Volume 23 — Mississippi Reports

In error from the circuit court of Lawrence county; Hon. Thomas A. Willis, judge. Held: or the judge below did not err. This cause was decided by this court at a former term in favor of plaintiff in error, reversing the judgment of the court below, but a petition for re-argument was filed by defendant in error, which was granted, and the opinion now given in the case was delivered by the court.

Stanhope Posey, judge. This suit is founded on a note given by Israel Leonard, and which was also indorsed by Thistle, the appellee, for the sum of $3333.33. Glenn became the holder of the note after the death of the maker, (Leonard,) and instituted this suit against Thistle as executor of the deceased, Leonard. The defence set up to the note is an entire failure of consideration.

<p>Under the act of 1839, commonly known as “ The married woman’s law,” property purchased by a husband,.and by him procured to be conveyed to his wife, after marriage, may be subjected to the payment of his debts. If the property come to the wife from the husband, or through him, or by his means, it all amounts to the same thing.</p> <p>A title to property cannot be vested in a wife on her husband’s credit, any more than it can by his'money; and, therefore, where a husband procured a conveyance of property to be made to his wife, he executing his own notes, with personal security, for the greater portion of the purchase-money, under the expectation that payment would be made out of the wife’s means; he having paid the residue in property apparently his own, but alleged by him in his answer to have been purchased with the separate funds of the wife, there being no proof in support of the answer ; it was held, that the husband had a resulting trust in the property, which could be enforced for the benefit of his creditors.</p> <p>Money of the wife, which came to the hands of the husband before the passage of the act of 3839, belonged to him, unless some special reason intervened to prevent it.</p> <p>If money of the wife be invested by the husband, with his own, in property which is conveyed to her, she will thereby acquire an interest in the property only to the extent of the investment of her means.</p> <p>An equitable title to land, which is not complete and perfect, and especially an imperfect equity of a complicated character, is not the subject of sale under execution. The creditor must resort to a court of chancery, in order to reach such an equity of his debtor.</p>

In error from the superior chancery court; Hon. Stephen Cocke, chancellor. The opinion of the court contains a sufficient statement of the facts of the case. It has been settled in equity that filing of the bill is the commencement of the suit. House v. Peck, 9 Eng. Comm. L. R. 57; 2 Daniel’s Ch. Prac. 746; Story’s Eq. Jur. § 750— 752, in note; lb. § 484.

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge. This was an action of trespass, brought by Thorn against Wheatley in Tippah circuit court, to recover damage for an assault and battery committed by Wheatley upon Thorn. Wheatley, the defendant, offered to prove upon the trial of the cause, that he had been indicted and fined by the court for the same cause of offence, and had paid the fine imposed.

In error from the superior chancery court; Hon. Stephen Cocke, chancellor. The facts of the case are sufficiently given in the opinion of the court.

This was an action of trover brought in the circuit court of Yazoo county, to recover- the value of a slave claimed by plaintiffs. The suit was instituted in March, 1848, and defendant plead, not guilty, and the statute of limitations of three years. To the second plea, the plaintiffs replied, that they were infants when the cause of action accrued, and so continued until within three years next before the commencement of the suit.

In error from the circuit court of Tishamingo county; Hon. Hugh R. Miller, judge. The facts of the case are sufficiently stated in the opinion of the court.

This is an appeal from the circuit court of Marshall county; Hon. Hugh R. Miller, judge. The facts of the case are given in the opinion of the court. Cited Wadlington v. Hill, 10 S. & M. 560; Peques v. Mosby, 7 lb. 340; 1 Peters, 461; 2 Iredell, 297; 7 How. 172. Cited Hagemm v. Sharkey, 1 How. 277; Leftwick v. Coleman, 3 lb. 167; Fedor v. Price, 3 lb. 320 ; 1 lb. 341; 6 S. & M. 294; Colemcm v. Rowe, 5 How. 160; Grew v. Finucane, 5 lb. 572.

In error from the northern district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. The facts of the case are sufficiently stated in the opinion of the court. Cited 1 Ves. 317; 6 lb. 333; Gillespie & wife v. Moore, Johns. Ch. R. 585; 1 Phil. Ev. 576; 7 S. & M. 346. Cited 6 Wheat. 453-468; 9 Cranch, 160; 1 Hen. & M. 537; 5 Mum. 183, 184; 1 Phil. Ev. 115; 3 Verm. R. 272; 10 Yerg. 115; 9 Ves. 275; 2 Johns. Ch. R. 94; 1 WTash. 225; 1 Mum. 373-395; 2 Johns.

James B. Poeter instituted this action of ejectment in the circuit court of Amite county, to recover the possession of lots No. 3 and 4, on fractional section 40, S. 2, R. 2, east, in the district of land subject to sale at Washington, Mississippi. The declaration was filed at the March term, 1844, and served on George W. Faxon, he being tenant in possession.

In error from the southern district chancery court; Hon. James M. Smiley, chancellor. The opinion of the court contains a sufficient statement of the facts of the case.

<p>In error from the northern district rice-chancery court at Holly Springs; Hon. Henry Dickinson, chancellor.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p>

