, dated “Lamar, Miss. 1 July, 1841, and drawn at six months; on which' the sum demanded by Trezevant, Carr & Chester is $684-52, with interest from the 4th January, 1842. Said claim is now in suit in the circuit court of Marshall county, and state of Mississippi, and will we presume be determined by the judgment of said court.”</p> <p>On the same day the administrator filed exceptions to the report, attacking certain of the claims allowed; and stating that he could not make his proof before the commissioners as to them, because they refused to issue subpoenas.</p> <p>1 These claims were referred to referees; the rest of the report confirmed. At the May term, 1844, the referees reported, and their report confirmed.</p> <p>On the 18th of August, 1846, Trezevant, Carr & Chester filed an abstract of a judgment in their favor against McQueen, administrator, rendered on the 9th of June, 1846, for $819-19, and cited the administrator to render an account of assets. At the October term, 1846, he did so, and insisted that Trezevant, Carr & Chester were not creditors of the estate, being barred by not being allowed in the commissioners’ report; he insisted also that this judgment had been sold, and bought by Morgan, the co-drawer with Bostwick.</p> <p>The cause was continued until November term, 1846, when both parties were heard by counsel. It was admitted that Tre-zevant, Carr & Chester’s claim was in suit when the insolvency of Bostwick’s estate was suggested. The court held the case under advisement until January term, 1847, when it decreed distribution among the other creditors named by the commissioners, and excluded Trezevant, Carr & Chester; whereupon they sued out this writ of error. •</p> <p>Insisted, 1. That the claim, being in suit, was not barred under the statute; and 2. That the proceedings of the commissioners were illegal, and their report void, because not kept open twelve months. He cited Hutch. Code, 667,668, sec. 103; lb. 673, art. 2, sec. 1.</p> <p>Cited 5 S. & M. 354, 422; 7 lb. 280; 4 lb. 258 ; Hutch. Dig. 668.</p>

<p>/ On appeal from the circuit court of Hinds county; Hon. George Coalter, judge.</p> <p>Henry Dickinson, vice-chancellor of the state, filed his petition for a mandamus, alleging that the state owed him $3000, for six quarters of his salary, ending the 3d of November, 1848; for which George T. Swann, Esq., the auditor of public accounts, refused to issue his warrant on the state treasurer, for the reason that Dickinson owed the sinking fund $2700, by his note with surety for that sum to the commissioners thereof, due on the 7th day of January, 1847, being for a debt due by petitioner as surety for one David Wright.</p> <p>That on the 23d of January, 1846, the legislature passed a law, directing the auditor of public accounts to issue a warrant to petitioner for his salary; in accordance witli which law the note referred to was given. In the summer of 1848, the petitioner proposed to Samuel Matthews, the state commissioner, to pay off this note in the bonds or coupons of the Planters’ Bank of the State of Mississippi; not in the bonds of the staje of Mississippi issued for or on account of the Planters’ Bank, but according to the terms of the resolution of the legislature, “ in the bonds or coupons of the Planters’ Bank of the State of Mississippi.” This Matthews refused, and the auditor, with knowledge of this tender, refused to pay the salary, &c.; wherefore he prayed for a mandamus to compel the payment, &c.</p> <p>The note of Dickinson referred to, was in these words, viz: “Twelve months after the seventh day of January, eighteen hundred and forty-six, we promise to pay to the commissioner of the sinking fund, the sum of twenty-seven hundred dollars, to be discharged in the bonds or coupons of the Planters’ Bank of the state of Mississippi. Henry Dickinson,</p> <p>James T. HarRison.”</p> <p>The answer of the auditor of public accounts substantially admitted the allegations of the petition; but stating that he knew nothing of his own knowledge of the tender to the state commissioner. He based his refusal to pay on the ground of Dickinson’s indebtedness. The circuit court granted the mandamus, and the state appealed.</p> <p>Cited How. & Hutch. 271, sec. 9 ; Cohea v. Gomrrirs of Sinking Fund, 7 S. & M. 437; Corhmlrs of Sinking Fund v. Walker, 6 How. (Miss.) 143.</p> <p>Cited How. & Hutch. 270, sec. 7; lb. sec. 9; Laws of 1846, p. 549; 3 S. & M. 485; 6 lb. 641; 7 How. 322; lb. 485;-7 S. <fc M. 724; lb. 511; 11 Yerg. 451; Story, Prom. Notes, § 17; lb. § 18; 5 Cow. 186; 10 Serg. & Rawle, 94; 4 Nott, 400; 14 Pe.ters, 293; 4 Mass. R. 245; 1 Cow. 691; 1 Nott & McCord, 254; 3 Litt. 245; 1 Black. 296; 1 Dallas, 125; ComnUrs of Sinking Fund v. Walker, 6 How. 185; 8 S. & M. 9.</p>

