Volume 24 — Mississippi Reports

<p>A contract, the consideration of which is the preventing the diminution in the value of property, is valid in law.</p> <p>The constitution of the State provides for the election in each county, of five persons “ who shall constitute aboard of police, a majority of whom may transact business, and which body shall have full jurisdiction over,” &c. Held, that the board of police of a county has full jurisdiction in the location of the courthouse on any lot or place within the limits designated for the seat of , justice by the legislature. Monet v. Jones, 10 S. & M. 243, cited and confirmed.</p> <p>It was not the intention of the legislature to declare that the court-house should forever remain upon the precise spot or locality on which it might have happened to be placed in the first instance. The town of Columbus having been designated as the permanent site for the seat of justice, it was within the power of the board of police, in the first instance, to bijild the court-house on any lot within ' the limits of that town; and a similar discretion existed, and could have been exercised by them, in the location of the new court-house. Merrell v. Le Grand, 1 How. K. 150, cited and confirmed.</p> <p>Ho contract will be enforced in a court of justice which is founded on an immoral or an illegal consideration, or which’is contrary to public policy.</p> <p>.This was not a proposition by the defendants to pay the members of the board ' of police so much, as individuals, in consideration that they would not change the site of the court-house, for such a contract would have been clearly illegal, and could not be enforced. Held, that the contract, having been made by the board in their official capacity for the benefit of the county, is binding on the defendants.</p> <p>The act of the legislature of 1830, •which directed the commissioners to fix permanently the seat of justice of Lowndes county, authorized them to receive either donations of land or, instead, to take, “ propositions to pay the expenses of the public buildings in whole or in part,” &c. Held, that there is nothing in the action of the board of police in this case which contravenes public policy; their action, accordingly, is entirely within the act authorizing the erection of a court-house.</p>

<p>In construing a will executed in a sister State, in relation to property in that State, at the testator’s death, the same construction must be given which would be given by the courts of that State.</p> <p>In the State where the will was made, a negro was bequeathed “ to S. as trustee of L., the wife of F., and F. the husband, to be enjoyed and used by them . during their natural lives, free from any liability for the debts of her husband, and by the survivor of them during his or her natural life,” &c. Held, in that State the husband had an estate for life in the slave, subject to sale by execution at law against him.</p> <p>The wife, by virtue of her survivorship, can maintain an action for the slave against the purchaser at a sale on execution against the husband.</p> <p>At common law, the rights of the wife were so completely merged in the hus- . band, that he became the owner of all the personal property she had at the date of marriage or subsequently acquired, and also of such choses in action belonging to her as he might have reduced into possession. Such choses as were not reduced into possession, survived to the wife. It is held, that an estate was granted to the wife upon a contingency that could not happen during the life of the husband, nor vest in the wife until after or at the period of his decease, and that the husband could not, therefore, have any property or interest in such contingent estate which his creditors could reach.</p> <p>The husband could not, without the consent of the wife, dispose of her interest in reversion so as to bar her right of survivorship; held, that a creditor of the husbandry means of a forced sale, could not acquire any other right or interest than a voluntary sale by the husband would convey.</p> <p>If it were considered that the husband had acquired a title by virtue of his marital rights, which he could sell or dispose of, it does not follow that it is such an estate as could be sold by virtue of an execution against him at law.</p>

<p>A guaranty, like every other written contract, only takes effect from the time of its execution, and cannot have an effect before its existence. Held, therefore, that the guaranty could not have influenced the party (N. & J. D. & Co.) in giving credit on the draft.</p> <p>The 'guaranty or obligation sued on was signed by J. B. C. in blank, for the purpose of renewing a debt then existing against the maker; that is, so much as was covered by the guaranty, not to create a new obligation. Held, that the evidence negatives any promise for more.</p> <p>It was error in if. & J. D. & Co. to blend the accounts of the several parties. Every man is bound to correct his own errors, and he is not permitted to make them the basis of a contract.</p> <p>The last guaranty or obligation given by defendant below, only covers so much of his liability as accrued under the first obligation, or guaranty, and the testimony shows, that the $10,000 draff could not be considered as part of that guaranty.</p>

<p>The statute only authorizes the party -whose property is levied on, to execute a forthcoming, or delivery bond, and it is only to bonds so executed by such a party, that it gives the force and effect of a judgment.</p> <p>The sole party against -whom the judgment was rendered in this case, and upon whose property the execution was levied, was no party to the bond given for the forthcoming of the property. Held, that it was not a bond given in conformity to the statute, and no execution emanating on it could bind the property of the obligors to the bond.</p> <p>The execution which issued upon the' bond, not being founded upon any judgment, was a nullity.</p> <p>A sale by virtue of such an execution, could convey no title to the purchaser. As a general rule, a court of equity will not relieve a party from a contract made under a mistake or ignorance of the law.</p> <p>Equity will, however, grant relief where the parties enter into a contract under a mutual mistake in a material fact, and without which mistake the contract would not have been made.</p> <p>The compromise was made under a mutual mistake that the forthcoming bond had been executed and forfeited by A., with the force and effect of a judgment against the land. Held, that the money paid by M., with interest, should .; be refunded, and his note surrendered to Ms administrator.</p>

In error from the. circuit court of Yalabusha county; Hon. F. M. Rogers, judge. The facts of the case are contained in the opinion of the court. Morman was indicted for an assault, with intent to commit murder. He was convicted of an assault, with intent to commit manslaughter. This was correct. Hutch. Code, 983, § 22; lb, 960, § 33. The evidence presents a case of a most aggravated and cowardly assault to take life. The proof is clear and unequivocal.