<p>In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge.</p> <p>This was an action of detinue, instituted in the circuit court of Monroe county, by defendant in error against the plaintiff in error, to recover a negro girl valued at f500, and to the declaration the plaintiff in error plead non detinet. At the April term, 1849, of said court, the cause was tiled, and the jury found a verdict in favor of defendant in error, and assessed the value of said girl at $500, and damages for deten-, tion, $150. The plaintiff in error moved the court to set aside the verdict and grant a new trial, which was overruled by the court, from which decision, the plaintiff, Gibbons, prayed a writ of error.</p> <p>filed a long written argument for Parr.</p> <p>A verbal gift of personal property without delivery, does not pass title. 2 Leigh, 337 ; 12 lb. 155.</p> <p>There must be a deed or instrument of gift, or actual delivery of the thing to the donee. 2 Barn. & Aid. 551; Howe’s case, Noy’s R. 67; 7 Harris. & John. R. 257.</p> <p>A mere declaration by one that he would give or had given a chattel to another, when it is shown that the donor or owner never parted with the possession or control of it, would not be sufficient to establish a title by gift.</p> <p>It is the act of delivery, accompanied with the intention to give, that perfects a parol gift. Guild v. Guild et al., 16 Ala. R. 121; Sims v. Sims, 2 lb. 117 ; Sewall v. Glidden, 1 lb. 52.</p> <p>It has been held in numerous cases, English and American, that actual delivery of personal property “is essential to a good gift.” See Ward, v. Turner, 2 Yes. sen. 431-442; Prec. in Ch. 300; 2 Eng. Com. L. R. 81; Duffield v. Elwes, 1 Sim. & Stu. 239; Drury v. Smith, 1 Pr. Wms. 404; Snellgrove v. Baily, 3 Atk. 214; Gotten v. Missing, 1 Madd. Ch. R. 176; Bunn v. Markham, 7 Taunt. 224 ; 2 Kent, Comm.- 437 - 439 ; Noble v. Smith, 2 John. R. 52; Pearson v. Pearson, 7 lb. 26; Grangiac v. Arden, 10 lb. 293; Gook v. Hasted, 12 lb. 180; Fink v. Cox, 18 lb. 145; Pleasants v. Pendleton, 6 Rand. 473 ; Ewing v. Ewing, 2 Leigh, 337; Elam v. Keen, 4 lb. 333; Picot y. Saumderson, 1 Dev. N. C. R. 309.</p> <p>In our own supreme court the subject has been decided, and in accordance with the principle last stated, as we think. The first case reported is in 2 Howard, but as the case of Marshall v. Fulgham, reported in 4 Howard, 216, and decided by his Honor Justice Smith, was the first decided case, and is approved and quoted in the case in 2 Howard, we refer to it first, and especially to the conclusion of the opinion : “ If the gift does not take effect by the immediate delivery of possession, it is then not a gift but a contract,” quoting 2 Black. Com. 442.</p> <p>The case of Thompson v. Thompson et al., 2 Howard, 737, is a much stronger case for plaintiff in error, and was decided by his honor the present chief justice. It was a bill filed between the parties to a gift by writing, (where a part of the negroes were actually delivered, and part not,) to set aside the gift. The court then held, that the gift was complete as to the negroes delivered. “ The delivery alone, and not the writing, vested title.” But the writing “ cannot have any validity in regard to those that were retained during the life of the donor. Even if it had been a deed, it would fall within the rule already established by this court in the case of Marshall v. Fulgham. It could only be regarded as a contract, and as such could not be enforced.”</p> <p>The case of Falconer v. Holland, 5 S. & M. 689, cited by counsel for defendant in error, does not conflict with the cases previously decided, but belongs to another class of casesj viz. where property is delivered by a parent to a child on marriage, the law in such cases presumes a gift in consideration of marriage, unless there is evidence to the contrary.</p> <p>The last case decided on this subject by this court, is the case of Carradine v. Collins, 7 S. & M. 428, in which the court refers to the cases in 2 & 4 Howard, and approves the principle there established.</p> <p>We think, from a review of the cases, it will be found consistent with precedent, and in accordance with sound policy, to hold, at least in cases of a verbal gift, that it shall be evidenced by actual formal delivery of possession, accompanied with some evidence of an intention thus to perfect the gift.</p> <p>There is no error in the record in this case.</p> <p>1. It is a general rule, that the delivery of negroes or other chattel by a parent to a child on marriage, or even after marriage, will constitute in law a gift, or an advancement in consideration of marriage. Permitting a negro to go home with a child after marriage, amounts to the same thing. The law presumes, in consideration of the relationship, a gift was intended. Falconer v. Holland, 5 S. & M. 689 ; Johnston & Henderson v. Dillard, 1 Bay’s R. 232; Arvaunt and Wife v. Siueet, 2 lb. 528; Moore’s Adm’rs v. Dawney, 3 Hen. & Mun. 127; Torrence v. Graham, 1 Dev. & Bat. 284; Old v. Powell, 7 Ala. R. 652 ; 10 John. R. 293.</p> <p>2. It is insisted that, the verdict being for $650, and the damages laid in the declaration at only the sum of $500, this is error.</p> <p>In actions for torts perhaps this would be true, but in an action of detinue, the principal, if true, has no application.</p> <p>The girl Sarah was assessed at $500, the value laid in the declaration ; the damages in the declaration, for the detention of the girl, are laid at $500; the jury assessed the damages at $150. Therefore, the principle contended for, if true, can have no application, because the facts upon which it is to act, do not exist in this case.</p> <p>Again, this cause is not made a ground for a new trial, and only making its appearance in the court above, will be disregarded. And, moreover, the judgment is in the alternative, that the plaintiff recover the negro if to be had ; if not, then $500 her value, and the damages for the detention. 1 Chitty, 142. The action of detinue is classed as an action ex contractu, and is in the nature of an action of debt, in which the damages are never laid at a sum sufficient to cover both debt and interest. 1 Chitty, 138 ; 2 Reeves’ Hist. E. L. 251, 333, 336 ; 3 lb. 66, 74.</p> <p>3.The note of Mrs. Gibbons, offered in evidence by the plaintiff in error, was properly excluded by the court.</p> <p>1. Because she was then a feme covert, and incompetent to make such a contract.</p> <p>2. There was no proof that her husband was present, or knew any thing about the making of any such contract, by his wife.</p> <p>3. It only amounted to a declaration of the wife, and incompetent as against the husband, or her heirs in any suit to recover the property.</p> <p>4. It could not explain the intention of the father, or alter the rights of the husband; for, if the wife had died without issue, the negro would have descended to him.</p> <p>5. It may be, and the circumstances justify the inference, that it was made for the purpose of defeating the grandchild of any right to the negro, at a time when it was not creditable for a father to obtain such a paper; for the whole Parr family were introduced and examined as witnesses, and strange as it may seem, none of them ever heard of the note before it made its appearance in court.</p> <p>6. The finding of the jury is fully sustained by the testimony in the cause. New trials are always within the discretion of the court, and are never granted unless palpable injustice has been done, which is not the case in this instance.</p> <p>The defendant’s counsel, therefore, submits that there is no error in the record and proceedings in the court below, and that the judgment must be affirmed with damages.</p>

In error from the probate court of Choctaw county. The facts of the .case are sufficiently stated in the opinion of the court.

In error from the circuit court of Washington county; Hon. George Coalter, judge. The opinion of the court contains a sufficient statement of the facts of the case.

