Volume 21 — Mississippi Reports

In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge. Cited Hutch. Code, 678, art. 13, pp. 1, 2; and insisted that, under the proof, the sale was fraudulent.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. William Pack sued John H. Thomas, in assumpsit, on the following writing, viz: — “No. — . May 29, 1838. Branch of the Commercial Bank of Natchez, at Canton, pay to William Pack, Esq., or bearer, thirteen hundred and thirty-five dollars. John H. Thomas.” The plea was the general issue.

Stephen Cocke, chancellor. John Lindsay and Alfred Ingraham allege in their bill, that on the 10th of Feb. 1842, the Grand Gulf Bank made an assignment to the complainants of all their estate and effects, excepting what was specified in a schedule annexed to the assignment, in trust for purposes therein named.

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. James R. Burrus, the probate judge of the county of Yazoo, Elihu Wasson, Edmond McJunis, John Batlaile, Benjamin Lewis, and William S. Grayson, school commissioners of Yazoo county, and Malatha A. Jenkins, treasurer of the county, sued William Phillips in ejectment, for the sixteenth section of township thirteen, range two, west.

In error from the circuit court of Holmes county; Hon. Robert C. Perry, judge. On the first of January, A. D. 1844, Hugh H. Fultz instituted an action of replevin against John F. House, for certain slaves.

In error from the circuit court of Warren county; Hon. George Coalter, judge. Held: that an assignee, by delivery of a note payable to order, and not indorsed, has been permitted to recover in the money counts, or otherwise, at law, against the maker.

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

Henry Dickinson, vice-chancellor. [It is not deemed requisite to detail the facts in this cause at greater length than is done in the opinion of the chief justice.

In error from the superior court of chancery; Hon. Stephen Cocke, chancellor.

Stephen Cocke, chancellor. John T. Hull filed his bill against Burr Garland and Samuel Garland, in which he in substance states that Samuel Garland has had from the beginning of the year 1841, a plantation in Hinds county in full operation, called the Barrens; that Burr Garland had during that time superintended and controlled said plantation, as agent of Samuel Garland, who resides in Virginia; that G. A. Ware and complainant were partners in trade, using the style of Hull…

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. The facts of this case in substance are these, viz.: On the 30th of September, 1839, Joseph Clarke executed a deed of trust to John H. Cheatham and John G. Andrews, as trustees, to secure the payment of certain debts, among which was one of $8559.26 to the Commercial and Rail Road' Bank of Vicksburg.

In error from the vice-chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. J. Robinson, administrator of Rodah Horton, deceased, filed his bill against Ann M. Glasscock, the widow, and Hesper Glasscock, the heir at law of Wm. H. Glasscock, deceased, to enforce the vendor’s lien for the purchase money of a tract of land alleged to have been sold by Horton to Wm. H. Glass-cock.

In error from the chancery side of the circuit court of Holmes county; Hon. Robert C. Perry, judge. William B. Whitfield and James M. Strong allege in substance, in their bill, that Whitfield sold to A. McIntyre a tract of land and thirteen slaves for $25,000, payable in four equal annual instalments, falling due on the 1st of January, 1840, ’41, ’42, and ’43, and took a mortgage on the land and negroes to secure the payments.

Hugh R. Miller, judge. John Stanford filed his bill against John Box, Jesse Collins, hnd Thomas W. Nolen, in which he in substance states: that in October, 1842, complainant bought of defendant, Box, the northeast quarter of section thirty-five, township two, range four, east, for the sum of $100; that complainant was in embarrassed circumstances, which was known to Box; that the contract as to the time of payment, was, that complainant was to have ample time to pay for the…

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

<p>An administrator in the sale of his intestate’s property sells only the title of the decedent as it exists, neither more nor less; he makes no warranty; if he were to do so, it would probably only bind himself individually, and not the estate which he represents; and if he make no covenants for title, the purchaser takes the risk of the title.</p> <p>If an administrator make representations at his sale, which mislead the purchaser, they may constitute a fraud on the purchaser, but not a covenant.</p> <p>If, in an administrator’s sale, there be neither fraud nor warranty, and the sale be regular, the purchaser is bound to pay his bid.</p> <p>An administrator sold a lot belonging to his intestate ; and at the sale it was proclaimed by a surety of the intestate, that the latter had not paid all the purchase money of the lot, and he as surety had paid part, and intended to claim his right to be subrogated to the lien of the intestate’s vendor; the administrator stated at the sale, that he did not think the claim could be maintained ; the purchaser heard both statements : Held, that the purchaser who afterwards arranged the claim of the surety, by giving him half the lot, could not set up, when sued on the note for the purchase money by the administrator, either a failure of consideration; or set up an offset against it for the amount thus settled with the surety.</p> <p>A debt due by a deceased person, is not an offset under the statute of 1840\ (Hutch. Code 854,) to a note given to the administrator for property purchased at his sale of the intestate’s property; and this is especially so where the estate is insolvent.</p>

In error from the circuit court of Warren county; Hon. George Coalter, judge. John Doe, on the demise of Lydia Dowell, brought an action of ejectment for lots 200, 201, 206, and 207, in square 29, as designated on a plat of lots laid off by William M. Pinckard, south of, and adjoining the original town of Yicksburg. At the October term, 1846, John D. Wolfe was made defendant; and a trial was had, which resulted in a verdict for the plaintiff.

<p>On appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.</p> <p>A sufficient statement of this case will be found in the opinion of the court.</p> <p>Contended, that the attachment was irregular for want of motion and service of notice thereof on defendants, before hearing; and cited 1 Smith, Ch. Pr. 623; 6 Eng. Ch. R. 382; 6 Yes. 488; 1 J. & W. 376 ; 34 Law Lib. 264; 1 Barbour, Ch. Pr. 636; 4 John. Ch. R. 173. The peremptory attachment was unconstitutional. Dec. of Rights, sect. 11.</p> <p>The injunction was improvidently issued, and on a cross motion, if there was no equity in the bill, should have been dissolved. 4 Paige, Ch. R. 444; 1 Barb. Ch. Pr. 636; 3 Swanst. R. 546; 3 Meriv. Ch. R. 148.</p> <p>Injunction was improvidently issued, because,</p> <p>1. When Miller’s bill was filed, he was enjoined from suing Barnes, Lewis <fc Lee; and Miller was himself therefore in contempt.</p> <p>2. The matter complained of was a mere trespass for which Miller had an adequate remedy at law, (acts of 1842.) The statute having provided a remedy, Miller can claim no other. 5 Johns. R. 125; 1 Blackf. R. 39, 168, 405.</p> <p>3. The statute contains no grant of exclusive privilege to Miller, nor prohibitions of the exercise of a like privilege by others. 11 Pet. R. 420, 543-545.</p> <p>4. The act of 1842 is void under the 20th sect, of the 4th article of the constitution of Mississippi, giving jurisdiction of ferries to boards of police. 2 How. R. 856; 3 lb. 452.</p> <p>5. The act of 1842 is void under the Constitution of United States; GibboJis v. Ogden, 9 Wheat. R. 1 ; 3 Yerg. R. 3S7; and also is contrary to the revenue laws of United States. 1 Story, Laws of U. S. 285.</p> <p>Guión and Baine, on same side, argued at length on the merits, taking the positions,</p> <p>1. The board of police has exclusive jurisdiction of ferries. 3 Plow. 252; Hutch. Code, 256, sec. 36.</p> <p>2. If the legislature had power to grant to Miller the exclusive privilege of keeping a ferry at Vicksburg, it was unconstitutional, because it attempted to act extra-territorially ; and,</p> <p>3. Because it was repugnant to the Constitution of the United States, and the act of congress regulating the coasting trade. 9 Wheat. 1.</p> <p>1. The act of the legislature of Mississippi, and the ordinance of the board of police of Louisiana, was constitutional and valid. 2 Dev. R. 404; 3 Scam. R. 53; 3 Yerg. 387; 7 Pick. 445; 15 Wend. 132-136. The case of Gibbons v. Ogden, 9 Wheat. 203, expressly excepts ferries from the operation of the Constitution of the United States, leaving them to the control of the respective states. This view of the case of Gibbons v. Ogden, is expressly recognized by Justice Barbour, in 11 Pet. 102, 137, 146, 157; and 15 Pick. R. 283; 4 Wash. C. C. R. 378, 379; 11 Wend. 587; 3 Cow. 727; 1 Nott & McCord, 387; 12 Conn. R. 7.</p> <p>2. The act of the appellants was a violation of Miller’s charter. 7 Pick. 446; 25 Wend. 631; 3 Black. Com. 219; 2 Roll. Ab. 140; 1 Hay. R. 457, 458; 2 Dev. 404; 7 Pick. 452, 459; 2 Stuart, Ala. R. 211; 15 Pick. 253; 3 Yerg. 391. It cannot now be inquired, whether an additional ferry was necessary for public convenience. 4 Bibb, 309; 6 J. J. Marsh. 136, 142; 1 Dana, 259; 2 Littell, 301. The owner of the soil has, in the first instance, preference. 2 Dev. 404; 4 Bibb, ,309; 6 Dana, 45; 3 Yerg. 387; 5 lb. 188.</p> <p>3. The enrolment of the ferry-boat as a coasting vessel, was a fraud on the Constitution of the United States and the act of Congress regulating coasting trade; and the not charging ferriage, eo nomine, but only toll for travelling the road on the bank of the Mississippi, was an evasion of the act of 1842.</p>

<p>In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.</p> <p>The facts are sufficiently disclosed in the opinion.</p>

<p>The case of Andrews v. The Planter's Bank, 7 S. & M. 192, — deciding that where one of two partners subscribes the copartnership name to a note, as sureties for a third person, without the authority or consent of the other partner, the latter is not bound, and it lies upon the plaintiff to prove the consent or authority of the other, — cited and confirmed.</p> <p>A firm being in debt for a steamboat, sold it to a third party, and took his notes for the purchase money, payable to their creditor, and one of the partners signed the firm name to the notes of the third party thus given for the boat, expressing on the face of the notes that they were sureties, and delivered them to their creditor, who took them in satisfaction of the debt of the firm to him; in an action by the creditor on these notes, the partner who had not signed pleaded non est factum: Held, that under the facts he was liable on the notes; it was not the ease of one partner signing the firm name as sureties for a third person, but it was the debt of the firm, and but a change in the form of the security.</p> <p>A securityship is to be distinguished not so much by the name as by the nature of the transaction.</p> <p>While it is true, one partner cannot, in violation of known stipulations in the articles of partnership, bind the firm, even for money which is applied in liquidation of the debts of the firm, yet the principle would not apply to the case of the signature of the firm, by one of the partners to a note to a creditor of the firm, not on a new liability, but for a pre-existing debt.</p> <p>On the trial of a suit against a member of a firm, the name of which had been subscribed as sureties to a note, and who had plead non est factum, the court below at the instance of the plaintiff, instructed the jury, that “ to discharge members of a partnership not executing the note from the liability of a suretyship contracted in the firm name, it must appear to have been without the scope of the partnership: ” Held, that as far as it extended, it was a correct exposition of the law.</p>

<p>To an action on a bill of exchange, the defendant plead that he had been sued by the plaintiff in the circuit court of the United States in the same cause of action, and obtained a judgment in his favor, by which he was discharged from all liability on the demand sued on : Held, on demurrer to the plea, that it was,a good bar to the action.</p> <p>Since the act of 1840, regulating the practice in the circuit courts, amendments which were formerly in the discretion of the court, are now matters of duty ; and it will be error to refuse to allow them, when applied for at the proper time.</p> <p>Judgments on demurrers are under the statute,. (How & Hutch. Dig. 619, § 9,) not final until the end of the term, until which time they may, on proper showing, be set aside.</p> <p>To an action on a bill of exchange, the defendant plead a former recovery in his behalf, in an action on the same bill in another court; the plaintiff demurred ; and the plea was adjudged good, and judgment entered for defendant ; two days afterwards the plaintiff entered a motion to set the judgment aside, and for leave to reply to the plea; the motion was continued to the next term, when the plaintiff’s counsel read a transcript of the record of the former judgment with his affidavit, that he did not consider it a bar to the action ; the court refused to set the judgment on the demurrer aside, and the plaintiff excepted ; held, that the plaintiff should have been allowed to reply to the plea, and it was error to refuse it.</p> <p>Lang v. Fatheree, 7 S. & M. 404', explained; the proper judgment when a demurrer is overruled is final, unless the demurrant crave leave to reply, in which case leave should be given.</p>

<p>On appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.</p>

<p>On appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.</p> <p>On the 19th of February, A. D. 1844, Orren D. Battle filed his bill in the superior court of chancery to enjoin William Clark, administrator de bonis non of Joseph A. Fort, from making distribution of the estate among the distributees of his intestate, viz., his widow, Priscilla Fort, and her three children, Frances, intermarried with Richard B. Ford, and two boys, Geraldus and Marcus ; and also to compel Clark to make payment to him of the sum of $5292.95, awarded to him on the 4th of March, 1843, (as a balance'due to him by the estate, on account of his previous administration thereof,) by arbitrators jointly chosen by him and the distributees.</p> <p>The record was extremely voluminous; the facts are sufficiently stated in the opinion of the court. The chancellor decreed in favor of the complainant, and the defendants appealed.</p> <p>Argued the cause in writing, and cited Murdock v. Wash-burn, 1 S. & M. 546; How. & Hutch. 402, sec. 63; lb. 416, sec. 107; lb. 406, sec. 70; Emanuel v. Norcom, 7 How. 150.</p> <p>Cited 2 Story, Ecp § 1268, 1269, 1272, 1275; Thompson v. Brown, 4 John. Ch. R. 619; McRea v. Walker, 4 How. 455; Sevier v. Ross, 1 Freem. Ch. 519 ; Murphy v. Clark, 1 S. & M. 221; Smith v. Smith, 4 John. Ch. R. 281; Oakey v. Rabb, 1 Freem. Ch. 546; Miller v. Womack, lb. 486; Calvit v. Markham, How. 343; Vertner v. McMurran, 1 Freem. Ch. 136; Griffith v. Vertner, 5 How. 736; 2 lb. 883; Murray v. De Rottenham, 6 John. Oh. R. 52.</p> <p>Cited Toller, 167; Callaghan v. Hall, 1 Serg. & R. 241; Caldw. on Arb. 13; 1 Steph. Ni. Pr. 56; Caldw. on Arb. 12,13; Peisch v. Ware, 4 Cranch, 349; 2 Cond. R. 137; Wade v. Huntly, 2 Tidd, Pr. 894; Corneforth v. Geer, 2 Tern. 705; Anon. 3 Atk. 644; Jones v. Corey, 5 Bingv147; Ainsly v. Goff, Kyd on Aw. 351; 1 Taunt. 53; 1 Steph. Ni. Pri. 75; Kelly v. Johnson, Wash. C. C. R. 45.</p>

<p>On appeal and cross appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.</p> <p>William D. Smith, Catharine E. Smith, Susan E. Smith, and Martha D. Smith, allege that they are the heirs at law of Samuel Smith and Mary O. Smith, late of Hinds county, deceased. That Samuel Smith died in 1834, possessed of an estate of land, slaves, and other personal property, and made a will by which, after bequeathing a legacy of $50 to his daughter Margaret, who had married one Hern, he made the following devise: “The balance of the property I may die possessed of, I give and bequeath to my wife Mary O. Smith, for her use, benefit, and disposal for ever, to enable her to bring up, educate, and support our children, which are named as follows.” (Then follow the names.) He appointed Joseph A. McRaven his executor, who probated the will and took upon him the execution of it, and managed the estate as executor until 1837, in which year he delivered the property of the estate to Mary O. Smith, who continued in the enjoyment and possession of it until her death, which occurred in the year 1843. That the slaves mentioned in the record are a portion of the estate bequeathed to Mary O. Smith by the will of her husband. That Samuel Smith at the time of his death was not largely indebted, and had in ready money, which was received by his executor, a sufficient sum to discharge all his debts of every description. That Mary O. Smith died intestate, and the estate since her death has been held by complainant, W. D. Smith, and managed for the joint benefit of himself and co-complainants, three of whom are unmarried minors, his sisters, and the other married and living in Texas. In November, 1833, Samuel Smith bought a tract of land of the commissioner of the seminary fund, lying in Hinds county, and executed three promissory notes, payable to the governor of the state and his successors in office, for the sum of $525.66| each, payable on two and three years after date, with William C. Demoss and Henry K. Moss, his sureties. That the first of said notes was taken up by the substitution of another note. That on the other two notes, suit was instituted in the circuit court of Hinds county against Henry K. Moss, and judgment recovered against him on the 30th day of June, 1845, for the sum of $1814.10. That execution was issued and levied on the land bought by Smith, and for the price of which the notes were in part executed, which land was sold under the execution, and bought by McAfee, commissioner of the seminary fund, on account of said fund, for between $800 and $900, which entitled said execution to a credit for all costs and $859.28 of principal debt, but which has not been credited. Payment of said notes was never demanded of McRaven, the executor of Samuel Smith, by the commissioner of the seminary fund, or any notice given to him of their existence, until the year 1844, when George Work, Esq., without legal authority, instituted suit against McRaven, executor, in Hinds circuit court, on all of said notes, and on the 4th day of May,' 1846, recovered judgment against said executor for the sum of $2810.82. Execution was taken out by George Work upon said judgment, and by his orders levied by the sheriff of Hinds county on certain slaves named, (being part of the estate bequeathed by Samuel Smith to his wife, and which descended to complainants,) in the possession of complainant, W. D. Smith. The sum of $859.2S, for which the land bought by Smith of the commissioner of the seminary fund, was sold, under the execution against Moss, is not credited on the judgment against McRaven, executor, &c. The bill further charges that McRaven, executor, had, at all times after the death of Smith, assets in his hands, independent of the property devised to Mrs. Smith, sufficient to pay and discharge the notes upon which the judgment is founded. That he has not yet settled his account of his administration of said Smith’s estate, and that he still has in his hands a sufficient amount to satisfy said judgment.</p> <p>The bill charges further, that said slaves being part of the estate of Samuel Smith, deceased, and bequeathed to his wife Mary, and which descended from her to the complainants, are not subject to said execution. The prayer of the bill is for an injunction against the executive authority of the state, and the commissioner of the state charged with the seminary fund, restraining them from selling said slaves under and by virtue of said judgment, and for general relief.</p> <p>The answer of the state does not deny any of the material allegations of the bill, but at the June term, 1847, of the court, a motion to dissolve the injunction on bill and answer, was argued, and it was ordered that the injunction be retained for the sum of $859.25, made by the sale of the land under the execution against Moss, and dissolved as to the residue of the execution. An appeal was prayed by complainants, and also by the attorney-general, for the state.</p> <p>Argued the case, and cited Tol. Ex. 311; 6 Dana, 155; 2 Hill, Ch. Rep. 522; Burnley v. Lambert, 1 Wash. 308; 2 Hill, Ch. Rep. 459; lb. 462; 1 Dev. Eq. 337; 1 Dev. Eq. Ca. 437; Lyn v. Vick, 6 Yerg. 42; Sampson v. Bryce, 5 Munf. 175; Scott v. Holliday, lb. 103; Randolph v. Randolph, 3 lb. 99.</p> <p>They also reviewed Brooks v. Leiois, 1 How. 207; contended it was not law, and was reversed by Turner v. Chambers, 10 S. & M. 308.</p> <p>Considered the first point res adjudicata, under the authority of Brooks v. Lewis, which he did not consider shaken by Turner v. Chambers. He argued, also, that the cross-appeal was well taken; and the whole injunction should be dissolved.</p>

<p>An equity of redemption in real estate, whether before or after the forfeiture of the mortgage, is incapable of sale under execution against the mortgagor^ in this state, unless the whole of the mortgage money has been paid, and there ■ is nothing but the naked legal title outstanding.</p> <p>Under the ordinance organizing the Mississippi territory and the constitution of 1817, schedule, sec. 5, all English statutes are excluded from operation in this state, and only the common law and the statutes of our own government adopted for the determination of the rights of the citizen.</p> <p>He only has a right to redeem mortgaged property who has an interest in or lien upon it.</p> <p>A purchaser, therefore, of mortgaged property under execution against the mortgagor, before forfeiture of the mortgage, or payment of the mortgage debt, having by his purchase acquired no interest in or lien upon the mortgaged property, has no right to redeem it. It would be otherwise if by the purchase he acquired any right.</p>

<p>On appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.</p> <p>The question in this case was the power of the chancellor over his decrees rendered at a former term. The facts are stated in the opinion of the court.</p> <p>On the point of the want of power of the chancellor to open the decree, cited Scott v. Blaine, 1 Bald. 287; Burch v. Scott, 1 Bland. 120; Spaun v. Spaun, 2 Hill, Ch. R. 156; Ray v. Conner, 3 Edwards, 478; Bennett v. Winter, 2 John. Ch. R. 205; Radley v. Shaver, 1 lb. 200; Hunter v. Carmichael, 12 S. & M. 726.</p>

<p>It is now the settled doctrine upon common law principles, independent of any statute declaring a different rule, that, upon the dissolution of a corporation, the debts to and from it are extinguished.</p> <p>The town of Port Gibson was incorporated in 1821, and its charter subsequently amended by various acts of the legislature ; in 1841, an act was passed repealing the act of 1821, and all the subsequent amendments: Held, that this latter act, when accepted by the corporation, was a dissolution of it.</p> <p>In 1844, the act of repeal of 1841 was itself repealed, “ and the act for the incorporation of the town passed in 1821, and the other amendatory acts declared to be in full force; ” and the act of 1844 directed “to take effect from and after its passage: ” Held,, that this last act did not revive the old corporation ; but was a new creation, a new act of incorporation, and did not revive former liabilities of the old corporation extinguished by the act of 1841.</p> <p>Whether the legislature have power to revive an extinct corporation, with all its former incidents and attributes, not decided.</p>

In error from the circuit court of Wilkinson county; Hon. Stanhope Posey, judge. On the 21st of March, 1841, John Doe, on the demise of John Ives, and Mary his wife, Matthias Overman and Sarah E. his wife, Charles Horton and Elizabeth his wife, Joseph Foxwell and Jane his wife, Wm. H. Roach, Littlebury A. Roach, John H. Roach, Louisa Roach, Levisa Roach, Mary Ann White and Elizabeth White, Thos.

<p>On appeal from the vice-chancery court at Natchez; Hon. James M. Smiley, vice-chancellor.</p> <p>The bill states that in May, 1841, the sheriff levied an execution in favor of Parker, against complainants, on two lots in the city of Natchez, which were not sold for want of time; and afterwards a venditioni exponas issued. An execution in favor of the Planters’ Bank, against the same parties, was also levied on the same lots, in September, 1841. The lots were appraised at $35,000, and not sold because of a failure to bring two thirds of their value. At the return term of the last execution, to wit, November, 1841, Stanton, Buckner &Co., recovered a judgment against complainants, for $16,212, which was afterwards reversed, but before the reversal execution issued, returnable to May term, 1S42 which was also levied on .the same lots which had been levied on and offered for sale, under the prior executions. A second appraisement took place, in which the appraisers deducted from the value of the property the sum of $8158, the amount of the two executions which had been previously levied; that is, they valued it as incumbered property. The lots were on this appraisement valued at $10,842 over and above the amount of the incumbrance. It was sold to Helm for $7228, and the plaintiffs in execution directed the sheriff to make a deed to the purchaser, who had arranged the amount of the bid with them, and the deed was accordingly made. These proceedings, it is alleged, were void, and passed no title, because the appraisers had no authority to make the appraisement in the way they did, and because the lots were not subject to sale, in consequence of the previous levy. The bill also charges, that when Helm made the arrangement with Stanton, Buckner & Co., he knew them to be in failing circumstances, and they soon afterwards became bankrupts; that no actual payment was made, but Helm either gave his notes, or purchased the lots to secure an amount which Stanton, Buckner & Co. owed him; and in either event he is not a bona fide purchaser, and therefore not entitled to hold the property since the reversal of the judgment; and believing that Helm had not acquired title, they refused to deliver possession, and he thereupon commenced his action of ejectment. In November, 1842, writs of venditioni exponas issued on the executions, in favor of Parker and the Planters’ Bank; and in order to obtain a stay on the former, the complainants paid the latter, before the 23d of March, 1843, the amount of which was $4397, which sum they believe was paid by the sheriff to Helm, who had become the assignee of the judgment. On the 7th of April, 1847, Helm became the assignee of Parker’s judgment also, and had taken out a venditioni, to sell the lots, although he claims them under the sale made under the execution of Stanton, Buckner & Co.</p> <p>The prayer is for an injunction to stay proceedings in the ejectment suit, and on the Parker execution, by preventing the sale of the lots, or otherwise proceeding against the complainants thereon; and also, if the purchase of the lots by Helm should be deemed valid, that he be decreed to pay them the amount of his bid, and also the amount paid by them on the Planters’ Bank execution, to wit, $4397, with interest; and that he enter up satisfaction on the execution of Parker, so as to discharge complainants from further-liability.</p> <p>On the Sth of-June, 1847, the defendant moved to dissolve the injunction, which motion was.sustained, so far as to allow Helm to sell the lot in question, under the Parker execution, but not so as to allow him to proceed against complainants, on the execution, as to any other property. And he was also permitted to prosecute the ejectment suit to judgment.</p> <p>The defendant demurred to certain parts of the bill, to wit, to so much as showed the assignment of Parker’s judgment to him, that he was about to sell the lot under it; and to so much as ■prayed that satisfaction should be entered ou that judgment; and that defendant, as assignor, might be restrained from proceeding thereon against complainants.</p> <p>He also demurred to that part of the bill, which stated the levy, the new execution, the assignment and payment by complainants of the Planters’ Bank execution; and to the prayer that such payment should be refunded by defendant, because this part of the bill was multifarious, and because the court could not grant relief thereon.</p> <p>He also demurred to that part of the bill which relates to the recovery of the judgment of Stanton, Buckner So Co., and all the proceedings under that judgment, including the appraisement, the purchase by Helm, the supposed illegality of his title, the institution of the ejectment, &c. &e.; so that in truth the greater part of the bill was demurred to. The defendant answered such parts of the bill as were not covered by the demurrer, the particulars of wbieh need not here be set out.</p> <p>On hearing the demurrers, the first and second were overruled, and leave given to answer. The third demurrer was sustained.</p> <p>The complainants appealed, and the defendant took a cross-appeal, and the vice-chancellor has certified that he deemed an appeal necessary to settle the principles of the case.</p> <p>Argued the case, and cited City of Natchez v. Minor, 10 S. So M, 246; Helm v. Natchez Insurance Co., 8 S. So M. 197.</p> <p>Cited in his brief, 8 S. So M. 197; 3 How. 66; IN. Y. Dig. 1020, 1021; 13 John. R. 101, 102; 15 lb. 395; 17 lb. 167; 4 Cow. 644; Cro. Jac. 246; Bankrupt Law, § 2, 34,.35; 2 Bibb, 204; 4 John. R. 536, 541, 542, 589, 602.</p>

