Volume 22 — Mississippi Reports

<p>The ease of Perry v. Randolph, 6 S. & M. 335, cited and confirmed.</p> <p>In an action brought by G. against R., the deposition of D., who had been proved to have been the partner of R. in relation to the subject-matter of the suit, and had himself made the contract as such partner, on which the suit was founded, was held not to be a competent witness for R. to disprove' the partnership.</p> <p>While it is irregular for the judge in the court below, after the jury have retired, to instruct them upon any point involved in the ease, yet if the instruction be in conformity with the law and pertinent to the facts, the irregularity will not be sufficient to reverse the judgment below, though excepted to at the time by the party objecting to it.</p> <p>In an action of assumpsit, brought by G. against R., after the evidence had been closed and the jury had retired, the court, at their instance, notwithstanding the objections of R., instructed the jury that a contract in evidence before them “constituted one D. and R., the defendant, partners, and either of them had the right by contract to bind the firm: ” held, that this instruction, though given at an improper time, was not a “ summing up of or comment on the evidence.”</p>

<p>Where property levied on by an attachment at law is claimed by a third party under the act of 1843, (Hutch. Code, 820,) extending the laws in force in relation to claimants of property levied on under execution to claimants of property seized under attachment, no trial of the right of property can be had, until a judgment at law has been obtained in favor of the attaching creditor, establishing his demand against the defendant in the attachment.</p> <p>In the trial of rights to property levied on under attachments at law, the burthen of proof, as in similar trials of the right to property levied on under execution, is upon the plaintiff in the attachment, who must show aright first as against the defendant in the attachment, and second that the property levied on is subject to that right.</p>

In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge. The facts appear sufficiently in the opinion. Cited 3 S. & M. 234, 248; 5 Pet. Rep. 140, 148, 149; 7 S. & M. 197; Holliday v. Cooper, 1 S. & M. 633. contended, 1. That the verdict was not against evidence, even if the damages were excessive, and that the court should not disturb the verdict, inasmuch as there was nothing in the record to show that a new trial would produce a different result.

Jubal B. Hancock, judge. The facts are stated in the opinion. On the validity and effect of the devise in the will, and the marriage of the widow, cited Chilt. Prob. Co. Law, 145; Wilkes v. Lion, 2 Cow. 333; Jackson v. Thompson, 6 Cow. 171; 12 Wheat. 568; 2 Lomax, 50; 1 Rop. 553-555; 1 Story, Eq. 291, § 287; Clark v. Parker, 19 Yes. 13 ; 4 Kent, 125 ; Story, Con. 125, § 197; Chilt. Prob. Co. Law, 151, § 8; Parsons v. Winslow, 6 Mass. Rep. 169.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. William Robertson, trustee of the Commercial Bank of Natchez, sued Henry R. Coulter and James Richards, executors of Joseph Collins, in assumpsit on promissory note, made by the testator and others, for $1,100, payable twelve months after 22d June, 1841, to the Commercial Bank of Natchez. Plea, non-assumpsit of the testator.

Henry Dickinson, vice-chancellor. The facts of this case will be found sufficiently stated in the opinion of the court. The record is very voluminous, and the arguments of counsel, reviewing the facts of the case, extended on both sides to great length.

George Coalter, judge. The court states the facts. It is insisted that the court below erred in granting the motion. 1. The title to the fund in question was in Joseph Gray, and had never been divested. The note was made.payable to him ; not as administrator; nor did he sue as administrator. 5 East, 150; 6 lb. 405. 2. But if the title vested in him in his capacity as administrator, it „ was not divested by the order of the probate court revoking his powers.

Miller, judge. 'On the 11th day of July, 1848, John H. Crisp sued Hamilton Thornton, in assumpsit, on a medical bill for $75, contracted Sept. 7, 1844. Non assumpsit, and the statute of limitations of three years were pleaded.

<p>A sheriff, who has made a levy, is bound to make a legal disposition of the property levied on ; and will be liable, on his official bond, for the consequences of an omission to do so.</p> <p>It is not a sufficient excuse to a sheriff who had levied on both real estate and personal estate at the same time, and had omitted to sell the latter, that the land levied on had been appraised under the valuation law, at a sum so that two thirds of its value w-ere more than the amount of the judgment; and the land failing, when offered, to bring the two thirds, he had postponed the sale for twelve months, and had returned the personal property to the defendant; he should have sold the personal property under the levy.</p>

In error from the circuit court of Marshall county ; Hon. Hugh R. Miller, judge. The facts sufficiently appear in the opinion. insisted, 1. That a married woman could not divest herself of her separate property, except in .the mode pointed out by the statute. Frost v. Doyle, 7 S. & M. 68. 2. That the statute of limitations could not divest the title out of the wife, for the reason that, during her coverture, it did not run as to her. contended, 1.

<p>On appeal from the vice-chancery court at Natchez; Hon. James M. Smiley, vice-chancellor.</p> <p>The facts of this case are sufficiently stated in the opinion.</p>

<p>An indorser of a note or bill of exchange, after he has paid it or any part of it, may maintain an action for money had and received against the maker of the note or drawer of the bill; but in such action, which is in the nature of a bill in equity, he can only recover such sum as he has actually paid.</p> <p>If therefore there be a .first and second indorser of a note, one of whom has paid a portion of the note and the other the residue, and the latter sue the maker on the note for the whole amount of the note, he can only recover for such sum as he has actually paid ; leaving it to the other indorser to sue for what he has paid.</p>

<p>Upon the principle, that, all other things being equal, the person, or the guardian of the person entitled to the largest distributive share of a deceased person’s estate, will be entitled to the administration thereof, the husband will generally have the right to administer upon his deceased wife’s estate ; but if he be excluded from the right of property, he will also be excluded from that of administration.</p> <p>A widow having a child by her first marriage, being .about to contract a second marriage, entered into an agreement with her expected husband, to the effect, that all her property, real and personal, should remain as if the marriage had never taken place ; that she should have the right to sell and dispose of it without his consent; the husband to manage but not dispose of the property, and to account for the profits annually; the parlies married in 1844, and the wife died in 1847, having no child by her second husband ; in a controversy between the second husband and the guardian of the child by the first, for administration upon her estate, the court held, that the guardian of the child was entitled to it; the marital rights of the husband were controlled by the contract; by that the husband was absolutely excluded ; the property was to “ remain as if the marriage had never taken place.”</p> <p>And it seems that if the rights of the parties were regulated not by their contract, but by the act of 1839, in relation to married women, as modified by that of 1846, the same result would take place ; the husband took no such vested interest, under the act of 1839, in the property of the wife, as to prevent the operation of the subsequent act of 1846 in relation to it.</p>