<p>The deed of gift ia this case was conditional, to take effect upon the release of B. from his liabilities as administrator; and this was a condition precedent, without the performance of which a title could not vest in the grantees.</p> <p>Should the condition of the deed of gift be disregarded, still complainants could not take the slave, as it is not averred in the bill that there was a delivery of possession, or that a consideration passed, deemed valuable.</p> <p>The defendant is regarded as a bona fide purchaser without notice, his title being sheltered by the title of his vendor.</p>

<p>On appeal from the probate court of Pontotoc county.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p>

IN error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. ' The record shows that M.W. Muncaster recovered a judgment in the circuit court of Claiborne county on the 29th of November, 1841, for the sum of $1,901.30 against P. Hoopes, S. Douglass, and Emeline Douglass, executors of James S. Douglass.

James M. Smiley, vice-chancellor. The facts of the case will be found in the opinion of the pourt, and the points made by counsel. Held: on the 6th Jun'e; and the record shows that the court adjourned on the 8th June, leaving two days only to make the trip. And Mi;. McMurran testifies that Hughes arrived at. Natchez on the 9th, and employed him to undertake the defence of his interest.

In error from the circuit court of Covington county; Hon. W. P. Harris, judge. The opinion of the court contains a statement of the facts of the case. cited and commented on Hutch. Code, 865, 866; 2 Story’s Eq. 869 and 880, and authorities cited. Gray v. Thomas, 12 S. & M. Ill; 2 Mitford’s Eq.

<p>On appeal from the southern district chancery court at Monticello; Hon. James M. Smiley, vice-chancellor.</p> <p>The opinion of the court contains the facts of the case.</p>

<p>It is a settled principle, that exceptions may he filed in the prohate court after the bringing in of the report hy the auditors. Smith v. Hurd, 8 S. & M. 682, cited and confirmed.</p> <p>An order of the prohate court, referring an account and appointing auditors, does not require an oath to he administered for the due performance of the duties.</p> <p>The statute is perfectly silent on the subject, and -we cannot add or impose a duty which the law does not, and which the character of the transaction does not imperatively require.</p> <p>The account, as presented hy the auditors, was open to exceptions on the part of the administrator and distributee, and the judge should have proceeded to correct the account, if erroneous in any of its charges or omissions to charge ; and it was competent, if necessary, for him to receive other evidence than that héfore the auditors.</p> <p>The auditors in this case seem to have acted with diligence and impartiality, and no sufficient reason is given why the report was rejected. Held, that the court is not to he understood as intimating an opinion that the account, as stated and reported, should have been confirmed; hut the probate judge erred in rejecting it.</p>

The defendants in error, by their next friend, filed a petition in the probate court of Franklin county, which states that their mother, who was the owner of sundry slaves, and a widow, in December, 1843, married J. Marshall, and died in 1847, leaving complainants’ children by her first marriage, and one child by her last marriage, as her heirs at law.

In error from the circuit court of Adams county; Hon. W. P. Harris, judge. The facts of the case sufficiently appear in the opinion of the court. The payments relied on to take this note out of the statute of limitations, are not sufficient, according to all the modern authorities upon this subject both in England and the United States.

Stanhope Posey, judge. The record shows, that the night on which, said injury was charged to have been done was extremely dark, and that a violent storm was raging, with the wind blowing very hard down stream, and against plaintiff’s wharf-boat. This áppears both from the evidence of the plaintiff and that of defendant.

<p>In error from the circuit court of Harrison county; Hon. W. P. Harris, judge.</p> <p>The facts of the case are contained in the opinion of the court; and the question is simply whether a bond of indemnity given before a levy is made, is valid in law.</p>

James M. Smiley, -vice-chancellor. This bill of complaint was filed by Roach, as a judgment-creditor of Shipp, Ferriday & Co., exhibiting judgments at law against Bennett, as a surviving partner, and returns of nulla bona to executions issued thereon.

Stephen Cocke, chancellor. The bill charges, that on the 16th day of July, 1842, Thomas Rowan, James J. Rowan, and Mary Rowan, conveyed to orator in trust for the payment… Held: that the deed was not fraudulent in law, in providing for the loan of money, to be procured by the trustees to enable them to finish the road. This being a provision for increasing the capacity of the property to produce an income, is parallel to the ordinary provisions for cultivating a plantation.

In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. This was an action of ejectment brought by Peter Little, to recover forty feet of land on Silver Street, in “ Natchez under the hill,” lying between a lot confirmed to William Lintot, on the corner of Porter and Silver streets, and the lot or store of Sorias & Cozzens.