In error from the circuit court of Pike county; Hon. Thomas A. Willis, judge. Isaac W. Cutreer sued William Simmons on his note for $300, payable to Willis Dillon, and by him indorsed. The defendant plead non-assumpsit, and on the trial proved the note was given for a negro woman, named Aby, purchased by defendant of Dillon.

<p>In error from the circuit court of Choctaw county; Hon. Francis M. Rogers, judge.</p> <p>William W. Marshall, who sued for the use of Henry Rollins, president of the board of trustees of section sixteen, township eighteen, range seven, east, of Choctaw county, sued Tines M. Lindsey and others, upon their bond, payable to Marshall as president of the board of police of the county, dated 11th of September, 1843, and conditioned, in the ordinary form, for their faithful conduct as trustees of that section.</p> <p>The following breaches were assigned.</p> <p>1. That they did not keep a regular record of their proceedings. 2. That they did not advertise, in three public places in the township, notice of the condition of the school fund. 3. That they did not appoint a clerk. 4. That they loaned on the 9th of April, 1845, to Mrs. Mourning H. Newell, $ 492, without such security as was required by law. 5. That they wasted and misappropriated of the fund the sum of $ 5000.</p> <p>Pleas traversing these breaches were filed, and issues taken, and a trial was had, which resulted in a verdict for plaintiff, for $ 1144-80.</p> <p>Exceptions were taken, which set out all the evidence offered before the jury. Several witnesses were examined, who stated, in substance, that they did not know whether notice of the condition of the fund had ever been published in the township. Various orders were read from the record of the proceedings of the trustees; they relate principally to the employment of teachers. One of them states an allowance to the president of one dollar and fifty cents per day, and mileage for service performed by him; and the other states, in substance, that M'.rs. Mourning PI. Newell was indebted to the trustees in the sum of $ 492, and extended the time of payment twelve months, on the condition that she secured the payment by a deed of trust.</p> <p>William Flowers, a witness for plaintiff, stated that defendants had collected as trustees, on a note given by John A. Newell and others, about $3090, exclusive of interest; that he, as the treasurer of the new board of trustees, on the 22d of December, 1845, received of V. M. Lindsey, one of the defendants, who was the treasurer of the old board of trustees, sundry notes and claims specified in his receipt, which he filed; that this receipt did not include two notes, known as the White Peery and House note, and the note of John A. Newell and others; the only claim ■ which had been paid was the John A. Newell note; that said two ' notes and those in the receipt were all that had ever been received by the former trustees; that the defendants had taken the notes of Mrs. M. H. Newell for $492, without personal security. This was all the evidence offered by the plaintiff on the trial below.</p> <p>The defendant, Lindsey, offered various vouchers of payments made by him as the treasurer of the board, and called several witnesses, and offered to prove that the debt due by Mrs. M. H. Newell of $492 was secured by a deed of trust, which conveyed to a trustee three negro slaves of the value of $ 1200, to secure its payment; and then offered to prove that, by the negligence of the plaintiffs, the present trustees, these negroes were allowed to be removed, and that they made no effort to subject the property to the payment of said debt. All of which testimony was excluded by the court.</p> <p>A motion for a new trial was refused, and the defendants below sued out this writ of error. Certain defects in the record were obviated and waived by agreement of counsel, by which but two points are submitted.</p> <p>1. Whether a new trial should have been granted on the facts proved.</p> <p>2. Whether the court erred in excluding the proof offered,</p> <p>Cited the act of February 27, 1833; Hutch. Code, 214; lb. 210, sec. 10, art. 5.</p> <p>cited H. & H. 137, sec. 50.</p>

In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge. Abigail Zollicoffer and Edwin C. Zollicoffer, administrator and administratrix of George Zollicoffer, deceased, sued William W. Tucker in debt upon a supersedeas bond, signed by defendant. The first count was on the penalty of the bond.