<p>The mere writ of attachment at law and levy thereof on the goods of the defendant, without service of process on the defendant, without publication or notice of any kind, and without appearance on his part, is not a sufficient foundation for a judgment in the attachment suit against him; although the attachment binds the goods from the date of the levy.</p> <p>The act of 1844, extending the remedy by attachment, merely extends it to other cases not previously provided for, but makes no change in (he remedy itself, or in the proceedings under it.</p> <p>He who claims under a judgment by attachment, whether it is presented directly or incidentally, must show the validity of the judgment, or his claim cannot be maintained ; he must show that the jurisdiction of the court was rightfully exercised, oí the judgment will be regarded as void.</p> <p>While it is true, that where the record recites the jurisdictional fact, such recital is prima facie evidence in support of the judgment; yet where the record recites in general terms the appearance of the parties, such appearance will be confined to those parties who have been served with process.</p> <p>Where therefore in an attachment suit against a single defendant, (in which, besides a levy on goods, a garnishment process was sued out and served,) there was neither service of process, nor appearance by attorney for the original defendant, nor publication against him ; but the garnishee appeared by attorney and interpleaded, and the record in several places recited that “ the parties came by their attorneys : ” it was held, that the phrase must be limited to the appearance by the garnishee, and did not authorize a judgment against the original defendant.</p> <p>While an attachment is a lien upon the property attached from the date of the levy, yet in a controversy between attaching creditors as to the appropriation of the proceeds of sale of the property attached, none but creditors who have reduced their attachments to judgments will be heard to contend for the appropriation of the money made, even though they may have the oldest attachments ; without the judgment the lien is incomplete, and may be defeated upon the trial.</p>

<p>While the probate of a will, made in vacation, is not valid, inasmuch as the power of the judge out of court is confined to receiving the will exhibited for probate, and does not extend to the probate itself; yet if a will, making provision for the widow of the testator, be admitted to probate, and letters testamentary be granted in vacation ; and all parties acquiesce in the probate as a valid one; and the executor proceed with the administration of the estate for a period of seven years, the widow during that period receiving her allowance under the will; the latter will be held, by her long acquiescence in the probate, and her acceptance of the provision in her behalf for so long a period under the will, to have waived any objection she might originally have made to the probate, and to be bound by the terms of the will.</p>

<p>While the circuit courts have jurisdiction on their equity side to foreclose mortgages without regard to amount; and, in the exercise of that jurisdiction, may draw to themselves incidental inquiries auxiliary to the exercise of the power; yet it seems doubtful whether those courts would have jurisdiction of a bill in which it would be necessary to settle the conflict between judgment creditors and those who claim under the mortgage, before the mortgage could be enforced.</p> <p>While the creditor has the right to be substituted to the place of the surety in a case where the principal has given the surety indemnity, yet the right of the creditor in the subrogation must be measured by the right of the surety; and that right must be tried by the instrument which creates it.</p> <p>On a bill therefore, filed by a creditor, which sought to subject to his debt property mortgaged by a principal to his surety, to indemnify him against certain bonds supposed to have been entered into jointly with the principal, one of which was alleged to be an injunction bond against the prosecution of the creditor’s demand ; the condition of the mortgage being that the principal should well and truly pay the bonds recited, in case by law he should be required to pay them, and should save the sureties harmless by reason of the bonds : it was held, that the‘bill was properly dismissed, on proof that, in point of fact, the mortgagor had never signed the injunction bond in the case of the creditor seeking the foreclosure ; and had therefore never been required to pay it, nor had the sureties suffered damage by reason of it.</p> <p>And even if the principal had signed the injunction bond, it would have been premature in the creditor to ‘have filed the bill to subject the property to his debt, until there had been a suit at law upon the bond, and the extent of the damage suffered by the surety thus ascertained.</p>

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

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

<p>When a demurrer to a plea is sustained in the court below, but on appeal the plea is pronounced good, and the demurrer overruled, all the legal questions raised by the demurrer will be considered as having been settled by the decision overruling it; and that decision will not only be binding upon the inferior but also upon the appellate court.</p> <p>"When the same point has been once adjudged between the same parties in the same cause, and upon the same state of facts, the adjudication is binding, not only on the inferior courts, but on the appellate court also.</p> <p>Where two pleas were filed, on one of which issue was taken, and to the other a demurrer filed and sustained, and under the judgment of respondeos ouster the defendant plead in substance a similar plea to the one adjudged bad, to which also a demurrer was filed, and without any disposition of the last demurrer the parties went to trial in the court below, and judgment was rendered for plaintiff; which on appeal was reversed, the demurrer to the second plea overruled, and the case remanded ; and on the return of the case the court below adjudged the third plea, to which the demurrer as yet was undisposed of, bad ; and a second trial was had without any answer to the second plea, which had been adjudged a good bar to the action ; and this trial also resulted in a verdict for plaintiff: held, that the proceedings on the second trial were manifestly erroneous, and the judgment must be again reversed.</p> <p>And if it had appeared of record, that the court below had refused to allow a judgment to be entered against the plaintiff for want of a replication to his second plea, and had compelled him to go to trial on the issue made up, the court of appeals would have inquired whether or not a final judgment should not have been entered here for defendant.</p>

In error from the circuit court of Hinds county; Hon. P. W. Tompkins, judge. Robert Josselyn, as state commissioner, applied to George T. Swann, auditor of public accounts, for a warrant, to be drawn on any funds in the state treasury, belonging to the sinking, seminary, or town lot funds, in. payment of his salary as such commissioner. The auditor re'fused the warrant, and the state commissioner applied for a mandamus.