<p>In error from the circuit court of Warren county; Hon. George Coalter, judge.</p> <p>Sam, a slave, was indicted on the 1st Monday of April, 1848, at the court-house, in Tallula, in the circuit court of Issaquena county, for the murder of Absalom H. Barrow. He pleaded not guilty. At the October term, 1848, of the circuit court of Issaquena county, the venue was changed to Warren. At the April term, 1849, of the Warren circuit court, a special venire for fifty jurors was ordered returnable on Tuesday, the 8th day of the term; on' that day, Charles L. Buck, Esq., for and on behalf of the state, appeared, and on motion and by consent the plea of not guilty was withdrawn, and the defendant filed two pleas in abatement, the substance of which is stated in the opinion, and to which the attorney for the state demurred; the demurrer was sustained; the prisoner was then arraigned and pleaded not guilty. The case was then continued until next day, when the defendant being tried was found guilty, and condemned to be hung. On the trial various bills of exception were taken, but two of which need be noticed. They are, the</p> <p>3d. To the action of the court overruling the challenge for cause to Thomas Rigby, tendered as a juror, who stated, “ that he had not heard the witnesses, but had heard the cause talked of; had formed and expressed his opinion; his mind was clearly made up from rumor; thinks he could decide the case from the testimony, free from the bias on his mind, but thinks it would require some testimony to remove the impression from his mind; ” and the</p> <p>5th. To the action of the court, overruling the challenge for cause of Baptiste McCombs, one of the jurors tendered to the prisoner, who stated, that “ He had heard the argument of counsel in the case of Jack, who was tried on yesterday as an accomplice with the prisoner; heard their statements of the testimony, the witnesses being the same in each case; did not hear the witnesses themselves ; has formed and expressed an opinion; it will require testimony to remove his impression, but thinks he can give an impartial verdict from the testimony.”</p> <p>The prisoner obtained the fiat of the chief justice for a writ of error, with supersedeas to the sentence of the court, and prosecuted it accordingly.</p> <p>1. Argued all the points presented by the record at length; and on the error in overruling the challenge for cause of Rigby and Baptiste McCombs, cited and commented on 1 Burr’s Trial, 43-46, 371-377, 414, 415, 416; Noe v. The Slate, 4 How. Rep. 330; King v. The State, 5 lb. 730; Vermilyea v. The State, 7 Cowen, Rep. 108; S. C. 6 lb. 556; 1 John. Rep. 316; Flower v. The State, Walk. Rep. 308; Johnson v. The Slate, lb. 392.</p> <p>2. That the pleas were good, and that the indictment should be quashed. See 2 Hawk. PI. Ch. B. 2, ch. 25, p. 350; Carpenter v. The State, 4 How. 163; Me Qullen v. The State, 8 S. & M. 587; Kelly v. The State, 3 lb. 518.</p> <p>1. So far as regards the time and place where the court was holden, see Pamp. Acts, Ses. 1846, incorporating Tallula, and also 3 S. & M. 518.</p> <p>2. In regard to the admissibility of the jurors, I refer the court to 2 Leigh, 769; 3 Stewart, 454 ; 4 Dallas, 513; 3 Vermont, 578; 3 Leigh, 785; 9 lb. 651; lb. 661; 3 Kelly, 634; 5 Rand. 660; 7 Iredell, 61; 2 Va. Cases, 375 ; 4 How. 330; 5 lb. 730.</p>

<p>On the 10th of August, 1847, the Hon. George Coalter, judge of the third judicial district, granted a writ of habeas corpus on the petition of James Shirley, requiring Claiborne Steele to bring seven slaves before the judge, which the petitioner alleged Steele forcibly took out of his possession and unlawfully detained. The writ was returnable on the next day at the court-house of Warren county, and was directed to and executed by the coroner.</p> <p>At the time and place appointed Steele appeared and answered, that the slaves named in the petition were enumerated in a writ of injunction and seizure from the superior court of chancery, in the case of R. L. Mathews complainant, and James Shirley defendant, and the special direction on the writ was, that the sheriff of Warren county should keep these slaves until the defendant, or in his default, the complainant, should give bond for their safe keeping and delivery, to abide the further order of the court of chancery in the cause. That as sheriff of Warren county he seized these seven negroes and committed them to his jail, where they remained until the 15th day of July, 1847, without any bond being given or claimed by either complainant or defendant, during which time jail fees accrued to the amount of one hundred and forty dollars. On the 15th day of July, 1847, Shirley presented to him an order from the chancery court, which authorized Shirley to demand the negroes, and they would have been delivered to him upon the payment of the jail fees which had thus accrued, and for the payment of which respondent alleged the negroes were bound. He then held the negroes only for the purpose of compelling the payment of the fees due him, in all $205.75, for the keeping the negroes. The other fees due to him as sheriff he did not claim until the end of the chancery suit.</p> <p>The facts stated in this answer were admitted to be true. The order of restitution by Steele to Shirley, of the slaves seized by him, by virtue of the process in the case in chancery of Mathews v. Shirley, was read in evidence.</p> <p>The bill in chancery in the case of Mathews v. Shirley was also read; the substance of it was as follows : that James Shirley and his wife and children and others had fried a bill, on the chancery side of the circuit court of the United States for the southern district of Mississippi, against John Martin and others, and had obtained from the judge of that court a writ of injunction, restraining the defendants therein from proceeding to sell certain slaves named, (including the seven in controversy in this case,) under execution in their favor against James Shirley; the bill claiming the slaves as the property of the children of Shirley. This fiat was granted on condition that James Shirley should execute a bond in the penalty of five thousand dollars, with surety conditioned that the complainants should have the slaves forthcoming, to answer and abide any order or decree of that court in the cause. Mathews as surety for Shirley executed this bond with him and others, on Shirley’s solemn assurance that the slaves should be kept to abide such decree. On the execution of this bond the slaves were restored to Shirley’s possession in Tallahatchie county, where Shirley had had them at work on a plantation in that county. Since then, Shirley had abandoned his plantation and removed to Vicksburg, in Warren county, with his family, and was about also to move these slaves there, with the view of removing them from the state. That such Mathews believed was the intention of Shirley, who, in case his injunction against Martin and others was dissolved, would as Mathews feared and believed, remove the slaves and leave Mathews to pay the bond. That Shirley was insolvent. The bill prayed for injunction against Shirley’s removal of the slaves, and that unless he would give security that he would not do so, the sheriff of Warren county might seize them, &c. The chancellor granted a fiat in accordance with the prayer of the bill.</p> <p>It was then admitted, that on the 15th of July Shirley had demanded the slaves of Steele, and the latter refused to deliver them up unless his jail fees were paid him.</p> <p>Hereupon Steele objected to the jurisdiction of the judge ; the objection was overruled and exceptions taken. The judge then ordered Steele to deliver the slaves to Shirley; Steele again excepted and appealed. The appeal was prosecuted and dismissed (see 9 S. & M. 382,) and this writ of error afterwards allowed.</p> <p>They insisted,</p> <p>I. Under the statute, Hutch. Miss. Code, 1001, § 9, writs of error in cases of this sort are allowable. See Steele v. Shirley, 9 S. & M. 382.</p> <p>II. To entitle the applicant to this writ, the slaves must be taken or seduced out of his possession by force, stratagem or fraud, and be unlawfully detained in the defendant’s possession, (Hutch. Miss. Code, 1002, § 19.)</p> <p>1. In this case the slaves were neither taken nor seduced from petitioner’s possession by force, stratagem nor fraud. They were taken by the sheriff as such, under a fiat of the chancellor, on a bill regularly filed upon a subject over which by the constitution and laws he had full jurisdiction; whether providently or improvidently granted, the circuit judge had no right to determine ; nor has this court in this collateral way. Until reversed, the trial of the chancellor was legal, proper and conclusive; the sheriff was bound to obey it; and in obedience to it he took the slaves. He took them then by authority of law; and obtained their possession in neither of the modes pointed out by the statute.</p> <p>2. Nor were these slaves unlawfully detained, in such a manner that the circuit judge could take notice of it. If the sheriff was not entitled to his fees, the remedy of the petitioner was by motion to the chancellor. The chancery court had taken jurisdiction of the subject-matter; and the circuit judge could not interfere. The sheriff held the slaves legally, and he therefore detained them legally; non constat, that the chancellor had not reversed his order allowing the possession to petitioner, or had not required him to pay jail fees. The whole record was not before the circuit judge. Where one court has taken jurisdiction of a subject-matter within its jurisdiction, until a final decree, no other court can inquire collaterally into the exercise of that jurisdiction. Were the exercise of the power used in this case by the circuit judge sustained, all chancery suits for the trial of the right of possession to slaves, would be tried by habeas corpus. Hutch. Miss. Code, 762, § 50.</p> <p>• 3. But the sheriff was entitled to his jail fees. Hutch. Miss. Code, 487, 488, 489. He is entitled to receive his. pay for victualling negroes taken under attachment or execution; there is no limitation on this right. It is absolute; it does not depend on the order of court; it is not part of the costs for which the sheriff is entitled, from that party from whom they are adjudged. He is absolutely, and under all contingencies, entitled to his pay; and the negroes are necessarily liable to him for them. He who demands their possession must pay the fees. He has a lien on the slaves for their feeding. He is a bailee, like an innkeeper, livery stable-keeper, &c., and before the owner can recover the article he must pay charges, and look to the ultimate decree of the chancellor for his reimbursement. A contrary decision would subject unreasonably a sheriff to great risk of loss; would subject the slaves to the chances -of rigorous treatment, for the sheriff might not be able to advance the money for their support, and they might suffer in consequence; might in some cases ruin a sheriff, who had been required to take a large number of slaves into custody, and hold them for a long time.</p> <p>Cited Walk. Rep. 154; Acts of 1846, p. 210; of 1844, p. 120; 4'S. &M. 770; Dunlap’s Pr. 1120; H. & H. 538; Const. Art. IT. § 4; 2 Tidd’s Pr. 1188.</p>

<p>It is well settled, that it is competent for the circuit judge, in criminal prosecutions, as well as in civil cases, to modify the instructions requested on either side, so as to make them conform to his own views of the law.</p> <p>On the trial of a prisoner for murder, his counsel asked this instruction, viz: “If the jury, after weighing the evidence, have a reasonable doubt that the prisoner is guilty, they are bound by law to find her not guilty;” the circuit judge gave the instruction, with this addition, viz: “To warrant the jury in finding the prisoner guilty, there should be evidence before them sufficient to satisfy their minds of her guilt, beyond a reasonable doubt; that which amounts to mere probability only, or to conjecture or supposition, is not what is meant by a reasonable doubt; the doubt which should properly induce a jury to withhold a verdict of guilty, should be such a doubt as would reasonably arise from the evidence before them; and if such a reasonable doubt should arise from the evidence, the prisoner should have the benefit of that doubt: ” Held, that the explanation was correct, and did not vary the rule laid down by the instruction as it was presented.</p> <p>The following instruction asked by a prisoner indicted for murder, viz: “ that unless the jury are as well satisfied from the evidence of the guilt of the accused, as they would be from the testimony of a single witness, testifying directly to the fact, they should acquit,” was held to have been properly refused; not because it was not a correct abstract legal proposition, but for the reason that it had been in effect already given ; and in addition, as propounded, applied a rule neither practical nor altogether safe, in this, it not only required the juror to be convinced from the circumstances beyond a reasonable doubt, but exacted from him a comparison of his convictions, with what they would have been, had there been direct testimony of guilt.</p> <p>In criminal or in civil cases, the verdict of a jury upon the facts will not be disturbed, unless opposed by a decided preponderance of the evidence, or based upon no evidence.</p> <p>The prisoner, a slave, was indicted for the murder of her mistress ; the jury found her guilty; the court reviews the testimony which was purely circumstantial, and reaches the conclusion of her guilt.</p>

<p>On the trial of a white man for the murder of a slave, it is not competent for the prisoner to prove that the slave was generally insolent and impudent to white persons, although not so at the time of his death to the prisoner who caused it.</p>

<p>P. filed his bill in the superior court of chancery against L. and others, which was dismissed in March, 1843 ; but in June, 1844, the decree of dismissal was set aside, and the cause reinstated ; nothing more was done with regard to the complainant, but in July, 1844, L. filed a cross-bill reiterating the charges in the bill of P., and seeking to litigate the same matter; the defendants answered the cross-bill without pleading the former decree in .bar, or objecting to the jurisdiction ; the chancellor reinvestigated the whole case, and made a different decree: Held, that the order setting aside the dismissal, made at a subsequent term, was a nullity; and that in face of the final decree against him, the complainant in the cross-bill could not have the same matter, already adjudicated upon, reinvestigated; the subsequent decree therefore was improper.</p> <p>The indorsement by a member of a firm of a note payable to the firm, though made without the knowledge of his copartner, to a third party in the payment of a debt of the firm, will pass the legal title to such indorsee.</p> <p>Where certain notes were held by, and payable to, a copartnership consisting of two members, who agreed with a former copartner to apply these notes so held by them to the payment of the debts of the former partnership, consisting of all three of them, such agreement would give the former partner nothing but an equity against the other two, to have this agreement performed ; and that agreement could only be enforced against those having notice of it.</p> <p>If, therefore, the two partners, holders of the notes, pass them off to a third party, with instructions to-apply their proceeds to their debts alone, and this is done without any notice to such third person of this agreement between these two and their former partner, the latter will have no claim against such third person for the proceeds of such notes.</p> <p>The statute authorizing the maker of a note to set up any defence against the indorsee which he could against the payee, does not embrace this case, as the former partner was no party to the notes, the proceeds of which he seeks to recover.</p> <p>The holder of a promissory note by indorsement for value, without notice of a prior equity, will be preferred to the party having such prior equity.</p> <p>C. & D. being partners, and holding certain notes, agreed with L. that these notes should be first appropriated to the payment of the debts of L., C. & D., a former firm, and, after they were paid, to the debts of C. & D.; the latter assigned these notes to a creditor of L., C. fiz. D., and of C. fit D., as collateral security for the debts these firms respectively owed him : Held, that this creditor acquired these notes for value in the due course of trade, and having collected them, and paid the proceeds to the debts of C. fit D. due to him, without notice of the agreement between L., C. fit D., he could not be compelled to account to L. for them.</p> <p>A party cannot be permitted to seek to set a sale aside, and at the same time claim a benefit derived from it; he must either seek to set it aside entirely or ratify it entirely.</p> <p>Where a note, payable to the partnership, is indorsed in the partnership name, by one of the partners, without the knowledge of the other, in payment of a partnership debt, the legal title having passed to the indorsee, a subsequent sale of the interest of the payee, who had no knowledge of the indorsement, made by his commissioner in bankruptcy, will pass no title to the purchaser thereat.</p> <p>A party who claims rights growing out of an agreement with the vendor of property, to the purchase-money of the property, cannot set up that the sale was fraudulent, and at the same time assert his claim to the proceeds.</p>

<p>In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.</p> <p>Jesse Godley & Co. sued David S. Goodloe, Jr. on a note made by Keenan & Goodloe for $622.66 to David S. Goodloe, jr., or order, payable ninety days after date, at the Branch of the Bank of the State of Alabama, and dated Tuscumbia, Aug. 15, 1848; indorsed, “Pay Jesse Godley & Co., or order. David S. Goodloe, Jr.”</p> <p>The declaration is in the usual form, alleging the presentation of the note at the bank, demand of payment, non-payment, and notice. The plea was non-assumpsit.</p> <p>On the trial, the plaintiff read the note sued on, and the indorsement; the deposition of Jonathan Lane, who deposed that “ on the sixteenth day of November, 1838, a note drawn by Keenan & Goodloe for $632.66, indorsed by D. S. Goodloe, Jr. and Jesse Godley, was handed him as notary public; that he protested it on that day, and after diligent inquiry for the makers and indorsers, having no positive information of the particular post-office of D. S. Goodloe, and from the fact that the note was dated at Tuscumbia, he was induced to direct the notice of the makers and first indorsers, Tuscumbia, Alabama, and to Jesse Godley, Philadelphia, Pa. All the notices were deposited in the post-office at Decatur on the day of protest, or in time for the first mail. The original note was presented by him at the counter of the Branch of the Bank of the State of Alabama at Decatur, for payment, after business hours of said bank had closed; and on presentation of said original note to the proper officer of said bank, on the 16th day of November, 1838, witness was informed by him, the proper officer, that no money had been deposited for that purpose, and therefore refused to pay it.”</p> <p>Plaintiff read a second deposition of the same witness, in which he deposes that “on the ldth day of November, 1838, a promissory note drawn by Keenan & Goodloej for $622.66, indorsed by D. S. Goodloe & Co., was handed me by the proper officer of the Branch of the Bank of the. State of Alabama at Decatur, as notary public. I protested the said note, as bound by law. On the day and year above mentioned the notice was sent to Keenan & Goodloe, Tuscumbia, Ala., the makers; D. S. Goodloe, indorser, Tuscumbia, Ala.; Jesse Godley & Co., Philadelphia, Pa. My reason for sending the notices as above stated, was from the information received from the cashier, and other officers of the bank, who are always required to.state where the notice should be sent. They were deposited in the post-office at Decatur in time to go by the first mail. I have no recollection of any other fact in relation to the above protest. I made inquiry of the cashier and other officers of the bank, and received the information before stated at the time I made the demand, and the payment was refused; and I presume that they, the officers of the bank, knew the proper post-office to direct to D. S. Goodloe, Jr., as they were the holders of the notes. Knows William Gregg; he was a clerk in the bank, and has no doubt if he was there, inquiry was made of him, as he generally gave directions as to notices while he remained there; does not know whether the officers of the bank made any inquiry in relation to the residence of the defendant or not; but the officers of the bank, the then holders, directed me to send the notices as before stated. Was acquainted with D. S. Goodloe, Sen., and other members of the family. D. S. Goodloe, Sen., lived at Tuscumbia.”</p> <p>It is not deemed necessary to set out the residue of the proof ’ at length.</p> <p>On the part of the indorser, Goodloe, it is proved that his place of residence and nearest post-office was not Tuscumbia, but La Grange, about ten miles from Tuscumbia; and several depositions were read to show that by inquiries at Tuscumbia, and of the makers of the note, and others, the notary might have learned that La Grange, and not Tuscumbia, was the proper post-office of Goodloe.</p> <p>The notary is proved to be a man of veracity and fidelity in the discharge of his official duties.</p> <p>At the instance of the plaintiffs below, the court gave the following instruction to the jury:</p> <p>“ If the jury believe, from the evidence, that the notary was ignorant of the place of residence of the indorser, and could not ascertain it after diligent inquiry, and that he sent notice to the place where the note bore date, this is sufficient to bind the indorser.” To which the defendant excepted.</p> <p>And at the instance of the defendant, as follows:</p> <p>“ 1. That in order to charge the defendant as indorser, it is incumbent on the plaintiff to prove that timely notice was given to the defendant of the non-payment of the note, if it could be done; or, if this conld not be done, the plaintiff must show that the holder has used due diligence to give such notice.</p> <p>“2. To constitute due diligence in this case, it must appear from-the evidence that the holder made inquiries of those persons of his acquaintance who were most likely to know the residence of the defendant, or where he was likely to be found, if such inquiries were practicable, and that as soon as the holder obtained the requisite information from such sources, he communicated the notice of non-payment to the defendant.</p> <p>“ 3. The opinion of the witness, as to what constituted diligent inquiry, is not evidence, but it is incumbent on the witness to state all the facts connected with such inquiry, from which the court and jury may determine whether such facts constitute a diligent inquiry or not.</p> <p>“6. It is incompetent for either party to discredit the statements of his own witness.”</p> <p>The following instructions, asked by defendant, were refused by the court:</p> <p>“ 4. The bank where the note was payable, and to which the note was sent for collection, was the holder of the note for that purpose, and the plaintiffs cannot avail themselves of ignorance of the defendant’s residence, as an excuse for the omission of actual notice, if it appears that the bank, through any of its officers, had knowledge of such residence.</p> <p>“5. If the declaration in this case avers that notice was given to the indorser, proof that diligent search was made for his residence, to excuse the omission of notice, will not support the averment; and unless the proof corresponds with the averment in this particular, the jury must find for the defendant.</p> <p>“ 8. It is not sufficient to charge the indorser in this case, that inquiries were made only where the note was payable.”</p> <p>The jury found a verdict for the plaintiffs, and the defendant moved to set it aside, and foi\a new trial, on the following grounds:</p> <p>“ 1. Because the verdict is contrary to the law and evidence of the case.</p> <p>“2. Because the court erred in its instruction to the jury on behalf of the plaintiff.</p> <p>“3. Because the court erred in refusing the instructions asked by the defendant.”</p> <p>Which motion was overruled; wherefore, and to the ruling of the court in admitting the first deposition of Jonathan Lane, the defendant excepted, and sued out this writ of error.</p> <p>Cited Story, Prom. Notes, 300, 301, 386, § 326; Wilcox v. Routh, 9 S. & M. 483; Paley onAg. 199; 4 Phil. Ev. (Cow. & H.) 30; 3 Camp. 262; Story on Bills, § 316, p. 370; Story, Prom. Notes, § 226; Harrison v. Crowder, 6 S. & M. 471; Colma v. Hunt, 2, S. & M. 227.</p> <p>cited Hunt v. Nugent, 10 S. & M. 54S¿ Grah. New Trials, 498; 6 S. & M. 255; Robinson v. Hamilton, 4 Stew. <fc Port. 91; 7 How. 648 ; 2 Greenl. Ev. § 197, and cases cited; 5 Pick. 441; 5 S. & M. 317; 3 Cow. 252; 5 S. & M. 49; Story', Prom. Notes, § 354.</p>

In error from the superior court of chancery; Hon. Stephen Cocke, chancellor. The defendants in error entered a motion to dismiss the writ of error in this case, because an appeal to a previous term had been dismissed.

In error from the circuit court of Lawrence county; Hon. Wiley P. Harris, judge.

In error from the circuit court of Wilkinson county; Hon. Stanhope Posey, judge. William C. Coon was indicted and tried at the December term, 1848, for the larceny of Caesar, the slave of James A. Stewart. He was found guilty, and his motion for a new trial being overruled, he embodied the evidence in a bill of exceptions.

In error from the circuit court of Perry county; Hon. A. B. Dawson, judge. On the point of the jurisdiction of the circuit court of Perry county to try the offence, cited and commented on 1 Hale, P. C. 425, 426. This authority is not sustained by reference to any decisions, and is not supported by the reasoning of the author. 1 Hawk.

<p>In a prosecution against one indicted for selling liquor to a slave, “ without the permission of the owner, master, or overseer,” it is not sufficient merely to prove the sale of the liquor to the slave ; the state must show affirmatively that the sale was made without the permission of the master, owner, or overseer.</p> <p>It was held, therefore, error for the court below, in such a prosecution, to instruct the jury that the permission of the owner, master, or overseer was a matter of exculpation of a positive nature, and that the jury might infer that there was no such permission, from the failure of the defendant to introduce proof of it.</p> <p>In a prosecution for selling liquor to a slave, “ without permission, &c.,” it was held error in the court below to refuse to instruct the jury “ that it was incumbent on the state to prove all the material facts constituting the offence as charged in the indictment, otherwise the jury must acquit the prisoner.”</p>

<p>In error from the circuit court of Adams county; Hon. Thomas A. Willis, judge.</p> <p>Cited Cody v. Stale, 3 How. 27; lb. 433; and contended that a fatal defect in an indictment could not be cured by an amendment.</p> <p>Cited Hutch. Code, 1005, § 65; 1 Chit. Cr. Law, 298.</p>

<p>An indictment for murder embraces within itself an indictment for manslaughter ; and the statute which declares that no person shall be prosecuted for any offence, other than murder, and certain other excepted ones, unless the indictment be found within one year after the offence has been committed, will apply to the case of a prisoner indicted for murder, but who has been guilty,of manslaughter only, precisely as though he had been indicted for the latter offence.</p> <p>A motion in arrest of judgment can only be sustained for matter apparent on the face of the record ; if, therefore, an indictment charge an offence to have been committed within the year previous to its finding, the judgment cannot be arrested because, in point of fact, it appeared in proof that it was not so committed.</p> <p>Where a prisoner was indicted for murder, it was held erroneous in the court below to refuse to instruct the jury that, if the offence did not amount to murder, but only to manslaughter, and were committed more than a year before the finding of the indictment, they must acquit the defendant.</p> <p>It seems that it is incumbent on the state, if a prosecution be not begun within the year, in order to sustain the prosecution, to show that the prisoner either fled or absconded in order to avoid the prosecution ; in either of which cases the limitation does not, as stipulated in the proviso to the act, apply.</p>

<p>In error from the circuit court of Lauderdale county; Hon. A. B. Dawson, judge.</p> <p>Cited Hutch. Code, 521; 1 Chitty, Cr. Law, 233.</p>

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. The opinion sets forth the facts sufficiently.

<p>It is not necessary, in order to the maintenance of the action of replevin under the statute, (Hutch. Code, 817,) even where the original taking was not tortious, that there should have been a demand of the possession before action brought.</p> <p>If, however, no demand be made, and the original possession of the defendant be lawful, he may tender the property to the plaintiff, and, upon its delivery, by proper plea, discharge the action; and the plaintiff might even be adjudged to pay the costs.</p> <p>But if the defendant do not pursue this course, and contest the action, the writ will be a sufficient demand, and defending the suit a refusal.</p> <p>After the jury, in an action of replevin, have rendered their verdict for the plaintiff, but have omitted to assess the separate value of the different pieces of property involved in the suit, and have been discharged, it is error to recall the same jury on the. next day, submit further evidence to them, and allow them to render another verdict assessing the separate value of each article.</p> <p>Whether the statute which authorizes the court, where a verdict in detinue omits price or value, to award a writ of inquiry to ascertain the same, extends to actions of replevin, quiere.</p>

In error from the circuit court of Noxubee county; Hon. Armstead B. Darvson, judge. This was an action of assumpsit, founded on a promissory note, the consideration of which was part of the purchase-money of a certain tract of land sold by Joseph May to James B. Feemster.

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

In error from the circuit court of Carroll county; Hon. Hugh R. Miller, judge. Tobias G. Grider, for the case of Samuel Moore, sued Wilson M. Aldridge, in an action of assumpsit on a promissory note for eigh'ty'-five5dollars. The defendant pleaded two special pleas of failure of consideration.

In error from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge. The opinion states the facts. Cited and commented on 1 Bouv. Law Die. 598; Serg. on Atta. 9; lb. 115; 4 Stew. & Port. 184; Serg. on Atta. 19, 20 • Holman’s Dig. 320; Peck’s Rep. 296; 5 Ala. 515; 11 lb. 643; 9 lb. 422; lb. 215; Hutch. Dig. 801, § 6; 8 Ala. 514; Burt v. Parish, 9 Ala. 218; l lb. 48; 3 lb. 44; 5 lb. 583.