<p>The following instrument, viz: “Mr. I. C., I will guarantee the payment to \ you, of six hundred and twenty-five dollars, in treasury warrants, to he paid ' on or before the 20th of August, on and for account of Mr. J. W.; July 13, / 1844, J. E. M.; ” was held, not to he a “ guaranty” in the legal sense of j the term, but an original undertaking on the part of J. E. M. to pay I. C. j the money specified, at the time appointed; no notice of any kind was there-< fore necessary to J. E. M.</p> <p>But if it had been a guaranty in its technical sense, it was a guaranty of a sum | certain, due at a specified time ; and notice was therefore not requisite to I hind the maker thereof.</p> <p>A declaration upon such an agreement, which alleged in substance, that it was executed and delivered by the defendant to the plaintiff, in consideration that the plaintiff did, at defendant’s instance, then and there, lend the sum named, to the person on whose account the payment was to be made, was on demurrer held to be sufficient.</p>

<p>In error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge.</p> <p>The facts will be found in the opinion of the court.</p>

In error from the circuit court of Carroll county; Hon. Hugh R. Miller, judge. James H. Smith and Joseph W. Carroll sued James M. Dunn and Andrew W. Caperton, partners under the firm of Dunn & Caperton, Barnabas Furney and Rufus C. R. Petty, as makers, and Andrew W. Caperton indorser, of a note.

‘ In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge. Theodore A. Bostwick sued Peter McQueen upon an account for the sum of $850, for his services as clerk from March, 1842, to December, 1845. The plea was non-assumpsit. On the trial, D. P. Gilbert, a witness introduced by plaintiff, testified that the plaintiff was in the service of defendant from some time in the year 1842, till about the middle of December, 1845, some three or four years.

<p>Instructions asked in tke court below, and refused, and so marked by the clerk, are to be considered as if excepted to, without a formal bill of exceptions.</p> <p>Where there is conflict of testimony, so that the mind cannot repose with ■ entire confidence and certainty upon a conclusion in favor of either party, the verdict of the jury will not be disturbed.</p> <p>The court below refused to instruct the jury, “ that a purchaser from either the vendor or vendee of property fraudulently conveyed, has a good and valid titleheld, it was properly refused, as any other than a bond fide purchaser without notice, would stand in the same condition with the person of whom he purchased.</p> <p>In a suit at law, it is not admissible to show by parol a defeasance of a deed, absolute on its face; it is only in equity that such a deed can be shown by parol to be a mortgage.</p> <p>The court below refused to instruct the jury, “ that a purchaser of mortgaged property from the. mortgagor obtains a good title, subject to the lien of the mortgagee, and if the mortgage be given as an indemnity to a surety for his suretyship, the lien does not attach until he pays the indebtednessheld, to have been properly refused, as a purchaser from the mortgagor could get no , more than the mortgagor was authorized to convey, and could set up no defence which the mortgagor might not have done, and the lien of the mortgage attaches as soon as it is executed, and overreaches all subsequent conveyances affected with notice.</p> <p>Affidavits for a new trial, based on newly discovered testimony, must show that the testimony could not have been obtained on the first trial by the exercise of reasonable diligence.</p>