<p>This is an appeal from the vice-chancery court at Columbus ; Hon. Henry Dickinson, vice-chancellor.</p> <p>The facts of the case are sufficiently set forth in the opinion of the court.</p>

<p>The act of 1822, in relation to the. proceeding of unlawful detainer, (Hutch. Code, 813, Art. 7, § 3,) does not apply to the case of a vendee at execution sale, where the party in possession of the premises, or those under whom he claims, did not come into the possession originally as tenants to the defendant in the execution.</p> <p>The proceeding of unlawful detainer was intended as a merely possessory remedy. Title is not involved in it, nor can a party be permitted to deduce his right of possession from his right of property in the premises.</p> <p>The remedy by unlawful detainer is confined to cases in which the party in possession has originally entered under a title which gives only a temporary or defeasible estate, and which has expired; or where the relation between the plaintiff and the defendant may be considered in law that of landlord and tenant; as in the case of a tenant who holds over after the expiration of his lease, or of a vendee who goes into possession under an agreement to purchase, and, failing to comply, detains possession against the consent of the vendor, &c. It was never designed as a substitute, in all cases, for the action of ejectment.</p> <p>Rate v. Fyler, 10 S. & M. 441, cited and explained. Where the grantee of the landlord is the plaintiff in unlawful detainer, he is permitted to introduce the landlord’s deed to himself, in connection with proof of the tenant’s attornment to him, for the mere purpose of showing that he has succeeded to the rights of the landlord, and that the relation of landlord and tenant exists between the plaintiff and defendant. Proof of that relation cuts off all inquiry into the title of the plaintiff. Deeds may also be introduced to establish boundaries, or to show the extent of possession.</p> <p>There are some cases in which parties who never had possession of land may recover in the proceeding of unlawful detainer. Such was the case of Rais , v. Fyler; and semble, that the heir of a landlord may maintain the action against the tenant of his ancestor.</p>

In error from the circuit court of Hinds county; Hon. George Coalter, judge. The facts of the case are sufficiently stated in the opinion of the court.

Stephen Cocke, chancellor. The opinion of the court gives a sufficient statement of the facts of the case. A purchaser at sheriff’s sale is supposed to take property with all its encumbrances, and there is no defence in this respect between real and personal property. Calmes v. Forel, 6 S. & M. 190.

<p>This is a controversy between the appellee, Mrs. Sarah M. Johnson, who asserts title to the slaves named in the bill, as her distributive share of her first husband’s estate, and the appellant Duncan, who claims them by virtue of a purchase at a sheriff’s sale under a judgment against Peter G. Johnson, her second husband; they having been sold as his property. The slaves it seems were the property of L. B. Richie, the former husband of appellee. He died in February, 1836, without a will, leaving the appellee and one child.</p> <p>William Dean administered on the estate, at February term of the probate court of Hinds county, in 1836. The appellee and Peter G. Johnson intermarried in December, 1837, and initiatory steps were taken for a division of the property, but nothing was done until June term of the probate court, 1841, when an order was made for that purpose. On the 27th of July, 1841, the personal estate was divided between the appel-lee and her child, Mary E. Richie; report whereof was duly made to the next September term of the probate court of Hinds county, when it was confirmed.</p> <p>By the division made, certain slaves were allotted to the appellee, which, with their increase, are the same slaves claimed in the bill filed. They were afterwards sold by the sheriff of Hinds county, by virtue of a judgment in favor of the Grand Gulf Bank against Peter G. Johnson; and purchased by the appellant, Duncan, or Duncan, McCallister & Co., under a previous agreement with Johnson, by which they were to be returned to him, to enable him (J.) by working them, to raise the means to pay the appellant the amount he had advanced for their purchase in the depreciated notes of the bank, and thus redeem the negroes. Duncan becoming dissatisfied with the arrangement, instituted his act of replevin in the circuit court of Hinds county to recover the negroes.</p> <p>This proceeding was met by Mrs. Johnson, the appellee, by a bill filed by her- next friend, John F. Watson, against said Duncan and Peter G. Johnson, praying for an injunction and for general relief, upon the ground that the slaves were her separate property. The chancellor sustained the bill, and decreed a perpetual injunction against Duncan, who takes this appeal.</p>

<p>Cumulative disabilities are not allowed in the construction of the statute of limitations.</p>

In error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge. The facts of the .case, as shown by the record, are, that in the year 1848 plaintiff in error executed to defendant in error (Elder) a receipt for the sum of $333.33.

In error from the district chancery court at Carrollton; Hon. Henry Dickinson, chancellor. The record shows that on the 14th of October, 1836, John B. Wood, in his lifetime, sold to James Blackburn the tract of land in controversy, and executed to Blackburn a bond for title.

Henry Dickinson, vice-chancellor. The facts of the case are sufficiently stated in the opinion of the court. The bill is barred by the statute of limitations. The deed of trust vested a joint estate in the husband, H. L. Gray, and his son, J. L. Gray.

<p>A decree in the appellate court, dismissing a bill, is a final disposition of the cause, and the parties cannot be again brought into the court below by petition.</p> <p>Where a complainant obtains an injunction to restrain the sale of personal property which remains in his possession, he giving bond and security to have it forthcoming to answer the decree of the court, and the bill is dismissed upon appeal, the defendant cannot obtain the possession of the property, upon an application by petition to the chancery court, by virtue of a writ of restitution. He must resort to his remedy upon the injunction bond, or to an original suit to obtain possession.</p> <p>In practice, the writ of restitution appears to be unknown in the chancery court.</p>

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge. The facts of the case are sufficiently stated in the opinion of the court.

<p>Where a bill is filed against two or more defendants and taken for confessed against one of them, and an amended bill, not in any wise affecting his rights or interests, as fixed by the order pro confesso, is afterwards filed in the cause against the other defendants, a decree may be made without giving to the - party, against whom the pro confesso has been taken, such notice of the filing of the amended bill as is contemplated by the 74th rule of the chancery court, and without an answer from him to such amended bill.</p> <p>If, however, an amended bill contain charges affecting the rights of a defendant against whom the original bill has been taken for confessed ; or if an answer from him be really necessary; or if the decree, as to him, is to be founded on the amended bill, he must have the notice required by the rule.</p>