In error from the circuit court of Harrison county; Hon. Wiley P. Harris, judge. The facts will be found in the opinion. Cited Carpenter v. State, 4 How. (Miss.) R. 168; H. & H. 490; 5 How. 32; 8 S. &M..297. Cited 1 Chit. Cr. Law, 388; 3 How. (Miss.) R. 28; 8 S. & M. 598; State v. Friar, 3 How. (Miss.) R. 422.

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge. The facts sufficiently appear in the opinion. Insisted that the notes were founded on an illegal consideration. They were made for the purpose of stifling a due scrutiny into the claim of Solomon C. Rice to a discharge under the bankrupt act. See Waite v. Harper, 2 Johns. R. 386; Bruce v. Lee Sp Mullilcin, 4 lb. 410; Tuxbury v. Miller, 19 lb. 311, 312.

In error from the chancery side of the circuit court of Tallahatchie county; Hon. Francis M. Rogers, judge. The facts will be found in the opinion. Cited 1' Story, Eq. 32; 2 lb. 173; Ib. 8S8; Whitaker v. Robinson, 8 S. & M. 349; Butts v. Collins, 13 Wend. 139; Curtis v. Treat, 8 Shep. 525 ; De Young v. Buchanan, 10 Gill & J. 149; 1 Story, Eq. 634, 635, 636. Cited Duncan v. Dyon, 3 Johns. Ch. Rep. 351; Thomas v. Philips, 4 S. & M. 358.

<p>In error from the circuit court of Panola county ; Hon. F. M. Rogers, presiding judge.</p> <p>John Edge sued William Jolly in assumpsit upon this account: i£ 1843. April 25. To this amount paid for you as your security on a judgment in the superior court of Baldwin county, Georgia, in favor of John S. Stephens, late sheriff of said county, for the use of the Central Bank, Georgia, against myself and others, $724.00.</p> <p>Jolly died, and the suit was revived against John H. Keith and another, his administrators.</p> <p>On the trial the plaintiff offered in evidence the transcript of the proceedings in a suit in Baldwin county, Georgia, brought by John S. Stephens for the use of the Central Bank of Georgia, against William Jolly, John Edge, and eight others. The declaration, which is in the form of a petition, alleged in substance that, on the 2d of March, 1841, the'Central Bank sued William Jolly for $2500; judgment was duly rendered for that sum and interest on the 17th of Nov. 1841; a fi. fa. issued against Jolly to plaintiff as sheriff, who levied on personal property of Jolly’s; whereupon Jolly, alleging the levy to be illegal, interposed his affidavit,.and executed a forthcoming bond with the other defendants according to law, and thereupon the property was delivered to Jolly. The condition of the bond was alleged in the petition to be in these words: “If the said William Jolly should deliver the aforesaid property, levied on at the time and place of sale, in the event of the cause, on the ground of the alleged illegality, being overruled by the court, and not otherwise, the obligation to be void.” The petition alleged that the affidavit was held insufficient and was dismissed, and Jolly did not deliver the property levied on at the time and place for its sale, and so the bond became forfeited. The processnvas not served on Jolly; the other defendants served with process plead, 1. That they did not owe the money; 2. That the plaintiff had not been damnified ; 3. If so, it had been occasioned by his own negligence. The cause was submitted to a jury, who found for the plaintiff, and a judgment was rendered accordingly; and a fi. fa. issued against all the defendants but Jolly. The record shows the payments by Edge sued for.</p> <p>The plaintiff then read the depositions of three witnesses, who proved the suretyship of Edge for Jolly in the forthcoming bond, and the payment by Edge as his surety of the money sued for.</p> <p>After other instructions the plaintiff asked these : viz., “ It is competent for the plaintiff to prove by parol that the liability was incurred by him as surety for William Jolly; and that the plaintiff paid the amount as such surety; that the fact- of securityship must be determined by the proof before them, and that the jury have nothing to do with the competency or admissibility of proof, but may judge of its sufficiency to establish any fact.”</p> <p>The court below refused to give these, but, in lieu of them, instructed the jury that “ the fact of securityship must be determined by the proof before them, and they had nothing to do with the competency or admissibility of proof, and might judge of its sufficiency under the instructions of the court. It is competent for the plaintiff to prove by parol his security-ship unless there is written evidence of that fact; if the jury believe from the evidence before them that there is written evidence of his securityship, then he must produce that or account for its loss before he can prove the fact by parol.”</p> <p>For the defendant, the court instructed the jury that “ the record in evidence before them was not evidence that the plaintiff became bound in the bond as Jolly’s surety, or that the bond was executed by Jolly as principal or the others as sureties; that the depositions in evidence before the jury could not be regarded as evidence that Jolly executed the bond as principal and plaintiff, and the others as his sureties, as stated in the depositions; that fact should be proved by other legal evidence, viz., the production of the bond itself, unless on proof of its loss or destruction, or its absence otherwise accounted for; and then on production of a copy of it.”</p> <p>The jury found for the defendant; and the plaintiff sued out this writ of error.</p> <p>1. That the proof, though secondary in its character, fully proved the fact of securityship ; and as the proof was read without objection, it was sufficient to establish the facts.</p> <p>2. The record of the judgment is evidence of the judgment as a fact, and its legal consequences. 4 Phil. Ev. 820, 821.</p> <p>3. To render objections to secondary evidence valid, they must be offered in season; when once admitted, it is too late. 3 Phil. Ev. 1213; Gaines v. Patterson, 3 Dana, 408; Williamson v. Johnson, 4 Munr. 254; 7 lb. 265; Pettigru v. Sanders. 2 Bail. 549; Kimball v. Morrell, 4 Greeul. 371 ; Concord v. McIntyre, 6 New H. 527-529; Callender v. Marsh, 1 Pick. 418, 425, 226; 2 Phil. Ev. 558; Blight v. Aberville, 7 Munr. 266; Tatem v. Payne, 4 Hawks, 64; Fleming v. Thomas, 4 J. J. Marsh. 48; Russell v. Union Ins. Co. 1 Wash. C. C. Rep. 440; 3 Phil. Ev. 789, and cases cited;' Bank of Alabama v. McDade, 4 Porter, 252, 263 ; Willard v. Warren, 17 Wend. 257, 259; 7 Serg. & Rawle, 273.</p> <p>4. The court’s charges were inconsistent, in first admitting and then excluding the parol proof; the sufficiency of proof to allow the introduction of. secondary evidence is a preliminary point for the court; once admitted, it is competent before the jury. Mure v. Pittman, 3 Hawks, 364; Utica Ins. Co. v. Cadwell,3 Wend. 296; Tayloe v. Riggs, 1 Pet. 591; Jackson v. Robins, 16 John. Rep. 581, 569; Rees v. Lawless, 4 Littell, Rep. 218, 220; 1 Dallas, 424; 3 Harr. <fc J.219; 1 Henn. 444; 3 Phil. Ev., Notes 1219, 1224.</p> <p>1. The proof was relevant, and could not have been objected to at the time, because the defendant could not know what the subsequent proof would be as to the absence of the bond ; the party had a right to introduce his proof in his own order. He objected to it as soon as its insufficiency appeared, and before the jury had retired.</p> <p>2. That the recitals in the transcript were not evidence. See 7 S. & M. 197, 204, 205.</p> <p>3. That it was necessary to have the bond in evidence. See 1 Greenl. Ev. § 82, 87, 88; 9 S. & M. 201.</p> <p>4. That the want of competent testimony to the bond was properly raised by instruction. See 1 Greenl. Ev. 421; 6 How. 32, 33.</p>

Ín error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge. The opinion states the facts. Insisted, 1. That the whole subject was in the discretion of the court below, and could not be revised. 2. If revised, the discretion was properly exercised.

J. T. M. Burbridge, judge. The facts will be found stated in the opinion. 1. On the point for the allowance of expenses and lawyers’ fees, cited 15 Yes. 277; 2 Atk. 126; Wm’s Ex’r, 1138, 1141; North, Prob. 171, n.; The Bank v. Trapier, 2 Hill, Ch. 26; 2 Daniel’s Ch. Pr. 1430. 2. The administrator should not have been charged with interest. Bunscomb v. Bunscomb, 1 Johns.

In error from the vice-chancellor’s court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. Thomas N. Niles moved to dismiss the writ of error sued out by Russel Stebbins and others, for reasons set forth in the opinion of the court. Cited Hutch. Code, 759; Flournoy v. Burke, 4 How. 337; Henderson v. Wilson, 4 S. & M. 732; Preira v. Silva, lb. 735 : Rogers v. Gallaway, 3 How. 58. Cited also Heckingbotlom v. Shell, 3 S. & M. 590; Hutch.

<p>An administrator or executor of an insolvent estate is under no obligation to lay before the commissioners of insolvency a claim upon which a suit was pending against him prior to the declaration of insolvency, and not reduced to judgment when the commissioners were appointed ; nor if such claim be laid before the commissioners and rejected, is the administrator or executor under any obligation to file exceptions to the report of the commissioners to the probate court, exhibiting such rejection.</p> <p>Where, therefore, a creditor of a deceased person sued the administrator, and pending the suit the estate was declared insolvent, and commissioners were appointed, who in due time reported, excluding the claim sued for, and the report was confirmed without exceptions from the administrator, whereby the estate of the deceased person was discharged from the debt, and the creditor sued out a scire facias to charge the administrator with the debt as for a devastavit: it was held, on demurrer to the scire facias, that it presented no cause of action against the administrator.</p> <p>The case of Trezevant v: McQueen, IS S. & M. 575, cited, and its reasoning and expressions, as to the liability of administrators for not presenting to the commissioners of insolvency claims against the estate on which they are sued, limited and overruled.</p>

In error from the circuit court of Wilkinson county; Hon. Thomas A. Willis, judge. Thomas MeCrossin, lessor of the plaintiff, instituted his action of ejectment, and the declaration was served on Angus Clark, tenant in possession. Clark, Mary Swayze, Elizabeth Middleton, Benjamin Kilgore and Catherine his wife, Lucinda Clark, David and John Mc-Neely, entered into the consent rule, were made parties defendants, and pleaded the general issue.

<p>In order to make the whole of the defendant’s answer to a bill of discovery evidence for the defendant when any part of it is introduced by the plaintiff, it is requisite that every part of the answer be responsive to the bill; those parts not responsive are not evidence for the defendant.</p> <p>Therefore, where, in an action on a note, the plaintiff required of the defendant a discovery as to whether the'latter had not forcibly and fraudulently taken the note from the plaintiff, and praying that the defendant, who was alleged in the declaration to have the note in possession, might file it with his answer; and the defendant answered, in effect admitting the taking of the note, and appending it to his answer, but at the same time setting up that the note was originally executed and delivered to the plaintiff, with the understanding that his title to it was not to be perfect until an additional signature was put to the note, and until the defendant should ascertain whether the consideration was a good one; it was .held that no part of the answer was admissible for the defendant but that which admitted the taking and set out the note.</p>

In error from the circuit court of Holmes county; Hon. Robert C. Perry, judge. Levi Cook and Moses Cook sued Nathaniel E. Rives on the 17th of November, 1847, for $720.67, money collected by the latter as attorneys for the former. The defendant plead non-assumpsit and the statute of limitations of six years.

<p>On appeal from the circuit court of Hinds county; Hon. George Coalter, judge.</p> <p>James R. Young, state commissioner, brought an action of indebitatus assumpsit, against Caswell R. Clifton. The plaintiff, in his declaration, alleges, in substance, that the commissioners of the sinking fund had obtained a judgment against John A. Grimball &c., on which an execution issued, which having been levied on slaves, a forthcoming bond was executed and forfeited.</p> <p>A fi-fa. issued on the forthcoming bond, which was levied on certain lands as the property of John A. Grimball; said lands were, on the 15th of May, 1843, offered by the sheriff for sale, when Francis S. Heard became the purchaser at $1600. On the 15th of June, 1843, Heard transferred his bid to Clifton, who then wrote to the sheriff to insert his name as purchaser, in lieu of the name of Heard, and that he, Clifton, “ would make the necessary arrangements.” The sheriff returned that Clifton had not paid said $1600; that a second venditioni exponas issued, in virtue of which the sheriff sold the same land, and John Shelton purchased it at $50; that the original judgment remains unpaid, except by said forthcoming bond, and that by reason of these facts Clifton became subject and liable to pay Young, as state commissioner, $1550, and being so liable, promised, &c., and has not paid. To this declaration a general demurrer was sustained, and Young appealed.</p> <p>cited Adams v. Griffin, 3 S. & M. 556-559.</p> <p>The judgment below should be affirmed for various reasons :</p> <p>1. If an action can be maintained by the commissioners of the sinking fund, or by Young, it should be in form ex delicto. There was no privity of contract between Clifton and the commissioners, or between Clifton and Young.</p> <p>2. But if an action, either ex contractu or ex delicto, would lie by the commissioners, or by the state, (the real beneficiary,) against Clifton, yet Young, the state commissioner, cannot sue in his own name, for there is no act of assembly vesting in him the legal title and legal cause of action, and there was no promise to, or contract with, him. He is authorized to enforce by suit the payment of certain claims; but so may every agent or attorney do, yet not in his own name. Like every other agent, he must institute his proceedings in the name of the person in whom is the legal title to the thing sued for.</p> <p>3. If the commissioners of the sinking fund have cause of action, it is not against Clifton. Heard was the purchaser at sheriff sale. Clifton, thirty days thereafter, writes to the sheriff to insert his (Clifton’s) name as bidder, and that he would make the necessary arrangements. It is not alleged that the sheriff did return that Clifton was the purchaser, but it is alleged that he did not pay the money bid. His contract, if he made any, was with Heard, after the sale. His promise to make the necessary arrangements was a promise to the sheriff after the sale. All the facts show that he was no party to the sheriff’s sale, and the remedy, if any, is against Heard, to whom, and to whom only, Clifton is responsible, if to any one.</p> <p>4. The declaration contains no allegation that Heard did not pay the money bid by him. The allegation is, that Clifton did not pay it.</p> <p>5. It is not alleged that the defendants in the execution are insolvent, or that other process of execution has been taken out against them and returned nulla bona. It is alleged, that, by Clifton’s failure to pay, plaintiff lost $>1550; but this cannot be, unless the sheriff had a right to release Heard, and unless the defendants were insolvent. The former, that is, the right of sheriff after the lapse of thirty days, is denied. The latter, the fact of insolvency, can in a court of law be tested only by process of execution.</p> <p>6. The land sold by the sheriff, and purchased by Heard, is not (in the declaration) at all identified or described. Whether it was situate in Hinds county, and subject to be levied on, does not appear. It should be identified, that we might show that the sheriff’s sale and deed would convey no title, and, therefore, that we were not bound to pay for it.</p> <p>7. It is not even alleged that-Grimball had any estate in the land subject to execution. It is only alleged that land was levied on as the land of Grimball. That may well be, and yet he might have had no estate in it subject to sale.</p> <p>8. It is not shown when the execution was returnable. The levy may therefore have been after the return day, and void.</p> <p>9. It is not shown where the sale was made. By law it can only be made at a particular place and on certain days, and within certain hours. A presumption that the sheriff performed his duty may be indulged to sustain these facts when alleged, but the presumption of a fact does not render the allegation of that fact unnecessary. The declaration should allege every fact essential to the validity of the sale, and legal presumptions of fact may then come in to supply the place of proof.</p> <p>10. The ground of demurrer, however, on which I mainly rely, remains to be stated.</p> <p>I contend that., where a sheriff sells land under execution, he has his election. He may, in the first place, insist on the execution of the contract, tender a deed, and sue for and recover the purchase-money, or, secondly, in default of payment, he may disaffirm the sale, and proceed again to sell the land; but that he cannot resell land and hold the purchaser for the difference, nor can the plaintiff do so.</p> <p>The cases of Hand §• Huddleston v. Grant, 5 S. & M. 511, Hyskill v. Givin, 7 Serg. & Rawle, 369, and Nichol v. Riddley, 5 Yerger, 63, are cases in which the sheriff sued for the whole purchase-money. Adams v. Griffith, 3 S. &. M. 556, is a case in which the sheriff resold, and it was held he could not recover. In the last-named case is a dictum that the plaintiff in the execution might maintain an action, if he lost, his debt. No question of the kind arose in the case. It is, therefore, supposed it will not be considered as decided.</p> <p>I do not contend that where the sale is of personal property, the sheriff may not resell, and hold the first purchaser for the deficit. But I do contend that the principle upon which this may be done is wholly inapplicable to sales of land. That principle is conceived to be this. When goods are sold, whether at private sale or under execution, so soon as the bargain is struck, the title to the goods vests in the bargainee, and to the money in the bargainor; but the bargainee may not take them away without first paying the price.</p> <p>The goods remain with the bargainor, as a pawn or pledge for the price; he has a right so to consider and treat them. If they be not paid for at the proper time, he may, as in case of the pignus, pawn or pledge, sell them to raise the purchase-money, and. by so much as they fall short of paying that purchase-money does the purchaser remain indebted. It is precisely as it would have been had the sale been made to reimburse borrowed money for which the goods were pawned.</p> <p>By the second sale, the purchaser takes the title which vested in the former purchaser when the goods were knocked down to him. By his failure to pay, the title did not revest in the sheriff, and then pass from the sheriff to the second purchaser, but passes from the sheriff to the first purchaser by the first, and from the first purchaser to the second, by the second sale. The sheriff, in making the second sale, acts as the agent of the purchaser at the first. In transactions between private persons, the sale being made, the vendor does not rescind the contract by reason of the non-payment, and then proceed to make a second sale of the goods, as his own; but he affirms the first sale, claims the purchaser as his debtor for the price, and proceeds to sell his debtor’s goods to raise money for his debtor, with which to pay the debt contracted by the purchaser of the same goods.</p> <p>When the sheriff levies or takes in execution goods, the debt for which the execution issued is by the levy satisfied, the title to the goods vests in the sheriff, and he sells them to raise the money which he was commanded to levy; and all his right, so far as it relates to the passing of title to the purchaser, to retain till the purchase-money is paid, to sell again on default of such payment, and to recover the deficit from the purchaser at the first sale, is but the same principle applied to sheriffs’ sales which is applicable to the sales of goods by private persons.</p> <p>Nothing of this applies to the sale of land under execution. By the levy on real estate no title vests in the sheriff, nor can he take possession. He can maintain no action respecting it, but all the title, possession, and right of possession, continues in the debtor. By the mere act of knocking down the property to the bidder, no title passes to the bidder. When the sheriff executes the deed, no title passes from the sheriff, for he acquired none by the levy. The. title passes directly from the debtor to the purchaser by the sheriff’s act, as does a title pass from the vendor to the vendee by the act of an attorney in fact. The deed, when strictly considered, is the deed of the defendant, acting by the sheriff, as in case of a principal acting by his attorney. The sheriff cannot retain the land until the money is paid, for he has neither title nor possession to retain. He cannot make the second sale to convey the title which the first purchaser obtained by knocking the property down to him, for he obtained none by that act. All he can do is, to regard the contract entered into by the bidding and knocking down the property as an open executory contract, and, insisting on its fulfilment, proceed to enforce its execution by suit or action; or he may elect to dis-affirm it, and proceed to sell the property again, precisely as an individual may, who, having sold land, may go for a specific execution, or may resell at his election if the money is not paid ; but he cannot insist on the purchase as a subsisting contract, and resell as a disaffirmed contract: that involves a contradiction. Upon a rescinded contract, no action can be maintained j and on a subsisting contract, if the purchaser has to pay the price, he must be entitled to the thing purchased and for which that price is paid.</p> <p>Cited Jackson v. Catlin, 2 John. 248; Ennis v. Waller, 3 Biackf. 472.</p>

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. The opinion states the facts. Insisted that the act creating the action of replevin did not require the separate assessment of the value of each article; and if it had, the omission to do it would not be ground for a new trial. Warner v. Aughenba-ugh, 15 Serg. & Rawle, 9.

Springs; Hon. Henry Dickinson, vice-chancellor. Hamilton Thornton sets forth in his bill that, on the 22d of March, 1839, Howell & McKendree obtained judgment in Marshall county against Boarland & Early, for $2292.25, which was bonded with Daniel McNeeill as surety, and the bond forfeited August 5, 1839; that this judgment was assigned by Howell & McKendree to Rawson H. Byrne, and by Byrne to complainant, for full and valuable consideration; after this assignment, an…

Henry Dickinson, vice-chancellor. Jacob N. Johnson filed his bill to subject a tract of land sold by him to John D. Sugg, to the payment of the purchase-money ; and in his bill he alleges that he took from him therefor his note with personal security. It is not deemed necessary to notice the other facts in the cause. The vice-chancellor dismissed the bill, and the complainant sued out this writ of error. Cited 2 Story, Eq.

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

In error from the circuit court of Macon county; Hon. A. B. Dawson, judge. William M. Cozart and William H. Shelton sued R. M. Clop-ton and others for the damages suffered by them in the sale of goods to one Jacob F. George, to which they were induced by a written certificate in behalf of George, executed by the defendants, and which is set out in the opinion of the court; and which was alleged to have been false, and so known to be, by the signers, when executed.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. Nopholite Pippin sued out an attachment against Winfred T. Brodnax, and on its return filed a declaration in the name of Robert M. Brodnax, the payee, for his use. On the trial, the bill of exceptions recites, “ that after certain alleged proofs; tending to show fraud and want of consideration in the note,” Pippin offered Robert M. Brodnax as a witness.

<p>On appeal from the circuit court of Panola county; Hon. Francis M. Rogers, judge.</p> <p>The facts are stated in the opinion.</p> <p>On the point on which the case turned, cited Marlow v. Hamer, 6 How. 189; lb. 500; 1 S. & M. 340; 6 lb. 47; 7 lb. 39; 8 lb. 711; and insisted that the last case was in conflict with, and should yield to the former.</p> <p>relied on Proslcey v. West, 8 S. & M. 711, as settling this point.</p>

Henry Dickinson, vice-chancellor. George R. Clayton, administrator de bonis non of John Oliver, deceased, on the 20th of April, 1846, filed his bill to foreclose a mortgage executed by Ager T. Morse and Daniel Baldwin, to secure the payment of three writings obligatory executed by them; there were nine other defendants who were alleged to be interested in the property mortgaged, and to hold subject to the mortgage.

• In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. Held: that “the writ of unlawful detainer is a possessory action merely, and the title of the parties and the right of property are not involved in it.” 5. Again, there was no privity shown, or .attempted to be shown, between the defendant arid John Roy, who, it was claimed, was entitled to the premises. This was indispensable.

<p>C. & M. made the following agreement, viz.: “ M. agrees to take into partnership said C. in a certain lot in the city of Jackson, for and in consideration of one hundred and sixty-five dollars, and that both parties are to hold the land in company ; M. promises C. to pay his half of the above sum, being eighty-two dollars and a half, on or before the first day of May next; and failing in doing so, shall forfeit his claim thereto if not paid within at least three months after said first day of May next.” C. paid the money, and took the title in his own name; M. in due time tendered his half of the purchase-money without interest to C., who refused it: Held, that the written agreement was not void under the statute of frauds; it specified the terms sufficiently to enable the court to decree its specific performance.</p> <p>Nor was it void for uncertainty, because the lot was not described ; the lot for which the money was paid was the one intended, and that being disclosed ' in the pleadings was sufficiently identified.</p> <p>Nor was M. under the contract bound to tender more than one half the purchase-money without interest; yet if he were, as no objection was made to the amount of the sum tendered at the time, but it was rejected on another ground, it would not avail as an objection afterwards.</p> <p>Nor was it any objection to a specific performance being compelled, that M. refused to pay C. one half the expense of inclosing the lot; under the agreement M. was not bound to do so.</p>

<p>The clerk of the circuit court is required to give bond conditioned for the faithful performance of the duties of his office; whatever, therefore, is a duty required by law is covered by the condition ; and a failure to discharge such duty is a breach of the bond, for. which the injured party may recover damages commensurate to 1he injury.</p> <p>It is, under the statutes of this state, the duty of the clerk of the circuit court to make out proper dockets of causes in the order required by the law ; and a breach of this duty is a breach of his bond, for which he will be liable in an action to any party injured thereby.</p> <p>In an action on the official bond of a clerk of the circuit court, the plaintiff alleged as a breach that he had instituted his suit, (the parties to which and cause of action he described,) to a particular term at which it was brought to issue, and he was entitled to a trial, and would have obtained a judgment at the next term, had the case been put on the docket; but the clerk omitted to place it there, by which omission he lost the opportunity of a judgment at that term, and thereby lost his debt by reason of his debtor’s insolvency, which, if he had obtained judgment at the proper time, would not have been the case: Held, that the breach was well assigned, and exhibited a cause of action against the clerk.</p> <p>The omission to discharge a duty prescribed by a directory statute, may not vitiate the proceedings of the officer as to third persons ; but he is liable to any party injured by his failure.</p> <p>In an action on the official bond of a clerk of the circuit court, the suit must be brought in the name of the governor of the state for the use of the aggrieved party ; whore, therefore, a suit has been instituted by one for the use of another, and the latter desires to sue for neglect of the clerk in the conduct of the suit, on his official bond, he must institute the suit in the governor’s name, for his own use, and not for that of the nominal plaintiff.</p>

<p>On appeal from the circuit court of Wilkinson county; Hon. Stanhope Posey, judge.</p> <p>The West Feliciana Railroad Company sued Samuel Stockett, as administrator, upon a note made by E. Stockett, deceased. The defence was the statute of limitations. The jury found for the defendant, and the plaintiff appealed. The opinion states the facts.</p> <p>Reviewed the statutes, and cited Abbott v. McElroy, 10 S. & M. 100.</p> <p>Cited Hutch. Code, 669, $ 105; lb. 831, § 12; lb. 674, $ 1; Robertson v. Alford, MS.; Dowell v. Webber, 2 S. & M. 452; 13 Wend. Rep. 267; Greenway v. Hunter, Meigs, Rep. 73; Dawes, Judge, v. Shed et al. Ex’rs, 15 Mass. 6; 11 Maine Rep. 150,; 14 lb. 254; 16 Mass. Rep. 429; Ang. Lim. 167 (n.)</p>

<p>In error from the circuit court of Hinds county; Hon. George Coalter, judge.</p> <p>William H. Boles was tried and convicted of murder for the second time. See Boles v. Slate, 9 S. & M. 284. The points excepted to on the last trial will be found in the opinion.</p> <p>1. On the discharge of the juror referred to, cited Hutch. Code, 1007, art. 7, § 1.</p> <p>2. As to the conduct of the jury, cited Hare v. State, 4 How. 187; Commonwealth v. Robes, 12 Pick. 496; Commonwealth v. McCaul, 1 Virginia Ca. 271; McLain v. State, 10 Yerg. 241; Knight v. Inhabitants of Freeport, 13 Mass. Rep. 218; Perkins v. Knight, 2 New Hamp. 474; People v. Douglass, 4 Cow. 26; Brant v. Fowler, 7 Cow. 562; McCann v. State, 9 S. <fc M. 465 ; Me Quillen v. State, 8 lb. 596.</p> <p>1. On the first point, cited Ratals v. State, 8 S. & M. 599; State v. Shaw, 3 Iredell, 532.</p> <p>2. On the other point, in addition to the authorities cited by associate counsel, cited Nelms v. The State, supra.; Const. Miss. Art. 7, § 1.</p> <p>1. There have been two concurring verdicts of guilty in this case. See Boles v. State, 9 S. & M. 284; 5 B. Monroe, 20; 1 S. & M. 412. As to propriety of new trial generally in the case, see Jones v. State, 1 Kelly, 618; Patteson v. Ford, 2 Grattan, 24, 25; Weinzorpflin v. State, 7 Black. 198.</p> <p>2. As to irregularities of the jury as ground of new trial, see 5 Missouri R. 525 ; 11 Leigh R. 633, 714; 4 Humph. 27; 10 Yerg. 529; 5 Iredell, 58; 12 Pick. 496; 3 Bibb, 8; 7 S. & M. 45.</p> <p>3. The excusing and discharge of the special venire by the judge, for proper reasons as shown, is no error. It was an exercise of a discretion which judges are bound to use.</p>