<p>In error from the circuit court of Pike county; Hon. Wiley P. Harris, judge.</p> <p>The facts are stated in the opinion.</p>

<p>Goleman v. Turner, supra, (p. 118), cited and confirmed.</p> <p>As a general rule, objections to testimony not made in the court below will be considered as having been waived, and will not be entertained in the high court of errors and appeals.</p> <p>Where, therefore, suit was brought upon an award touching the distribution of an estate, where the submission had been entered into by husbands in right of their wives; and no objection on that account was made in the court below to the submission ; and it did not affirmatively appear when the rights of the wives accrued, or what interest the husbands had, or whether the wives were living: it was held, that under the facts the court would not declare the submission void.</p>

<p>In error from the circuit court of Warren county; Hon. G. W. L. Smith, judge.</p> <p>The facts sufficiently appear in the opinion.</p> <p>1. There were no exceptions taken to the judgment of the court overruling the motion in arrest and for a new trial. Objections thereto cannot be heard in this court. Code, 855, 856. '</p> <p>2. The instructions of the court were not excepted to, or placed before this court by bill of exceptions. The law making instructions given or refused part of the record, does not apply to criminal cases. The statute of 1846, Code, 893, applies only in the trial of all civil suits.</p> <p>3. A memorandum by a clerk, that exceptions were had to various opinions of court, which, however, it seems were never signed and sealed, is insufficient. 1 S. & M. 326; 3 lb. 533; 7 How. 346.</p> <p>4. The offence charged is fully proved by the only bill of exceptions taken.</p> <p>5. The only error charged, which this court can notice, is the ruling of the court in regard to the ownership of defendant.</p> <p>On this point he cited 10 Missouri, 232; 1 Hawks, 24; 2 Bailey, 67; Riley’s Law Cases, 298, 299; 8 S. & M. 584, and cases cited; and 'argued at length, that it was not necessary to aver or prove title to a slave charged with crime.</p>

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

<p>While it is the law with reference to personal estate, that if a marriage take place in another state, between a man domiciled in this, and a woman in another state, with the intention that this state shall be their domicil after the marriage, and that intention is carried into effect, the rights to the personal property are governed by the laws of this state; yet in regard to. immovable property the rule is different, there the law of its locality gives the rule.</p> <p>Where a settlement by a husband upon his wife was attacked as a voluntary one, and the wife asserted that as a consideration for the conveyance to her, she had united with her husband in the conveyance of a valuable tract of land in the state of Louisiana; and it appeared in proof, that this land had been purchased by the husband after his marriage, with his own funds, and that his wife had contributed in no way to its acquisition : it was held, that according to the laws of Louisiana she had no right in it; and therefore her uniting in the conveyance of it formed no consideration for the settlement upon the wife.</p> <p>The decision in Henry v. Fullerton, 13 S. & M. 634, with reference to the question, how far voluntary conveyances are valid as to subsequent creditors, cited and confirmed; and the further principle established, that if the party making the voluntary conveyance be insolvent at the time of making it, it is void even as to subsequent creditors.</p> <p>So also a very large indebtedness at the time of such conveyance, compared with the resources and property of the party, is frimu, facie evidence of a fraudulent intent in the making the conveyance; and it appearing that the party making such a conveyance in this case was, if not insolvent, heavily loaded with debt at the time, and there being nothing to rebut the legal presumption arising from that fact, the conveyance was held fraudulent and void as to a subsequent creditor.</p>