<p>An agreement to indemnify a sheriff for an act to be done by him in plain violation of his official duty, is invalid ; but such an agreement, in the case of a disputed right, is lawful.</p> <p>A sheriff levied money under several executions against one Porter. S., swho controlled some of the executions, claimed payment in full, which was refused by the sheriff, on the ground that other executions were entitled to priority of payment. At length, in order to induce the sheriff to pay him in full, S. executed a bond of indemnity to secure the sheriff against all Iqss, and thereby obtain the money, he claimed. The sheriff was afterwards compelled to pay a large sum to creditors whose executions were older than those of S., and thereupon sued S. upon -the bond of indemnity; held, that the contract of indemnity was valid.</p> <p>A sheriff cannot be permitted to contradict his own return ; but if he sells property for a sum specified in his return, and does not actually receive the money, but an execution creditor, who is himself the purchaser, receipts for the whole or a part of his bid as money, — the parties at the time regarding that as a payment, — the sheriff will be allowed to prove how the facts really were, in a contest between, himself and the purchaser. Especially will this be allowed in a case where the return does not set forth a payment of the money.</p> <p>A bill of exceptions, talren in one suit, cannot be read in another. Its only proper use is to enable the appellate court to revise the proceedings of the inferior tribunal.</p> <p>A party who has introduced the whole of a record as evidence, cannot after-wards object to the use of any part of it by his adversary.</p> <p>In civil cases, it is too late after verdict to object to the jury that have sat in the trial of a case after they have rendered their verdict, because they have not been regularly summoned on the venire, or as talesmen from the bystanders, or because the venire facias had not been regularly drawn from the box.</p>

In error from the circuit court of Copiah county; Hon. 'Stanhope Posey, judge. The facts of the case, as exhibited by the record, show that Thomas N. Shelby died in December, 1831, possessed of about forty jiegroes, including those sued for in this action, with the exception of Edmund, who was bought by his (Shelby’s) son, Moses D. Shelby, after his father’s death. He left surviving him a widow, Mary T., and four children, and a fifth child born after his death.

The record shows that the plaintiff, Isabella Smith, formerly Isabella Kelly, was born in the state of Sonth Carolina ; that James Kelly, in that state, afterwards intermarried with her mother, and that she was the daughter of James Kelly; and her said father, Kelly, and the said Isabella with the other members of the family, some time in 1837 or 1838, removed to Carroll county, Mississippi, where they afterwards continued to reside.

The facts of the case, as shown by the record, are, that the Bank of England held a mortgage on the Alloway plantation and negroes, in Adams county, Miss., to secure certain notes of John Watt, indorsed by Burke, Watt & Co., given in settlement of a debt of Watt, Burke Co., on which the balance due on the 8th of November, 1843, was, as appears from an account stated between them, about $40,211.67.

<p>ON appeal from the circuit court of Noxubee county; Hon. John Watts, judge.</p> <p>The facts of the case are stated in the opinion of the court.</p>

IN .error from the circuit court of Hinds county; Hon. t'George .Coalter, judge. This is an action of replevin brought by Towns et al. against Boarman, for certain goods and chattels which had been at-tadhed for rent, at the suit of Boarman. The plaintiffs, on petition, sued out a regular writ of replevin from the Hinds county circuit court, and upon the plaintiffs’ giving bond, the property attached was restored to them.

<p>On appeal from the probate court of, Yazoo county; Hon. Daniel Jones, probate judge.</p> <p>The facts of the case are sufficiently stated in the opinion of te court.</p>

In error from circuit court of Noxubee county ; Hon. A. B. Dawson, judge. The facts of the case, as presented by the record, are, that the defendants in error sued the plaintiff in error, in the circuit court of Noxubee county, upon a promissory note under seal, otherwise called a bill single.

In error from the circuit court of Wilkinson county; Hon. Stanhope Posey, judge. The facts of the case are sufficiently given in the opinion of the court. Cited 1 Chit. PI. 524-395; Gildart v. Starke, 1 How. 450; Green v. Creighton, 10. S & M. 159 ; Stewart v. Davidson, 10 Ib. 351; Jones v. Coon, 5 Ib. 751; Harper v. Archer, 9 Ib. 74; Campbell v. Brown, 6 How. 114; Stubblefield v. Me Raven, 5 S. & M. 130 ; Carmichael v. Browder, 3 How. 252. Cited Hutch.

Henry Dickinson, vice-chancellor. The facts of the case as shown by the record are, that William Trigg, died in 1823, in the state of Tennessee, leaving a widow, Dorothy, and oratrix (Amanda M.) an only child. Dorothy administered, and Trigg, at his death, had four negroes and other property; that Dorothy, administratrix, sold one of the negroes to pay his (Trigg’s) debts, leaving three other negroes unsold.

In error from the circuit court of Yazoo county; Hon. R. C. Perry, judge. The facts of the case are sufficiently stated in the opinion of the court. A memorandum or indorsement on a deed made at the time it is executed is part of the deed. 4 N. Hamp. Rep. 171; 5 Pick. 181; 3 Bibb’s R. 10; 12 Mass. 456; 6 Durn. & E. 737; 8 lb. 483; 14 East, 586; 4 Mass. 245; 14 John. 487. No particular form is necessary to constitute a mortgage. 2 Dessaus.

In error from the southern district vice-chancery court; Hon. James M. Smiley, vice-chancellor. The opinion of the court contains a sufficient statement of the facts of the case, together with the briefs of counsel. The demurrer in this case was properly sustained by the vice-chancellor. 1. The bill avers that the assignment was made by the Grand Gulf Bank to Ingraham & Read, for the benefit of creditors, but does not allege that there are now any creditors.

<p>ON appeal from the circuit court of Yazoo county; Hon. R. C. Perry, judge.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p> <p>Cited 8 S. & M. 211; 1 Stew. & Por. R. 71; 2 Stew. R. 21; 6 Ala. 226; Hutch. Code, 667, § 103; 11 Pick. 496; 5 lb. 61; 3 lb. 128; 16 Mass. R. 524; 10 Pick. 75.</p> <p>Cited H. & H. Code, 482, § 10; 12 S. & M. 439; 15 lb. 197; 2 U. S. Dig. 400; 10 Peters, 532; Noland v. Calvit, 12 S. & M-. 273.</p>

In error from the circuit'court of'La Fayette county ; Hon. Hugh R. Miller, judge. The facts of the case are sufficiently given in the opinion of the court. Contended, that the decision of the court below was erroneous, and cited the following authorities to sustain his position: 1 Chitty’s Plead. 518 ; 6 Cow. 465 ; Angelí on Lim. 83.