<p>The wife may, as the agent of the husband, make a contract to bind him, but in such a case it must be declared on as his, and not as the wife’s contract.</p> <p>When two or more persons are sued in the'same action, all the counts in the declaration must show a cause of action against all sued, otherwise it will be ' defective.</p> <p>The,contract in the declaration is averred to have been made in the year 1845, by|j|efendants, and the act of 1846, regulating contracts made by married women, does not apply to this case. Held, that the plea of coverture shows that the note was void.</p>

<p>In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.</p> <p>The facts are Contained in the opinion.</p>

Stephen Cocke, chancellor. The facts of the case are sufficiently set forth in the opinion of the court. cited and commented on Branch’s Max. 57; Holco. Introd. 63; Merrick v. Henderson, Walk.

Peale filed his petition in the probate court of Adams county, showing that the commissioners of insolvency upon the estates of Neibert and of Neibert & Gemmell, and of Neibert, Gem-mell, & Co., had reported and allowed certain claims, among others, to the late Agricultural Bank, amounting to more than $31,000 ; and showing judgment of forfeiture against that bank, and his appointment as trustee under the statute; shows that by the decree of said probate court, at a former…

<p>The act of the legislature of 1843, (Hutch. Code, 330, § 5,) which provides for the forfeiture of franchises of banking, was not intended to apply to the “ Commercial and Railroad Bank of Vicksburg so as to affect the railroad franchise.”</p> <p>It not being dissolved by the injunction, the court is only authorized, when, by a judgment, the corporation is dissolved, to appoint a trustee.</p>

In error from the circuit court of Simpson county ; Hon. W. P. Harris, judge. A. G. Ainsworth, the plaintiff in error, was possessed of a promissory note amounting to $150, made by Richard Ains-worth, defendant in error, to Nancy McDonald or bearer.

<p>After the expiration of twelve months from the time of administration, the dis-tributees of an estate are entitled to distribution upon tendering a refunding bond; and such bond having been tendered in this case, the court below erred in sustaining the demurrer to the petition for distribution.</p> <p>As the guardian is to have the custody of the ward and his property, and gives bond for the faithful execution of his trust, there is no valid objection to the petition for distribution being filed in his name.</p>

<p>The power of compelling a party prosecuting two suits for the same cause of action, to abandon one or the other, and elect in which tribunal he will prosecute his suit, belongs to a court of chancery.</p> <p>This rule applies only to original suits instituted, in which a recovery in one would be a bar to a judgment or decree in the other.</p>

In error from the circuit court of Covington county; Hon. Wiley P. Harris, judge. The facts are contained in the opinion of the court.

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

James M. Smiley, vice-chancellor. This case was commenced by a bill filed against Jacob F. Foute and John H. Hilliard, executors of the last will of Thomas… Held: that payment of part was, in its effect, the same as an acknowledgment. In the above case, payment of interest was regularly made by one only. This is held to be equivalent to an acknowledgment by that one only; the court then examines what the effect of a promise or acknowledgment by one -will have on the others.

In error from the circuit court of Hancock county; Hon. W. P. Harris, judge. The facts appear in the opinion of the court.

In error from the circuit court of Lauderdale county; Hon. John Watts, judge. The facts are contained in the opinion of the court; cited and commented on 2 How. 851; 6 S. & M. 259; 10 lb. 607; 8 Mass. 103. in reply, cited 4 Term R. 227; 8 lb. 140; 1 Salk. 5; 12 .Ala. R. 105 ; 1 Saund. 274, and note 3 ; 16 Wend. 579.

<p>This was a motion to dismiss the suit, for the reason set forth in the opinion.</p>

In' error from the circuit court of Noxubee county; Hon. John Watts, judge. Mosley & Mallory, copartaers in making and laying brick, sued Buck in assumpsit, on an account, for $89.30, — items, brick furnished and laid in building; non assumpsit and payment were pleaded, and issues joined.

At the May term of the probate court of Lawrence county, 1847, J. M. Ellis, administrator of D. B. Cooper, deceased, petitioned the court for an order to sell certain lands alleged to be the property of the estate, upon the ground that the personal property was insufficient to pay the debts.

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

In error from the circuit court of Amite county; Hon. W. P. Harris, judge. The facts are contained in the opinion of the court.

John Watts, judge. The opinion of the court contains a statement of the facts of the case. Contended that the decision of the court below was erroneous, and cited and commented on'3 How. 227; 1 lb. 216; 6 lb. 542. If a new suit was instituted on the note, the defendant below could plead this judgment as a former recovery, and if this be true, the present judgment is valid in law. Cited in reply, 2 Greenl.

In error from the southern district chancery court, at Natchez; Hon. James M. Smiley, vice-chancellor. The facts are contained in the opinion of the court. Cited and commented on 12 S. & M. 695; Story’s. Eq. PI. 26; lb. 295; Crockett v. Lee, 7 Wheat. 522; Jackson v. Ashton, 11 Peters, 229; James v. McKernon, 6 Johns. 564; 10 S. & M. 163; 6 Humph. 213; 4 S. & M. 549; Freeman’s Ch. R. 292; Story’s Eq.

In error from the circuit'court of Claiborne county; Hon. Stanhope Posey, judge. The facts of this case are, contained in the opinion of the court, and points made by counsel, where all the important facts of the case will be found. The following assignment of errors was made. 1.