<p>ON appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.</p> <p>Thomas Penny states, in his bill, that in 1836, Tiernan, Cuddy & Co. came under acceptances for the accommodation of James Cocke, John H. Cocke, and R. M. Whitman for the purchase of fifty or sixty slaves. At that time John and James Cocke and Whitman were joint owners of a tract of land in Washington county, about 3000 acres, and to indemnify said Tiernan, Cuddy & Co., agreed to give a deed of trust of their interest in said land, and other property; and John Cocke and Whitman did give such deed of trust, but James, being a minor, did not join, but promised to do so on coming of age, which he never did.</p> <p>That John H. Cocke and Whitman caused their interest in said land to be sold under some prior deed of trust or incumbrance, and James Cocke, having become of age, bought their interest for a small sum. Subsequently, complainant became agent for said Tiernan, Cuddy & Co., but did not know of such sale, and believes Tiernan, Cuddy & Co. did not. Shortly after this, one T. W. Endicott obtained a judgment against James Cocke for about $250. About the same time, John H. and James Cocke ran off with their slaves to Texas, and left Tiernan, Cuddy & Co. to provide for their acceptances. After this, Endicott issued execution against James Cocke, which was levied on his interest in the land, which was bid off by said Endicott, who sold the same to E. H. Greer.</p> <p>Having heard of said sale, and not knowing how it might affect the rights of Tiernan, Cuddy & Co., he waited on Endicott to ascertain the facts, — who informed him that Millikin and Greer had come up to bid for said property, for the benefit of creditors, but arrived too late; but that he agreed with them to let them have the title he had bought for $400, to be paid on the first of July following. Complainant represented the importance of getting this title, and proposed, if Endicott had not irrevocably parted with his interest, to confer with C .Tiernan on the subject of purchasing it; and informed Endicott that Millildn and Greer had no authority to act for Tiernan, Cuddy & Co., who were the largest creditors. Endicott appeared indignant at the deception, and stated that the contract was not closed and irrevocable; that the money was not paid, and he would not receive it or permit the affair to go any further. Complainant requested him to state his price, in case he regained his title, and he named $2500.</p> <p>In 1841, complainant being about leaving the state, called on W. V. Davenport to treat with said Endicott for the purchase of said title, and left with Davenport a blank bill of exchange on C. Tiernan, of Baltimore, to be filled up for the sum agreed on.</p> <p>Soon after complainant left the state, Endicott called on Davenport for the purpose of effecting final terms; and although he knew complainant wanted nothing but the title, and had no desire to purchase a lawsuit, so practised on the want of knowledge of said Davenport as to the import of legal instruments, as to induce him to believe that a bond for a title, on the contingency of being recovered by suit, was a good and sufficient equivalent and consideration for said $2500; and Davenport being led, by said Endicott, to believe that the contract with Greer and Millildn was not consummated, (as it was,) delivered said bill to said Endicott, and took the bond from said Endicott.</p> <p>After delivering said bill of exchange, said Davenport advised said C. Tiernan of the whole nature of the contract, who, being satisfied that said Davenport had been overreached by Endicott, refused to accept said bill, which was protested and returned. Said Endicott assured said Davenport the said title was sound, and promised that if any thing was wrong he would rectify it.</p> <p>That at the time of giving said bill of exchange, he was a freeholder in Washington county, and shortly after became a resident citizen of this state, and has so continued to this time. Endicott knew the plantation owned and occupied by complainant ; yet, on the 21st of December, 1842, he made oath that complainant was not a citizen of this state, and procured an attachment, returnable to the April term, 1843, of Washington circuit court, which was attempted to be levied, in February, 1843; but the officer finding complainant at home, and being assured that such was his well known residence, desisted from executing the writ. In March, complainant having left home, Endicott procured other officers to proceed a second time to complainant’s residence, who seized and carried away seven slaves. Being informed thereof, he wrote to Davenport, and required of him to procure their release. Complainant soon after learned that Davenport had of his own accord proceeded to Princeton and procured the services of William H. Hurst, and shortly after the slaves, except one, were restored to him; and he was subsequently informed by Davenport that said suit had been dismissed.</p> <p>That he has been at all times ready to defend the suit, but did not employ Hurst, or authorize him, to defend; but only consented to the employment, to procure a return of the slaves. Having been informed that said suit had been dismissed, he did not authorize any person to plead thereto, and never knew a plea had been entered. If no such plea had been entered, the suit could not have progressed without publication of notice, which complainant would have been very apt to know, being in the habit of reading the newspapers. Instructed his servants to give him notice of the service of process, in his absence. Notwithstanding these precautions, and that Hurst was apprised he had a defence, complainant continued in ignorance of the pendency of said suit, until after judgment, when an execution was levied on eight slaves, which the sheriff had in possession and threatened to sell. That one slave which was seized under the attachment had been levied on, and sold for $150, although worth $600, and bought by M. Endicott, a relative of defendant.</p> <p>That he does not know the relations subsisting between Greer and Millikin and said Endicott, nor did he ever know that the sheriff’s deed to said land was made to Greer until within a few days since, he was so informed by said Endicott; nor did he know that said Endicott had received from said Miliikin and Greer the purchase-money until since said judgment..</p> <p>Endicott, in his answer, admits that Cocke and Whitman had an interest in the. tract of land described in the bill, and that James Cocke purchased the interest of John Cocke and Whitman, under a deed of trust older than the deed to Tiernan, Cuddy & Co., if any such there was. Denies the sale was made to defraud Tiernan, Cuddy & Co.</p> <p>Denies that he had obtained a judgment against James Cocke, but admits that two judgments against James Cocke were transferred to him, the amount due on which was $230; under which judgments he bid off the land at a fair public sale.</p> <p>Admits that after the sale, he entered into a verbal agreement with Miliikin to transfer to him his title to the land for $400, — provided he would hold it subject to redemption by any creditors on the payment of a debt, represented by Miliikin to be due from Cocke, to the Union Bank. Of this verbal agreement, he informed complainant, but of none other, and denies that any other agreement was made with Miliikin or Greer, in relation to said land.</p> <p>Miliikin afterwards refused to take a transfer of title on the terms agreed on, and claimed it absolutely and unconditionally; respondent- considered his agreement violated, and that he was discharged, and denies that he ever did transfer his title to Milii-kin or Greer, or authorized any one so to do; and that the deed, made to Greer by the sheriff, was without his consent or authority, and did not transfer his interest or title, as he then believed and still believes.</p> <p>Is informed and believes his agreement with Miliikin being merely verbal, was void by the statute of frauds, and not binding, even if Miliikin was willing to take a transfer on the terms agreed on. Insists on the statute of frauds, as a bar to the right of Miliikin.</p> <p>Admits that complainant came to him and proposed to purchase his interest; in conversation, defendant explained to complainant his agreement with Miliikin, and his belief that it was not binding, and then agreed to sell complainant his right and title in said land, for $2500, proposing to transfer his interest only, whatever it might be, without warranty of any kind ; complainant to judge of the title and the agreement with Millikin, which was then truly and fully explained as before set forth; and denies that he intended or complainant understood any thing more than a quit-claim deed.</p> <p>Complainant took the proposition under consideration, and finally agreed to accept it. Respondent- afterwards called on Davenport, complainant’s agent, who, after consulting his own lawyers, presented the bond set out, and respondent executed it and received from Davenport the draft referred to in the bill. Denies that he deceived or in any manner misinformed Davenport, but avers that Davenport throughout acted according to instructions, and in accordance with the understanding between complainant and defendant. Had the bond drawn by his own lawyer, and had full authority for all his acts, and completed the contract in accordance with his instructions.</p> <p>Denies that. Davenport was not to part with said bill until good title to the land was made. He was to deliver the same to respondent, on receiving respondent’s obligation to transfer his title, and nothing more.</p> <p>The land was worth $15,000; hardly supposable that respondent would sell it with warranty for $2500.</p> <p>Denies that he agreed to give any other title than that agreed on in his bond; and denies that Davenport was instructed to take nothing but a clear and undoubted conveyance; avers the claim was purchased expressly as a doubtful one, and for speculation. Now believes and charges that his title is good, and that complainant has a good right to recover the same under the transfer made by defendant.</p> <p>Admits the bill was protested. Denies that he promised to rectify any errors or mistakes in the title, or any thing wrong; admits he promised to rectify formal errors.</p> <p>Admits he brought writs of attachment on said bill of exchange; denies that he knew said complainant was a resident of this state; avers he was a resident of Louisiana.</p> <p>Admits that the attachment was levied on slaves, that complainant appeared by attorney, plead to the action, and on motion dissolved the attachment; that Hurst was employed at the request of complainant.</p> <p>Denies all fraud, and avers that complainant’s attorney, Judge Martin, had the executions and returns in his'hands before he advised Davenport to close the contract.