<p>The case of Magee v. Gregg, 11 S. & M. 70, cited and confirmed.</p> <p>The verdict of a jury will not be disturbed because irrelevant testimony has been excluded, or irrelevant instructions given or refused, if it is apparent that the jury have not been misled, and thereby been induced to return a verdict contrary to the law or the evidence.</p> <p>In an action of detinue for a slave, the plaintiff claimed as administrator of the legatee of the former owner; the defendant claimed as purchaser at a sale by the administrator of the former owner; the great preponderance of proof was, that the slave was not included in the legacy to the plaintiff’s intestate, and the jury found in accordance with the weight of proof for the defendant; it was held not sufficient to set aside the verdict, that the court below had erroneously refused to allow a witness to answer when asked by plaintiff, whether the estate of the former owner of the slave was not sufficient to pay his debts without an abatement of the legacy to the plaintiff’s intestate; and had also erroneously instructed the jury, that the estate of the former owner must have been settled up by the probate court, and a decree rendered by that court in favor of the intestate of the plaintiff for the slave, before he could recover in that suit.</p>

<p>In error from the circuit court of Panola county; Hon. Francis M. Rogers, judge.</p> <p>The facts will be found in the opinion.</p> <p>Insisted that there were numerous fatal defects in the record, which he pointed out; and among others, that no prosecutor was marked on the indictment.</p>

<p>By the statute of 1836, the three per cent, fund was distributed amongst the several counties in the state, and placed in the custody and under the control and management of the boards of police, who were directed to apply this fund or its interest to the opening of roads and canals; by the act of 1837, (Hutch. Dig. 713,) boards of police having surplus funds were authorized to invest them in such stocks as they might deem advisable : Held, that, under these statutes, a note executed to the president of the board of police of Clarke county, for a portion of the three per cent, fund loaned out by the board to the maker, was a valid contract, and its collection could be enforced.</p> <p>If a corporation make a contract entirely foreign to the purposes of its institution, the contract is void for want of power in reference to the subject-matter ; but if it make a contract in reference to a subject embraced within the scope of its granted powers, but in doing so exceeds them, the contract is not void, and may be enforced.</p> <p>Where a note is made payable to the president of the board of police and his successors in office, the suit on the note is brought properly in the name of such successor.</p>

<p>■ On appeal from the vice-chancery court at Natchez; Hon. James M. Smiley, vice-chancellor.</p> <p>John B. Conger filed his bill on the 30th of January, A. D. 1S47, against John Watt, Glendy Burke, and Louis De Saulles, partners, under the style of Watt, Burke & Co., in which he states that, in 1838, a settlement was made between him and Watt, Burke & Co., of accounts which had been running and open for many years, and complainant gave his notes for the balance which was found to be due by him to defendants; charges said notes to have been taken for a larger sum than was actually due, and payable to Burke alone, when his. dealings had been with Watt, Burke & Co., and to have been so taken in order to have suit instituted in the United States circuit court; that suits were accordingly instituted in said court, and, in the fall of 1839, owing to the negligence of complainant’s counsel, judgment by default was taken for $2990.81; that this judgment was enjoined by complainant on the chancery side of said court, and an investigation sought of the accounts, prior to the date of said notes, between the said parties; these matters were compromised, and his bill dismissed in 1840, when an agreement was made between them to this effect, — that this judgment, and also one in favor of Fisk, should not be pressed against complainant, but that complainant should ship his cotton, as before, to defendants; they should transact his business as before, and that the net balances in complainant’s favor should be annually applied by defendants to the payment of said judgments; in consequence of all which, complainant agreed to waive any objections to said judgments, and to pay the same as proposed; that complainant shipped cotton to defendants, and in July, 1S41, had in defendant’s hands $18,320.22; in June, 1842, he had a balance of $26,433.40 in defendant’s hands.</p> <p>The bill gives statements of the overcharges of defendants in their accounts, by correcting which he insists that this balance of $26,433.40 would be increased. That defendants did not credit the judgment held against him with this balance so due, but only with $6252.51. That since June, 1842, and prior to July, 1844, complainant had shipped to defendants cotton worth $45,000, and this, added to the balance aforesaid, exceeds $70,000. Yet, since July, 1844, defendants have sold, under the judgment aforesaid, rendered in 1839 in the United States circuit court, ninety valuable slaves; charges said sale to have been brought, about by Watt’s agency. That at the date of, and prior to, said sale, complainant was indebted to several creditors in various sums, and from Watt’s representations complainant was induced to believe that some $20,000 were still due on the Burke judgment.</p> <p>Complainant “ was threatened with coercive steps in relation to various of these claims.” Watt suggested to complainant that he could induce one of complainant’s creditors (Mr. Fisk) to wait, who had a mortgage on land and slaves to secure his claim, and proposed that the marshal should make a levy on some ninety slaves, to satisfy the balance alleged to be due on the Burke judgment; that they should be sold under the judgment and purchased in by Watt; that Watt & Co. would then return them to complainant, “ to remain in his employ, and that thus, by the labor of the negroes, thus secured from levy, to satisfy other claims by this sale, and the labor of those mortgaged to Fisk, complainant would be able to pay the balance due Burke and Fisk, and at the same time secure himself a home.” Confiding in this, complainant assented to the levy. At the sale, thus made, a lot of slaves was struck off to a bystander, when Watt came to complainant and said, “ that it was policy to allow some to be thus disposed of, as it showed that he (Watt) was not compelled to buy them in, and thus the balance would be bought in at $10,000 less than if the bystanders were to suppose they could run them up on said Watt, and, as a consequence, complainant would have a greater number of hands protected from further annoyance, under the arrangement said Watt had proposed.” During the whole sale complainant was induced to think Watt was acting as his friend, and therefore took no interest in obtaining bidders, or in endeavoring to receive the full value for his said property, and permitted it to be bid off at a price far below its value.</p> <p>States that said negroes were not returned to • complainant’s plantation after the sale, but that next day, two persons called as agents of defendants, with the information, that, in order to avoid difficulties with other creditors, it was necessary that complainant should leave the plantation, with his family, as Mr. Watt had ascertained that unless he or his agents were in possession of the plantation when the slaves were returned, he would not be able to hold them against other creditors; and therefore proposed that complainant should, for a time, leave the place in charge of defendant’s agents, which complainant did, and went to Kentucky. After his departure, Watt aided and countenanced a sale of the land, &e., under Fisk’s mortgage, which was made at a great sacrifice, under the decree in favor of Fisk; and that defendants took off the negroes so purchased by them, under the fraudulent and delusive pretence that the purchase was intended to put it in complainant’s power to work out of debt.</p> <p>States that the sacrifice at the marshal’s sale in 1844 was some $20,000, and it would not have taken place but for Watt’s deceit, &c. That said slaves, so purchased by Watt, can only be held by defendants as trustees for complainant. That if the terms of the agreement of September, 1840, had been carried out by defendants, the judgment of Burke would have been paid, or nearly so; and that the admitted balances on hand to complainant’s credit would have extinguished, and, in equity, did extinguish, the judgment, before the sale of July, 1844; and that said sale is void and should be set aside, and the property, so purchased, held as trust property, and should be delivered up, with hire, or paid for.</p> <p>States that in July, 1844, complainant sold to Mr. Chaplain, Big Black Island, in payment of which, Chaplain gave his note. Said note was indorsed by Watt, and placed in the hands of a third party, until the title should be made. Complainant assigned the note; and after malting the title, his assignee called on the person holding said note therefor, and as he was about to deliver it, Watt forbid it, unless complainant would credit on said note $1612.67, being an alleged account, held by Watt, against complainant, and for which Watt threatened tedious litigation unless said credit was allowed ; and complainant, being obliged to use said note, had to allow this credit, in order to obtain possession thereof; avers that he did not owe to Watt this sum of $1612.57.</p> <p>Complainant examines the various items-of the account before mentioned, of $1612.57, which he had paid by allowing a credit on said note of Chaplain’s to that amount. States that defendants charged usurious interest on said judgment by compounding the same, as appears by exhibits to the bill, and submits that upon a reference to a commissioner he is entitled to a credit to that extent, with interest thereon. That Watt offered and gave him his draft for $1500, on Watt, Burke & Go., at Natchez, which he stated would be cashed; that this was about the time of the sale of 22d of July, 1844; this draft complainant did not present for some time, and when it was presented by Capt. Pease, to Watt for payment, said Watt took possession of it and kept it, and never did pay it. That the balance shown by defendants to exist in favor of complainant, in June, 1842, and of $40,000 paid in cotton in the two following years, and the proceeds of the sales of the negroes in 1844, all have been absorbed in this judgment, and that though defendants during this time may be entitled to some credits, still such credits could not consume the balance in defendants’ hands, belonging to complainant. That defendants have not carried out the agreement of 1840, crediting the judgment of Burke with the cotton delivered, and allowed him the benefits and advantages, under which defendants induced the acquiescence of complainant in the sale of his said ninety negroes, in July, 1844, and have refused and neglected to place to the credit of complainant, on said judgment, various amounts, &c., heretofore mentioned; and complainant charges, that defendants deny these sums to have been received, and that such amounts were in their hands applicable to said judgment, except the proceeds of said sale of negroes.</p> <p>After other charges, &c., the bill prays that an account may be taken of all the dealings between complainant and defendants, and defendants be decreed to refund the balance due to him. That the sale of slaves, had under the Burke judgment, may be set aside and taken for naught, and said defendants be decreed to deliver back to your complainant the slaves so sold, Avith a fair hire, and if they shall have sold them, then to pay the value, and that such other and general relief maybe granted.</p> <p>The subpoena in this case was served on John Watt, only, the ' other defendants being non-residents, and not before the court, the bill alleging their non-residence. To the bill Watt filed a general demurrer, and an answer in aid thereof, denying all fraud; the demurrer was overruled generally, and leave given to answer in sixty days. ■ ■</p> <p>1. That the portion of the bill Avhich sought to go behind the judgment Avas clearly, beyond all question, demurrable. He cited 2 Daniel’s Practice, 185 ; Story, Eq. PI. § 446, 781; S. & M. Ch. Repi 11U ; French v. Shoiioell, 5 J. C. R. 565 ; 3 S. & M. 439 ; 6 lb. 723 ; 7 Johns. R. 161; Cooper v. Hatton, 12 Price, 462.</p> <p>2. The complainant is seeking relief against the consequences of his own fraud. His standing by and assenting to a judicial sale under a judgment which he knew was satisfied is the same thing, when its object is thus disclosed, as if he had made of his own act, a voluntary conveyance Avith intent to defraud his creditors. Roberts on Frauds, 646; Osborne v. Williams, 18 Yes. 379; 11 lb. 168; Douglass’ R. 695; 1 Story, Eq.$61, 361; 4 Peters, 189; 16'J. R. 189; 7 lb. 161; 4 Cow. 207; lb. 216; 8 lb. 406; 11 Wheat. 258; 4 Mass. 354; 3 Yes. 612; 1 Burr. 474 ; 5 Binn. 109 ; 2 Yern. 602.</p> <p>3. Courts of equity will not assist a party to recover an estate conveyed for an illegal purpose, nor will they lend their' aid in favor of a party seeking a discovery in aid of an action which is against public policy. Story, Eq. PI. § 556. The maxim, "in pari delicto potior est conditio possidentis,” applies where an agreement is no longer executory, but executed, and where the transaction is immoral or a violatiou of the general laws of public policy, and not merely an infringement of those laws which are calculated for the protection of the subject against oppression. 2 Kent, 467 ; 4 Phil. Evid. 119; Hoioson v. Hancock, 8 T. R. 576; Burt v. Place, 6 Cow. 431; 1 Story, Eq. Jur. § 298, note; Rider v. Kidder, 10 Ves. 366.</p> <p>4. This bill is filed by the party himself, not by nor in behalf of his defrauded creditors. Downs, v. Quarles, Lift. Sel. Cases, 489.</p> <p>5. The specific prayer that this court will set aside a judicial sale under federal court process, asks what is not within the jurisdiction of the state court. White v. Hall, 12 Ves. 324; 2 Story, Eq. Jur. § 900.</p> <p>6. The specific prayer, that defendant be decreed to hold the property in trust for complainant under the agreement, asks the court to aid in executing a fraudulent and illegal trust.</p> <p>7. If complainant is not entitled to an account .of the profits of his own fraud, nor to a decree setting aside a sale made by the federal court, nor to an execution of a trust, which he shows was intended as a fraud upon the rights of others, the bill should have been dismissed, because no other relief is sought except in the conjunctive. Pleasants v. Glasscock, 1 S. & M. Oh. 25.</p> <p>8. The charge, that defendants retain possession of their own acceptance, is not subject-matter of equity jurisdiction. Trover would lie.</p> <p>9. The account which was paid by a credit on the Chaplain note, has no connection with the other matters of the bill. It stands by itself; complainant allowed the set-off with full knowledge of all the facts and under advice of his counsel. If recoverable at all, assumpsit at law is the remedy.</p> <p>Argued the case at length, and cited Story, Eq. PI. 355; l McCord, Ch. Rep. 161 ; 10 Price, 62'; 9 Pick. 212; 1 Madd. Ch. Pr. 76, 262, 267 ; 2 Atk. 592; 1 Fonbl. 115; 3 P. Wm. 315,; 2 Sch. & Lef. 474; 5 Ves. 491-493; Cowp. 200; lb. 702; Doug. 670; Bull. N. P. 132;' Austin v. Winston, 1 Hen. & Munf. 32; Dealty v. Murphy, 3 A. K. Marsh. 475; Gore v. Somersall, 5 Monr. 510; Hough v. Young, 2 Ham. 501.</p>

<p>Walker v. Comm’rs of Sinking Fund, 6 How. 143, cited and confirmed, deciding that the commissioners were trustees, and could sue at law on contracts concerning the fund.</p> <p>Young v. Hughes, 12 S. & M. 93, cited and confirmed, deciding that the state commissioner, appointed under the act of 1844, has succeeded to the trust in reference to the sinking fund, and can sue as the commissioners could have sued on contracts made with them.</p> <p>After the passage of the act of 1844, creating the state commissioner, a judgment was recovered in the names of the commissioners of the sinking fund, in a suit instituted by them before the passage of that act; the state commissioner afterwards sued out a scire facias, to revive this judgment in his name : Held, that the judgment in favor of the commissioners, rendered after the creation of a new trustee, was not void ; at most it was but erroneous, and must stand till regularly reversed.</p> <p>It seems, however, that the judgment was properly rendered in favor of the commissioners of the sinking fund ; they had begun the suit, and there was no prohibition, in the act appointing the state commisssioner, to their prosecuting it to judgment.</p> <p>Nothing which could have been urged as a defence to the original judgment, can be raised as a defence to a scire facias to revive that judgment.</p> <p>Where, therefore, parties sued by the commissioners of the sinking fund before the act of 1844, creating the state commissioner, allowed them to prosecute their suit to judgment, in their names, after the passage of the act: it was held, that if the former commissioners, by the act of 1844, were deprived of all right to sue, it was a matter of defence, on the part of those sued, to the rendition of judgment; and if they allowed judgment to go without making it, they could not afterwards make it to a scire facias to revive the judgment.</p>

<p>Judgments rendered prior to the 24th of February, A. D. 1844, by virtue of the act of limitations approved that day, lost their lien on the 24th of February, A. D. 1846 ; and a levy made in the interval on property, whether real or personal, under execution upon such judgments, would not preserve the lien on the property levied on, from the date of the judgment.</p> <p>Therefore where B., on the 1st of October, 1838, obtained a judgment against R., which was enrolled on the 26th of June, 1844, and execution issued on it February 19, 1846, and was levied on the 23d of February, 1846, on a slave as the property of R.; and P., on the 27th of May, 1839, obtained a judgment also against R., an execution on which, in April, 1841, was levied on the same slave, whó was sold in May, 1841, to M.: it was held, that, by the sale of the slave to M., the title thereto passed to M. subject to the lien of the judgment in favor of B.; but that judgment having lost its lien on the 24th of February, A. D. 1846, before it was perfected by a sale of the slave under it, M.’s title to the slave was freed from that lien, and became absolute.</p> <p>The same rule, with reference to the limitation of the lien of a judgment after the 24th of February, 1846, where a levy has been made, but no sale made before that day, prevails as to personal, that exists as to real estate; the levy and seizure of the personalty, by the sheriff, vests no other title in the sheriff than that given by the lien of the judgment and the execution to enforce it united ; and when the lien has expired to that extent, the right of the sheriff is at an end.</p>

<p>On the 17th of February, A. D. 1845, M. executed a bill of sale of a slave to P., and received therefor from P. $ 150 in money and P.’s note for $200, due in two years' thereafter; M. retaining possession of the slave, and agreeing verbally with P., that if M. should, by the maturity of the note made by P., pay the purchase-money, $350, to P., and should pay hire for the slave at the rate af $ 37.50 per annum, the contract of sale should be rescinded; the next day P. gave M. a written memorandum to a similar effect; the slave, at the time, was worth $550, and her annual hire $85 per annum : Held, in view of these facts, the contract between P. and M. was a mortgage, and not a conditional sale.</p> <p>The statute (Hutch. Code, 606, $ 5,) regulating the liens of mortgages and deeds of trust, and the period of their talcing effect, does not apply to mortgages executed out of this state on property out of the state ; and therefore where such property, so mortgaged abroad, is afterwards brought into this state, the mortgagee does not lose his right by omitting to record his mortgage in this state, even as against bona fide purchasers for value, without notice of such mortgage.</p> <p>While personal property under mortgage is not subject to seizure and sale under execution, or ordinary attachments at law, a different rule prevails as ! to distraints for rent, under the statute (Hutch. Code, 810,A 10,) which pro vides, that “any limited property or interest” in the goods and chattels attached, may be distrained and sold for such interest as the tenant may have.</p>

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. • The facts are sufficiently stated in the opinion. Cited 1 Phil. Ev. 108; Bull. N. P. 236; 3 Esp. N. P. 113; 5 Munf. 507;- 1 Call, 19; 4 Watts, 165; 6 Leigh, 440; 7 Blackf. 258; 1 TJ. S. Dig. 536, § 11; 1 Ann. U. S. Dig. 124; Norris’s Peake, Ev. 41, 42; 2 Stark Ev. 26; 7 Cow. 172; 8 lb. 201; 1 Greenl. 232; 4 C. & P. 202; 8 lb. 388 ; 2 Camp. 106; 18 John. R. 288; 4 Dev. & Batt. 208; 1 Sup. ü.

<p>When an appeal has been taken from a decree in chancery, dissolving an injunction, and the decree is affirmed and the case remanded, and an amended bill is afterwards filed, upon which a new injunction is granted, and upon the refusal of the chancellor to dissolve it, it is on appeal dissolved by the appellate court, upon which a supplemental bill is filed and a third injunction granted; this last injunction will be regarded as having been granted exclusively upon the allegations and statements of the last supplemental bill, and the former decisions will be regarded as conclusive on all the rights of the parties to the case, to the extent of the points adjudicated.</p> <p>F. and B., alleging themselves to be the owners of the equitable title to a tract of land, the legal title to which was in C. and D., gave G. a bond, with covenants of warranty, to make him a title to the land, and took from him his notes for the purchase-money, payable in instalments, G. having full knowledge of the nature of the title of F. and B. ; afterwards G. being being sued for the purchase-money by an assignee of F. and B., a judgment at law was obtained against him, and he filed his bill for an injunction, on the ground that, since the rendition of the judgment, the heirs at law of D. had obtained a judgment in ejectment against him for an undivided half of the land, which judgment was in full force and unreversed : Held, that there being no fraud on the part of F. and B., and it not affirmatively appearing that they could not enforce their alleged equitable right to the tract, or that it was any thing more than the naked legal title in the heirs of D. outstanding against them, no sufficient ground was laid for the injunction.</p> <p>It seems, however, as between the original parties it would have been otherwise if the judgment in ejectment had been in favor of one having the paramount legal title, or if it had been made to appear, by proof, that there was ■ a perfect title in the heirs of D., both legal and equitable, so that F. and B. could not coerce title from the heirs of D. and C. for G.</p> <p>Where the vendee of land, knowing that his vendors claimed but equitable titles to the land, took from them a bond to make title with covenants of warranty, and executed his notes for the purchase-money, payable at fixed times, to the vendors, one of which the vendors assigned away for value to a bond fide purchaser; and afterwards, when the assignee sued the vendee upon the note thus assigned, the latter set up in equity, as a defence, that the title to one half the land had wholly failed, his vendors not having even an equitable title to that half: Held, that while it is generally true, that the maker of a note may set up any defence against the payee, yet as the vendee in this case purchased, with knowledge of the defect of title, and protected himself by covenants of warranty, and actually had obtained title to one half the land, it would be inequitable and unjust to allow him to evade the payment of the note in the hands of the assignee without notice.</p> <p>It seems that where relief in equity is sought by the vendee of land against the payment of the purchase of money, on the ground of failure of title, he need not wait until actually evicted before he can apply for relief; it is ordinarily sufficient if a judgment in ejectment has been had against him, though it has not been executed.</p>

<p>The statute which requires the clerk to take down the charges given or refused by the circuit judge, and makes them a part of the record without bill of exceptions, does not apply to criminal cases.</p> <p>In an indictment for betting on a presidential election, it is not necessary to allege that the election was held ; the indictment alleged the bet to have been made upon the result of that election, “to be holden ” on a certain day ; the election is provided for by a public law; the event was therefore sufficiently certain.</p> <p>The statutes against gaming are remedial and not penal; and are therefore not to be construed strictly.</p> <p>A. agreed with B. that if the Cass electors obtained a majority of two thousand votes in this state, at the recent presidential election, he would make B. a present of a coat, but if they did not, B. was to make him a present of a coat; after the election B. paid A. the money instead of the coat: Held, the agreement was a mere evasion, and B. being indicted for the bet and convicted, must undergo the penalty of the law.</p>

<p>On appeal from the probate court of Yazoo county; Hon. Robert C. Perry, judge.</p> <p>James R. Burrus, judge of Probate of Yazoo county, for the use of Virginia C. Hope, by John Nelson, her guardian, sued Hiram J. Thomas, as surety for JohnH. Walker, upon a former guardian’s bond.</p> <p>Thomas, after waving oyer of the bond, plead:</p> <p>1. A plea of general performance.</p> <p>2. That there were no proceedings had in, or judgment or decree rendered by, the probate court, before suit, declaring said bond forfeited, or directing it to be put in suit.</p> <p>3. That the probate court did not, before the suit, make any order or decree directing said Walker to pay or deliver the property and estate of his said ward, which came to his hands to said John Nelson, as guardian as aforesaid, nor did said Nelson, before suit, demand said property of said Walker.</p> <p>4. That no judgment or decree of the probate court, or of any other court, was rendered before this suit, declaring or establishing any liability of said Walker, as guardian, and for any breach of the condition of said bond.</p> <p>The plaintiff replied nine different replications to the 1st plea of defendant, assigning breaches of the condition of the bond sued on; he demurred to the 2d plea, and replied to the 3d plea, that, though true it is, the probate court did not, before the suit, make any order or decree, directing said Walker to pay or deliver the property and estate of his said ward, which came to his hands, to said Nelson, as guardian as aforesaid; and although true it is, that said Nelson did not, before suit, demand said property from said Walker, yet plaintiff avers that, long before this suit, said Walker fled beyond the limits of the United States, and was thus beyond the jurisdiction of said probate court, &c. The defendant demurred to this replication. The plaintiff replied to the 4th plea, that, although truest is ho judgment or decree of the probate court, or any other court, was rendered before this suit, declaring or establishing any liability of said Walker, as guardian, yet plaintiff in fact avers that, long before this suit, said Walker fled beyond the" limits of the United States, and was thus beyond the jurisdiction of said probate court, or any other court in said state of Mississippi, without having first made any final settlement as guardian as aforesaid', &c. The defendant demurred to this replication also, and to plaintiff’s 6th replication to his general plea of performance, which was : “ That the letters of said Walker, as guardian aforesaid, granted by said probate court, were revoked by said probate court on the 24th of March, 1841, some time prior to which time said Walker had removed beyond the jurisdiction of the state of Mississippi to Texas, where he has ever since resided, without ever having, before or since, delivered up the estate of his said ward, which he had received into his possession as guardian to said probate court, or any person entitled to receive the same.” The' defendant also demurred to plaintiff’s 8th replication to his general plea of performance, which was: “ That said Walker has wholly neglected and failed to perform the duty of guardian to his ward, according to law.”</p> <p>The court sustained plaintiff’s demurrer to the defendant’s 2d plea, and defendant’s demurrers to plaintiff’s replications to defendant’s 3d and 4th pleas, and defendant’s demurrer to 8th replication to 1st plea of defendant, and overruled defendant’s demurrer to 6th replication to 1st plea; and the plaintiff below appealed.</p> <p>Cited Hutch. Code, 657; lb. 504, § 126 ; 5 How. 59; lb. 688; Hutch. Code, 678; Commonwealth v. Wenrick, 8 Watts, R. 159 ; Buckingham v. Owen, 6 S. & M. 502; and insisted that it was not necessary, under the statutes, to obtain any order of the probate court to put the bond in suit. The law, without the intervention of the court, gave the right of action upon a breach.</p> <p>Contended that guardians’ bonds could be put in suit only like bonds of executors and administrators. How. & Hutch. Dig. 336; and before that could be done, the extent of liability must be established previously. How. & Hutch. 417 - 419; 5 How. 638, 651, 652; 4 Munf. R. 289; 4 How. 455; 1 Chit. PI. 615; 1 Saund. R. 103, (d); Cowp. R. 28S; 19 John. R. 303.</p> <p>Cited Russell v. Clark, 7 Cranch, 69; 1 Mason, 336; 2 Caines’ Cases in Error, 29, 49; 10 Johns. 180, 325; 8 Wend. 516; 7 lb. 422 ; 2 Pick. 324; 16 Peters, 537; 1 Stark. R. 192; 8 Taunt. 224; 3 Barn. & Adol. 594, 595; l Crompt. & Mees. Ex. R. 52, 54; 3 Wilson, Ex. R. 530; 1 Term R. 287; 2 lb. 370 ; 3 East, 484; 4 Taunt. 673; 8 Moore, 588; 10 Adol. & Ellis,. 30; 1 Porter, 70; 3 Stewart & P. 263, 348; 2 Bailey, 60: 1 lb. 27; 1 Nott & McCord, 587; 4 lb. 113, 120.</p>

In error from tíre circuit court of Clarke county; Hon. A. B. Dawson, judge; ... The facts are sufficiently stated in the opinion. Contended that Watts was clearly competent to testify. He had no legal interest in the event of the suit. As the common grantor of both parties, he was equally bound on his covenants, and if he had any interest at all, it was balanced. 1 Greenl. Ev. $ 381, 399, 420; 1 S. & M. 494.