<p>A guardian, by tbe statute of tbis State, bas no right to -exceed tbe income of bis ward’s estate without authority from the probate court.</p> <p>A guardian should be allowed all reasonable and proper expenses and charges incurred by him in educating and maintaining his ward, to the extent of the income of the ward’s estate, without any special order of the court in relation thereto, while such expenses and charges are reasonable and proper.</p> <p>It was not the intention of the legislature (Hutch. Code, 506, § 133,) to require guardians to pay interest on money of the wards in their hands, except in relation to any balance of money that might remain annually in their hands accruing from the product or income of the ward’s estate remaining over after the disbursements for the education and maintenance of the ward.</p> <p>"When the estate of the ward consists of money which comes into the guardian’s hands, he is liable to pay interest on such principal sum or estate, whether he had consented to take it at interest, or received directions to loan it out at interest or not. Held, that the words “ balance of money,” in the statute, mean in the guardian’s hands over and above disbursements for the education and maintenance of the ward; and the guardian is liable for interest on all such balance of sums, if he fail to exhibit an annual account to the probate court, showing such a balance.</p> <p>Hendricks v. Hudleston, 5 S. & M. 422, and Wm. J. Austin v. A. H. Lamar, 1 Cushman, R. 189, cited and explained and declared, so far as they relate to “ the point in this case, to be obiter dicta.</p> <p>If the complainants in the court below received the slave purchased by the guardian, he should have received a credit on his account for the amount paid out for it.</p> <p>A guardian is entitled to a credit for all reasonable and proper fees paid by- him to attorneys in prosecuting and defending suits in which the property or estate of the ward is interested.</p>

On appeal 'from the superior court of chancery; Hon. Stephen Cocke, chancellor. This case is composed of three suits, which were consolidated and tried together in the superior court of chancery. The two first are bills filed to foreclose mortgages made by W. Haile. The last is a bill in the nature of a bill of interpleader. The facts are briefly these: W. Haile purchased a tract of land from John Thorn on 2d January, 1835.

<p>Allegations in a bill, to which the defendant does not respond, will be treated by the court as in issue, and a decree will be rendered, according to the proof; but allegations, to which there is no response, and not sustained by proof, are to be disregarded.</p> <p>Whfen a vendee knows the condition of the title he is buying, and takes a deed with covenants from the vendor, he cannot protect himself, in equity, from the payment of the purchase-money on account of the failure of title, blit must resort to his covenants. ,</p> <p>Stone et al. v. Buckner et al., 12 S. & M. 73, cited and confirmed.</p>

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

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

<p>The revenue law of 1841, § 11, -which gives the assessors of taxes for the State and county five per cent, on the amount of the assessment roll, was not repealed by the act of 1846, which says, “ the assessor shall be entitled, on a settlement of his account with the auditor, to receive a compensation of three per cent, upon the amount of his assessment roll for the use of the State.”</p> <p>The two acts are perfectly consistent with each other; and it is very clear, that the act of 1841, on the subject of the compensation for assessing county tax, was not repealed. Held, tliat the assessor is entitled to five per cent, for assessing the county tax.</p>

In error from the circuit court of Hinds county; Hon. Patrick W. Tompkins, judge. The facts are contained in the opinion of the court.

In error from the circuit .court of Bolivar county; Hon. George Coalter, judge. The facts are contained in the opinion of the court.

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

‘In error from the circuit court of .Kemper county; Hon. John Watts, judge. The opinion of the court contains the facts of the case.

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. The opinion of the court, and the points made by counsel, contain a sufficient statement of the facts of the case. The account was regularly proved before the probate court, and probated. Plea of non assumpsit.

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

<p>Tlie provision in the statute for the allowance by the probate judge of claims against estates of deceased persons, is only intended to justify a voluntary payment by the executor or administrator; but is not obligatory on him, for he might after such an allowance refuse to pay the same, and test its validity.</p> <p>The allowance by the probate court of a claim of an executor or administrator who is 'a creditor of the estate, upon an ex parte application and proof, is not binding and conclusive upon the heirs or distributees; for if upon proof it shall appear to be unfounded or illegal, it is the duty of the probate court to reject and disallow it, although upon the mere ex parte application and proof of its validity it may have been examined and allowed.</p> <p>In a case where there are several administrators of an estate, if the account of one of them as a creditor be allowed by the probate court, and on such allowance it shall be paid by his co-administrator, he will be protected in such voluntary payment to the same extent as a payment made to the other creditors of the estate.</p> <p>Where an administrator’s claim as a creditor has, on an ex parte application, been allowed by the probate court, and he present's his administration account for settlement, and claims therein as a creditor of the decedent, an opportunity before denied, should then be allowed to the distributees or creditors of the estate to contest its validity.</p>

In error from the circuit court of Adams county; Hon. W. P. Harris, judge. Adam Bower owned in fee simple certain property described in the declaration. He died in 1834, leaving three daughters, Mary, Martha, and Sarah. Mary married William Haile. Martha married William M. Phipps. Sarah married John Gibson.

This action was founded on the promissory note of the testator of the plaintiffs in error, executed to, and held by, the Commercial Bank at Natchez. Held: and forms the basis of nearly all then- reasoning. But it is said, this trustee was vested with the legal title “ to take charge of the books and assets, to sue for and collect all debts due such bank,” &c.; and, therefore, that he can sue for and collect after all debts have been paid.