</p> <p>Davenport, a witness for complainant, states, that, in 1841, Penny appointed him to carry out a contract with Endicott, for the Cocke plantation, which Endicott had purchased at sheriff’s sale; does not know that Endicott had any interest in the land, except such as he purchased at sheriff’s sale.</p> <p>Penny instructed him to hand Endicott the draft, when advised by counsel that a good title could be had for the land.</p> <p>Endicott called on him to close the contract, but thinks he wrote to Endicott that he was authorized to close the contract before Endicott called. At the time Endicott called, witness handed Endicott the draft, and received from him a bond. Endicott stated he had bought the land at sheriff’s sale, and exhibited the executions, and left them with him while consulting lawyers. Endicott stated he had no deed from the sheriff, but that the deed had been made to Greer.</p> <p>No part of the contract was written except the bond. It was delivered to witness to hold as trustee to both parties, until the draft was paid, when it was to be delivered to Penny. He holds the bond, and files it as part of his answer.</p> <p>Endicott showed the executions under which he purchased, and expressed his opinion that a good title could be had by filing a bill before Judge Coalter, against the sheriff, and compelling him to make Endicott a deed, and sending the bill up to him by second Monday of October. Penny was to prosecute the suit in the name of Endicott; does not recollect that he said any thing about correcting errors in the bond, but would do what he could towards effecting a good title, at Penny’s expense; does not know that Endicott promised to obviate any objections made by Penny, but that he would do what he could to assist Penny in effecting his title; said he considered there would be no difficulty in Penny’s getting a good title by bill in chancery. He also men. tioned a verbal agreement with Millikin, to give up his purchase at sheriff’s sale, for $400 ; on which statement the sheriff made a deed to Greer; stated that his object was to give all the creditors of Cocke a chance; stated that he bid off the land, and immediately after the sale and before a deed was made, he made the agreement with Millikin, and upon that agreement the sheriff made the deed to Greer; that the sheriff had no written authority from him to make the deed to Greer; also that he had the opinion of counsel that the title could be perfected in himself. Witness was about to consult with George Yerger, and Endieott said he had something to do with the purchase, and the witness went to Judge Martin, who told him he had consulted with Judge Anderson, and he had no doubt a good title could be made.</p> <p>Does not know where Penny resided in 1842 ; he had a plantation in Washington county, where he spent a portion of his time; he worked thirty or thirty-five hands; that is the only dwelling he knows of that Penny owned; he spent considerable time in travelling about, settling up the business of Tiernan, Cuddy & Co.; witness knows that Endieott knew at that time that Penny had a plantation in Washington county, but does not know that he knew that was his residence.</p> <p>He heard of the attachment through a letter from the overseer. Witness employed Hurst, with instructions to defend the suit, with a statement of the nature of the suit; understood from Hurst he had arrived late at court, but in time to put in a plea, and that Penny could not be troubled till he had time to shape his course in chancery; witness so wrote to Penny; witness thinks Hurst told him his remedy was in chancery.</p> <p>Cannot say that Penny had any knowledge of the subsequent proceedings in said cause; he never heard of the discharge of the slaves, or. dismissal of the suit, except from Hurst; Hurst brought all the slaves from Washington county, to Vicksburg, but one; deponent first heard of the suit by letter, from Penny’s overseer, who wrote that seven negroes had been seized ; deponent then employed Hurst to defend the suit, who went to Washington under his employment to defend the suit.</p> <p>He employed Hurst to recover the slaves, and contest the right to a recovery on said bill.</p> <p>To cross interrogatory. — He says he did obtain the opinion of good counsel, that a good title could be made to said property, and, in pursuance of instructions, closed the contract and delivered the bill of exchange. The bond was drawn by Penny’s counsel.</p> <p>The condition of the bond referred to in Davenport’s deposition, is, in substance, reciting that Endicott, on the 15th April, 1841, purchased, at sheriff’s sale, a tract of land; and that on that day he had bargained and sold to Penny all his right, title and interest to the land so purchased, it being all the right, title and interest of James and John Cocke, in and to said land; bound himself to give all necessary assistance to Penny, by the use of his name in all suits necessary to be prosecuted by them for the purpose of having the title to the land vested in said Penny; and to make or cause to be made to said Penny all necessary deeds and conveyances, so as to vest in him all the title which is now vested in said Endicott, at such time as he may be required to do so by said Penny; they paying all costs and expenses to be incurred in securing said title, whether by suit at law, or otherwise.</p> <p>Robert B. Millikin states, he heard the defendant say he had purchased John and James Cocke’s interest in a tract of land in Washington, on the Mississippi river; witness was at Princeton on the day of sale.</p> <p>The interest purchased by Endicott, was purchased from him by E. H. Greer, for which he paid Endicott $400. Endicott received the money, and instructed the sheriff to make, the deed to Greer; no written evidence of the contract was made; witness saw the sheriff sign the deed.</p> <p>Witness had an interest in the purchase made by Greer; witness informed Endicott that a mortgage on said land, in favor of the Union Bank, should be paid by the purchaser; does not know that Endicott knew who were the other parties to the purchase.</p> <p>Witness has neither possession or interest in the land..</p> <p>Does not recollect any proposal from Endicott to rescind the contract, or refund the money.</p> <p>The whole purchase-money was paid by Greer to Endicott; when the deed was made by the sheriff, the amount was about $175 more than the amount bid by Endicott.</p> <p>Witness has no interest in the land; he parted with his interest without recourse; his interest never was in writing, and he parted with it without making any written conveyance.</p> <p>On cross-interrogatory, stated, Greer placed the money on the sheriff’s table; the sheriff took the amount of the execution, and Endicott took the advance before stated; the agreement of purchase was made with witness; witness was not present at the time of the sale of the land to Endicott; neither witness nor Greer purchased at sheriff’s sale; the deed by sheriff to Greer was made in pursuance of the agreement between Endicott and witness.</p> <p>Greer had not any personal interest in the purchase; the purchase-money came from witness and other parties, and Mr. Greer merely loaned to witness, receiving, therefor a check which was paid on his return to Vicksburg. The other parties were Gwin and G. R. Clifton, each paying one third.</p> <p>Dr. Gwin became interested with witness in said property, in his own name, as well as Clifton; witness had the deed made to Greer without consideration, regarding him as trustee, and partly to secure Greer the $400, advanced by him to witness, which was afterwards paid by witness.</p> <p>Witness parted with his interest by regular sale to R. Christmas, and directed Greer to make a deed of his interest, which was not more than sixty days after he became interested, and was not in writing, except the order to Mr. Greer.</p> <p>Has received his share of the $400, but does not recollect by whom it was paid, viz., the amount advanced by witness beyond his one third of the purchase-money.</p> <p>Does not know whether Gwin and Clifton were acting for others, nor did they profess to be acting except for themselves.</p> <p>Being re-examined, he stated that the deed from the sheriff to-Greer was made on the day of the sale, by the sheriff, and a very short time after the sale.</p> <p>W. W. Collins stated, that he was sheriff of Washington county in 1840 and 1841.</p> <p>That as sheriff he sold a tract of land as the property of John and James Cocke, under an execution in favor of Dashiel transferred to Endicott.</p> <p>Thomas W. Endicott purchased the land. He made a conveyance of the land to Greer.</p> <p>He had Endieott’s verbal authority to make the deed to Millikin as agent for the Union Bank, and Greer or Millikin wrote the deed in Greer’s name, to which Endicott objected, and Millikin said it should all be rectified when they went to Vicksburg. Greer and Millikin arrived in the evening of the day of sale, and the verbal agreement was made between Endicott and Millikin as agent of the Union Bank. And Millikin stated he would lose his situation as cashier of the bank if he did not secure the debt or land.</p> <p>To cross-interrogatory, he stated, that Millikin borrowed the money from Greer to pay for the land. The execution was in the name of Dashiel, and transferred to Endicott for an execution Endicott held against Dashiel.</p> <p>Endicott sold the land for a profit, but believes he sold it on account of sympathy he felt for said Millikin, and from witness’s earnest request, which was from sympathy he felt for Millikin for the same reason. The profit was about $ 170.</p> <p>Endicott and witness believed the purchase valuable, and Endicott said he would not sell except it was for the benefit of the Union Bank.</p> <p>Did not know where Penny resided, nor did he know that Endicott knew.</p> <p>The chancellor perpetuated the injunction, and Endicott appealed.</p> <p>relied on the judgment at law in bar of the relief prayed for.</p> <p>1. This is a case of fraud, which is an original ground of equity jurisdiction, subsequently adopted by courts of law. The jurisdiction of courts of equity and courts of law are therefore now concurrent. And in such cases a court of equity will relieve, notwithstanding the defence might have been made at law. Clay v. Fry, 3 Bibb, R. 248. And in some cases relief will be granted after a full trial at law. Appleton v. Harewell, Cook, 242.</p> <p>2. But the defendant has submitted to answer the bill, without pleading the judgment at law in bar, or insisting on it in his answer. And as the subject-matter is cognizable in equity, the answer to the merits gives the court jurisdiction of the case. McCauly v. Mardis, Walker, R. 307; 2 Caine’s Cases, 40, 56; 2 Johns. Ch. R. 369; Osgood v. Brown, 1 Freem. Ch. R. 400; Cable v. Martin, 1 How. R. 558.</p>