<p>In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge.</p> <p>Reuben S. Manning sued William A. W. Mann in assumpsit, Upon two notes payable to Southall. The defendant plead payment to Southall before assignment; and on the trial the plaintiff read to the jury the notes sued on, in the words and figures, to wit:</p> <p>“$180. On demand, I promise to pay Field T. Southall one hundred and eighty dollars, for value received. Witness my hand and seal, this 19th February, 1837.</p> <p>W. A. W. Mann. [Seal.] ”</p> <p>“ Due Field T. Southall two hundred and thirty dollars, balance due for sales cotton. Witness my hand and seal this 2d June, 1837. W. A. W. Mann. [Seal.]</p> <p>“$230.”</p> <p>Also, the assignment on said notes in these words :</p> <p>“I assign the within note to R. S. Manning, for value received, this 2d-of April, 1844. F. T. Southall.”</p> <p>“I assign the within note’to R. S. Manning, for value received, this the 11th day of March, 1846. F. T. Southall.”</p> <p>By the witnesses for defendant it was shown that Mann, the defendant, left Haywood county, Tennessee, in 1849; that he was a man of property, having about him real estate, slaves, money, and other property; that he was prompt in the payment of his debts, and never in the habit of being sued. This was testified by several witnesses, who had known him twelve or fourteen years. It was also shown that Southall, the plaintiff’s assignor, left Haywood county in May, 1842; that he was then very much embarrassed and annoyed by his debts; that he was considered insolvent that what property he left was levied on by the officers to pay some of his debts, and that he never paid his debts until pressed to the limit of the law. One witness testified that, in 1842, Southall stated to him that he had neither money, notes, nor property, that he could pay his debts with; that he owed him $ 700 for cotton, and he (the witness) could never get one cent, either in property, notes or money.</p> <p>In June, 1842, Southall wrote a letter to Dr. Bruce, in which he states that he was left without one cent to support himself and children; “every thing has been taken and sold, and now I have to make a support as I can for myself and little children; ” — “I give up all, and have nothing to pay my debts with; ” — “ 0 what a dreadful situation to be,placed in, to be cut loose without money, or any property to support six motherless children!”</p> <p>In another letter to the same person, dated June 29, 1842, he speaks of having paid, a few days after the last letter, to a Mr. Newell, $800 in paper, and that he has a note on a Mr. Scar-brough for $ 500, and that he is trying to sell his land to pay his debts.</p> <p>Plaintiff then introduced witnesses, who proved that defendant stated, when the notes were presented by plaintiff, that he had no recollection of them, but that the signatures were his; that he would go to Tennessee and examine the books of his commission merchants, Posthletwaite & Co., and if he could not satisfy himself and plaintiff that the debt had been paid, he would then pay it. In 1843, Mann came to Southall’s house to see him on business. One of the firm of Posthletwaite & Co. testified, that, in 1836 and 1837, they purchased cotton from W. A. W. Mann, marked in the name of F. T. Southall, and that Mann received the amount of the purchase, as the transaction was in his name, and not in Southall’s.</p> <p>This being the substance of the proof, the jury found for the plaintiff; and a new trial being refused, Mann sued out this writ of error.</p> <p>Cited 3 How. 219; 4 lb. 338; 1 S. & M. 381; 7 How. 340; 5 S. & M. 21.</p>

<p>In error from the circuit court of Hinds county; Hon. George Goalter, judge.</p> <p>James Hemphill sued John McBride, and on the trial McBride offered the-deposition of Truman Walthall, taken in Butts county, Georgia, under a commission addressed to Jesse T. Gunn, James Dye and John Hendrick. The deposition was taken before and returned by all of the commissioners. The plaintiff offered to prove by the deputy clerk that the name of one Commissioner only was inserted in the commission when it issued, and that the names of the other two had been inserted since its issuance, and not by any one in the office. The court told the witness it was his privilege not to testify to impeach his own act, and he accordingly declined, and the deposition was admitted ; an exception was taken, and on a verdict and judgment for defendant, plaintiff sued out this writ of error.</p> <p>Cited Rupert v. Grant, 6 S. & M. 438 • Smith v. Natchez Steamboat Co. 1 How. 495.</p>

<p>In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.</p> <p>At the October term, 1848, John W. Fuqua, sheriff of the county, entered a motion for the appropriation of money made by him as sheriff, on executions on judgments of Wm. 0. Gray against Davis Harrison and Robert S. G. Perkins against Davis Harrison, predicated on these facts, viz: William C. Gray sued out an attachment against Harrison, which' was levied on the 22d of December, 1847, on seven slaves as the property of Harrison, who, on the same day gave a replevy bond, with Collins and Hart as sureties, and Harrison took the slaves back into his possession. The bond was conditioned, that Harrison “ should have the negroes levied on, forthcoming to abide the order or decree of the circuit court, to which the said attachment was returnable, or in default thereof, shall pay and satisfy to an extent not exceeding the value of the propertjr, the order or decree of said court.” The property Avas valued by the sheriff at $1600.</p> <p>. On the 9th day of May, 1848, Gray obtained a judgment on this attachment against Harrison for the sum of $1013-63 debt,- and $237 damages.</p> <p>On the same day, viz: 9th of May, 1848, and before the judgment of Gray against Harrison was rendered, Harrison confessed a judgment in favor of Robert S. G. Perkins for the sum of $880. Executions issued on these judgments at the same time, and were levied at the same time by the sheriff on the same seven negroes, Avho were sold, and did not bring enough to pay both judgments by $L60.</p> <p>The court below decided, that the money made should be applied first to the payment of the execution of Perkins; whereupon Gray sued out this writ of error.</p> <p>Cited 4 S. & M. 592; 1 How. R. 48, 49; Hutch. Code, 820.</p> <p>Cited H. & H. ch. 43, sec. 10; Garrett v. Tinnen, 7 Hoav. 465; 1 lb. 234, 235, 236.</p>