Francis Gildart, judge of the probate court. The proceedings in this case were instituted by petition or bill in probate court of Wilkinson county. Held: that A. took an estate tail by force of the limitation to the heirs of his body. Preston, 372. The fact that A. died without issue would make no difference. But I contend, also, that limitations of, trusts and uses are governed by the same rules as similar limitations of legal estates.

Stephen Cocke, chancellor. The facts of the case are contained in the opinion of the court and the briefs filed in the case by the counsel. I wish briefly to notice one single phase of the case. The supplemental answer of Mrs. Hill alleges, (and in this proceeding the allegation must be held for true,) that all the debts due by and from the Commercial Bank have been paid. On this state of facts, what is the law arising?

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

In error from the circuit court of Kemper county; Hon. John Watts, judge. This was an action brought by defendant in error against Gardener and Jack, the first as principal, the last as his surety on a bond given by Gardener to secure his performance of an award to be made by arbitrators, of certain matters submitted by Gardener and Oden to them. The award was made. Oden brought suit on this bond for a breach of the award by Gardener.

In error from the superior chancery court; Hon. Stephen Cocke, chancellor. The bill was filed in this case by the defendants in error, to enjoin the collection of a tax assessed by the corporate authorities of Yazoo city, upon the stock of the Commercial Bank of Manchester, it being one half of one per cent, ad valorem upon the stock.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. The facts are contained in the opinion of the court.

In’error from the circuit court of Neshoba county; Hon. John Watts, judge. The facts are contained in the opinion of the court.

<p>In error from the circuit court of Attala county; Hon. Robert C. Perry, judge.</p>

In error from the circuit court of Kemper county; Hon. A. B. Dawson, judge. The opinion of the court contains the facts of the case.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. This was an action of debt founded on the defendants’ writing obligatory for $500.

In error from the circuit court of Kemper county; Hon. John Watts, judge. The facts set out in the bill of exceptions, are substantially these: Owen owned a negro, charged with the commission of a rape in Jasper.

In error from the Circuit court of Kemper county; Hon. John Watts, judge. The facts are contained in the opinion of the court. cited 1 N. Y. Dig. 2; 7 Johns. R. 393; 1 Cow. 33 (noteb); 8 Pick. 552; 15 Wend. 631; 3 Kinn. L. Comp. 195, 196; 1 Bailey, C. R. 223. ' cited 5 Johns. C. R. 29. contended the decision of the court below was correct, and cited Garlmd v. Jacobs, 2 Leigh, 651, and cases cited in the decision.

<p>Fraud must be resisted at tbe proper time and before the proper tribunal; for it is the policy of the law, .that litigation should not be protracted or suits multiplied.</p> <p>It is only in extreme cases that a court of chancery will grant a new trial at law.</p> <p>A court of chancery will not grant a new trial on account of newly discovered evidence which by using due diligence might have been obtained before. Held, that to grant a new trial in this case, would establish a precedent to encourage suitors in negligence in the preparation of their cases, and protract litigation.</p>

In error from the circuit court of Washington county; Hon. P. W. Tompkins, judge.

IN error from the circuit court of Noxubee county; Hon. John Watts, judge. This was an action of assumpsit, brought in the court below by the defendant in error, as president of the board of trustees of a sixteenth section, and successor in office of Archibald Prewitt, former president of the board.

In error from the circuit court of Holmes county; Hon. Robert C. Perry, judge. The defendants in error filed their original bill to foreclose a mortgage. The mortgage is dated the 15th of March, 1838, and it is recited in the mortgage, that the note which it was made to secure bears even date therewith; the note filed with the bill bears date the 24th March, 1838; mistake in the date of the note is charged in the bill.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. This was an action of assumpsit, instituted in the circuit court of Madison county, on two notes executed by plaintiff in error to defendant in error, dated 1st of May, 1838; and several pleas were filed, and the pleas of the statute of limitations were withdrawn, but four other pleas were filed and relied on.

In error from tbe circuit court of Holmes county; Hon. Robert C. Perry, judge.' The opinion of the court contains the facts of the case.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. Held: that in a proceeding in rem, in equity, a foreign executor cannot be made a party, on the death of the testator, after suit brought. Walk. R. 180; 1 Stewart, 429. The principle laid down by Lomax, Kent, and authorities cited on the other side, does not apply. The case of Winter v. Winter’s Administrators, Walk. R. 211, does not apply.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. The facts of the case are, that the circuit court improperly ruled out the deposition of Mrs. Bransford and the testimony of Wesley Drane, which was competent and relevant testimony to prove the account of plaintiff in error, to which the plaintiff Roberts excepted by his counsel.

In error from the circuit court of Hinds county; Hon. Patrick W. Tompkins, judge. The facts of this case are fully stated in the opinion of the court. 1st. The claim of Work is wholly -unsupported by proof. 2d. The case is not such as entitles him to the remedy by mandamus. 3 Black. Com. 110; 12 Peters, 640; 9 S. & M. 127; 2 Leigh, 147. Cited 1 Cranch, 137; 9 S., & M. 90; 12 Peters, 614; State v. Dickinson, 12 S. & M. 579; Swcwm v. Josselyn, 14 lb. 106; 8 Wend. 580-583.