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

<p>In error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge.</p> <p>At the September term, 1848, the grand jury returned.into court, through their foreman, an indictment against James McCann “ for murder, and John F. Toland for being accessory to the murder, of Andrew Toland, deceased.”</p> <p>It contains two counts. The first against McCann, charging him with the murder of Andrew Toland, by shooting him with a pistol on the back of the head, on the 1st of April, 1847. It is in the common law form, and concludes, “ against the peace,” &c.</p> <p>The second count charges John F. Toland as accessory before the fact.</p> <p>On the same day, McCann was arraigned and plead not guilty, and it was ordered that Toland be tried separately, on his motion.</p> <p>It is not necessary to notice the further progress of the case until the March term, 1849, when, .on the 26th of that month, he was put on his trial.</p> <p>On the part of the state, James J. Toland deposed, that on the 14th of April, 1845, on Monday night, in said Lowndes county, Andrew Toland was killed; the body was found on Tuesday morning; he saw the body ten or twelve feet from the road, the left foot over the right one; he was lying on his back; from his eyes down all the face was gone; his head was connected with the body by the skin of the back part of -his neck; all the face bones and neck bones were gone ; all the brains eaten out of the skull by the hogs; the hogs were eating the body when found; knew it was the body of Andrew Toland from the clothing and bones of his foot; deceased was his uncle; the body was found about eleven miles from Columbus near Profitsfield, on the right of the Gilmer road, near Cross’s lane, some two or three hundred yards from the mouth of the lane, in a thicket of bushes. Witness was acquainted with the Gilmer road; it leaves the Robinson road beyond Westport; Whitfield’s plantation is on it, four miles from Columbus; Mills’s house is to the left of the road seven or eight miles, and Gilmer’s plantation to the right, ten miles from Columbus; Cross’s plantation to the right, and Profit’s on the left side of the road; McGowan’s on the same road twelve miles from Columbus; Lyon resides west of the road about a mile from the Gilmer road. The McCann road intersects the Gilmer road at the corner of McGowan’s field; there was a road running off from the Gilmer road, just this side of where the body was found, towards McCann’s, by Lyon and Smith’s lane, and a path turns off at the corner of Smith’s field through the woods, which leads into the McCann road, which leads to Mc-Cann’s house. ' A map of the road was here shown to witness, (which was copied in the record,) and he proved its correctness. Newsom lived about a quarter of a mile from Mills’s to the left of the,road, and a thick wood was between the house and road; woods all the way from Gilmer’s to where the body was found, and about three hundred yards beyond to Cross’s lane, from that on to McGowan’s lane a mile; about one and a, half miles to where Toland lived; near where the body was found, there was the mark of a ball on a sapling six feet from the ground, the ball struck the sapling diagonally from the road; knocked the bark off and fell; Hamilton’s lane is six miles from Columbus, Rowland’s over six miles; it is three quarters of a mile from Gilmer’s quarter to where the body was found; witness knew the body and helped to lay it out, and had never seen Andrew Toland since; the face was entirely gone, and there was a wound in the back of the neck; it looked like a slit three quarters of an inch long when the skin was stretched, but when the skin was placed in a natural position it looked like a hole; thought it a bullet wound; his hat was powder burnt, and blood on it; it was a new chip hat; there was plenty of blood under his head, in his clothes, and on the ground; no other wounds on the body, except where the hogs had broken the skirl on his fingers. The soil was red potash land. There. was a saddle on the ground with blood on the right stirrup leather. Witness thought that a single ball would not have carried away all the face, but that the hogs had eaten it; the hogs could not have made the wound in the back of the neck, could not have got at it to make it; saw no bones that the hogs had chewed; don’t think that a ball had blown it away; that a musket loaded with twenty or thirty buckshot could not have done it. The .skull was sound above the eyes, and the head held on to the body by the skin of the back of the neck ; a good many persons were on the ground when witness got there; he left home about twelve o’clock; .a part of the skull-bone on the. right side was detached.</p> <p>John P. Krecker testified, that he saw-McCann, the prisoner, Frank Toland, an Irishman named Kinch, and another by the name of Mallory, eight or ten days before the murder, on the Columbus bridge, in conversation together, some twenty or thirty feet on the bridge; Kinch was leading a horse; did not hear the conversation ; McCann had his back towards witness ; he put his hand in his pocket, and when he saw witness looking at him, pulled some papers out of his pocket and put them into his other pocket, again put his hand into his pocket and took out something, and turned his back on witness; saw Frank Toland take something out of his pocket like a powder gourd, put it to his mouth and pulled out the stopper, and poured something into McCann’s hand; supposed it to be powder; thought their actions strange; the bridge was a retired place; they stood about there some twenty or thirty minutes; witness was bridge keeper, and called them to pay the toll, Kinch and Mallory passed on over, and Toland and McCann returned and paid toll; witness saw and knew McCann four or five days afterwards; didn’t know every one that crosses the bridge; has often seen men take out a gourd and pour powder into their own hand, but not into another’s; the gourd was about the size of an orange; the singularity of their conduct attracted his attention; not usual for persons to act as they did that day.</p> <p>Sam T. Sappington testified, that between nine and twelve o’clock on the day that Andrew Toland was said to be murdered, Toland and McCann came to his grocery, and remained most of the day till about three o’clock in the afternoon. They were a great part of the time in the billiard room up stairs in conversation together; at that time the billiard room was a private place, there being no billiards played there then ; about one o’clock a young man by the name of Bird invited them to dine with him at Mr. Fletchall’s; Toland at first refused to go because, he said, his father was in town, but afterward went; did not know what they were doing up stairs; they appeared to’ be transacting business; they were very friendly and frequently visited his house; saw a pistol in his grocery that day or day or two before; don’t know who left it, neither of the two shown him is the one.</p> <p>E. B. Gaston testified, that he saw the prisoner with Frank Toland, the day before news of the death of Toland reached town, near Sappington’s, in an alley between the drug store of Lincecum and the cabinet shop, some ten or twelve feet from the street; saw them from his store through the.window; from their gesticulations thought them quarrelling, came to his door to see, and found them very friendly with arms around each other’s neck.</p> <p>Henry Sullivan testified, that he was ferryman at Columbus; on the day of the murder, McCann crossed the ferry going home two hours by sun, Andrew Toland, the deceased, one hour by sun, and Frank Toland when the sun was some twenty minutes high, or about sunset; does not recollect all who crossed the ferry that day; Mr. Mize and many others crossed; recollects about old Mr. Toland, Frank Toland, and McCann’s crossing, it being called to his mind so soon afterward ; Mr. Toland spoke to him about it, and he expected to be called to testify about it; don’t recollect whether McGowan’s wagon crossed that day, nor all who crossed, it is so long ago; McCann, Andrew Toland, and J. F. Toland, crossed the river going in the direction of the Gilmer road.</p> <p>Sandifer testified, that he was in Columbus the day the old man was killed; was riding along the Gilmer road in company with Riddle, when McCann overtook them at Whitfield’s lane, and rode on with them some three or four miles; stopped at Mills’s.and got water; saw deceased near Rowland’s, riding behind a wagon; after riding about a quarter of a mile from Mills’s, McCann turned off to go down to Newsom’s about dark; overtook them about sundown; witness and Riddle kept the Gilmer road, and went some five or six miles miles beyond prairie hill; all passed the wagon together about seven miles from Columbus; McCann drank water at Mills’s; from Mills’s to Newsom’s was some three or four 'hundred yards; rode pretty much together, sometimes scattering; McCann was a little ahead when they parted; Newsom’s is about one hundred yards from the road, with woods between the road and the house; don’t think McCann said any thing about supper; about a mile from Newsom’s, at Gilmer’s gate, a man passed us at full gallop; he was dressed in black, and had a cap on; don’t recollect any body being with old Mr. Toland when we passed him, he was riding just behind the wagon; crossed at the ferry when the sun was an hour or an hour and a half high; no other white person overtook us that night after we passed Gilmer’s gate.</p> <p>Riddle testified, that he thought it was in the spring of 1845, a gentleman rode up to us some three or four miles from Columbus; said his name was McCann; we rode on together to Mills’s and got water; went on together to Newsom’s, where McCann said he was going to get supper, and asked me if I would go down and get supper; we saw old Mr. Toland at Hambleton’s gate; there were several of ns together; I left town about an hour by sun; McCann overtook me where the sandy land meets prairie, and rode on to Newsom’s together; I rode some four or five miles an hour; think old Mr. Toland rode not half so fast, that he was travelling slow behind a wagon ; McCann told his name when he came up; he had whiskers, and wore a black hat; after McCann left us, a man rode by us very fast, a small man with a cap on; we passed old Mr. Toland’s house that night as we went on, but saw no horse standing in the yard.</p> <p>Robert Profit testified, that he saw old Mr. Toland on the morning of the day of the murder; he met him in the road coming to Columbus, riding a small sorrel sway back mare ; he stooped considerably, and rode in that way; heard the report of a gun or rifle an hour or half an hour after dark, in the direction his body was found; it is near half a mile from my house to the place; met deceased at the north-west corner of my field, and about half a mile behind him met McCann coming towards Columbus; first saw McCann in the narrow lane between Cross’s and McGowan’s; passed the residence of deceased that morning, but did not stop; saw, before I got to the house, Frank Toland and his mother standing in the yard in apparently close conversation; when I came up opposite the house they parted; Frank was dressed in black with a cap on. Old Mr. Toland was dressed in a light summer coat and broad crown hat; McCann was riding a pretty good sized sorrel horse, not very tall, but good sized; I saw the body and examined it, all, except the top, of the head had disappeared; there was a wound on the back of the neck marked with powder, the hat was. powder burnt; saw the ball mark on the tree six feet from the ground; saw no other wound on the body; could see no appearance of horse tracks on the ground; other people were there before me; the body was thirty or forty feet from the road, in a clump of post-oak bushes; there were tracks to the right of the road along the road, but none traceable that turned out of the road; witness was on the jury of inquest, and no accusation was made against any one; met on the ground about twelve o’clock, and commenced the investigation about dark, and got through about ten, P. M.; the wound was about one inch long, and appeared as if made by a bullet, when the head was down the wound was round; the hogs had eaten away the face; all the face bones were gone; nothing left but the skull; witness heard the report of the gun about half an hour or an hour in the night; there was no horse in the yard when witness passed old Mr. Toland’s in the morning.</p> <p>Josiah S. Morehead testified, that he saw the body of Andrew Toland, after he was killed, near the road-side at Profit’s fence; saw hogs eating him; was riding along the road, coming to town; first saw the hat, and got down to take it up, when my horse scared, and thus I first discovered the body; saw the prisoner and his father that morning, four or five miles from there, going to witness’s father’s house; stopped to talk with them ; they were going to witness’s father’s to get bail, the grand jury having found a true bill against them for an assault with intent to kill; prisoner appeared to hurry his father, and urged him to go on; when witness picked up the hat, saw that there was blood and smoke on it, and blood in the road under witness’s feet; saw where the body was dragged, as if to throw it between logs, and then drawn to the thicket, the body lying on the back, with hands on the breast.</p> <p>George E. Lyon testified, that he lived a mile and a half from Cross’s lane; heard the report of a gun in the night awhile, half an hour or an hour after dark, in the direction where the body was found; some ten or twenty minutes after the report, heard a horse running from that direction; it might have been twenty minutes or half an hour after the report; the horse was galloping; did not see it; went in south-westerly direction, through Smtih’s lane, and turned off at a corner of the field, through the woods path that intersects the McCann road; prisoner lived with his father at the time; witness was at his shop at the time, about fifty yards from the road; Smith’s lane is one half a quarter long; report of gun was loud; heard it distinctly; thought it was some one shooting turkeys; it was moonlight, except flying clouds; one not acquainted with the neighborhood would not have taken that direction.</p> <p>James Whitfield testified, that he was of the inquest; saw the ball mark on the tree; saw the hat, a new chip one, and powder-burnt; deceased had an old round top hat in one of his pockets; the wound on back of the neck powder-burnt, and skin black or dark.</p> <p>O. H. Millican testified, that he was of the inquest; saw the ball mark on a small tree, and a twig cut off therefrom, on the side next to the road, about on a level with the mark; examined the wound on the back of neck; the face was all gone.</p> <p>John Cross deposed, that Morehead found the body and came and told him; went to see it, and then went to inform neighbors ; did not get back till after dinner; body lying on ihe back, and the feet from the road; was there before the jury; no one was accused of the murder at the time.</p> <p>-Morehead deposed, that the prisoner was at his house between seven and eight o’clock the morning the body was found; appeared natural, and staid an hour or three quarters; came with his father, and and Wanted his father to go after sitting a few minutes; after sitting a while longer, he again wished his father to go; the father said, “ Don’t let us be in a hurry — it is not often we get with our friends;” the bottle was handed round, and the old man took two drinks; prisoner said again, “Let us go, if you don’t I will; ” and got up and looked out to where the horses were tied; can’t say why prisoner tried to get his father off; has seen the old man pretty merry.</p> <p>Jos. Morehead deposed, that he saw prisoner next day after the murder at his house; appeared to be very uneasy; got up and went to the door, and looked up and down the lane twice; witness took the bottle out and treated the old man; McCann lived four miles from him; McCann twice asked his father to go, and then said, with an oath, if he would not go, he would leave him.</p> <p>Henry N. Jones deposed, that he examined the wound on the body at the of back the neck; it was powder-burnt; the flesh about the thickness of a man’s hand, and as his hand ; some powder burnt inside of the wound, and a blackness about where the ball struck and entered; saw the tree where the ball struck.</p> <p>Nich. Morgan deposed, that he heard the report of a gun in the direction where Toland was killed; shortly after the report, he heard a person riding up Smith’s lane; first heard the riding in the lane between Lyon’s and Smith’s field; heard Lyon’s dogs break out; the rider turned off into the woods, at.the corner of Smith’s field intersecting the McCann road, in direction of Mc-Cann’s ; from where the horse turned oif, at the corner of Smith’s field, to the neighborhood road leading out toward McCann’s, is not far; a stranger would hardly have seen the neighborhood road; witness was about a mile from the place of killing when he heaz’d the gun distinctly; the sound of the report was ordinary ; could not see the horse distinctly; saw a glimpse of him, and some one on him; could not tell whether the report was that of a pistol, or what; it was a still night.</p> <p>Henry Quarles testified, that on the day the body was found, he saw McCann going westwardly; had the appearance of going off; had no saddle-bags, that witness recollects; it was three or four miles from Cross’s Lane, between twelve and two o’clock; his brother Pat was with him; they were going through the woods, not in a road, and riding fast for going through woods; witness had not then heard of the death of Andrew Toland ; heard it about an hour after.</p> <p>Jeremiah Dowsing deposed, that some day or two after the murder, heard some one at Noxubee turnpike about two o’clock: at night, calling out; from the voice, thinks-it was McCann; did not see him; had known him before; said he wanted to buy corn and fodder for his horse, that he had been lost in the swamp; Noxubee turnpike is ten or twelve miles from Prairie Hill.</p> <p>Wiley Ross deposed, that the second week of the Carroll court at Carrollton, he saw the prisoner; don’t recollect the day; witness had business with Mr. Gilder; went into Judge Johnson’s office; went upstairs, and as witness struck the landing, the prisoner rose up from a bed where he was lying behind Mr. Gilder; prisoner put his hand to his bosom, and backed into a corner; saw the butt-end of a pistol in his bosom; Gilder said witness was no officer; the prisoner kept his eyes on witness, until Gilder said that; witness had a paper in his hand for Gilder; witness asked what it meant, and Gilder replied that old Mr. Toland had been killed, and McCann had left on account of it; in the mean time prisoner had returned to the bed, and knelt down on it; witness put his hand on McCann, and told him if he had killed Toland, he had better leave; he replied he had not killed him, but was accused of it, and in proof that he had not killed him, said that Toland’s children had given him money and weapons to leave, an4 promised to write to him; he further said, old Mr. Toland had been found killed and nearly eaten up by hogs; that it would be very hard for him to prove his innocence, as he was the last man seen by an overseer that' night behind Toland, near Cross’s lane, before Toland was killed; witness told him he had better leave; prisoner sold his horse in Carrollton; it was after twelve o’clock when witness first saw him, and the sun was about two hours high when he left, on foot, with his saddle-bags on his arm, and took the road to Williams’s landing; it was agreed that the day when witness saw McCann was Thursday, second week of Carroll court, 1845.</p> <p>Elijah W. Smith deposed, I first saw prisoner aboard of the stage on the Jackson and Memphis road, in the county of Lafayette ; I pursued and overtook him at the dinner stand, eight miles from Oxford, toward Memphis; I went in, took hold of and arrested him for James McCann, when he replied that it was not his name, that he had never known any body of that name, that his name was Wilson, or some such name; that he did not wish to be detained, that he was on his way to Tennessee to see his relations; I searched his pockets, and found receipts in the name of James McCann, and the same name on his shirt; I told him he would have to go back with me, and on my way back, three miles from Oxford, he acknowledged his name was McCann; said he had heard Toland had been killed, and that he did not know he could prove himself clear; at first he wanted to go back to Lowndes county; he was examined and committed to prison in Oxford; when I went to take him back to Columbus, he seemed to change his mind, and wished to be tried in Oxford; stated as reason why he did not wish to go back, that it would be a damned long tedious case; he requested me to write to Frank Toland, or let him write; when arrested, he had a pair of pistols, (shown on examination in court, and proved by witness,) and powder and ball.</p> <p>Champion deposed, that he saw the prisoner in custody of Smith, when taking him back to Lowndes county, at Pontotoc; his cousin was with him and knew McCann; witness spoke to prisoner, and told him they• had him in a tight place; he replied that he thought not,, and asked what people said about it here; witness replied that they said he had killed To-land; he said he knew he was accused of it, and that was the .reason he left; witness’s/ cousin remarked to prisoner that it was strange he left before he was accused, to which he made no reply.</p> <p>L. W. Ward deposed, that he was one of the inquest; saw the body lying twenty-five or thirty feet from the road, head toward the road, the skirts of his coat in the rear of. his head; it was a Kentucky jeans coat, with velvet collar; was acquainted with deceased; he was fifty or sixty years old; don’t recollect seeing marks .where the body was dragged; it was after twelve when he came to the ground.</p> <p>James McGowan deposed, that he heard the report of the gun or pistol on the night of the killing; it was near a mile from where the body was found to his house; it was about three quarters of an hour after daylight; heard report distinctly; it was nearly all prairie between where the body was found and witness’s house; thinks a gun could be heard distinctly that distance; witness was sitting on his portico at the time, and thought it was some one shooting turkeys; went on the ground about eleven; saw the mark on the tree where the ball struck ; told some one to search about the root of the tree for the ball, and it was picked up by some one in witness’s presence, (a ball shown, him in court, which he thinks the same;) don’t recollect seeing McCann or Toland on the day of the death; heard but the one report of a gun or pistol that night.</p> <p>This was all the proof on the part of the state.</p> <p>-Riddle deposed, that he travelled with prisoner the night of the killing, several miles, and saw no pistol or gun on him; did not see any weapons with him.</p> <p>Henry N. Jones deposed, that he saw no pistol on prisoner; ~ was not close to him; he rode past witness; did not think of pistols; supposes he might have had pistols, and witness not see them.</p> <p>Patrick McCann testified, that he was brother of prisoner; has seen one of the pistols shown him; gave it to prisoner the day he started away; had it in his trunk four or five days before; got it from Frank Toland to give to Chandler; was at home the night of the murder; prisoner returned about half an hour after dark ; don’t know that Frank Toland was at witness’s father’s house the day the body was found, but saw him riding by the field where witness was at work, planting corn or ploughing; spoke to him, but held no conversation with him; it was about 10 o’clock; prisoner was away from home with his father at the time; he started away from home two or three hours after witness saw Toland; witness went with him to go to Wallace’s; prisoner said he was going away; rode sometimes in the road, and sometimes through the woods; he told witness he was going away because he was indicted for assault with intent to kill, and he did not intend they should make him give security; did not say where he was going when we parted; bade me goodbye; he rode a chestnut sorrel horse; he started from home the day of the killing, after breakfast, to go to town; witness’s father was at home when prisoner and he left; Frank Toland and prisoner were very friendly, like most young men, and once went to South Carolina together; witness was not intimate with Frank Toland; was acquainted with old man Toland.</p> <p>-McCann testified, that he was a brother of prisoner; was at home the night of the killing; prisoner returned home about a half hour in the night.</p> <p>Walter Troup deposed, that he went to old Mr. McCann’s the day the body was found; was within one hundred and fifty yards of the house, and saw a gentleman riding towards the house; it was about twelve o’clock; he had black clothes and cap or low-crowned hat on; was afterwards satisfied it was Frank Toland; witness was then talking with Patrick McCann, who was then ploughing near the stable in the field; witness’s business was with old Mr. McCann, and Patrick told him he was not at home; witness was not nearer than, three hundred yards to the person who was so going to the'house, and left before he got to it; saw a gentleman at the time, sitting in the passage; does not know who it was.</p> <p>This was all the proof.</p> <p>Numerous charges-were asked and given for both sides, andaré found in the record, but not embodied in any bill of exceptions; they are not, therefore, farther noticed.</p> <p>Another bill of exception shows that the prisoner asked this charge, viz.:. “ That all the declarations of the prisoner, brought out by the state, are to be taken together, as well that in his favor as what is against him, and that the portions favorable to' him are to be regarded by the jury as being, true, unless impossible in their nature, or inconsistent with other evidence in the cause; ” but the court refused to give it, and charged, “ That in confessions by a prisoner, all must be received, as well that which is in his favor, as that which is against him ; but that the jury are the sole judges of the truth of confessions, and can receive a part and reject a part; ” and defendant excepted.</p> <p>Another bill of exception shows that the defendant asked this charge: “ That, in criminal cases, the mere union of a number of independent circumstances, each of which is inconclusive in its nature and tendency,- cannot afford a just ground of conviction,” — which the court refused, and charged, “That, in criminal cases,dhe mere union of a number of independent circumstances, each of which is inconclusive in its nature and tendency, cannot afford a just ground of conviction, unless the combination is conclusive,” — and defendant excepted.</p> <p>The court charged for the state, “That, when the state proves the fact of killing, they are not bound to prove motive.”</p> <p>The jury found- the prisoner guilty. His counsel moved for a new trial, assigning various grounds; the motion was overruled, and exceptions stated, embodying the evidence, as heretofore set out.</p> <p>The prisoner’s counsel then moved in arrest of judgment, because, 1. The indictment was insufficient; and 2. There was a misjoinder of counts and alleged offenders; the motion was overruled, and the prisoner sentenced to be hung on the 25th day of May, A. D. 1849.</p> <p>Chief Justice Sharkey ordered, on McCain’s application, this writ of error.</p> <p>1. It was not proven that deceased was killed by shooting, as alleged in the indictment. At most, it is shown he was shot and wounded in the neck; but the nature and character of the wound is not at all explained, and there is nothing to show it was mortal.</p> <p>From the proof, it is impossible to say how the mortal wound was inflicted, whether by the bullet, by the fall from his horse, or by blows causing a fracture of the skull, or how otherwise. In such a case, a conviction upon an indictment for murder by shooting, cannot be supported. Arch. Cr. PI. 315, et seep</p> <p>2. The evidence was wholly insufficient to convict the prisoner, upon this [indictment, even if the killing had been proved. On this point he elaborately reviewed and commented on the testimony, and insisted earnestly that the proof did not sustain the verdict. He cited Arch. Cr. PI. 123; Rex v. Isaacs, 2 Russ. 617, n. (g.</p> <p>3. There is manifest error in the ruling of the court. The judge refused to charge, on behalf of defendant, that the entire statement of the accused, when offered in evidence by the state, is to be taken as true, unless impossible in its nature or inconsistent with other evidence in the cause, but charged that although the whole confession must be received, as well the parts in favor as those against the prisoner, yet the jury could receive’ a part and reject ajrart. It was thus left to the arbitrary discretion of the jury to determine, and without regard to the other evidence in the cause or the character of the confession, to reject any part of it. Brown’s Case, 9 Leigh, 633 ; Wilson v. Calvert, 8 Ala. 757; Borren v. State, 5 Mis. 364; Tipton v. State, Peck. 308; Young v. State, 2 Yerg. 292; Steptoe's Case, 19 Eng. Com. Law. 440; Higgin’s Case, 14 lb. 476; Jones’ Case, 12 lb. 292 ; 2 Cow. & Hill’s Phillips’ Ev. 226, where the rule in civil cases is illustrated by many cases.</p> <p>4. We also object to the charge given for the state, that the prosecution need only prove the fact of killing, and is not bound to prove the intent to kill. If we understand the charge, it amounts to a declaration that every killing is, prima facie, murder; that, in all cases of killing, the law infers a felonious intent to kill. Is such the rule under our'statute? The statute, in effect, declares that a mere killing shall not be held proof of murder. It provides that a killing without authority of law, except it be done under circumstances showing a case of manslaughter, or excusable or justifiable homicide, shall be murder. Hutch. 954. It prescribes the penalty for murder and prohibits punishment for the crime, as an offence at common law. Hutch. 954, Tit. 2, § 1; lb. 956, § 24, (Prohibition); lb. 982, § 14. The penalty of death to the murderer is thus made a statute punishment, and the fact that it is the same penalty as that declared by the common law, does not change its character. The true test is, whether, apart from the statute, the courts can inflict a penalty for the crime; and if not, then it is no crime apart from the statute. If the prisoner, is not liable, under the statute, to the penalty for murder, then the judgment of the court is without sanction of law, for the common law penalty in such case is prohibited. If the law affixes no penalty for the doing an act, it is in law no offence; and if the statute alone declares the penalty, the act thereby punished is a statute offence, a crime only by force of statute law. The crime of murder is therefore a statute offence in this state. Now the statute does not declare that every killing shall be held to be, prima facie, murder; it contains exceptions, specifies large classes of cases in which it shall not be held murder to kill. Those exceptions are contained in the very clause which declares what shall be the crime of murder, the enacting clause; and the rulo in such cases, is, that the state must show, negatively, that the subject of the indictment does not come within the exception. Arch. Cr. PL 53. If this be so, then the state was bound to prove 1! motive.” And such too is the rule at common law; the killing must appear to have been done with malice, or it is no murder. It is true the jury may presume malice from the act of killing; but then, again, they may not, if the instrument used be not deadly; then malice must be shown by further proof than the mere killing. Roscoe, Crim. Ev. 579.</p> <p>1. That the verdict was right on the merits; and they reviewed and commented on the proof.</p> <p>2. That the refusal to give the charge asked by the prisoner, was right, and the charge given correct. They cited 1 Greenl. on Ev. § 218; Arch. Cr. PL 3, p. 114; Roscoe, Cr. Ev. 51; Young v. State, 2 Yerg. 292.</p> <p>3. So the refusal to charge that the mere union of a number of independent circumstances, each of which is inconclusive in its nature and tendency, cannot afford a just ground of conviction. 1 Starkie, 506; 2 Phillips, Cow. & Hill’s Notes, 308, 313, note 303.</p> <p>4. What circumstances will amount to proof, can never be a matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury; it is sufficient if they produce moral certainty to the exclusion of every reasonable doubt. 2 Phillips, Cow. & Hill’s Notes, 308; 1 Starkie, 514, side.</p> <p>Evidence which satisfies the minds of the jury of the truth of the fact in dispute, to the entire exclusion of any reasonable doubt, constitutes full proof of the fact. 1 Starkie, 449.</p> <p>Mere preponderance of testimony is sufficient if it exclude all reasonable doubt. 1 Starkie, 451, side.</p> <p>■ To establish an hypothesis as being true, it is not necessary that all others should be impossible. 1 Starkie, 483, side; 2 Phillip's, Cow. & Hill, 311; 115. 309. The law has no scales, &c. 1 Starkie, 444, side.</p> <p>5. The indictment was sufficiently formal. Hutch. Code, 954; McDaniel v. State, 8 S. «fe M. 418; 2 Yirg. Cases, 88; People v. Enoch, 13 Wend. 163; 11 lb. 165 ; Barlow’s Criminal Treatise, 271; Fuller v. State, 1 Blackf. Rep. 65 ; Jerry v. State, lb. 396; see also 3 McCord, Rep. Law, 543.</p> <p>1. A new trial will seldom, if ever, be granted where there have been two concurrent verdicts, and no rule of law has been violated. 5 B. Monroe; 1 S. & M. 512.</p> <p>There have been two concurrent verdicts, and this is the second time defendant has been in the court of appeals. McCann v. State, 9 S. <fe M. 465.</p> <p>2. The presiding judge, before whom the case was tried, and who is presumed to have been familiar with all the facts and circumstances which transpired at the time of the trial, has, in the exercise of his discretion, refused a.motion for a new trial in the court below, and it must be a very clear case of error in law, or a very naked bald case as to the facts, which will authorize this court to interfere in a criminal case where the jury are made the judges of both the law and of the facts. Jones v. State, 1 Kelly, Rep. 618.</p> <p>3. Where the judge who presided at the trial, who has heard all the evidence, and has witnessed the proceedings and the manner of conducting the cause before the jury, is satisfied with the verdict, and refuses a new trial, a supervising authority when it exists, but which cannot have equal opportunities of forming a just judgment, ought not to interfere without the strongest reasons for so doing. See, particularly, Pattison v. Ford, 2 Grattan’s R. 24, 25.</p> <p>4. A very learned judge says, in regard to the insufficiency of proof, “Had’.the court been in the position of the jury, they might have come to a different conclusion from this. But one witness swore positively to the perpetration of the crime by the defendant. If they believed her, they but acquitted their consciences in finding the defendant guilty, and after their verdict has undergone the revision, and received the sanction of the circuit court on a motion for a new trial, we do not feel at liberty to disturb it on a question of the eredibility of the testimony.” Weinzorpflin v. State, 7 Blacltf. (Ind.) R. 198.</p>

In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge. On the 15th of May, 1849, the grand jury of Panola county indicted Samuel H. Nelms for the murder of Jesse Price, on the 25th of December, 1848. Nelms had the venue changed to Marshall county, where he was tried. His trial commenced on the 24th of July, 1849, and on the 6th of August the jury found the prisoner guilty of murder.