In error from the circuit court of La Fayette county ; Hon. Hugh R. Miller, judge. Held: “ That the wife could not be sued at law, and that the effect of the woman’s law is not to extend her power of contracting or binding herself and property; its effect is to take away all power of subjecting her property, except in the particular mode specified in the statute.” The same principle is established by the case of Frost v.…

In error from the circuit court of La Fayette county; Hon. Hugh R. Miller, judge. Craig made an assignment of two officer’s receipts to the intestate of defendant in error.

<p>On appeal from the circuit court of De Soto county; Hon. Hugh R. Miller, judge.</p> <p>The opinion of the court contains a sufficient statement of the facts of the case.</p>

In error from the circuit court of Harrison county; Hon. Wiley P. Harris, judge. Held: by virtue of a deed of trust from William H. Calvert and M. H. Calvert, for the separate use of Sarah Selph, one of the defendants, and wife of Job G. Selph, her co-defendant. Selph and wife demurred to the petition, which demurrer to sustained, and leave given to amend.

<p>The statute of limitations of three years under the act of 1846, relative.to the period of time within which suits must be brought on judgments or decrees rendered in another state, does not apply to judgments and decrees rendered before its passage; it only furnishes a defence to a particular class of cases, and is to that extent an exception to the general statute prescribing the time within which suits must be commenced in the courts of this state; and the exception in the statute is when the defendant was a citizen of the state, either at the time when suit was commenced or the judgment rendered against him in the other state; an action prosecuted upon such judgment must be commenced within three years after it was rendered. Held, that the plea setting up this defence under the statute, is insufficient.</p> <p>The defendant by plea avers, that the suit was not commenced within three years after the decree was rendered, and attempts to set up a defence under the proviso of the 14th section of the act of 1844, which declares, “In all cases of judgments or decrees heretofore obtained which are not now barred by the statute of limitations, the plaintiff may maintain an action thereon, if the same be commenced within two years after the passage of this act, and not afterwards.” Held, that the plea is insufficent for want of that certainty [ which the rules of pleading require; had it averred that suit was not brought in two years, it would have been sufficient.</p>

<p>On appeal from the superior chancery court; Hon. Stephen Cocke, chancellor.</p> <p>This was a bill filed in the superior chancery court, by John Bacon and others, to foreclose a mortgage executed by Sessions and wife on certain slaves. The plaintiffs in error pleaded separately, that the property upon which the mortgage was executed on the 21st of January, 1840, was at the time, and is yet, the sole property of the wife, derived to her from her father, who died in 1838, and held by her under the married woman’s law, and that the debt in the mortgage mentioned, was the debt of her husband, (E. J. Sessions;) and these pleas were set aside or overruled by the court, and the plaintiff in error appealed to this court.</p> <p>Contended, that Mr. Sessions, being a minor at the time the deed was executed, it was void, and that this court had so decided. An acknowledgment of it would add nothing to its validity. Markham v. Merrill, 7 How. 437. The various acts for the protection of married women do not, in their spirit or intent, justify the idea that any power is given to the wife, to become the security of her husband; for the policy of the laws on that subject is to prevent the taking of the wife’s separate estate to pay her husband’s debts.</p> <p>It is contended, that the absolute power of sale by a married woman, includes the lesser power to mortgage, and this is true, as a general rule, in regard to those whose powers are general and not limited. All we contend for is, that the court will not coerce the wife to appropriate her property to pay her husband’s debts, whether her contract be by sale or mortgage.</p> <p>In reply to the first point urged by plaintiffs in error, that a married woman, under ‘the statute, had no right to mortgage her property, cited Palmer v. Gross, 1 S. & M. 48; Davis v. Foy, 7 lb. 64; Frost v. Doyle, 7 lb. 68; Berry v. Bland, 7 lb. 77. These authorities, it is believed, prove that she may sell or charge her property.</p> <p>If she has the right to sell absolutely her property to pay her husband’s debts, then, upon the same principle, she can sell or transfer her property to secure his debts, if she pursues the form prescribed by the statute. 7 S. & M. 75-84.</p> <p>A mortgage of the real estate of a wife to secure her husband’s debts, if she acknowledge it separate from the husband, passes her title. 3 Wheat. 457. Where the use of the thing is given for any period, certain or contingent, the thing itself is given. Fear, on Rem. 464; 2 Murph. 137 ; 3 Bibb, 186.</p>

In error from the circuit court of Jefferson county; Hon. Stanhope Posey, judge. This case is sufficiently stated in the opinion of the court. This is a case manifestly brought up for delay, and submitted as such.

<p>On appeal from the vice-chancery court at Fulton county; Hon. Henry Dickinson, vice-chancellor.</p> <p>The opinion of the court contains a sufficient statement of the facts of the case.</p>

<p>On appeal from the circuit court of Hinds county; Hon. George Coalter, judge.</p> <p>The facts of the case as shown by the record are, that at the time the contracts were made, upon which the bill was filed in the court below, the real defendant in error, Mrs. Ann Groves, was the wife of James C. Mitchell, since deceased, and she subsequently married Groves. The defendant in error claims that the contracts entered into by her deceased husband (Mitchell) are void, because she never sanctioned them. The court below dismissed the bill, and the plaintiff in error appealed to this court for relief.</p> <p>There being no trustee named in the marriage contract, the husband as to the personalty was, by operation of law, constituted a trustee for his wife, and as such was entitled to the possession and control of the trust property. 2 How. 751; 2 Roper on H. & W. 152, 156; Clancey, 256; 9 Yes. 583. The husband as trustee under the marriage contract, with full power and authority to possess and control the interest of the wife, could make contracts binding on her, because his interest was coupled with a power that was irrevocable. 11 John. 47 ; Paley on Agen. 184 ; 7 Ves. jr. 28.</p> <p>The act of her husband made the contract at common law the wife’s, and it bound her separate property. The rule is, that the separate estate of the married woman is liable for debts for which she has given a written security. 15 Yes. 59; 2 Ves. jr. 193 ; 2 lb. 150; 11 Ves. 222; 17 lb. 305; 1 Ves.jr. 277 ; 9 Ves. 473 - 478 ; 3 Madd. 387 ; 2 Pr. Will. 144 ; 8 Ves. 175.</p> <p>The principle is, that by signing she intended to bind something, and, as she could not bind herself personally, she therefore intended to bind her separate property. See authorities heretofore referred to. So the fact that the debt was contracted during coverture, either as principal or jointly with her husband, is prim facie evidence to charge her separate estate. 7 S. & M. 83 ; 2 Story’s Eq. Jur. § 1400.</p> <p>The decree should have been granted as prayed for in the bid.</p>