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. James R. Blundell, use of Edward G. McKee, sued Henry Yaughan in an action of assumpsit on a promissory note made by one S. M. Boylan (who died before the suit was brought) and Vaughan, payable to Blundell, for $500, on which note was the following indorsement: “Received of the within five hundred dollars from E. G. McKee. Benton, Jan’y 18th, 1846.” The defendant plead non-assumpsit and payment.

<p>On appeal from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge.</p> <p>Cited Green v. Whiting, 1 S. & M. 679; H. & H. 447, sec. 13.</p>

Otf appeal from the vice-chancery court at Fulton; Hon. Henry Dickinson, vice-chancellor.

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

<p>A final settlement and discharge of an administrator, made without giving the forty days’ notice required by statute, is void; and those interested in the estate as distributees, or otherwise, may at any time afterwards, by petition to the probate court decreeing the discharge, move to have that decree set aside and annulled.</p>

<p>In an action against P., a sheriff, for making this return on an execution, viz: “ the money not made in this case. P. sheriff, by A., D. sheriff,” the sheriff plead that A. was not his lawful deputy, on which issue was taken ; and on the trial, the plaintiff was allowed to prove, after showing, that by diligent search in the probate office, no record of A.’s appointment could be found) that A. at the time of this return, and before and after, had been recognized by the sheriff as his deputy; held, the proof was properly admitted ; by recognizing A. as his deputy, and holding him out as such, the sheriff was bound by A.’s acts as deputy, whether A. were duly, and according to law, appointed such or not.</p> <p>The statute which declares the acts of one acting as deputy sheriff, not appointed deputy, and who has not taken the oath of office according to the statute, absolutely void, does not malee them void as to the sheriff who has illegally appointed his deputy, and recognized his acts as such ; they are void as to those.who are to be affected by them, if they elect it; or valid as to the sheriff, if they so elect.</p>

<p>Wheie security for costs has heen given by the plaintiff, and a verdict rendered for the defendant, it will he error to enter up a joint judgment against the plaintiff and his surety for the costs; the judgment for costs should be entered against the plaintiff alone ; and if he fail to pay them, then, on motion, against the surety.</p> <p>But while such a judgment must be reversed, yet if there be nothing in the record to affect the verdict, that will stand, and the cause be xemanded for a proper judgment.</p>

<p>In error from the circuit court of Rankin county; Hon. Thomas A. Willis, judge.</p> <p>William T. Lindsey, for the use of Taliaferro F. Lindsey, sued Bryant Alliston in assumpsit upon a note to the June term, 1844, of the court.</p> <p>The defendant at that term plead in abatement misnomer of the plaintiff. The cause was continued until Jijne, 1845, when the defendant plead non-assumpsit, with notice that the defendant would offer a note of plaintiff’s in evidence as an offset, setting out with the notice a copy of the note.</p> <p>The cause was continued until May, 1846, when the trial was had, and the jury found for the plaintiff; but a new trial was granted; which took place in November, 1846, when the judge refused to allow evidence of the offset under the notice,.to which exceptions were taken. The jury found again for the plaintiff, and the defendant sued out this writ of error.</p> <p>Cited Puckett v. Graves, 6 S. & M. 384; Doss v. Jones, 5 How. 158.</p> <p>Cited Houston v. Smith, 2 S. & M. 597; Henry v. Hoover, 6 S. & M. 417; Webster v. Tientan, 4 How. 355.</p>

<p>On appeal from the vice-chancery court at Carrollton ; Hon. Henry Dickinson, vice-chancellor.</p> <p>Cited Dixon v. Lacoste, 1 S. & M. TO; 1 Story, Eq. Jur. 399; Hit-tulc-ho-mi v. Watts, 7 S. & M. 366.</p>

<p>The rule being, that a partner cannot sue his co-partner at law, except upon an indebtedness separate from the partnership or a general balance of the partnership account, it is not error to reject testimony offered by the plaintiff, which went to show that the account sued upon, was a co-partnership account between plaintiff and defendant, hut did not show that it was for a general balance of partnership account.</p> <p>Nor in such case will it be error to exclude testimony, that the defendant had acknowledged the indebtedness for which he had been sued ; on proof that the account was connected with the partnership, no proof could be admitted until it was shown that it was a general balance sued for.</p>