<p>The rule is now well established, that equity can give no relief after a judgment at law, if the party might have made his defence at law ; unless he was prevented from making the defence by the fraud of the opposite party, or by some occurrence without fault or negligence on his own part, or unless the opposite party should fail in a case of concurrent jurisdiction to set up the judgment at law, as a bar to the relief sought in equity.</p> <p>And if the facts upon which relief is sought against a judgment at law were known to the party seeking the relief, or might have been ascertained by the exercise of reasonable diligence by him, he can obtain no relief in equity.</p> <p>Where an execution was levied upon property ; bond given to try the right; judgment rendered for the plaintiffs in execution; and subsequently judgment in a separate suit rendered against the surely in the claimant’s bond : it was held to be no ground for relief on the part of the surety against the judgment, that another creditor of the claimant had, after the trial of the right of property at law, obtained a decree in a bill in chancery against the defendant in execution, and the claimant, to subject the same property involved in the suit at law to the satisfaction of a mortgage held by such creditor. The judgment in the suit at law, and the decree in chancery, being each regularly obtained, and neither appealed from, must both stand; if they conflict, it cannot be inquired into collaterally.</p>

<p>While an executor is not liable in this state beyond the amount of assets of the deceased, yet he may, by his own act, if in writing and for a good consideration, become personally responsible for his testator’s debt.</p> <p>Therefore, where a creditor of an estate took a note from the executor in settlement of his claim against the estate, on which note the executor wrote, “ For value received I assign this note to L., (the creditor,) and waive demand and notice, and warrant the consideration for which it was given, but as to the solvency or insolvency of the makers to he without recourse : ” it was held, that the executor was personally liable for any breach of this guaranty ; his undertaking was in writing, and the giving up the note by the creditor formed a sufficient consideration.</p> <p>In a suit, therefore, upon such guaranty, it could make no difference whelher these were assets of the estate of the testator or not; the executor’s liability was direct, and did not depend upon that contingency.</p> <p>It would, however, be competent to show, that the claim held by the creditor in the first place, was not a valid claim against the estate, for though prima facie, the consideration would be regarded valid, yet it might be impeached by proof; and if shown to be invalid, the undertaking of the executor would be without consideration and not binding.</p> <p>In an action against the guarantor of a note, the record of the judgment against the makers is competent evidence of the fact of the rendition of such judgment, and especially is this the case, if notice of the pendency of the suit has been given to the guarantor.</p> <p>In an action against the guarantor of the consideration of an assigned note, the record of a suit against the maker of the note was read, which exhibited a judgment for the defendant therein : it was held competent to show, by parol,'whether the judgment was upon the merits of the case ; whether it was rendered because of a want or failure of consideration.</p> <p>A bill of exceptions, however, taken upon the trial of the suit against the maker embodying the proof, would not be competent evidence; the witnesses themselves would be required, as the other party would be entitled, to cross-examine them.</p> <p>Where a guarantor of a note guaranteed only the consideration of the note, hut not the solvency of the makers, he could only be held liable in a suit on his guaranty, for such an amount as might have been made out of the makers, had judgment been rendered against them.</p>

<p>W. having notes of G., secured by a deed of trust on land and slaves, G. sold part of the slaves to B., and subsequently all the other slaves; and at last, with the assent of W., sold the land for a sum sufficient to pay the whole debt due to W.; but by agreement with W. paid him only half the sum the land sold for, retaining the residue for himself; W. subsequently filed his bill against one who had purchased a portion of the slaves, to subject them to that part of his debt remaining unpaid : held, that by releasing part of the security held by him, he discharged from the lien of his deed the property previously sold by the grantor in the deed of trust. It would be inequitable to permit the creditor, who had a lien on the whole property, that which had been sold by his debtor as well as that which was unsold, to release the latter and asseit the former lien ; it would violate the principle of equity ai.d good faith upon which the doctrine of marshalling assets rests.</p>