<p>On appeal from the circuit court of Madison county; Hon. Robert C. Perry, judge.</p> <p>• On the 22d of April, A. D. 1847, William Robertson, trustee of the Commercial Bank of Natchez, sued Richard E. Alford, administrator de bonis non of Robert Cooper, deceased, upon a note made by Cooper, dated May 2, 1838, and due twelve months after date. The defendant plead, 1. Non assumpsit; 2. The statute of limitations of six years. The plaintiff replied, in substance, that on the 8th of March, 1844, a writ of quo warranto and injunction were sued out under the act of 1843, against the bank, from the circuit court of Adams county, by which the bank, pending the proceedings which terminated in a judgment of forfeiture on the 19th of May, 1846, against the bank, was prohibited from bringing suit on the note; and by excluding this prohibited period, the cause of action had accrued within six years.</p> <p>The defendant rejoined, that the judgment'of forfeiture against the bank was rendered on the 12th of June, 1845, and the plaintiff appointed trustee of the bank, at which time his right to sue begun; and so deducting the period from the institution of the proceedings against the bank, to the judgment of forfeiture, and six years still had expired.</p> <p>The plaintiff surrejoined that the bank appealed from the judgment of June 12, A. D. 1845, which suspended all plaintiff’s rights, and this appeal was not determined until the 19th of May, 1846, when plaintiff’s right to sue accrued.</p> <p>The defendant demurred to this surrejoinder, and the court sustained the demurrer, and gave judgment for the defendant. The plaintiff appealed.</p> <p>Contended that, during the pendency of the injunction, there was no party having the right to sue on- the note. He cited-Robertson v. Hoy, 12 S. & M. 566; Abbott v. McElroy, 10 lb. 100; Dowell v. Webber, 2 lb. 456; Moses v. Jones, 2 Nott & McCord, 259; Wall v:- Robeson, lb. 508, 509.</p> <p>Argued the case, and cited 3 Johns. Ch. Rep. 142 ; Mclver v. Ragan,- 2 Wheat. 29; 1 Cow. 356; Ang. on Lim. 205, '■§> 3 ;■ Dwarris on Stat. 703; Ang. Lim. 216, $ 5; lb. 534, § 4; 3 McCord, 457; Rholes v. iSmethhurst, 4 Mees. &. Welsb. (Eng.Com. L. Rep.) 42; Ang. Lim. 57, § 3; Barker v. Millard, 16 Wend. 572; Oreen v. Johnson, 3 Gill &. John. 394; Bell v:. Morrison, 1 Peters, 360.</p> <p>Cited, in addition, Ang. Lim. 144; Beckford v. Wade, 17-Ves. 87; Wilson v. Appleton, 17 Mass. 180; Ang. Lim. 215; lb. 147-149; 3 S. & M. 194; 4 Mass. 188, 189; 6 S. & M. 573.</p>

<p>On appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.</p> <p>Charles Thompson filed his bill against John H. Rollins, Geeorge W. Henderson, William Hill, and Samuel M. Flournoy, to set aside a sheriff’s sale of land.</p> <p>The facts of the case will be found in the opinion.</p> <p>The defendants demurred to the bill: the demurrer was overruled, and they appealed.</p> <p>Contended, 1. That the fact of the transfer of Hill to Flournoy of the judgment, did not operate as an extinguishment of the judgment. 2. That the party had no right to redeem, because, 1st. He was not a creditor under the law; 2d. The redemption law was unconstitutional.</p> <p>Cited 3 How. 69; 1 Cow. 622; How. & Hutch. 621; Andrews v. Wilkes, 6 How. 562; McCracken v. Hayward, 2 How. S. C. R. 608; Bronson v. Kinzie, 1 lb. 311; 4 Litt. 34; lb. 47; 7 Munr. 11; Townsend v. Townsend, Peck, R. 1: 1 Story, Ecp Jur. 184.</p>

. On appeal from the chancery side of the circuit court of Hinds' county; Hon. George Coalter, judge. The plaintiff has shown no equity as against defendant. Knox was not their cosurety; nor were they sureties for him, but for Stewart, and can look alone tp him; Hutchins v. McCauley, 2 Dev. & Batt. Eq. 399.

George Coalter, judge. The facts are stated in the opinion. Insisted that the law authorized the right of redemption in all cases; there was no limitation upon it. Hutch. Code, 920. Contended, that the purchase by the defendant was but a conditional satisfaction, defeated either by tender of the money bid, or á scire facias as provided for.

In error from the circuit court of Carroll county; Hon. Francis M. Rogers, judge. The facts are stated in the opinion. cited Hutch. Code, 231, 232, 11; 1 How. 139; Ang. on Lim. 35; 4 How. 24. Contended, that there was no reason why the statute should not apply. The fund belonged to the county for school purposes, and not to the state; there was no exception in favor of the county.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. John W. P. McGimpsey, who sued for the use of the Commercial Bank of Natchez, on the 5th of October, 1843, sued Theophilus B. Wiggins and others, on their note for $750, dated March 15, 1839, and due twelve months after date. The defendants pleaded non assumpsit. ' On the trial, the plaintiffs read the note in evidence, and rested their case.

In error from the circuit court of Kawamba county; Hon. Hugh R. Miller, judge. The facts will be found in the opinion. 1. That the court erred in refusing the charges asked by plaintiff in error. 2. In giving the charges as asked by defendant in error. 3. In the charges given by the court.

Robert C. Perry, judge. Robert Shotwell, John R. B. Jones, and Jackson Smith, filed their bill against James Walker and the administrators of Williamson Smith and Jesse Brown, in which they allege, that on the 28th day of February, 1844, they executed, as securities for Williamson Smith, a bond, purporting to be a forthcoming bond, and delivered it to Brown as deputy sheriff.

In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. On the 22d of May, 1843, the bank of Port Gibson recovered judgment in the Claiborne circuit court, against Richard Valentine and John Patterson, for $362. At the May term, 1845, judgment of forfeiture was rendered against said bank, and James J. Person and James T. Marye, were duly appointed trustees thereof.

<p>On appeal from the southern district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor.</p> <p>Joseph W. Champlin and Josiah Rundell, executors of William F. Abraham, deceased, filed their bill against William Dotson, to enjoin the latter from setting up a defence of a certain character to a suit in their favor, then pending against him in the circuit court of Claiborne county. The nature of the defence is sufficiently stated in the opinion of the court. The vice-chancellor sustained the demurrer of Dotson to the bill, and the complainants appealed.</p> <p>Cited, in argument,- Hardeman v. Cowan, 10 S. & M. 486, and cases cited; 2 John. Ch. Rep. 30; Harper v. Reno, Freem. Ch. Rep. 323; Meigs, Rep. 185; 12 Peters, 264; 2 Story, Eq. § 1316.</p> <p>cited 1 Story, Eq. % 221, 222 ; 334-338; 244 - 247, 251.</p>

<p>In error from the circuit court of Wilkinson county; Hon. Stanhope Posey, judge.</p> <p>On the 27th May, 1847, William Robertson-, as trustee appointed by the circuit court of Adams county, on the 12th June, 1845, at May term thereof, 1845, of the Commercial Bank of Natchez, brought suit against John S. Lewis, upon a note made by him, dated 26th March, 1840, for $1519.80, payable ' twelve months after March 4, 1840, to the said bank or order.</p> <p>The defendant plead:</p> <p>1. Non assumpsit.</p> <p>2. That the cause of action did not accrue to plaintiff within six years before suit brought, and concludes to the country.</p> <p>3. That the bank was not, on the 4th of March, 1840, nor after, a body politic or corporate, and had no right to contract as such.</p> <p>To this plea there was a demurrer for .these causes: 1st. Defendant is estopped by matter of record. 2d. The plea amounts to general issue, and is informal. 3d. Plea denies character in which plaintiff sues, is not sworn to, and is, in other respects, informal and insufficient.</p> <p>The demurrer was sustained.</p> <p>4. That a judgment of forfeiture against the bank was rendered on the 12th of June, 1845, in the circuit court of Adams county, at which date said note was property of the bank, and said judgment is in full force.</p> <p>To this there was a demurrer for. cause : 1st. The matter of plea is no bar to the action. 2d. Said matters are only pleadable in abatement.</p> <p>The demurrer was sustained.</p> <p>5. That at November term, 1846, of Adams circuit court, said Robertson, as trustee, filed in said court a full inventory of all the effects, &c., of said bank in his possession, and said inventory was recorded, pursuant to law; and thereafter, at November term, 1846, of said court, Robertson, as trustee, was ordered and decreed by said court to sell such effects, &c., ac-. cording to the statute, &c., as by said order and decree will appear; said note sued on was included in said inventory.</p> <p>A demurrer, for the same causes set forth in the demurrer to 4th plea, was sustained.</p> <p>6. Pleads that after said judgment of forfeiture at said May term, said bank prayed an appeal to the high court, and said appeal was “allowed” at same term.</p> <p>A demurrer, for causes set forth in demurrer to 4th plea, was sustained.</p> <p>. 7. Pleads payment to the bank ¡ there was a replication of denial, and similiter.</p> <p>The defendant did not plead further, and the cause was tried upon the pleas of general issue, statute of limitations, and payment.</p> <p>On the trial, the defendant proved, that, about June, 1837, the bank discounted for him a note for $4000, for the purpose of paying a call on one hundred shares of his stock in said bank, on which Lewis had before paid $60 per share; the proceeds of said note were applied to pay said call, being $40 per share. About the 29th March, 1838, Lewis paid part of said note, and gave a new note for $2000, the balance at twelve months; afterwards he paid $760 on said note, and gave, for the balance, the note sued on, and to secure its payment, pledged twenty shares of the stock of said bank; no scrip has been issued for said twenty shares.</p> <p>Defendant further proved, that the bank commenced business in 183é; that Lewis was a stockholder in said bank; that the first call on stock was paid in specie; that it was the uniform custom of the bank, in the 'Case of all stock notes, to discount the same, so that the maker might with the proceeds pay calls upon his stock; and that it was the uniform custom for the maker to check for the proceeds of the note so discounted, and have the same credited upon the maker’s stock account; whether in this case that method was adopted, witness could not say.</p> <p>The defendant asked, in substance, these charges :</p> <p>1. If the jury believed the note sued on was given in payment for stock of said bank, it is void; Refused.</p> <p>2. If the note was given for stock in said bank, and if defendant never received said stock, and cannot now receive it, in consequence of the dissolution of the bank, the verdict must be for defendant., Refused.</p> <p>The verdict was for plaintiff, and defendant moved for a new trial, for error in refusing said instructions, and because the verdict was contrary to law and evidence. The motion was overruled. and defendant excepted and sued out this writ of error.</p> <p>Argued the cause, and cited King v. Elliott, 5 S,. & M. 444; Leighty v. Susquehanna and Waterford Turnpike Co., 14 Serg. & Raw. 434.</p> <p>Thought the ease of Hayne v. Beauchamp, (5 S. & M. 515,) determined this case for defendant in error.</p> <p>Made an elaborate argument, in which he reviewed the proof at length, and insisted that the transaction by which the note of the defendant below was given for stock, could not be sustained either by the charter of the bank, or upon charter law principles.</p>

<p>In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.</p> <p>Amos Metcalf sued Thomas J. Scott and others on two notes; to a plea of the defendants, set out in the opinion, the plaintiff demurred, and the demurrer was sustained; the jury, on the other pleas, found for the plaintiff, when the defendants sued out this writ of error.</p> <p>Contended that the demurrer should have been overruled. 'There can be no legal remedy, if there be no legal right. For a legal remedy is only given to put a party in possession of that to which he has a legal right, and which is illegally withheld from him. It is a plain sequence, that if a party divest himself of legal right, he thereby divests himself of capacity to pursue a legal remedy. Any fact, therefore, which shows that the right has passed from him, will defeat his action. Hall v. Gentry, 1 A. K. Marsh. 556.</p> <p>Cited 1 Tom. Law. Die. 106; Co. Litt. 215; Greenl. Ev. 222, 223; Wright v. Campbell, 4 Burr. 2046; Waring v. Cox, 1 Campb. 369; Abb. on Ship. 227; Dick v. Lumsden, Peake, 189; Wilson v. McElroy, 2 S. & M. 241; Bacon v. Cohea, 12 lb. 516 ; Moore v. Anderson, 3 lb. 325.</p> <p>Contended that the plea might be strictly true, and yet the assignment not have passed the legal title, so as to have enabled the assignee to sue in his own name; that could only be done by indorsement, which is not alleged in the plea.</p>

<p>It seems that an assignment by a bank of its choses in action and other property, to trustees, for the benefit of its creditors, made pending a writ of quo warranto against it, for the purpose of preserving its assets from extinguishment, is not a dissolution of a corporation, or a surrender of its franchises.</p> <p>It is the settled doctrine of this court, that a bank may make a general assignment of its property and effects, and such assignment, if in other respects fair, will he sustained.</p> <p>It is a part of the common law of the land, annexed as a tacit condition to the creation of every private corporation, that it may lose its franchises by a misuser or nonuser of them.</p> <p>While an assignment by a bank of its property and effects, to trustees for its creditors is not a misuser of its franchises, yet it may place it out of the power of the bank to comply with the terms and fulfil the- purposes, and perform the conditions upon which its charter was granted, and thus prove a ground of forfeiture for nonuser.</p> <p>The furnishing of a sound and convertible medium of currency, is the primary object in the incorporation of banks; the accommodation of those who deal with them, and the benefit of the stockholders are the secondary objects; in regulating, therefore, the management of its monied affairs, a reasonable discretion must, of necessity, be allowed the corporation; and it is therefore difficult to define the boundary between legitimate acts of prudence and those which would be an abuse of its franchises; each case must rest somewhat on its own circumstances.</p> <p>While a continued suspension of the principal corporate franchises, and a failure to perform the implied conditions on which the charter of a bank was granted, will amount to a nonuser, and so be ground of forfeiture; yet a mere assignment of the property and effects of a bank nearly out of debt to trustees to pay the debts due, and the residue to divide among the stockholders, made pending a quo warranto with the view of saving the assets, the bank in the meanwhile keeping up its corporate existence by the election of its officers, is not a misuser nor a nonuser of its franchises; yet it seems if, after the decision in its favor of the quo warranto, the trustees make no reassignment to the bank, and the latter omit the exercise of its usual corporate franchises for a continued period, it would amount to a nonuser, and be cause of forfeiture.</p>

<p>On appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.</p> <p>The facts of this case appear sufficiently in the opinion óf the court.</p>

<p>The case of Agnew v. McElroy, 10 S. & M. 552 cited, and confirmed.</p> <p>It is no bar to a second suit if the first action is incompetent, or if the plaintiff mistake his character, or if the first judgment is given for faults in the declaration or pleadings.</p> <p>A judgment on a pleading which does not go to the foundation of the action, is no bar to a subsequent suit; the merits of the second action must be decided in the first, to make the first suit a bar.</p> <p>In an action of trover, the cause of action accrues from the time of the conversion. When goods are tortiously taken, the statute of limitations begins to run from the taking, unless fraud is practised to prevent knowledge of their taking.</p> <p>J. purchased from B. and wife negroes which belonged to the children of W., and claimed and exercised absolute ownership over them for three years: Held, that the sale to J. was a conversion, and in an action of trover by the children of W. against J. for said negroes, that the statute of limitation commenced running from the time of J.’s purchase.</p>

<p>In an action on the case for injuries to personal property, it must be proved that the plaintiff had a legal right or interest in the matter or thing affected by the injury, at the time of such injury.' The absolute or general owner having the right of immediate possession, may in general support an action for an injury thereto, though at the time when the injury was committed, the goods were in the actual possession of a servant, carrier, or other bailee; but if the goods have been let to hire, the action cannot be sustained by the general owner, unless an injury to the reversionary interest is established.</p> <p>If the owner of slaves hire them to a third person, he cannot sue for an injury to them, during the time of the hire, unless he prove an injury to his reversionary interest.</p>

<p>Where a judgment is obtained in the name of A. against B., a garnishment thereon cannot legally be sued out by C. in his own name, as the alleged assignee of A., against a debtor of B., to compel him to appear and answer what he owes B.; and if the debtor, when thus garnisheed, make the objection at the proper time, the process of garnishment will be quashed; yet if, without making any objection to the form of the process, or questioning the right of the assignee to sue it out, he appear and answer how much he owes the defendant in the original judgment; and the alleged assignee of that judgment take judgment in his own name against the garnishee for the amount thus disclosed to b'e due, it will not be erroneous; nor will the judgment thus taken be set aside.</p>

<p>The debts due the sinking fund belong to the state of Mississippi; a debtor therefore, to that fund, when sued by the state commissioner, cannot set up the statute of limitations in bar of the suit.</p> <p>The sinking fund, prior to the act of February, 1844, was, by law, under the management of the auditor of public accounts, and of the president and cashier of the Planters’ Bank ; these persons were thereby created”trustees, for what to some extent was a public purpose»; and the act of a majority of them, therefore, in the conduct of the fund, it seems would be binding and authoritative, but the act of any one of them would not be without the sanction of one of the others.</p> <p>It seems, however, in cases of private trusts and joint agencies, that all the trustees must join in the act.</p>

In error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge. Thomas Kirkman, on the 6th of April, 1849, sued Thomas N. Waul, executor of Samuel Hurd, deceased, for the sum of $33,000, due upon account stated between plaintiff and Hurd, in his lifetime, to wit, on the 6th of March, 1843. The defendant plead non assumpsit by his testator, with leave- to rely tmder that plea upon any legal defence, which could be made by special plea or otherwise.

<p>In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. .</p> <p>James B. Kendall, for the use of Marion Gilmore, sued John Ingersoll upon his note, payable to Kendall, for $300. The evidence in the case is sufficiently set out in the opinion. The court below gave for plaintiff these instructions. 1. If the jury believe from the evidence that Kendall purchased for the defendant, and at his request, three jennets, and gave his note for the same, and that the defendant afterwards gave the note sued on to take up, or as a substitute for the note of Kendall; and if they believe that Kendall, at the request of defendant, left said jennets on the plantation of Gilmore, there to remain for him, defendant, to be put to the jack, and to be kept for him, defendant, on said farm, free of charge, and that said defendant was to send for them himself, and that it was no part of the contract that Gilmore should send them to defendant; then no other delivery was necessary to render defendant liable on said note, and the law is for plaintiff.</p> <p>2. That if the note sued on was given for three jennets, and if the jury believe it was not paid at maturity, then the defendant had no right to the possession of the jennets after that time, without first paying or tendering the price; and that unless they believe the defendant has since tendered the payment of the note, and demanded possession, the law is for the plaintiff, and they must so find. The defendant asked, and the court refused, these instructions,, viz.</p> <p>1st. If the jury believe from the testimony, that the note sued on was given by said defendant to Kendall for three jennets, designed to be sold by Kendall to Ingersoll, and that defendant never had, and has not now, said jennets, the law is for the defendant, and they will find accordingly.</p> <p>2d. If the jury believe from the testimony, that said jennets were on Gilmore’s place at the time of the sale, and have so continued, they have a right, in the absence of other proof, to infer that there has been no delivery.</p> <p>3d. That an authority to purchase jennets does not vest in the agent an authority to take possession of the same, and immediately return the possession to the vendor.</p> <p>4th. No subsequent acknowledgment or promise to pay the notes made by defendant, by letter or otherwise, without a new consideration, would alter or enlarge the liability of defendant upon the note.</p> <p>5th. If the jury believe from the testimony, that Ingersoll’s instructions to Kendall were to let the jennets remain on Gilmore’s plantation free of charge to him, and the said jennets did so remain without being removed therefrom, there is no delivery in law.</p> <p>The jury found for plaintiff; and his motion for a new trial being overruled, the defendant sued out this writ of error.</p> <p>In a sale of personal property, a delivery is as essential as a deed in the conveyance of real, and a note given in either case in the absence of either, is without consideration, and void. In this case there was no binding contract; for there was, 1st. No agreement for delivery at a day certain.; 2d. All or part of the money was not paid in hand; 3d. No earnest money was given ; 4th. The articles sold did not pass into the possession of the vendee. Chitty on Contracts, 374; Carters. Tonis sant, 5 Barn. & Aid. 855; Tempest v. Fitzgerald, 3 lb. 680.</p> <p>1. If there was no contract or stipulation as to the delivery of the jennets, the seller was in law bound only to deliver them at the place where they were at the time of sale. Story on Sales, $ 391. And he was only bound to deliver them there, on demand made by the purchaser. Ib. § 301, 388.</p> <p>2. No delivery was .necessary to vest the title to the jennets in the purchaser, or enable the vendor to recover the price. Story on Sales, § 300, 301.</p> <p>3. If the jennets remained in the possession of the seller until the expiration of the credit given, the seller was not, after that time, bound in law to deliver them to the purchaser, even if they had been demanded, until the payment of the price. Story on Sales, § 285.</p> <p>4. The jennets were in fact delivered to Kendall, the agent of the defendant, by whom the purchase was made. This is necessarily implied in the statement of Kendall, that he allowed them to remain in the possession of Gilmore, at -the request of Ingersoll and for his purpose. The letter of the defendant, also, assumes as a known fact, and consequently admits, that the jennets were in the possession and under the control of Kendall for him.</p> <p>5. If there was in fact no formal delivery of the jennets,, there being left by the purchaser on the premises of the seller, with him, for the purposes of the purchaser, amounted in law to a waiver on his part of his right to such formal delivery.</p> <p>6. The first instruction asked by defendant, ■was. correctly refused, for two reasons. 1st. It assumes that the jennets were bought by Kendall on his own account, and by him sold to Ingersoll, of which there is not the slightest proof; 2d. It assumes that on a sale of chattels on a credit, the seller must, even after the expiration of the credit, prove an actual delivery of the goods to the purchaser before he can recover the price.</p> <p>The other instructions asked for by defendant, all in like manner embody principles and propositions of law which foregoing authorities show most clearly are not sound; they were for this .reason properly refused.</p>