<p>On appeal from the probate court of Yalabusha county; Hon. John G. Choate, judge.</p>

In error from the circuit court of Tishemingo county; Hon. Hugh R. Miller, judge. Edwin B. Westmoreland sued George W. Smith, upon a note for $86-74, dated the 11th of March, 1837, and due one day after date. Suit was'commenced, and writ executed the 13th of August, 1847. At the September term, thereafter, the parties, by their attorneys, appeared and made up the pleadings; the plaintiff filed his declaration in assumpsit upon the note, with a count upon an account stated.

Nathan L. Morgan, judge. Charles Boggan, administrator of Cornelius Boggan, deceased, filed his account for final settlement on the first Monday of August, 1847.

<p>In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.</p> <p>John 1ST. and N. L. Griswold sued Edward C. Wilkinson as surviving partner of Wilkinson & Willison, attorneys at law. The declaration in substance states, that Wilkinson & Willison as attorneys, received from the plaintiffs for collection a claim against John Y. Reily; that suit was brought and judgment recovered on this claim, and it was collected by the sheriff from Reily; that Wilkinson & Willison permitted Thomas J. Jennings to receive from the sheriff, and apply to his own use, the .money arising from the cláim, by which the money was lost to the,plaintiffs. The plea was the general issue.</p> <p>On the trial, as appears from the bill of exceptions, the plaintiffs proved that the claim mentioned in the declaration was received by Wilkinson & Willison for collection; shortly thereafter the copartnership of Wilkinson & Willison was dissolved, and Wilkinson retired from the practice, leaving Willison in charge of the unfinished business-of the firm. Some time after Willison entered into partnership with Thomas J. Jennings, and suit was instituted on the claim of the plaintiffs by Willison & Jennings; that jüdgment was had, money collected by the sheriff and paid over to Jennings without the sanction, approbation, or permission of Wilkinson. It was not known whether Willison assented to or knew of the payment to Jennings.</p> <p>At the request of the plaintiffs’ attorney the court instructed the jury, that if they believe the plaintiffs employed Wilkinson & Willison, attorneys, to collect the claim, and they permitted Jennings to receive the amount from the sheriff, then they must find for the plaintiffs; to which the defendant objected, and asked the court to instruct the jury, “ that if they believe from the evidence Wilkinson did not authorize Jennings to collect the money, either expressly or by implication, then the law is for the defendant, unless the jury believe from the evidence that Willison authorized him to do so, or assented to it,” which the court refused. The jury found a verdict for the plaintiffs. The defendant moved the court for a new trial, because the jury found contrary to law and evidence, and because the court misdirected the jury. The court overruled the motion. The defendant excepted, and sued out this writ of error.</p> <p>cited Fitch v. Scott, 3 How. 320.</p> <p>Cited Patterson v. Phillips, 1 How. 572; Fitch v. Scott, 3 lb. 314.</p>

P. being dangerously ill, expressed to his medical attendant his desire to make his will, to which his physician replied, that he did not… Held: on proof of these facts, that it was a good nuncupative hill, and should have been admitted to probate. The memorandum, however, not having been read to the deceased, nor approved by him, was too imperfect to have been established as a written will. On appeal from the probate court of Yalabusha county; Hon. John J. Choate,-judge.

In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge. Henry Anderson and George Wightman, survivors of Osborne D. Herndon, for the use of William W. Humphries, sued Edwin G. Hill, on his bond for $250, dated 13th of October, 1836, due two years after date. The trial took place in November, 1846, and resulted in a verdict for defendant. The plaintiffs moved for a new trial, because the verdict was against the law and the evidence.

In error from the district chancery court at Columbus ; Hon. Henry Dickinson, vice-chancellor. Held: he having told him of the will. lOn cross examination he says, that complainants are his brothers and sisters ;■ that his father exercised ownership over said slaves, and received the profits of their labor until they were sold; and supposes Crosby credited him on the faith of his being owner.

Henry Dickinson, vice-chancellor. Daniel Saffarans alleges in his bill, that by virtue of the provisions of the treaty, entered into between the Chickasaw nation of Indians, and the United States of America, concluded on the 24th day of May, 1834, and ratified on the 1st day of July, 1834, a certain Chickasaw Indian, called and known by the name of William.