In error from the circuit court of Hinds county; Hon. Richard Barnett, judge. The plaintiff in error was indicted at the October term, 1846, of the Warren county circuit court, for the murder of one-Donnahoo, whose Christian name was unknown. At the May term, 1847, he was tried, convicted, and sentenced to be hung. His case was taken to the high court, the judgment reversed, and the cause remanded for a new' trial.

In error from the circuit court of Warren county; Hon. P. W. Tompkins, judge.

In error from the circuit court of Holmes county; Hon. Robert C. Perry, judge. The opinion of the court contains the facts of the case. cited and commented on 2 How. 769 ; Hutch. Code, 642, 463, art. 5; Chitty on Bills, 207; lb. 318; lb. 258, 259; Anderson v. Tarpley, 6 S. & M. 507.

<p>In actions of ejectment, tlie rule on the subject of cost is, that where the action is undefended and judgment is entered against the casual ejector, no judgment can he rendered for costs.</p> <p>The only remedy the lessor of the plaintiff has for his costs is an action for mesne profits, which áre recoverable as consequential damages at the discretion of the jury. Held, that the judgment for cost in this case was irregular.</p> <p>Where there are several tenants in possession, part of whom are served and part not served with notice, the rule is that a judgment by default may be taken against the casual ejector for those served, but not against the others, unless it appear by affidavit that the parties are joint tenants, in which case service on part will authorize a judgment by default against the casual ejector for all.</p> <p>The judgment in this case being rendered for the whole premises and against all the tenants, it is erroneous.</p>

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. This was an action ex delicto in case and trover, founded on alleged causes of action arising during the period from 1840 to 1849. The defendant plead, 1. The general issue, with a conclusion to the country; 2. The statute of limitations of three years. The plaintiffs to the second plea interposed two replications, 1.

In error from the circuit court of Warren county; Hon. P. W. Tompkins, judge.

P. W. Tompkins, judge. This was an application made by M. Wilson, who was an assignee of a bond of the Planters Bank of Mississippi, with “coupons of interest” attached thereto, to the judge of the circuit court, for a mandamus to compel George T. Swann, auditor of public accounts, to issue a warrant on the treasurer of the State for the amount of two coupons of interest which fell due on the 1st days of March and September, 1841, for the payment of the same, according to…

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

In error from the circuit court of Adams county; Hon. Stanhope Posey, judge. This was a suit commenced by attachment on the part of McCullough against Funk,' returnable to the circuit court of Adams county.

<p>The law requires of every executor a faithful execution of the trust reposed in him, and he has the right to scrutinize every charge made or attempted to he established against the trust estate. Held, therefore, that this judgment is one from -which the party affected by it may prosecute his ivrit of error.</p> <p>The rule of law requiring all the parties to a judgment at law to join in prosecuting a writ of error, does not apply to decrees of the chancery or probate courts.</p> <p>The reversal of a judgment at law as to one party reverses it as to all; but this rule does not apply to decrees of the chancery and probate courts.</p> <p>This was a motion made to dismiss the writ of error in this court for want of jurisdiction.</p>

<p>On appeal from the probate court of Jefferson county.</p> <p>The opinion contains the facts.</p> <p>filed an elaborate written argument.</p>

Stephen Cocke, chancellor. The opinion of the court contains a statement of the facts of the case. Filed an elaborate brief, in which they commented on and referred to the following authorities: 2 Story’s Eq. Com. 193; Jeremy’s Eq. 335-337, and cases cited; Eden’s Inj. 159; Cooper, Eq. 37; 2 Story’s Eq. Com. 140; lb. 155; Jeremy’s Eq, 365-367, &c.; 2 Saund. R. 167; 2 Whel. Am. Dig. 56, and cases cited; 1 Paige, 278; Gillespie v. Moore, 2 Johns.

In error from the circuit court of Warren county; Hon. George Coalter, judge. The opinion of the court contains the facts. Held: and properly, the legal title was in the bearer, and entitled the plaintiff to recover, though the beneficial interest was in the bank. Gage v. Kendall, 15 Wend. 640, was also the case of a note payable to bearer; the legal title was in plaintiff. The remarks of the court must be confined to the case before it, and analogous cases.

Charles Scott, chancellor. The Commercial Bank of Manchester was incorporated in 1836; and the bank has regularly paid its taxes, at the rate of 1-4 one per cent., upon its entire amount of capital stock until 1842. From that time forward, the stock was assessed under the revenue act of 1841 and 1844 at its supposed cash value, and the taxes paid on its stock accordingly, at the rate of sixty cents to the dollar.

In error from the circuit court of Holmes county; Hon. 'Robert C. Perry, judge. The facts of the case are fully- set out in the opinion of the court.

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

In error from the circuit court of Hinds county; Hon. Richard Barnett, judge. This was an indictment against a- slave belonging to the estate of Oscar D. Johnston, jleceased, of Hinds county, of which William Thomas was administrator. He was indicted for burglary, tried and convicted, and sentenced to be branded in the hand, and to receive twenty-five lashes each day, for four successive days.