<p>An action for a devastavit, upon the bond of an administrator, cannot be maintained by a creditor who has not obtained a judgment against the administrator, to be levied of the goods and chattels of his intestate in his hands to be administered.</p> <p>"Where a judgment is rendered against a principal and surety, and the surety, after the death of the principal, pays the judgment, he thereby becomes a simple contract creditor of the estate of the principal, and must prosecute his claim to judgment against the administrator before he can maintain an action for a devastavit, at law.</p> <p>Semble, that in a court of equity, a surety who has paid a judgment for his principal would have the right to be substituted to all the rights of the plaintiff in the judgment; but the rule is different at law.</p>

<p>Before a suit instituted by A. can be revived in the name of G. and C., the record must show a state of facts, making it impossible for the original plaintiff to prosecute the suit, and a case proper to be revived in the name of the person seeking the revival.</p> <p>The record in this case does not show a sufficient state of facts to authorize a revival of the suit in the name of the defendants in error, for it no where appears of record in a proper form, that a judgment of forfeiture had been pronounced against the bank, which was necessary before a revival of the suit in the name of the defendants in error can be allowed.</p>

<p>The statute requiring that contracts “ for the sale of lands, tenements, or here-ditaments shall be in writing, &c.” only operates where a contract has been made for a sale of land. Held, that this was not a contract of that character, it being one, in effect, for parties to become jointly interested in a purchase about to be made. Runnels v. Jackson, 1 How. 358, cited and confirmed.</p> <p>The contract sought to be enforced is denied by the answer, and the proof must be certain, and such as to leave no doubt that the contract was made creating the trust. Held, that the proof in this case does not come up to that standard.</p>

<p>By the statute of 1830, Hutch. Code, 676, the act in relation “ to sureties of executors or administrators, or their representatives, when such sureties conceive themselves in danger of suffering,” &c. is made to embrace the sureties of guardians, giving said sureties the same rights as sureties of administrators, &c., and requiring the same duties of the court. Held, that the surety of the guardian, in this case, is entitled to be either discharged, or have counter security, whenever he shall by petition present a proper case to the court, and the decision of the probate court was erroneous.</p>

In error from circuit court of Hinds county; Hon. George Coalter, judge. The facts of the case were sufficiently stated in the opinion of the court.

<p>In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.</p> <p>Cited The Bank of Alabama at Montgomery v. Harrison, 1 Alab. R. 9 ; Killingsworth v. The Commercial Bank of Rodney, 9 S. & M. 630.</p> <p>Cited United States Bank v. Chapin, 9 Wend. 471.</p>

<p>On appeal from a decree of the superior court of chancery ; Hon. Stephen Cocke, chancellor.</p> <p>The facts of this case sufficiently appear from the opinion of the court.</p> <p>Cited Trustees of Jefferson College v. Dickson, Freem. Ch. R. 474; Miller v. Helm, 2 S. & M. 687; Miller v. Trustees of Jefferson College, 5 lb. 651; 6 How. 320 ; 5 S. & M. 410.</p>

'This is a motion made in the high court of errors and appeals, and the case is fully stated in the opinion of the court.

<p>On appeal from the northern district.vice-chancery court at Fulton; Hon. Henry Dickinson, vice-chancellor.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p>

In error from the vice-chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor. The opinion of the court contains a clear statement of the facts of the case.

In error from the circuit court of Madison county; Hon. R. C. Perry, judge. The opinion of the court contains a sufficient statement of the facts of the case.

In error from the circuit court of Lauderdale county; Hon. John Watts, judge. The facts of the case are sufficiently stated in the opinion of the court. Cited and commented on 1 Stew. (Ala.) R. 61; lb. 454; Me Gilvry v. Jackson, 4 Plow. 245.

<p>In error from the circuit court of La Fayette county; Hon. Hugh R. Miller, judge.</p>

<p>In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge.</p> <p>This is an action of debt brought by the defendant in error, against the plaintiff in error (Rasberry) in the circuit court of Monroe county. The action was founded upon a writing obligatory executed by Rasberry to Moye on the 18th of December, 1847, for $750;'one third payable the 1st of March, 1849; one third 1850, and one third 1851. The pleas filed were, 1, payment; 2, fraud; 3, want of consideration; and 4, failure of consideration. The case being submitted to a jury, the plaintiff read his writing obligatory. The defendant read his bill of sale from Moye for a negro, which contained an express warranty of soundness. The jury found a verdict for the plaintiff, from which decree the defendant prayed a writ of error.</p> <p>Contended that our courts have decided that a return or offer to return a chattel warranted is not necessary. Ferguson v. Oliver, 8 S. & M. 338 ; 1 Rawl. 23; 3 Stew. & Port. 322; 18 Wend. 425. Nor is it necessary to show that the chattel was entirely in order, that defendant below might avail himself of the defence of failure of consideration. 2 S. & M. 87, 88; 6 lb. 42, 43. That a partial failure of consideration may be set up in mitigation of damages in an action at law, is now the settled rule.</p> <p>Did Rasberry not purchase with a full knowledge of all the facts before him ? And can he be permitted to complain under the circumstances? These inquiries are answered by the following authorities: Burnett v. Anderson, 5 How. 165; 2 Kent, 382; Sugd. on Vend. 283 ; 10 Yes. jr. 505.</p> <p>Whether the charges given by the court to the jury be right or wrong, is wholly immaterial if it should be believed that the verdict was right. 5 S. & M. 508 ; 1 lb. 381, 400.</p> <p>Unliquidated damages are not the subject of offset. 8 S. & M. 248; Whitaker v. Robinson, 6 John. Ch. R. 351.</p> <p>If one would avoid a sale for fraud, he must not retain any part of the consideration he received from the other. Kimball v. Cunningham, 4 Mass. R. 502; 22 Pick. 546.</p> <p>With the above principle the case of Ferguson v. Oliver., 8 S. & M. 338, in no wise conflicts. In that case the defence went to the whole note ; not so in this.</p>

In error from the circuit court of Adams county; Hon Stan-hope Posey, judge. The opinion of the court contains a sufficient statement of the facts of the case. filed an elaborate brief, reviewing at length the case.

In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. The opinion of the court contains a sufficient statement of the facts of the case.