On appeal,from the circuit court of Noxubee county; Hon. A. B. Dawson, judge. James C. Rupert recovered a judgment on the 16th day of April, 1844, against Reuben H. Grant for 0406-74, which was enrolled on the 27th of February, 1845; an alias execution was issued thereon, and came to the sherifPs hands on the 11th of February, 1846.

Robert C. Perry, judge. The Agricultural Bank of the State of Mississippi brought an action of assumpsit to the May term, 1843, against William L. Chew, Sarah R. Grayson, Frisby F. Chew, and Beverly R. Grayson, on their promissory note, made payable to the plaintiff ; to which the defendants plead the general issue.

<p>In error from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge.</p> <p>John'McClintock sued Lewis Rogers on the 10th of September, 1846, on the transcript of a judgment recovered in the state of South Carolina on the second Monday in October, 1838.</p> <p>The defendant pleaded, 1st, a discharge from the debt under the insolvent laws of South Carolina ; and 2d, that the suit had not been brought within two years from February 24, 1844.</p> <p>To these pleas the plaintiff demurred; to the 1st plea the demurrer was sustained; to the 2d overruled, and both parties declining to plead farther, the court rendered final judgment against the plaintiff, on defendant’s demurrer to his 2d plea, and the plaintiff sued out this writ of error.</p> <p>Cited Hemphill v. Bank of Alabama, 6 S. & M. 44; 10 lb. 300; 10 Johns. 300; 5 Hill,' N. Y. Rep. 327; 6 lb. 607; 3 Wend. 247; 17 lb. 479; 10 Johns. R. 161; 1 Cow. 316; 4 Stat. S. Car. 88; 3 Brev. S. Car. Rep. 510; 2 S. & M. 187, 192.</p> <p>Cited 3 S. Car. Stat. 641, sec. 1, 2; 7 lb. 231; 1 Kent, Com. 422; 2 lb. 392,393; 3 Story, Com. on Const. § 1384; Baker v. Wheaton, 5 Mass. R. 509; Bank of Utica v. Caroll, 7 Ham. 169; Mather v. Bush, 16 Johns. R. 233; Hicks v. Hotchkiss, '7 Johns. Ch. R. 297; Brown v. Wallen, 4 McCord, 364; McKim v. Marshall, 1 Har. & J. 101; Hempstead v. Read, 6 Conn. 480; Raymonds. Merchant, 3 Cow. 147; Tappan v. Poor, 15 Mass. R. 419; 1 lb. 198; Betts v. Bayley, 12 Pick. 572; Ogden v. Saunders, 12 Wheat. 358; Boyle v. Turner, 6 Peters, Rep. 348; Babcock v. Weston, 1 Gal. 168; Hunt v. Simons, 2 Bay, 104; Acts 1844, sec. 14, p. 108.</p>

In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge. At the September term, 1847, of the circuit court of Monroe county, David Robison sued Cornelius Q. Sands in case for slander.

Hugh R. Miller, judge. Romulus Riggs and others, partners, under the style of Riggs Son & Aertson, entered a motion against Levi McCrosky, the sheriff of the county, and his five sureties, upon his official bond. Notice of the motion was served on the sheriff and two of his sureties. The plaintiffs discontinued their motion as to the three sureties not notified, and proceeded as to the sheriff and the other two, against whom the motion was sustained, and they appealed.

James R. Burrus, judge. Michael Langan and his wife on the one side, and Claiborne Bowman on the other, petitioned the probate court for the administration de bonis non of the estate of Nicholas O’Reilly, deceased. By agreement between the parties, the facts stated in the respective petitions were admitted ás true.

In error from the circuit court of Tippah county; Hon. Nathaniel S. Pric'e, judge. William Coopwood, for the use of John Gordon, sued Booker Foster, on his sealed note to Coopwood of May '4, 1836, at one dayj for $1000.

<p>In error from- the circuit court of De Sotó countyHon. Hugh R. Miller, judge.</p>

Stephen Cocke, chancellor. The facts of this case on which the opinion is based, appear in the opinion. The cause was argued elaborately on the merits, as well as on the propriety of the chancellor’s order, both orally and' in writing, by John Henderson, for appellants, and George Winchester, for appellees; but as their arguments greatly exceed the limits, they are- excluded.