<p>On appeal from the probate court of Claiborne county; Hon. Wm. M. Randolph, judge.</p> <p>At the May term, 1846, of said court, Marilla C. Rail and Calista J. Rail, infants, by their next friend, filed their petition, in which they allege, that they are the children of John Rail, deceased, that prior to his death the said John Rail made a will and codicil thereto, and appointed William Dotson, James E. Calhoun, and Moses D. Shelby, his executors; which said last will and codicil were duly admitted to probate in said court, and letters testamentary granted to Dotson and Shelby, Calhoun having declined to act.</p> <p>That in and by said last will, the said Rail devised and bequeathed to his daughter, Mary Hume, for life, 500 acres of land; and to the said Mary Hume, and the children of his deceased son in law, E. W. Calhoun, all of his negro slaves and their increase, not therein previously bequeathed, to be equally divided according to valuation, one half for the separate use and benefit of said Mary Hume, and the other half to the children of said E. W. Calhoun.</p> <p>That in and by said last will, the said John Rail provided, that the said Mary Hume should have the entire control and disposal of the proceeds and profits of the land and negroes devised to her, for life; and at her death, that said land and negroes should be divided among her children; but that in case she died without issue, the said land and negroes should be equally divided between the surviving children of him, the said Rail.</p> <p>That by the codicil to said will, the said John Rail appointed Mrs. Amelia A. Calhoun, trustee, to hold, for the use and benefit of Mary Hume, all the property bequeathed and devised to her in said will; and furthermore provided, that the said Mary Hume should, at her election, be entitled to the possession, use, management, and control, of all the property devised to her in said will, during her life, and to sell and exchange the same, and to dispose of the same or any part thereof, at her discretion, by her last will and testament.</p> <p>They then give the names of the negro slaves bequeathed to Mary Hume and the children of E. W. Calhoun, and allege that they are now in the possession of Thomas Young, who has intermarried with Amelia A. Calhoun.</p> <p>They allege that in 1843, and after the death of sai'd John Rail, Mary Hume departed this life without issue, without having sold or exchanged any of said property, and without having made a will.</p> <p>That John C. Calhoun and Mary H. Calhoun are the sole surviving children of E. W. Calhoun, and that no division has been made between them and Mary Hume.</p> <p>That Amelia A. Young and petitioners are the only surviving children of John Rail.</p> <p>They submit that they are severally entitled to one third part of the land and negroes bequeathed to Mary Hume, for life, and pray for commissioners to divide the same.</p> <p>They pray for citations against Dotson and Shelby, executors of John Rail, Thomas Young and Amelia A., his wife, and John C. and Mary H. Calhoun, &c.</p> <p>A copy of the will of John Rail is filed as Exhibit A, to said petition.</p> <p>Young and wife demurred to said petition ; the demurrer was sustained, and the petition dismissed, and this appeal prayed.</p> <p>It was admitted in this court, that complainants below were only half sisters to Mary Hnme and Amelia A. Calhoun, now Amelia A. Young; and that the two latter were sisters of the full blood.</p> <p>1. That the probate court had jurisdiction.</p> <p>The petition prays for a division of real estate devised, and personal estate bequeathed, by will.</p> <p>In regard to real estate, this proceeding is expressly given by Hutch. Code, 670, § 112.</p> <p>In regard to personal property, it is also given, in the same terms, by Hutch. Code, 673, § 2, art. 2.</p> <p>It is also provided, Hutch. Code, 665, § 92, that ány person entitled to a legacy, ! or any estate by will,” may petition the orphan’s court, &c.</p> <p>2. That the will gave to Mrs. Mary Hume an estate for life only, in the land and negroes devised, with remainder to her issue, should she have any surviving her, and on failure of issue, with remainder to the surviving children of the testator.</p> <p>The codicil does not revoke the will in the foregoing particular, or confer upon Mrs. Hume a higher or different estate from that given by the will. It recognizes her estate, as it is created by the will, to be but a life estate, but confers upon her the power to sell and exchange it, and to dispose of the same or any part thereof, at her discretion, by her last will and testament.</p> <p>When an estate is devised, generally, with a power of disposition by will or otherwise, the devisee at once takes an absolute fee. But when the devise is expressly for life, with a like power of disposition, the estate for life is not thereby enlarged. 6 Cruise on Real Est. 822; 1 Sugd. on Pow. 119, 124; 13 Vesey, Jr. 453; 10 East, 438; 16 Johns. 588; 2 Sugd. on Pow. 514-517.</p> <p>The will gave Mrs. Hume an estate expressly for life. The codicil gave her the power of disposition, and nothing more. The codicil no more revoked the estate for life, than if the will itself had contained the grant of the power of disposition, and there had been no codicil. 1 Jarm. on Wills, 160; lb. 165; ■Brant v. Wilson, 8 Cow. 56.</p> <p>3. As to the limitation over, upon the indefinite failure of issue, although such a limitation might be void at common law, our statute has abolished the common law definition of the term, and has substituted for it one more consonant with reason. Hutch. Code, 610, § 26; Rucker v. Lambdin, 12 S. & M. 256.</p> <p>made an elaborate argument.</p> <p>The limitation contained in the 5th clause of the will of John Rail, to take effect upon the indefinite failure of issue of Mary Hume, may be a good executory devise under our statute. 12 S. & M. 256; 8 lb. 462; 7 lb. 798.</p> <p>But a general power of alienation gives a fee, and a limitation over, after a general power of disposition, is void, being repugnant to the nature of the estate. A power to defeat the executory devise by alienation, renders the limitation void. 10 Johns. 12, 17, 19; 12 lb. 389; 2 lb. 391; 16 lb. 589.</p> <p>An exception to this rule exists, where the testator gives the first taker an estate for life only, by certain and express words, and annexes a power of disposal. In that case the devisee for life will not take the fee, notwithstanding the power of disposition. 16 Johns. 588; 10 Yesey, 370; 1 P. Wms. 149; 6 Cruise, Dig. 322; 13 Yesey, 453.</p> <p>The question then is narrowed to this, Is the estate of Mary Hume, an estate given to her for life only, by certain and express words 7</p> <p>We contend that neither the will, nor the codicil, contains any such express limitation of her interest to an estate for life only.</p> <p>I. As to the will. The third item gives and bequeaths to Mary Hume, 500 acres of land, and appoints Harding as trustee, to possess and manage it for her. This devise clearly passes a fee simple.’</p> <p>The fourth item gives to Harding, as trustee for Mary Hume, and to the children of E. Calhoun, all the residue of testator’s negroes, and their increase, to be equally divided, one half for the separate use and benefit of said Mary Hume, and the other half to said children of E. Calhoun. There is no restriction here, and the words of the will clearly pass a fee.</p> <p>The fifth clause gives to Mary Hume the entire control and disposal of the proceeds and profits of the land and negroes, for life, that is, during her life, and at her death the land and negroes shall be divided among her children. There is no power of disposal of the property itself given to Mary Hume, nor is there any limitation of her estate to an estate for life only. Her control of the proceeds is confined to her lifetime, and on her death the property is given to her children.</p> <p>That this is the appropriate language to create an estate tail, and not for life. 4 Kent, 214;' Shelley's case, 1 Coke, 104. The same words which would create an estate tail in freeholds, give the absolute interest as to chattels. 2 Kent, 353; 2 Black. Comm. 113, n. 17, p. 398; Harg. Co. Lift. 20; Fearne, R. (3d edit.) 345; Rop. on Leg. ch. 17.</p> <p>By our statute, the rule is now the same as to lands. Words that at common law create an estate tail, now pass the fee. Hutch. Code, 609, § 24.</p> <p>Mrs. Hume then took a fee simple, both in the land and negroes devised to her; and as a power of disposition is incident to a fee, then upon the principles before laid down, the limitation over, on failure of her issue, being repugnant to her absolute ownership, is void, and cannot take effect.</p> <p>Lands, by the statute, Hutch. Code, 609, § 24, may in some cases be devised over, but personalty cannot; but in all cases, words that at common law would create an estate tail, now pass the entire interest in personal chattels.</p> <p>It is submitted, that, by the will, the estate devised to Mary Hume, is not an estate expressly for life, but is clearly a fee.</p> <p>2.. Upon the construction of the codicil. This removes Harding and appoints Mrs. Calhoun to be trustee for Mary Hume. It then provides, that Mary Hume shall, at her election, be entitled to the possession, use, management, and control of all the property, during her life, and to sell and exchange the same, and shall have full power to dispose of the same, or any part thereof, by last will and testament.</p> <p>The plain intent and object of this provision is to give the absolute fee to Mary Hume. The manifest intention is to give her as full a property, as is consistent with the design of excluding her husband from all participation in it, without her consent. By her death, without having chosen to exercise her power of disposition, the property is left to the legal course of descent, and her husband is entitled to it, if living, and if not, then Mrs. Young, her sister, of the. whole blood, inherits.</p> <p>The ratification of the will, except as altered by the codicil, amounts to nothing; for without any such express ratification the will would stand, except so far as expressly altered. The ■question is, How far is the will altered ? The will attempts to entail the property. The codicil shows a purpose to alter this estate to an absolute fee, an object which the law itself would have accomplished.</p> <p>We insist, therefore, that, by the will and codicil both, the limitation over, on the failure of issue of Mary Hume, is void, because Mary Hume herself takes the fee.</p> <p>argued the case at length.</p>