Henry Dickinson, vice-chancellor. The bill charges, that complainant and defendant, in the year 1836, purchased land and negroes, for the purpose of carrying on a farm, in copartnership; that the purchase was made at the sum of $22,000; that the parties' executed their four several bonds, at one, two, three, and four years, for $5500 each, and executed a mortgage on the property purchased to secure the payments, as they fell due ; that the farm was carried on for two years,…

In error from the southern district vice-chancery court at Natchez ; Hon. James Smiley, vice-chancellor. The facts of the case are contained in the opinion of the court.

<p>On appeal from a decree of the superior court of chancery dissolving an injunction.</p>

Henry Dickinson, vice-chancellor. The facts of the case are sufficiently stated in the opinion of the court.

Henry Dickinson, vice-chancellor. The bill in this case as filed, charges that on the 19th of December, 1833, Edward Sims, of whom the complainants are heirs at law, entered at the land-office in Columbus, four several parcels or tracts of land, for all of -which he paid and performed all things to entitle him to said land; and at the date of the transaction, the land-office was so loosely and negligently kept, indeed so much confused and disordered, that there is no note or…

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. The case is sufficiently stated in the opinion of the court. The statute of this state expressly permits an executor or administrator to make any special defence under the general issue, and provides that he shall not be required to plead any other plea. Hutch. Code, 669, sec. 105.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.

Stephen Cocke, chancellor. 1. The decree is -wrong both in form and substance. It decrees that said Richards and Coulter, executors, &c., pay, without directing out of what fund they shall pay. This decree as it stands is against them personally, and the words executors, &c., are only descriptive. See Hite’s Executors v. Paul’s Heirs, 2 Munf. 154. For the form of a decree against an executor or administrator, see 3 Hoff. Chan. Prac., No. 203 of Forms. 2.

<p>On appeal from the superior court of chancery; Hon. Stephen Cooke, chancellor.</p> <p>The opinion of the court contains a sufficient statement of the facts of the case.</p>

<p>On appeal from the northern district vice-chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.</p> <p>The Commercial Bank of Columbus held a note made by B. A. Head, complainant Yongue, and B. A. Joiner, for $4348, dated May 2, 1839, due twelve months after date, on which was a small credit.</p> <p>The bank assigned its assets to Alexander T. Young, Ragsdale, and "Weir, in trust, to collect and pay the debts of the bank. Suit was instituted on the note by the trustees, and judgment obtained on the 17th of May, 1841, for $4493.12.</p> <p>On the 19th of January, 1843, it was agreed between the plaintiffs in this judgment and Yongue, that Yongue should pay the judgment by giving his-own promissory notes, which he did, giving two notes, both payable to W. L. Harris, one payable twelve months after date for $3470, and the other for $2000 at twenty-four months.</p> <p>The $3470 note was to pay certain liabilities of the bank to northern merchants, and was paid by Yongue.</p> <p>The $2000 note was assigned by Harris (according to the understanding with the trustees of the bank) to Thomas C. Billups, on account of his stock in the bank, he having threatened to sue the trustees for the same.</p> <p>Yongue paid all of the note tranferred to Billups, except $840, for which he gave his note, dated October 14, 1845, and took up the old note of $2000.</p> <p>Yongue, afterwards paid $300 on this note, and then ascertained that a mistake had been made in the calculation of his indebtédness to the bank, for which the two original notes were given; he having given his notes for one year’s interest on the original debt above what was actually due.</p> <p>Yongue then demanded of Billups a deduction on account of the error, which Billups refused, and thereupon Yongue tendered the balance, after deducting the error, which Billups also refused.</p> <p>Billups sued on the note, and obtained judgment for ¡$635.74, on the 6th of April, 1848.</p> <p>Yongue obtained an injunction restraining the execution of the judgment, which injunction was dissolved on the 17th of May, 1849, at complainant’s costs.</p> <p>Yongue prayed an appeal, which by consent of parties was taken direct to the high court of appeals.</p>

In error from the superior chancery court; Hon. Stephen Cocke, chancellor. This was a suit originally instituted by bill in the superior chancery court by Ward and others, claiming to be the-hens of Mrs. Loomis, to annul a marriage contract which Mrs. Loomis had before her death entered into with Daniel M. Dulaney, the defendant in error, and also to obtain possession of all the property Dulaney obtained by his marriage with Mrs. 'Loomis in her lifetime.

On the 4th March, 1842, Herrod filed his bill in chancery in the circuit court of Madison county, to foreclose a mortgage made by S. D. Livingston, to secure the payment of certain notes, one of which was held by Herrod, and the others were held by Henderson, and Livingston and Henderson were made defendants in the bill.

Stephen Cocke, chancellor. The facts of this case are elaborately stated in the opinion of the court. During the years 1841, 1842, 1843, 1844, 1845, 1846 and 1847, no assessment of taxes was made on the bank stock of the Commercial & Railroad Bank of Vicksburg, nor was any tax collected.

On .appeal from the superior chancery court; Hon. Stephen Cocke, chancellor.

This is a writ of error from the circuit court of Hinds county; Hon. George Coalter,judge.' The opinion of the court contains a sufficient statement of the facts of the case.

<p>On appeal from the vice-chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.</p> <p>The facts of the case are sufficiently contained in the opinion of the court.</p>

In error from the circuit court of Monroe county; Hon, F. M. Rogers, judge. The ppinion of the court contains a sufficient statement of the facts of the case.

<p>In error from the circuit court of Warren county; Hon. George W. L. Smith, judge.</p> <p>The facts of the case are contained in the opinion of the court.</p>

<p>If proof of the allegation, that the judgments rendered in the state of Alabama were void, for the reason that complainant was not legally notified of the pendency of the suits, entitled the party to relief, upon the same ground, the action at law in this state could have been successfully defended ; held, upon a familiar principle, the complainant having failed to make his defence at law, he was not entitled to relief in equity, and the demurrer should have been sustained.</p> <p>The transcripts of the judgments upon which the action in the circuit court was founded, show that the writs in these cases were returned by the sheriff duly executed, and this is prima, facie evidence of that fact, and when it is not alleged that either mistake or fraud occurred, must be held sufficient, unless opposed by clear and conclusive evidence.</p>

In error from the superior chancery court; Hon. Stephen Coche, chancellor. The facts of the case are sufficiently stated in the opinion' of the court.

In error from the circuit court of Madison county; Hon. R. C. Perry, judge.

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. The facts of the case are sufficiently stated in the opinion of the court.