<p>In error from 'the circuit court of Hinds county; Hon. George Coalter, judge.</p> <p>Augustus Jennings and Richard S. Drone, sued J. S. Ellison, Ozias Osburne, and Daniel Thomas, upon the following note, viz.:</p> <p>“$591. Cayuga, April 16, 1839.</p> <p>“On the 1st day of February next, (1840,) we, or either jointly and severally, promise to pay to Jennings & Drone, or order, the sum of five hundred and ninety one dollars, for value received, negotiable and payable at the branch of the Mississippi Railroad Company at Raymond, J. S. Ellison,</p> <p>“Ozias Osburne.”</p> <p>The name of “Daniel Thomas” was written across the back of the note.</p> <p>The declaration contained a special count, charging all of the defendants as co-makers, also the common counts for money paid, and money had and received.</p> <p>On the trial of the cause, at the November term, 1848, the plaintiffs proved the signature of Thomas, and read in evidence said note.</p> <p>They also read in evidence, a bill of discovery filed by them, and the answer of Thomas thereto; these are set out in the opinion.</p> <p>Before the trial of the cause, a notice had been served on the plaintiffs as follows:</p> <p>“ To Jennings & Drone.— Gentlemen:</p> <p>“ Upon the trial of a certain cause, now pending in the circuit court of Hinds county, in which you are plaintiffs, and Joseph S. Elllison, Ozias Osburne, and Daniel Thomas, are defendants, No. 13,649, we shall call for the production by you of the protest of the note sued on in this action, together with the notices of said protest tp the said defendants. Daniel Thomas.”</p> <p>In pursuance to said notice, the plaintiffs then produced and read the notarial paper, and proceded to establish protest of the note and notice to Thomas, but under the opinion they need not be set out.</p> <p>The court below excluded from the consideration of the jury all the testimony of protest and notice, on the ground, that it was not admissible under the pleadings, and the plaintiffs excepted.</p> <p>The court then instructed the jury as follows: “The court instructs the jury, the evidence does not tend to show any liability of Daniel Thomas as maker of the note sued on, and they ought to find for the defendant,” and the plaintiffs excepted.</p> <p>The jury found for the defendants, and the plaintiffs sued out this writ of error.</p> <p>1. That the proof to bind Thomas as indorser was admissible. He cited Dowell v. Brown, ante, 43.</p> <p>2. That the instruction was erroneous. He cited 5 S. & M. 627; Dean v. Hall, 17 Wend. 214; Seabury v. Hiingerford, 2 Hill, 80 ; Hall v. Newcomb, 3 lb. 233; 1 Strange, 399; Gibson v. Powell, 6 How. 60; While v. Howland, 9 Mass. 314; Moies v. Bird, 11 lb. 436; Nelson v. Dubois, 13 Johns. Rep. 175; Campbell v. Butler, 14 lb. 349.</p> <p>1. That with the pleadings being shaped to that end, or any notice of such intention, proof to bind Thomas as indorser, was inadmissible.</p> <p>2. That the instruction was right. On this point they reviewed the decision in 5 S. & M. 627, and commented on Hall v. Newcomb, 3 Hill, 233; Herrick v. Carman, 12 J. R. 160.</p> <p>1. Thomas cannot be charged as joint maker. 5 S. & M. 630; Hoare v. Graham, 3 Campb. 57; Slackpole v. Arnold, 11 Mass. 27; Luff v. Pope, 5 Hill, 413; Payne v. Laden, 1 lb. 117; Dean v. Hall, 17 Wend. 214; Geabury v. Hunger-ford, 2 Hill, 80; Hall v. Newcomb, 3 lb. 233; Guy dam v. West-fall, 4 lb. 217.</p> <p>2. He cannot be charged as indorser. The payees never indorsed the note. Pie could be only liable as second indorser, if at all.</p>

<p>On appeal from the circuit court of Warren county; Hon. Gr. W. L. Smith, judge.</p> <p>. An attachment at the suit of Truman B. Wheeler et ah, partners under the firm and style of T. B. Wheeler & Co., against Henry Slavens, was returned to the October terra, 1849, of the circuit court of Warren county, levied on a slave of the defendant. The-defendant moved to quash the attachment for want of bond and affidavit taken and returned according to the1 statute. Before the motion was heard, the plaintiffs introduced Samuel B. Harwood as a witness, who stated that on the 26th of April, 1849, as a magistrate„of the county; he issued this attachment; before its issuance,'the plaintiffs gave bond and affidavit according to the law of both, of which copies newly executed were shown to him, and which he recognized as substantial, and he believed literal duplicates of the original; that this bond and affidavit were destroyed on the night of the 21st of September, 1849, in a fire in the city of Vicksburg, in which the witness’s office and papers were consumed. On "this proof, the plaintiff asked leave to file the duplicate affidavit and bond ; it was refused, the motion to quash sustained, and this appeal prayed.</p> <p>1. It would be a great hardship upon appellants, that by reason of the accidental destruction of the affidavit and bond, they should be turned out of court at heavy costs, and probably the loss of their debt, especially as the law did not permit them to have the custody and care of these papers. Hutch. Dig. 802, § 8. To hold appellants responsible for the loss or destruction of these papers, would be to make them responsible for the acts of another over whom they had no control whatever.</p> <p>2. It is insisted, that there was in fact no necessity for the appellants filing new affidavit and bond; proof of the making and executing good and sufficient affidavit and bond, upon the suing out of their attachment, would have been sufficient. A recovery for all damages the appellees might sustain, could have been well had on the bond which was consumed by fire, notwithstanding its destruction. Starkie’s Evidence, 2d American ed. part 2d, p. 159, 160, and notes; 4 Verm. Rep. 504; 4 Leigh, (Va.) Rep. 57; 1 Miller’s (La.) Rep. 137-145 ; 2 Blackf. Rep. 228; 1 AVatts, 427, 428 ; 2 Haywood’s Rep. 76, and notes; 4 Phil. Ev., Cow. & Hill’s Notes, 1067; Note 273, p. 387.</p> <p>3. The bond burned up must be presumed to be good and valid, as well as the affidavit. The law presumes all its officers to perform their duties properly, and according to its requisitions, unless the contrary is proved.</p> <p>4. This was not an application to substitute a good bond, &c. in the place of a defective one, (this, however, is allowed in Alabama under a statute similar, if not exactly like ours; see Lowry v. Stowe, 7 Porter, 483; Planters 4* Merchants’ Bank v. ■Andrews, 8 lb. 404; 9 lb. 320,.415; 3 lb. 404;) but merely to supply the loss of a good and sufficient bond, &c. accidentally destroyed.</p> <p>5. The object of the legislature in requiring the affidavit and bond to be returned into court, was doubtless to afford defendants in attachments ample remedy for the abuse or improper use of that process, a bond given at any time that would secure this would certainly subserve the purposes of the law.</p> <p>6. The attachment in this case was not issued without bond and affidavit, it is conceded; if it had been, the process would have been void, and could never have been rendered good by any subsequent bond; but process good in the beginning, certainly .cannot become void ab initio, by matters subsequent.</p> <p>7. The construction required to be put upon our attachment law, (Hutch. Dig. 808, § 31,) would certainly not be answered were this court to do otherwise than reverse the decision of the court below in this case.</p> <p>8. The case of Redus v. Wofford, 4 S. & M. 579, shows that this court in construing our attachment law is not governed by its letter, but will give effect to it in the -spirit and design in which it was enacted. The objection in the case last cited was that the affidavit was not signed by the party who made the same, as is certainly required by Hutch. Dig. 802, § 8, if the act is to be interpreted literally.</p> <p>1. The writ of attachment is but process. Peters v. Finney, 12 S. & M. 449. The bond and affidavit but the foundation of the process. Even if the destruction of the writ could not be supplied by parol, (a position not admitted,) the loss of the. bond and affidavit is but a mere loss of the declaration or foundation of the suit, and upon all the authorities may be supplied by parol where no sworn or exemplified copy can be had. See 1 Greenl. Ev. § 509, 521, especially this last section, and the authorities cited.</p> <p>2. But it is said the statute Hutch. Code, 802, § 8, requires this attachment to be dismissed, because the bond and affidavit though taken were not “returned.”</p> <p>This statute must be construed so as to answer the end designed. It is a statute that will, according to the decisions in 12 S. & M., and at the present term, be favorably construed for creditors. Even if the letter of the statute would seem'to require the dismissal of the suit, the spirit of it is wholly at war with .such a conclusion. Qui haaret in Uteris, hceret in cortice. This attachment when issued was not illegal and void; it was in all respects valid and binding. The subsequent destruction of the bond and affidavit cannot retroact so as to make the attachment illegal and void, ab initio, and yet he who reads the statute must be convinced that it intended only to refer to attachments void ab initio. It is by the statute declared illegal and void for having issued improperly. Every attachment issued without bond and affidavit, &c., is obnoxious to the law. This did not so issue; on the contrary it issued lawfully. How can the court then bring it within the condemnation of the statute? It is not in the reason of the law; and though seemingly within the words, may be, by the construction stated, wholly exempted.</p> <p>3. Can a lawful attachment by any mode ever become an unlawful one? Can that which was legal in its inception, become illegal without the interposition or agency, and against the will and desire of the party to be affected by it ? This attachment was issued according to law; the party did all he could; he is not in fault; he has complied fully with all the requisites of the statute in his power to comply with ; shall he be punished for what he could not help? Is not this case a necessary exception to the provisions of the statute. The law does not require impossibilities; and where it seems to do it, does not mean to exact their performance.</p> <p>4. The case of Tift v. Virden, 7 S. & M. 91, is dependent on a different principle from this. The rent statute, it is there held, must be strictly pursued. The bond is itself the judgment; if no judgment in court, how could an execution issue on it? Unless the bond be filed there is no case in court. Not so here.' Here is the attachment process as process forcing the party into court. Suppose an ordinary judgment destroyed, no execution could issue, though the party might bring a new action.on his judgment.</p> <p>5. Here the attachment law is leniently construed. It favors creditors; it is not the absence of the judgment here complained of, but merely of the preliminary steps required for the issuance of process.</p> <p>1. The court certainly did not err in refusing to permit plaintiffs to file the papers alleged to be copies of the original affidavit and bond in lieu of the originals. They were not the affidavit and bond upon which the attachment was founded; they were not executed before any officer, authorized to take them, nor in accordance with any statute or law of this state. The justice was authorized to administer the oath and take the bond before the attachment issued, but not after. The bond and affidavit must precede, not follow the attachment. Upon the copy, therefore, no suit could be instituted as a statutory bond. Nor could the -party be indicted for perjury upon the copy of the affidavit, even though what was stated in it might be false.</p> <p>2. I insist the attachment was properly dismissed. The statute, (Hutch. Code, 802, § 8,) after prescribing the conditions upon which attachments may be issued, reads thus: “which bond, together with the affidavit of the party complaining, his or her agent or attorney, subscribed with his or her proper name, shall be returned by the judge or justice taking the same, to the court to which the attachment is returnable; and every attachment issued without bond and affidavit, taken and returned as aforesaid, is hereby declared illegal and void, and shall be dismissed.” The language of the statute is peremptory. The bond arid affidavit must be returned to the court to which the attachment is returnable, or the attachment is illegal and void, and shall be dismissed. In this case it is admitted the affidavit and bond were not returned as required by the statute, but the excuse is offered that they were burned, and therefore could not be returned. They were destroyed without any fault or negligence of plaintiffs, and therefore they should not be injured by it. Admitting this were so, it is no answer to the imperative language of the law. To dismiss the attachment might, under the circumstances, be a hard case on the plaintiffs. Yet if the law requires it, it must be done. The affidavit and bond were the foundation of the proceeding, and their return into court was necessary to give it jurisdiction. The remedy is a harsh one, and the defendant has a right to require a strict compliance with the law. The legislature imposed the necessity of returning the bond and affidavit for good reasons. They wished to afford the defendant and court an opportunity of inspecting them, and comparing them with the law, that they might know whether they were correct or not, and that the defendant might have a clear and unembarrassed remedy on the bond, if the plaintiffs failed to prosecute their attachment with effect. In this case, if the attachment had not been dismissed and the plaintiffs had failed to prosecute it successfully, the defendant would have been compelled to have sued on the bond which had been burnt, and instead of having the evidence the law provides for him, viz. the bond, he would have to rely entirely on secondary evidence. The magistrate, had he lived until the trial and could have been gotten into court, would have proved substantially the contents of the affidavit and bond; but suppose he had died, or left the country, or forgotten the transaction, where then would have been the defendant’s evidence? or what would his action on the destroyed bond be worth ? It will not do to say that he might have sued upon the copy of the bond which the plaintiffs offered to file, as a common law bond. That is not the security or indemnity the statute provides ; and he has the right to demand all the security the legislature designed to give him. It is not denied that where notes, bills, bonds, or records have been lost or destroyed, that secondary or parol evidence of their contents may in many cases be resorted to, but in such cases they are not the foundation of the court’s jurisdiction ; it is in cases where it becomes necessary to prove their contents in the course of proceedings already properly before the court. Such cases, it is submitted, bear no analogy to the case before us. Here there is no case in court. The bond and affidavit must be returned, or the court cannot entertain the attachment.</p> <p>I have been able to find' no reported case precisely in point. But I would refer the court to the case of Smith v. Dudley, 2 Pike’s Arkansas Rep. 60; and the case of Lcíne v. Cassaday, Hardin’s Reports, 227, as more nearly resembling the case at bar than any I have béen able to find.</p> <p>3. I would suggest, however, that the justice had ample time in this case to have returned the affidavit and' bond, had he chosen to have done so. They were taken on the 26th of April, and were not destroyed until the 21st of September thereafter. He therefore had five months, less five days, to return them to the clerk’s office, in the same town with his own office. ■</p>

<p>Lands under mortgage are not subject to sale under execution against the mortgagor, on judgments junior to the date of the mortgage; and.it is incumbent on the purchaser at such a sale, who claims, title thereunder, to show affirmatively that the mortgage has been extinguished.</p> <p>In this case, one of the questions presented, was, as to the validity of a sale by one to his brother, and a conveyance by the latter to the wife of the former; the court review the facts, and reach the conclusion, that the sales were fraudulent, and made to enable the first vendor to evade the payment of his debts, and retain his property in his wife’s name.</p> <p>Voluntary conveyances are not necessarily void as to subsequent creditors; the presumption of fraud arising from indebtedness, or fraud in law, may be repelled by circumstances tending to show the absence of actual fraud ; but if a subsequent creditor can show fraud in fact, by showing that the conveyance was made to avoid future debts about to be contracted, or to defraud existing creditors, the conveyance is void, not only as to present, but as to subsequent creditors also; and will be declared so at the instance of such subsequent creditor.</p>

<p>In error from the circuit court of Kemper county ■ Hon. A. B. Dawson, judge.</p> <p>Charles C. Scott, sheriff of Kemper county, who sued to the use of Socrates Parker,"sued Edgar Loomis and John T. Moseley upon a bond with consideration to indemnify and save harmless the nominal plaintiff, the sheriff, for seizing and selling a negro boy, Jim, levied on by him as the property of one John Root, by virtue of an execution from Noxubee circuit court, in the name of E. O. & E. Loomis against Root; also to pay to all persons claiming title to said slave, all damages they might sustain by reason of such seizure and sale.</p> <p>To the declaration, in the usual form, averring that Parker held and -claimed title to the slave, and that he had sustained damage, &c., the defendant plead in substance that the title to the slave was not in the plaintiff at the time of seizure, &c., and that he had not sustained damage; to which the plaintiff replied that he claimed title to the slave, and had sustained damage, &c.</p> <p>On the trial, the plaintiff claimed title, through a constable’s sale under a justice’s execution and judgment in Alabama, at the suit of B. R. Barnes against Root, and proposed to show by his own affidavit, that the original book or docket containing the judgment and proceedings under which he claimed, was put into his possession by the justice having it in charge, to be used as evidence in this cause, and was by him, the plaintiff, lost; this affidavit was offered for the purpose of laying a ground for secondary evidence of the judgment; this testimony was objected to, on the ground that the plaintiff could not be allowed to testify in his own case, and the objection was sustained by the court.</p> <p>The plaintiff then offered to read the depositions of various witnesses, proving the entry on the justice’s docket of the judgment and proceedings under which he claimed, and among others the evidence of the justice himself; and offered also the process in attachment, upon which the judgment in Alabama was founded, and the execution with the constable’s indorsements, and return of the sale to Parker, &e.; but these were all excluded, on the ground that the plaintiff had shown no judgment to sustain the execution and sale. Other evidence was also offered, which, under the decision, need not be noticed. The laws of Alabama, found in Aikin’s Digest, were admitted by. counsel as evidence in the case. The jury found for the defendants, and the plaintiff sued out this writ of error.</p> <p>1. The court erred in refusing to permit the plaintiff to prove by his own affidavit the loss of the justice’s docket. Tayloe v. Riggs, 1 Peters, 596, for the reason and propriety of the rule; 5 N. H. 356; 1 Harring. 444 ; 4 Blackf. 369 ; 7 Pickering, 62 ; and see further, 2 Phil. Ev., C. & PI.’s notes, Part 1, p. 138, for all the American cases collected; Smith v. Miss. Sf Ala. R. R. Co., 6 S. &• M. 180; Jackson v. 'Frier, 16 Johns. 193.</p> <p>2. That the original docket and papers are evidence, see 3 Ph. Ev., C. <fc H.’s notes, 1074, Part 2.</p> <p>It may be said, that we were not injured by the rejection of evidence of loss of the book; for we could, without proof of loss, introduce secondary evidence of the contents of it. True; but the rule is, we were bound to produce the best evidence in our power, before we are allowed inferior. While the book is in existence, and it is presumed to be until it is shown not to be,' we could either have introduced the book, or sworn copies of the entries. 14 Serg. & R. 44; 3 Johns. 429 ; 1 Ala. 129; 3 Stew. P. 351; lb. 398 ; 4 N. H. 451; 2 Pick. 448 ; and see 3 Phil. Ev. C. & H.’s notes, 1112- 1116, as to proof of justice’s proceedings. But this is not the only way. In reference to the proof of foreign judgments, which are provable the same way, except as to modes peculiar to foreign judgments, as real, &c., the court in 2 Cranch, 187, say “ these” exemplifications, &c., “ are the usual, and appear to be the most proper, if not the only, modes of verifying foreign judgments; if they be all beyond the reach of the party, other testimony inferior in its nature might be received. But it does not appear that there was any insuperable impediment to the use of either of these modes, and the court cannot presume such impediment to have existed.”</p> <p>So writ or process lost or destroyed may be supplied by parol evidence of its contents where no better evidence can be obtained. Fowler v. More, 4 Pike’s (Ark.) R. 570.</p> <p>If a record be lost or consumed by fire, it may be proved by collateral evidence. Com. Dig. Ev. A. 3; I Salk. 284. So, of the docket of the court of common pleas, if it be lost by sickness or casualty, secondary proof may be offered of its contents. Pruden v. Alden, 23 Pick. 184, 187; Whitney v. Sprague, lb. 198.</p> <p>In the case at bar, we had the original executions reciting the judgments, the deposition of the justice and the constable reciting the fact, amount, and date of judgment; but if this evidence was not sufficient to prove the judgment, we were entitled to show the loss of the judgment entries in order to show that we could not procure copies, and, thus, to let'in the next best evidence, either the oral proof of the judgments, or the executions' reciting them. But we were deprived of this proof by the court.</p> <p>3. The court erred in ruling out the attachments, executions, proof of sale, and also of judgment, and other proceedings connected with said attachment case, and, also, the depositions; the ground of the ruling was that no judgments were shown. As to this we submit,</p> <p>1st. That no judgment was necessary to be shown by the plaintiff, claiming, as he did, as a purchaser at a public judicial sale, under process regular upon its face, and without notice of irregularity; that the constable himself need not have averred or shown a judgment in justification of the levy. See 5 Wend. 16; 16 lb. 514; 6 Ala. R. 634; and that the officer suing a stranger need not show judgment, 6 Johns. 195.</p> <p>2d. As against the defendant in execution, it is said, judgment need not be shown. How is the defendant here who only takes the title of the defendant, and takes it subsequently to our sale, in any better condition? And if the officer can justify, why cannot he pass title to an innocent purchaser ?</p> <p>3d. In this case, the negro was attached before the sale; by the attachment, as this court has decided in reference to its own attachment laws, the title was divested, and the sale was only necessary to ascertain the value. 4 S. & M. 479. The Alabama statute is not different; see Clay’s Dig. 54, § 1; also Baldwin v. Leftwick, 12 Ala. 838. We submit if this fact does not except this case from the general principle; for the title may not be divested by an execution without judgment; here it was divested.</p> <p>4th. We have shown by sufficient evidence, judgment. The Court will observe these things: that courts of justices of the peace in Alabama, are not courts of record; (see Clay’s Dig. admitted to be read by agreement;) that all the entry required to be made, of judgment by the statute (lb. 359, § 5,) is a bare ■memorandum', not more full than the recital in the execution; that the judgment is called in question only collaterally; that these dockets are but loosely kept by men not acquainted, for the most part, with legal forms; that this judgment was rendered several years ago; and that the trial was in another state. Now, the rule of law is, that when the judgment is collaterally used, to support a sale, a very imperfect transcript of the judgment is sufficient. Lanning's Lessee v. Dolph, 4 Wash. C. C. R. 625. It is, at least, questionable, if a perfect transcript were required, if it be not furnished by the evidence.</p> <p>1. The plaintiff claiming title under a purchase at constable’s sale in Alabama, should have shown by competent testimony that there were judgments against Root, and also execution's on the judgments, under which he purchased. Starke v. 'Gildart, 4 How. R. 267.</p> <p>2. The affidavit of Parker, the plaintiff, to show that the justice’s docket, in which was the judgment entry, had been lost by him, to lay the foundation for secondary evidence, was not sufficient. He should have first shown that such a docket once existed, by other proof than his own oath. 2 Phil. Ev. C. & H. notes, 138; 3 lb. 1217.</p> <p>3. Yerbal testimony of a justice as to his proceedings, not admissible. 3 Phil.'Ev., C. & H. Notes, 1113. Entries injustice’s docket can only be proved by sworn copies. Ib. 1111, 1112. Without the judgment, therefore, duly authenticated, the execution, &e. was inadmissible.</p> <p>In addition to the former authorities, cited to the point, that in sheriffs’ sales of personal estate, the vendee is only bound to show execution, and need not produce judgment, Burkely v. Screven, 1 N. & M. 408; Vance v. Reardon, 2 lb. 299 ; Morrison v. Dent, 1' Mis. R. 246; Den v. Despreux, 7 Halst. 182; Den v. Farlee, lb. 326 ; Richardson v. Broughton, 2 N. & M. 417.</p> <p>And the vendee is protected even when it is showed that the execution issued on a judgment void for want of notice. Darby v. Russell, 5 Haywood, 139.</p>

<p>In a suit brought in the superior court of chancery against the state, for the value of work and labor done, and materials furnished in the erection of the State-house, the chancellor ordered an issue to the circuit court of Hinds county, to ascertain the amount due; the jury found a verdict in favor of complainant, to which no exception was taken in the circuit court by either side, though the state moved unsuccessfully there for a new trial; the chancellor, however, set the verdict aside on its return to his court, and ordered a new trial at his bar, from which order the complainant prayed, but did not prosecute, an appeal; the second issue was tried at the bar of the chancery court, and resulted in a second verdict for complainant, which the chancellor also set aside, and directed a new trial; to this the complainant excepted, and embodied the evidence in a bill of exceptions, and prayed, but the chancellor refused, an appeal: Held, first, that the appeal being from the refusal to confirm the second verdict, and the allowance of the second new trial, the high court could not inquire into the propriety of the order of the chancellor setting aside the first verdict.</p> <p>Held further, that the whole appeal was premature ; there was no decree either final or interlocutory appealed from; the power of the chancellor to grant the new trial was unquestioned; its rightful exercise was another matter, which could only be inquired into on the final determination of the case; perhaps both parties might be satisfied with the next verdict.</p>

<p>By the charter of the town of Aberdeen, in 1837, the legislature granted to it the sole power to grant licenses to sell vinous and spirituous liquors within the corporate limits thereof, and to appropriate the money arising therefrom to city purposes ; in 1848, an act was passed by the legislature, changing the purposes to which the money so arising was to be applied, and directing it to be paid to the Aberdeen Female Academy : Held, that the last act was unconstitutional. By its charter the city had a vested interest in the profits arising from the exercise of the franchise of granting licenses ; which, while it continued the franchise, the legislature could not take away from the city. It might take away the franchise altogether ; but if permitted still to reside with the corporation, it must remain with all its incidents and advantages.</p>

<p>In error from the circuit court of Holmes county; Hon. Robert C. Perry, judge.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>Cited Angelí & Ames on Corp. 121, 122 ; Ayliffe’s Civil Laws, Tit. 35, B. 2, p. 198; Angelí & Ames, 150, 151, 164; Head Sg Amory, v. Providence Ins. Co., 2 Cranch, 166; Commercial Bank of Manchester v. State, 6 S. & M. 230; Fleckner v. Bank of the U. S., 8 Wheat. 338; Burrill v. Nahant Bank, 2 Mete. 166; 11 Mass. Rep. 288; Munn v. Commission Co., 15 Johns. 44; Salem Bank v. Gloucester Bank, 17 Mass. Rep. 29, 30; 1 Greenl. Rep. 81; Wyman v. Hallowell <f Augusta Bank, 14 Mass. Rep. 58; Hartford Bank v. Hart, 3 Day’s Rep. 493; see also Osgood v. Manhattan Co., 3 Cow. 623; Angel! <fc Ames on Corp. 394; 2 Starkie on Evidence, 580; 1 Camp. 22.</p> <p>Cited 2 Starkie’s Ev. 23, 24; Phil. Ev. 57, and note; 1 John. Rep. 159; 1 Bing. 531; 3 lb. 316; 2 Munf. 49; 1 Camp. 255; l Yea tes, 502-505; 1 Wash. C. C. 330; Angelí & Ames on Corp. 249; 13 Conn. 173; 11 Serg. & Rawle, 267-269; 21 Pick. 270; 11 Serg. & Rawle, 179; 6 Peters, 51; 8 lb. 12; 17 Mass. R. 1; 3 Cow. 623; 15 Maine R. 306 ; 1 Hill’s R. 579; 3 Day’s Rep. 493; 10 Mass. R. 403; 1 Pick. 304; 3 Day, 491. See Long on Sales, 183, 199; 2 Kent, 477; 6 Wend. 122; 1 Pick. R. 278; 1 B. <fcA. 681; 3 Term R. 148, 653; 4 Bing. 653, 661; 1 East, 209 ; 6 Barn. & Cress. 355; 3 Mann. & Ry. 97,222; Angel! & Ames on Corp. 174, and authorities cited; 7 Cranch, 305; 5 Wheat. 326; 3 Serg. & Rawl. 117; 3 Munf. 324; 10 Mass. R. 401; 6 S. & M. 647; Corning v. Colt, 5 Wend. 253. Bank U. S. v. Dandridge, 12 Wheat. 68.</p> <p>Cited Angelí & Ames on Corp. 247, 248; 7 J. R. 470 ; 4 Wheat. 225 ; 9 Porter, 605; 1 Mete. 93 ; 5 Stewart & Porter, 264; 7 Watts, 48; 5 Pick. 380; 3 J. R. 534 ; Chitty on Contracts, 15 ; Peru v. Turner, 1 Fairfield’s R. (Me.) 185 ; Wilson v. Clements, 3 Mass. 1; 6 Wend. 106; 1 Pick. 278; Comyn on Contracts, 38, 106, 107; Angelí & Ames on Corp. p. 82, 224, 227, 241 -243; lb. 241-243; lb. 238, 239; lb. 249 ; Story on Agency, 125, 126.</p>