Stephen Cocke, chancellor. Stephen Barry mortgaged a negro boy to George Work on the first of February/1845! .Work filed his bill in the superior chancery court against Harper and Crockett, alleging that they obtained a judgment against Stephen Barry, and had an execution levied on the negro boy mortgaged to Work; and which prays for an injunction to restrain the sale of the negro under the execution, as well as for a foreclosure of the mortgage to Work and a sale of the…

In error from the circuit court of Neshoba county; Hon. John Watts, judge. This was an action for the trial of the right of property in the circuit court of Neshoba county, upon a judgment on attachment issued by Rodgers against Catharine Edwards, which was levied on a certain negro named Dock.

<p>A court of equity would maintain the cestui que trust in the possession and use of the property against the claim of the trustee; yet a court of law, looking only at the legal title, .could not notice this right, and therefore cannot enforce it.</p>

In error from the circuit court of Kemper county; Hon. John Watts, judge. This was an action of assumpsit brought to recover $600, which was handed to defendant in Gainesville, Ala., to be handed plaintiff in De Kalb, Miss., as an act of accommodation. This was proven.

A. R. Johnston, probate judge. On the 29th of July, 1845, Micajah Cargill and others filed their petition in the probate court of Hinds county for distribution.

<p>On appeal from the northern district chancery court, at Fulton; Hon. Henry Dickinson, vice-chancellor.</p> <p>The opinion contains the facts.</p>

In error from the circuit court of Warren county; Hon. P. W. Tompkins, judge. The facts are contained in the opinion of the court.

In error from the circuit court of Lauderdale county; Hon. John Watts, judge. This case was decided on a motion to dismiss the writ of error, because it was prosecuted to reverse a judgment when there was no judgment from which a writ of error could be prayed. The opinion contains the facts of the case.

<p>The object of the law in permitting a defendant to give a forthcoming bond, is that he may retain possession' of the property levied on till the day of sale.</p> <p>The remedy in this case is alone in equity.</p> <p>An execution is an entire thing, and: cannot be in part superseded; and when credits are sought to be entered, equity is the proper tribunal.</p>

In error from the circuit court of Hinds county; Hon. P. W. Tompkins, judge. The facts in substance are, that Mr. Banks, the first witness introduced, proves that, as a physician and surgeon, he examined the body of the negro killed, who was found dead near a wagon on the road; was sure he was killed by choking with a rope that was then found around his neck; had heard that the negro killed belonged to Fegune Lowe, but did not know it.

Stephen Cocke, chancellor. The case was submitted on motion to dismiss for want of revivor. The facts will be found fully stated in the opinion of the court.

Stephen Cocke, chancellor. The facts are contained in the opinion of the court. Mr. Sloan’s brief also contains a full statement of the facts of the base. It is established by the depositions in the cause, that the estate of Granberry, through Dennis, the administrator, paid the whole of the judgment rendered upon that surety obligation. Then, it is perfectly clear, upon the authorities, that the administrator of Granberry is entitled to contribution.

<p>Where the parties to a suit in chancery have claims against certain property, equally just, and the question which arises is, who is entitled to prior satisfaction in the event that the property is not sufficient to pay both, it is proper to appoint a receiver.</p> <p>The interlocutory decree of the chancellor appointing such receiver will be sustained.</p>

In error from the circuit court of Attala county; Hon. Robert C. Perry, judge. The opinion contains the facts of the case.

<p>So much of the 2d section of the act of the 6th of March, 1850, “to suppress trade and barter with slaves,” as declares, that the name of the slave, or of his owner, or the kind or quantity of the produce or commodity bought or sold, need not be stated in the indictment, is held to violate the provision of the 10th section of the bill of rights, which declares, that “in all criminal prosecutions, the accused shall have a right to demand the nature and cause of the accusation against him.”</p> <p>An indictment for the offence named in that act, which does not specify the name of the slave, or of his master, owner, or overseer, or the article or commodity sold to the slave, is defective, and should not be sustained.</p> <p>It is not absolutely necessary to state in the indictment, the name either of the slave or of his owner, &c.; but it is necessary, where the name of the owner or employer is not given, that the article or commodity should be stated; and on the trial the State should be confined, in its proof of the offence, to’the day named in the indictment..</p>

Stephen Cocke, chancellor. The opinion of the court contains the facts of the case. filed an elaborate brief, and cited Hill on Trustees, 190,193; 2 Sug. on Pow. 532. filed a lengthy written argument in reply.

In error from the circuit court of Hinds county; Hon. Richard Barnett, judge. At. the October term, 1849, of Warren county, the plaintiff in error was indicted for buying certain' stolen articles, being copper'pipe worth $15, a stop-cock worth $10, three brass boxes worth $15, and pieces of casting worth $10, knowing them to be stolen.

Stephen Cocke, chancellor. The bill shows that Caldwell and Dickson made a verbal contract for the sale of the lot in controversy to Finucane and Barnes; that Caldwell afterwards, being thereto… Held: than that in equity (as at law) the complainant cannot succeed by proof of an equity, no •matter how clear and conclusive that proof may be, unless it is the equity relied on in his bill.