<p>In error from the circuit court of Attala county; Hon. R. C. Perry, judge.</p> <p>Cited Williams v. Barnes, 3 Dev. 348; Willis v. Bunn, Wright, 134; Filch v. Peckham, 16 Verm. R. 150; U. S. Dig. 470.</p>

In error from northern district vice-chancery court at Columbus ; Hon. Henry Dickinson, vice-chancellor. The opinion of the court contains a sufficient statement of the facts of the case. filed an elaborate brief.

In error from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge. This was a suit founded on a bill of exchange drawn by the appellant in favor of the appellee, on Rhea & Sykes, of Mobile, for $1309.35, and accepted by them.

In error from the circuit court of Monroe county ; Hon. F. M. Rogers, judge. The facts of the case are sufficiently stated in the opinion of the court.

<p>In error from the circuit court of Hinds county; Hon. George Coalter, judge.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p> <p>Cited H.'& H. Code, 990, sec. 37; lb. 988, sec. 21-37, &c.</p> <p>Cited H. & H. Code, 729, sec. 21-28; 1 Chit. Plead. 362 ; Childress v. Emory, 8 Wheat. 642; Bacon’s Abridg. Debt, F.</p>

In error from the circuit court of Yazoo county; Hon. R. C. Perry, judge. The opinion of the court and the briefs of counsel contain a sufficient statement of the case. Prior to 1834, William Hope, of Yazoo county, died intestate, owning personal and real property, and leaving as heirs and distributees of his estate, his widow, Narcissa M. Hope, and his three infant children, Virginia C. Hope, Martha E. Hope, and Margaret A. T. Hope.

In error from the circuit court of Hinds county; Hon. George Coalter, judge. A sufficient statement of the case appears in the opinion of the court. If Towns had any interest it was equally balanced, and he was a competent witness. 1 Phil. Ev. 66; Hunt v. Chambliss, . 7 S. & M. 532; Williams v. Miller, 10 lb. 139.

<p>On appeal from the probate court of Tishamingo county; Hon. E. E. Gillenwaters, judge.</p> <p>The case comes up on appeal from the judgment of the probate court of Tishamingo county, dismissing the petition of the appellants, calling on the administratrix, (Sorrell,) for a final settlement. The petitioners show that they are the heirs and distributees of the deceased, and that administration had been granted in 1841, and no final settlement had been made, and that the debts of the estate have been paid. The petition was dismissed, from- which order the petitioners appealed to this court.</p> <p>Cited and relied on Noland v. Calvü et al., 12 S. & M. 273 ; Robinson v. Gholson, 8 lb. 392.</p> <p>Cited in reply, Hutch. Code, 665, 666, sec. 94, 95; 8 S. & M. 392; contending the plaintiff in error was not in a situation to appeal to this court.</p>

<p>It is settled that a public officer is entitled to draw his salary, fixed by law, from the day of his election ; and it is held, that he is entitled to interest on the same, from the time a demand is made upon the auditor of public accounts for a proper warrant on the treasurer, for the amount of his salary.</p> <p>“ In point of justice or law, no reason is perceived by the court why the government, if it were suable, ought not to pay what, as a creditor, it could compel its own debtors to pay ; for if a different measure of compensation could be dealt out by the judicial tribunals of the country, it would be inconsistent with the dignity of government and the dictates of justice.” This is the opinion of Mr. Justice Story, and is sanctioned by this court.</p>

In error from the circuit court of Hinds county; Hon. P. W. Tompkins, judge. The facts of the case are sufficiently stated in the opinion of the com-t.

In error from the circuit court of Jasper county; Hon. A. B. Dawson, judge. The facts of the case are contained in the opinion of the court.

<p>In error from the circuit court of Harrison county; Hon. W. P. Harris, judge.</p> <p>The opinion of the court contains the facts of the case.</p>

<p>In error from the circuit court of Hinds county ; Hon. George Coalter, judge.</p> <p>The opinion of the court contains a sufficient statement of the facts of the case.</p>

<p>The act of the legislature allowing appeals from the probate court to this court, provides that they shall be from “any judgment, decree, or final order.” Held, that the judgment appealed from was only an interlocutory order or decree, when appeals are only granted from final judgments or decrees.</p>

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

<p>It is error to charge a jury that they have a right to presume that all the items of an account are correct, if the most of them have been positively proved.</p> <p>The plaintiff must either prove his account by direct and positive proof, or show that he keeps correct hooks, and that his account has been correctly transcribed. This last is but circumstantial testimony. Held, that a party resorting to it must come within the rule established in Simmons v. Means, 8 S. & M. 397, and the case therein referred to.</p>

<p>On appeal from the probate court of Hinds county; Hon. A. R. Johnston, judge.</p> <p>The opinion of the court contains a statement of the facts of the case.</p>

<p>ON appeal from the probate court of Monroe county; Hon. W. A. Tucker, judge.</p> <p>The merits of this case sufficiently appear in the opinion of the court.</p>

<p>In actions commenced by attachment, it is competent for the party sued to deny the right of an agent to execute an attachment bond for the person at whose suit the attachment was taken out; and this court has frequently held that the defendant may show that a suit against him is prosecuted without the consent or authority of the plaintiff. Held, upon that fact being properly shown, the suit will be dismissed.</p> <p>If a plea in abatement were the proper method of bringing this point before the court, in this case it does not do so; for without denying that the suit was brought and prosecuted with the knowledge or consent of M., it seeks to abate the same because it alleges the attachment bond was not executed by M., which plea is negatived by his appearance in court prosecuting his suit by attachment.</p>

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. The facts of the case are contained in the opinion of the court.

In error from the circuit court of De Soto county; Hon. F. M. Rogers, judge. The facts of the case are sufficiently stated in the opinion of the court. The court below erred in not sustaining the motion of plaintiffs, to exclude the testimony of Lewis and Jones, so far as the same tended to contradict the release under seal executed by defendant. The demurrer to evidence did not operate as a waiver of this error.

<p>On appeal from the circuit court of Chickasaw county; Hon. F. M. Rogers, judge.</p>

In error from the circuit court of Tishamingo county; Hon. Hugh R. Miller, judge. The facts of the case will be found sufficiently stated in the opinion of the court. .Two writings executed at the same time in relation to the same subject-matter have, in many instances, been deemed one instrument, with a view to the construction of either. 2 Notes to Phil. E’v. by C. & H. 1421, and cases cited.

In error from the circuit court of Noxubee county; Hon. A. B. Dawson, judge. The facts of the case are sufficiently stated in the opinion of the court.