<p>There is no set form of words necessary to create a separate estate in the wife ; any terms which show a manifest intention to exclude the right of the hus band, or to show that the wife’s control is independent of the husband’s power, are sufficient for the purpose.</p> <p>L., in the year 1835, conveyed, in the state of Alabama where the parties lived, certain slaves to S. and M., “ in trust for the use of five grandchildren of his, children of S. and the daughter of L. ; the said S. and wife to have the possession and use of the said slaves during their natural lives, and after the termination thereof the said slaves are to be equally and rateably divided between said grandchildren, or such of them as may be then living ; the said slaves to be at no time under the disposition of S., except for the maintenance, support, and education of said grandchildren, and to be at no time liable for any of his debts or liabilities.” S. sold one of the slaves in 1836, and after six intermediate and successive purchases, in 1841, the slave thus sold by S. was bought by T. in this state ; in 18 — , S. died, and the slave in some way got into the possession of his widow, whom T. sued for the slave : Held, that, by the deed of 1835, from L. to S. and M., the wife of S. took a separate estate during her life and to her children afterwards, beyond the reach of any act of the husband ; and that therefore the original purchaser from S. and those claiming under him, acquired no right to the slave as against the wife.</p>

<p>In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.</p> <p>Ephraim Guice, president of the board of trustees of the sixteenth, section of school lands, in township ten, range one, west, brought his action of assumpsit against James K. Lea, a surviving partner of Calvin Lea, deceased, and Eggleston Cheatham, on a promissory note, in these words, viz:</p> <p>“$1066.66.</p> <p>“One day after date, we, or either of us, promise to, pay Calvin Lea, president of the board of trustees of the 16th section of land, in township ten, of range one, west, or his successors in office, one thousand and sixty-six dollars and • sixty-six cents, value received, with interest, at the rate of eight per cent, per annum, from date until paid.</p> <p>“ (Signed,) C. Lea,</p> <p>“ March 11, 1843. Eggleston Cheatham.”</p> <p>After plea by Cheatham, the suit was discontinued as to him. Lea plead non assumpsit, with an affidavit of its truth in substance and fact.</p> <p>On the trial, the plaintiff offered in evidence, articles of agreement. between James K. Lea and Calvin Lea, which recited that they owned lands, negroes, and ‘other property, situated in said county of Yazoo, and agreed to plant in partnership with them, each to share equally in the expenses and profits of the same; referring to a conveyance for a description of the land owned jointly by them. This was objected to by defendant’s attorney, but the objection was overruled.</p> <p>Plaintiff then gave, in evidence to the jury, the note sued on, which was objected to by the defendant below, but he was overruled by the court.</p> <p>Plaintiff then called Robert H. Cage, who proved, that the signature “ Calvin Lea” to said note was in the handwriting of Calvin Lea, with which he was acquainted; that he had seen Calvin Lea, in his lifetime, sign several writings about his plantation business, with the name Calvin Lea alone; one of them was a transaction about some mules purchased by Calvin Lea for the plantation, for which he gave his note, signed by him in his individual name, and by witness as his surety for. about $170, which was the largest transaction in which witness saw him sign the name Calvin Lea about plantation concerns; witness was obliged to pay the note, and James K. Lea, as surviving partner, repaid him the amount; that he never knew Calvin Lea to sign any other name than his own to any instrument of writing made in connection with his planting business. He also stated that Calvin Lea, at the date of the note, and for some' years before and afterwards, until his death, was engaged in the business of planting in Yazoo county, on a plantation in his (witness’s) neighborhood; that he was very intimate with said Calvin ; and that he never heard or knew, nor was it known in the neighborhood, until after said Calvin’s death, which was in August, 1846, that he was in partnership with James K. Lea; that witness, and all others in the neighborhood, believed him doing business alone; that said plantation was a productive one, producing each year considerably over the expenses; that said Calvin lived on the plantation, and James K. resided in North Carolina, &c.; that he was a planter, and acquainted with the usages and customs of planters, &c., in Yazoo county; that it was the usage of planters in that county to borrow money, when they needed it for carrying on their plantations; that witness has no positive knowledge what the firm name was, nor did he know what was the consideration of the note sued on.</p> <p>Jos. C. Lewis, called by plaintiff, proved Calvin Lea’s handwriting to note; was acquainted with the Leas, and the plantation and negroes; knew nothing of partnership until after said Calvin’s death; that said plantation was a profitable one; that he, as receiving and forwarding merchant, received and shipped the crops of said plantation for several years previous to the death of said Calvin; that the crops of said plantation were never less than one hundred and sixty bales of cotton a year ; that thirty hands were worked on said plantation; that Calvin Lea received the proceeds of the crops; witness furnished the supplies for the plantation, usually amounting to about $600 a year, but did not furnish all the supplies; supposes whole amount of supplies for it would be $1000, exclusive of overseer’s ■wages ; that since the death of Calvin Lea, James K. Lea told him, that he had received $900 from said Calvin Lea, and that said Calvin Lea, at the time of his death, was indebted to him on partnership account several thousands of dollars; was very intimate with said Calvin; that all the instruments made by him about his plantation were signed by him in his individual name; the partnership was not known. The cotton from the plantation was marked in his name alone.</p> <p>Benjamin Lewis, called by same, testified the signature was in the handwriting of said Calvin Lea; was acquainted with him; never knew of partnership, «fee.; that the note sued on in this action was given by said Calvin Lea, in his lifetime, to the said president of the trustees of said sixteenth section, to take up the note of E. C. Wilkinson to the same, for money loaned of about the same amount; that at the time the note sued on was given, witness, who was treasurer of said trustees, was present; and that, at the time, the said Calvin Lea told him, (witness,) that he wanted the note sued on, to take up the note aforesaid of E. C. Wilkinson and others, to said president, «fee. Here the attorney for defendant below stopped the witness, and objected to his testifying to the declarations of the said Calvin Lea, as to the purposes for which he gave said note,1 which objection was overruled by" the court, to whose opinion the defendant excepted. The witness was then permitted to testify; who stated, that at the time the note sued on was given, Calvin Lea told witness, that he wanted to give said note in lieu and stead of said noté of E. C. Wilkinson and others, and that he made the note sued on for the purpose of raising or procuring the money, or means to pay a debt which he owed to Joseph E. Taylor, for overseeing on his plantation in Yazoo county, the same in which said Calvin and James K. Lea were partners, a debt due him, said Taylor, as overseer on said plantation; and that the said CalvimLea did take up with the note sued on, the said note of said E. C. Wilkinson from said president and trustees.</p> <p>Cross-examined by defendant’s attorney. Was and had been a planter in said county for many years; acquainted with planting business and planting partnerships; attorney for defendant then asked witness, Whether it is or is not the general usage and custom of planting partnerships, in this section of country, for one partner to use and exercise the power of borrowing money? To this question the attorney for the plaintiff objected, and contended that the question should be not as to the usage and custom of partners in the planting business, but of planters generally, which objection the court sustained, and decided that the question should be general as to the customs and usages of persons engaged in the business of planting, in relation to their borrowing money necessary for the purpose of carrying on that business, and that it might be thus propounded if desired; and the defendant’s attorney declined asking it, but excepted to the opinion of the court, in sustaining the objection to the question as propounded by him.</p> <p>Plaintiff’s attorney then propounded to witness the question, Is it or not the custom and usage of persons, engaged in the planting business, to borrow money when necessary for the purpose of carrying on that business? And witness answered, “ It is when needed.”</p> <p>On being further cross-examined, witness stated, that at the time the note sued on was given by said Calvin Lea, nothing of or about the partnership was said or known; that Eggleston Cheatham .signed said note as surety for Calvin Lea, and that said note was accepted by said trustees upon the credit of Calvin Lea, as seeming owner of said plantation and negroes which he held in his possession.</p> <p>The defendant then called Alexander Kerr, who proved that he lived with Calvin Lea, as overseer on said plantation, several years; 'went to live with him as overseer in the fall of 1843, and continued with him until his death; that the cotton crop produced on said plantation in 1843, amounted to two hundred and sixty-three bales, besides a crop of corn and meat; enough was raised on the place for the negroes; that no corn or meat was bought for the glace whilst he lived there; never heard of partnership until after death of said Calvin Lea, and that after his death his wages were paid by said James K. Lea.</p> <p>Joseph E. Taylor, for defendant, testified, that he lived with Calvin Lea as overseer on said plantation three years, to wit, 1840, 1841, 1842, and left his employ on the 1st of January, 1843; that the smallest crop of cotton made on said plantation, whilst he lived there, was the crop of 1842, and that one hundred and fifty bales of that year’s crop was baled when he left there, and all the crop had not been then picked out; that said plantation was a productive one, and profitable; that witness received no negroes from Calvin Lea got from E. C. Wilkinson, in payment of any debts due witness; witness received his overseer’s wages from Calvin Lea for overseeing on said plantation, amounting to $1800, January, 1843; that in December preceding, Calvin Lea told witness that he was going to New Orleans, and asked witness if he would like to buy some negroes; that witness told him he would; that said Calvin Lea went to New Orleans, and on his return, told witness that he had not bought any negroes for him, but that he had brought money from New Orleans, and would pay witness all he owed him for overseeing, and then paid witness all he owed him for overseeing, which was $1800; that this witness is positive was paid on the 1st of January, 1843; that some time in March or February, 1843, witness was inquired of by said Calvin, at Benton, the court-house of Yazoo county, if he did not wish to buy some negroes; that witness told him he did; that Said Calvin then requested him to bid off, in his name, some negroes, which were being sold under a deed of trust or execution, in which the said E. C. Wilkinson was either trustee or attorney; that the said Calvin, at the time, said he had made arrangements with some one, (witness does not recollect whom,) to receive the money which said negroes might bring at said sale; that witness consented, and did bid off the same three or four negroes at said sale, in the name of said Calvin; and that witness immediately bought them from said Calvin, and then paid him the money for said negroes, which money was the same money that he received from said Calvin aforesaid ; that he never bought any negroes from said Calvin in consideration of a debt due him; thát he never bought any other negroes from said Calvin; and that at the time he bought said negroes from said Calvin, the said Calvin did not owe him any debt for overseeing on said plantation, or any debt at all. This was all the evidence.</p> <p>The plaintiff then asked the following instructions, viz:</p> <p>1. That if. the jury believe, from the evidence, that the defendant and Calvin Lea were engaged in the business of planting in copartnership, at the date of the note sued on, and that said defendant was a dormant partner of said Calvin Lea, or not known by the community to be connected in said business with said Calvin Lea; and if they believe, further, that the said note sued on was made by said Calvin Lea, for an account of the firm and for the firm’s benefit, and was for such a debt or liability as men engaged in planting customarily or usually contract, in view of its objects or effects, then the law is for the plaintiff, and they must so find; and that it makes no difference in this respect whatever, whether the credit was given to Calvin Lea alone or not.</p> <p>2. That if the note sued on was given by Calvin Lea, with the belief that the existing circumstances arid condition of the firm business, in view of, or consistently with, the customs and usages prevailing in the business of planting, rendered it neces.sary to give it, the defendant is equally liable and bound, whether that necessity did or did not exist.</p> <p>3. That the power of one member of a firm to bind his copartners by contract, does not, in any degree, depend on the state of the account of individual members of the firm with each other.</p> <p>These instructions the court gave, and defendant excepted. The defendant then asked for the following instructions, viz. •</p> <p>1. That if a person contracts with an individual partner in a matter unconnected with the partnership business, the firm will not be bound ; and if they believe that the contract in this case was not connected with the partnership, the law is for the defendant.</p> <p>2. That unless they believe that Calvin Lea is proved to their satisfaction, to have been at the time of making of the note sued on, the firm name of James K. Lea, the defendant, and Calvin Lea, in his lifetime as partners or with the sanction of both of them used as such, or that the said note was used on firm account, the law is for the defendant, and they must so find.</p> <p>3. That where one of several partners subscribes the partnership name to a note for a consideration or in consideration of a transaction, not in the regular course, nor within the scope of the partnership business, it lies upon the plaintiff to prove the authority or consent of the other partners to the use of the firm name in such case, and that if one partner signs the firm name to such note without the consent of the other partner, the latter is not bound.</p> <p>4. That where a note is given by a partner in the name of the firm, in extinguishment of another note of a third person received by him individually, the other member of the firm is not liable, unless the last named note is applied to the use of the firm with his knowledge and approbation.</p> <p>5. That dormant partners are not liable on express contracts made by third persons with the known and acting partner, and that a promissory note is an express contract.</p> <p>6. That a contract by one partner in the partnership name, not in the regular course of their business, will not bind his co-partner, unless it be afterwards adopted and approved by the copartner.</p> <p>7. That if they believe from the evidence that the partnership was carried on in the name of Calvin Lea as the firm name, yet unless they believe that the transaction in this case was in the business, or upon the credit of the partnership, and not upon the credit of Calvin Lea individually, the law is for the defendant, and they must so find.</p> <p>The court gave the first, third and sixth of these instructions for the defendant, but refused the second, fourth, fifth, and seventh, to which refusal the defendant excepted.</p> <p>The jury brought in a verdict for the plaintiff, upon which the defendant moved for a new trial; 1. Because the verdict of the jury is contrary to evidence and law; 2. Because the court gave erroneous instructions asked by plaintiff’s attorney to the jury; 3. Refused to give instructions asked by defendant’s attorney; 4. Permitted improper evidence to go to the jury; and 5, because the verdict is contrary to justice, and the very right of the cause. Which motion the court overruled, and defendant excepted, and sued out this writ of error..</p> <p>Cited Story Part. 2d edit. 226, 227, § 139, note 1, and authorities cited; Collyer on Part. (ed. by Perkins) § 411, note 1, and authorities; U. States Bank v. Binney, 5 Mason, 176; S. C. 5 Peters, 529; Etheridge v. Binney, 9 Pick. 272; Story, Part. Ill, § 128; 7 Cow. 202, 214; 11 Wend. 75; 10 lb. 461; 12 Serg. & R. 18; Chitt. oh Cont. 253; Story, Part. 199, § 126; Chit. Cont. 5th Am. ed. 249 a, note v.</p> <p>Cited in addition Hedley v. Bainbridge, 3 Ad. & E.(N. S-) 316; 3 Kent, Comm. 42; Gow on Part. 38.</p> <p>1. The court did not err in permitting the note sued on to be read in evidence, on proof of its execution by Calvin Lea, and before proof of the partnership and of its having been made on the firm account, because it is a well established and unquestionable principle, that a party litigant may present and introduce his evidence in whatever order he chooses.</p> <p>2. The court, upon the same principle, did not err in permitting the articles of copartnership to be read, without first requiring proof that th,e note was made on the firm account.</p> <p>3. The decision of the court, that the plaintiff might prove the usage and custom of persons generally engaged in the business of planting, and was not obliged to prove the custom and usage of planting partnerships, was also clearly correct.</p> <p>The law implies that the business of the firm was to be conducted according to the necessities, usages, and customs of persons engaged in that business generally. And the decision of the court on this point was in accordance with this principle.</p> <p>4. The propositions of law presented by the instructions asked for by the plaintiff are all obviously just and true, and in accordance with the highest authorities. Story on Part. 215 - 217; 2 Kent, Com. 630, 631; Collyer on Part. 11, 313; 5 Pet. R. 560 ; 4 Cow. 282.</p> <p>The court therefore did not err in giving them to the jury, as requested.</p> <p>5. That the second and fourth instructions asked for by the defendant were properly refused, is shown by the same authorities.</p> <p>It having been fully proven that the defendant was in the strictest sense a dormant partner in the firm composed of himself and the deceased, his liability did not depend upon whether there was or was not a firm name used by the ostensible partner, or whether it was or was not used in making this note, nor upon whether the contract was express or implied. This is apparent from the authorities cited.</p> <p>6. The fourth instruction asked for by defendant is unintelli- • gible, and, under every view of its meaning, inapplicable to the testimony, and was for .these reasons properly refused.</p> <p>7. The seventh instruction asked for by the defendant and refused, was also incorrect. It substantially asserts that if credit be exclusively given to the ostensible partner, the dormant partner is not bound by the contract. The authorities cited show that this is directly the reverse of the law. In fact, exclusive credit is always given to the ostensible partner, because the existence of the dormant partner is always unknown. If known in connection with the firm, he ceases to be a dormant partner.</p> <p>8. The admissions of Calvin Lea at the time he made the note sued on, as to the object for which he made it, or the purpose which he designed to accomplish by it, were clearly admissible to show that the note was given for a partnership purpose. It is established by the highest authority, that “ the acknowledgment of one partner, during the continuance of the partnership, of a debt as due by the partnership,” -will bind and charge his copartners. Story on Part. 160, $ 107; 5 How. R. 596. Such an acknowledgment can only bind the firm by sufficiently establishing two facts,— 1, the existence of a debt; 2, that it is a partnership debt.</p> <p>If, as shown by the authorities cited, the acknowledgment of one member of a firm be sufficient in law to bind the firm, as proving sufficiently both of these facts, it is difficult to conceive why the admission of one member of a firm is incompetent as evidence to establish only one of these facts alone.</p> <p>The declarations or admissions of Calvin Lea were objected to when offered to prove that the debt was a firm debt. The authority shows that such an admission would have been competent to prove, as against the defendant, the original existence of the debt, and its character as a firm debt also.</p> <p>The court therefore rightly permitted the declaration of Calvin Lea to be proven.</p> <p>9. It is next and finally alleged, that the court below erred in refusing to grant a new trial, because the verdict was unsustained by evidence.</p> <p>Upon this point I am free to admit there is some difficulty. But taking into view all the circumstances proved, and the statement of Calvin Lea, as to the purpose for which the note was made, we think that it is not such a case as authorizes the court to set aside the verdict of a jury.</p> <p>On this point Mr. Holt reviewed the proof at length.</p>

<p>O.v appeal from the circuit court of Warren county; Hon. George Coalter, judge.</p> <p>-At the May term, 1847, Daniel Thomas, sheriff of Hinds county, entered a motion as follows: “Daniel Thomas, sheriff of Hinds county, moves the court to direct him, in the application of $600, remaining in his hands, from the sale of certain property belonging to Letitia Dickson, under and by virtue of various executions, from the circuit court of Hinds county, there being a contest between the plaintiffs in said executions, and he having been notified by them, or some of them, to hold the same subject to the order of the court. The following is the list of executions in the motion: Joseph B. Heizer against Letitia Dickson, officers of- court against same, D. M. Fisher against same, Edmond Moody against same, officers of court against same.”</p> <p>On the hearing of the motion, the following facts appeared, viz.: On the 26th of October, 1840, Joseph Heizer recovered a judgment, in the Hinds circuit court, against Letitia Dickson for $656, bearing interest at eight per cent., also $13.62, his costs. He sued out executions from time to time, until at last, on the 14th of August, 1846, a levy was made on a lot in Jackson, which was sold, and the purchasers failing to pay the sum bid, it was returned forfeited.</p> <p>On the 17th of April, 1847, Heizer sued out his venditioni exponas, and the property was sold on the 17th of May, 1847, for $600. Heizer’s judgment was enrolled on the 22d of September, 1845.</p> <p>David M. Fisher’s case is as follows :</p> <p>Judgment on the 31st of March, 1840, for $144.07.</p> <p>Fieri facias on judgment levied, and forthcoming bond executed and returned forfeited, 1st day of September term, 1840.</p> <p>Fieri facias on forthcoming bond issued 6th of November, 1840,' and enjoined. The next fieri facias issued 14th of August, 1845, bn which part of the money was made.</p> <p>On the 26th of June, 1846) he sued out another fieri facias, which was levied on the 14th of August, 1846, the same day on which Heizer’s execution was levied, and on the same property, which was sold, and bid forfeited as in the case of Heizer. He sued out his venditioni exponas on the same day with Heizer, and the property was sold under it also.</p> <p>Fisher’s judgment was enrolled 17th of June, 1844.</p> <p>The Commercial and Railroad Bank of Vicksburg also claimed the money, though no execution had issued in its favor. Its judgment was rendered 11th of January, 1843, for $418.63.</p> <p>Fieri facias issued 4th of February, 1843; returned no property found. Judgment enrolled 5th of April, 1844, and no later proceedings had.</p> <p>Moody’s judgment was rendered 24th of March, 1840, for • $1044.09. Bonded, and bond forfeited, third Monday of December, 1843.</p> <p>Fieri facias on bond issued 1st of January, 1844. On this fieri facias, Moody directed that “ the sheriff should let it lie over until further directed,” and it was returned stayed by him.</p> <p>On 17th of November, 1846, he issued another fieri facias, which was levied 17th of April, 1847, on the same property that Heizer’s was levied on, and sale under this also. Moody’s judgment vfas enrolled 5th of June, 1844.</p> <p>On the 28th of February, 1845, an execution issued in favor of the officers of court against Dickson, for the costs due by her in the judgment of Dickson against Miller, amounting to $168.89. • It was levied by the sheriff on a negro. Dickson gave bond, with C. M. Price as her surety, which was forfeited June 16, 1845; on this forfeited bond, an execution, issued on the bond on the 26th of June, 1846, was levied on the same lot with Heizer and Fisher’s, which was finally sold on a venditioni exponas on this, as well as those judgments. The judgment in favor of the officers was enrolled on the 17th of June, 1846.</p> <p>The circuit court decreed the money; first, to Fisher’s judgment, and after that, to the one in favor of the Commercial and Railroad Bank. Heizer excepted and appealed.</p> <p>1. The time of enrolment is unimportant, for all the judgments were rendered prior to 24th of February, 1844, and had ceased to be liens on the 24th of February, 1846. Hutch. Code, 832.</p> <p>2. The appropriation then depends on priority of levy, and Heizer’s execution and that of Fisher were levied 14th of August, 1846, before any of the others, and are therefore entitled to the money. Robinson et al. v. Green, 6 How. R. 227; and 4 lb. 130.</p> <p>By the sixth section of the act of 1844, it is provided, that judgments, &c., shall cease to operate as liens until they are entered on the “judgment roll,” and the lien thereof shall be from such enrolment, instead of from the rendition, &c. Hutch. Code, 892.</p> <p>As the statute peremptorily directs, that the money shall be applied to the judgment, which, from an examination of the judgment roll, has priority of lien, it is evident that the court should have directed the bank judgment to be first paid, it being the first that was enrolled; and the judgment next entitled is that in favor of Moody, it being the next that was enrolled. For the same reason, Heizer’s judgment should be postponed to that of Fisher.</p>

<p>Under the statutes of this state, no objections upon general demurrer to a plea can be taken merely to the form- of the plea; the objection, to be available, must be such that “ judgment according to law, and the very right of the cause, could not be given; ” the objection, therefore, of duplicity is notavailable on general demurrer to a plea.</p> <p>ft'seems that where a bond for title to land is given, even if the contract of the vendee to pay be independent of that of the veiidor to make title, yet if the vendee, at the time stipulated for his payment, tender the money to the vendor, and demand a title according to the latter’s bond, and he is incapable of making it, it will be a good defence, on the part of the vendee, to an action against him, for the purchase-money.</p> <p>A vendor gave a bond conditioned to make title to the land sold the vendee, “ so soon as the purchase-money” stipulated in the bond should be paid ; to an action by the assignee of the vendor against the vendee upon the latter’s note for the purchase-money, he plead that the vendor “ had not and never had such title to the land as by the terms of his bond he was bound to convey; and that neither the plaintiff nor the vendor could make such a title as defendant was entitled to demand; ” a demurrer to the plea being sustained below, it was held, on review of the varipus decisions on the subject, that the covenants between vendor and vendee in this case, were concurrent and dependent, and the plea presented a good bar to the action.</p>

George Coalter, judge. Daniel Thomas, the sheriff of Hinds county, entered a motion for an order directing the application of money, made on execution in his hands, in behalf of Alvarez Fisk against Charles S. Spauu, as between the several judgment creditors. The following tabular statement exhibits the various judgments against Spaun, the dates of their recovery and enrolment respectively, and the plaintiffs’ names: Rendered. Enrolled.

John Walker, judge. Walter B. Weathersby and others, of the heirs of Lewis Weathersby, deceased, filed their petition to compel Hatton C. Weathersby, surviving executor of the will of Lewis, to distribute among them six sevenths of the value of the slaves, Tom and Lucy, and their children, Matilda, Sylvester, Andrew, and Dicey, who were alleged to have been the property of the testator, but in the possession of, and claimed by, the administrator of Ludovick Weathersby, who…

<p>In error from the circuit court of Rankin county; Hon. Wiley P. Harris, judge.</p> <p>The facts are stated in the opinion.</p> <p>Hill having failed for more than two years to execute the bond, and the cause having been remanded to the circuit court of Rankin county, it was proper for that court to consider him as having waived his right to remove it, and to proceed to determine it, for otherwise it was only necessary for Hill to fail ever to give the bond, and the causo would 'stand perpetually enjoined. Gibson v. Johnson, Pet. O. C. Rep. 44; Conk. Tr. 59.</p> <p>There is no error in the form of the judgment. The action was against Hill, as executor de son tort, to which the only plea was ne unques executor, the plea of non assumpsit being struck out. Upon this issue, the verdict was for the plaintiff below, and the judgment was de bonis testatoris si, Spc., et si non, fyc., de bonis propriis. This is the proper judgment in such case. 1 Saund. Rep. 336 b, note 10, near the conclusion of the note; 2 Will, on Ex’rs, 1409, 2d American Edit. 1 lb. 1216.</p> <p>The authorities holding that the executor is not liable to pay the judgment out of his own property, if there be a failure of assets to be found, are where rightful executors were sued. But here the suit is against Hill, as executor de son tort, as appears by the indorsement on the writ, although the declaration is against him as executor generally, which is the-proper form of proceeding against an executor de son tort. Com. Dig. tit. Administrator C. 3. The propriety of the judgment in point of form is clearly recognized in this same case by Judge Sharkey, 6 S. & M. 355, and is fully supported by the authorities above cited.</p>

In error from the vice-chancellor’s court at Carrollton; Hon. Henry Dickinson, vice-chancellor. Israel W. Pickens, on the grounds set forth in the opinion, filed his bill to enjoin Eliza G. Wilson from having a decree obtained by her in the probate court, awarding her dower as the widow of William L. Wilson, in certain lands claimed by complainant,' executed by her, so as to have her dower set apart to her.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. William F. Walker filed his petition for, and obtained a supersedeas, against a sale under an execution, issued upon á joint judgment in favor of Samuel Gilbert and others, partners, under the style of Gilbert, Bailey & Draper, rendered on the 23d of November, 1840, against George R. Fall, Samuel M. Puckett, James H. Johnson, and petitioner, for $900 and costs of suit.

Robert H. Buckner, chancellor. William Ferriday, Samuel Gustine, B. C. Smith, and William H. Dunbar, state in their bill, that on the 13th of April, 1838, George R. Carradine and wife made a deed of trust to William Ferriday and Richard M. Corwine as trustees, and thereby conveyed certain lands, slaves, and other personalty of said Carradinc, being his entire estate, in trust to sell and apply the net proceeds to pay certain bonds and forthcoming bonds, which fU.id Corwine…

Stephen Cocke, chancellor. On the 29th of February, A. D. 1840, George Brungard filed his bill against William R. Lewis, John F. Walker, and Thomas F. Walker, in which he avers, that on the 15th day of January, A. D. 1838, Thomas F. Walker and his wife, in the sole consideration of accommodation indorsements by George Brungard for him, had conveyed to William R. Lewis and John F. Walker, in trust, certain real and personal estate, with power to take possession^ of the same,…