<p>An administrator who has brought suit at law, and recovered a judgment upon a claim belonging to his intestate’s estate, upon which the money has been collected by the sheriff, but not paid over to the administrator, has the right, notwithstanding his removal from his office as administrator, and the appointment of an administrator de bonis non, to demand the money thus collected, and upon motion in his own name, in the circuit court, to recover it.</p>

Stephen Cocke, chancellor. William Clark, administrator de bonis non of Edwin Perry, deceased, filed his bill originally against Peter Murphy and others, on the 1st of August, A. D. 1840, in which he states that within two or three years past, Edwin Perry and Bridges A. Williams, partners in planting, died intestate. Vernon Dorsey, administrator on both estates. The parties had a considerable personal estate, which they had used in common.

<p>Where the will of the testator, though attested by the proper number of witnesses for the valid disposition of real estate, is proved only by one of the witnesses, it will not afford sufficient foundation for the devisee under the will to assert title, in a court of equity, to the real estate, against others claiming title under sales by the representatives of the testator.</p> <p>Nor could a court of equity, had the will been lawfully probated, entertain jurisdiction of such a bill, as there would be no question involved but that of the legal title.</p> <p>Where a will was presented and proved by a single witness, and subsequently the probate set aside ; and letters of administration granted upon the estate, which was disposed of by the administrators in the due course of administration : it was held, on a bill filed by the legatees, under the will, against those claiming portions of the personal estate by virtue of purchases from the administrator, that though the proceedings of the probate court, in the setting aside the probate of the will, may have been absolutely void, yet the grant of letters notwithstanding the will, though irregular and improper, would be within the jurisdiction and power of the probate court; and the acts of the administrator, and the course of administration withirf lawful limits, could not be questioned by the court of chancery, and would be valid until set aside by some authorized tribunal; and therefore the purchasers from the administrator would be sustained in their purchases.</p> <p>But in no event could the legatees recover the personal property sold by the administrators, without being compelled to pay the purchasers the price paid for the property; inasmuch as that price paid to the administrator became assets of the estate, and subject to appropriation to the payment of its debts; and thus to the' exoneration of the legacies.</p> <p>The court of chancery has no jurisdiction to order an account to be talten of the proceedings by an administrator ; that is exclusively for the probate court.</p> <p>The probate court, alone, has jurisdiction of suits to recover legacies and distributive shares, where the proceeding is against the representative.</p>

James M. Smiley, chancellor. The facts appear in the opinion. Insisted, that the probate court alone had jurisdiction of the matters involved in the bill. 1. A general demurrer cannot be sustained in a case charging fraud. See Grant v. Lloyd, 12 S. & M. 191, and cases cited ; 1 How. 558; 5 lb. 365 ; 5 S. & M. 520; 1 Rand. 76. 2. The first special cause of demurrer is, that the court had not jurisdiction.

<p>A suit was instituted in the circuit court against several defendants, on one of whom the writ was in reality not served, though returned as to him “ executed by leaving a copy ; ” the plaintiff’s attorney struck out all the return except the word “ executed,” and took judgment against all the parties ; who, including the one not served, sued out a writ of error to revise this judgment; the fraudulent alteration of the return not appearing, the judgment was affirmed in the high court of errors and appeals : held, that this affirmance of the judgment did not preclude the defendant not served below, from applying to a court of chancery for relief against the judgment, and for a new trial at law, on the ground that he had not had notice of the suit at law.</p> <p>And on proof of the fact of the fraudulent erasure, and that the party setting up the defence had really not had notice of the suit, he would, notwithstanding the judgment of affirmance, be entitled to a new trial at law. .</p> <p>The affirmance of a void judgment, upon grounds not touching but overlooking its invalidity, does not make it valid.</p>

In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge. The facts sufficiently appear from the opinion.