<p>“Where a petition is filed in the probate court by a distributee against the administrator and the other distributees of an estate, to compel distribution, it should either show a final settlement of the estate, or aver that the petitioner has executed a refunding bond, as required.</p> <p>To constitute an advancement, the father must divest himself of all interest in the property the heir receives.</p> <p>The particular circumstances of this case would seem to demand an investigation by a.jury.</p>

In error from the circuit court of Holmes county; Hon. Robert C. Perry, judge. The opinion of the court contains a statement of the facts of the case, where also will be found the instructions given and refused. 1. The replication and issue, in short, is conclusive on appellants. The court below admitted the proof complained of; and this court, in the absence of contrary proof, will presume it did so correctly. 2 Howard, 774; 3 lb. 205, 422. 2.

In error from the circuit court of Pontotoc county; Hon. Hugh R. Miller, judge. At the October term, 1849, of the circuit court of Pontotoc county, S. M. J. Benson, for the use aforesaid, declared against James Benson, upon a bond or sealed note executed by defendant to plaintiff or order, for eight hundred dollars, dated July 27th, 1841, and due one day after date.

In error from the circuit court of Warren county; Hon. P. W. Tompkins, judge.

Stephen Cocke, chancellor. The appeal in this case was taken from an interlocutory decree of the chancellor, dissolving an injunction restraining the appellees, who were trustees in a deed of trust, from selling the property mentioned in the deed. All the material facts will be found fully stated in the opinion of the court. 1st. The agreement of the 23d of March, 1840, was clearly a rescinding of the contract.

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

In error from the superior court of chancery; Hon. Stephen Cocke, chancellor. The complainant, Fuqua, administrator, &c., of John Emerson, deceased, filed his bill in the superior court of chancery, to subject certain negroes therein named to the lien given him by law, as administrator on the property sold, to secure the payment of the purchase-money.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. The record shows, that the appellee, Samuel J. Ridley, sued out an attachment against the appellant in the circuit court of Madison county.

<p>The agreement between the parties created the relation of principal and agent.</p> <p>It is a well settled principle, that the agent cannot make any profit or advantage in the business of his principal, or do any other act which would tend to his own advantage, and to the loss of his principal.</p> <p>Where a party has been employed to sell property as the agent of another, he cannot become the purchaser of it in his own name.</p> <p>This doctrine is not only applied to persons confidentially intrusted with the management of the property of others, but in other cases involving the rights and interests of employers.</p> <p>An agent, employed to collect an execution, cannot be permitted to deal on his own account, with those from whom, he is to collect the money, adversely to the interest of his employer.</p> <p>The decree of the court in this case should have provided for the re-sale of the property, unless the defendant (S.) should pay to M. one half the amount of his judgment, with interest.</p>

In error from the circuit court of Monroe county ; Hon. F. M. Rogers, judge. On the 20th February, 1849, Arnold Zellnor, for the use of Moses J. Wicks, commenced an action of assumpsit against Hatch Whitfield, founded upon a special contract between plaintiff and defendant, by which, for a consideration agreed, the former was to erect for the latter a saw and grist mill, and a mill-dam. A count for work and labor, and a quantum meruit, are added.

Henry Dickerson, vice-chancellor. Richard Conway filed his bill in the vice-chancery court at Fulton, against Peter L. Parchman and^ others, praying to be substituted to a judgment in the circuit court of Monroe county in favor of William O. Cook, against G. & I. Wightman and Peter L. Parchman.

In error from the northern district chancery court at Holly Springs; Hon. Henry Dickerson, vice-chancellor.

<p>In error from the probate court of Tishamingo county; Hon. E.' C. Gillinwaters, judge of the probate court.</p> <p>Stephen Hogue, the appellee, on the 12th of August, 1850, filed his petition in the probate court of Tishamingo county, setting forth, that on the 14th of November, 1841, he purchased from Horace Warren, the east half of section 14, T. 3, R. 10 E., and paid for the same, in connection with the N. W. quarter-section 15, T. 3, R. 10 east, the sum of six hundred and twenty-one dollars; that a deed was made by said Warren for the said quarter section, and a bond for title, executed by said Warren, in a penalty of twelve hundred dollars, binding himself to make title to the said half section of land; the petition further states, that appellee paid the said sum of six hundred and twenty-one dollars, the consideration of said land, and that he has never received a title to said land from said Warren; that Warren has since departed this life, and that appellant was appointed administrator of said Warren, and prays the court to order appellant, as administrator,, to make to him, appellee, a title to said half section of land, according to statute. The bond executed by said Warren is filed as an exhibit, and the bond acknowledges the receipt of the sum of money above mentioned.</p> <p>At the October term, 1850, of the court below, the appellant filed a protest or answer, alleging .that the sale and purchase of the said land mentioned in appellee’s petition was not fairly made; but, on the contrary, it was procured by fraud and misrepresentation on the part of appellee, with regard to a certain claim then and there held by the appellee upon the treasury department ; that the said Warren, by these fraudulent representations, was induced by appellee to take said claim, which was of no value, in payment of the purchase-money of said land; that said claim was of.no value, and was rejected by the proper officers of the government. The answer prays that appellee may be made a party to the protest or answer, and compelled to answer on oath, and if he answers that the sale was fairly made, that then, and in that event, an issue be caused to be made out, and sent to the circuit court, to be determined by a jury whether the sale was fairly made. To this answer and protest, or cross-bill, whichever it may be determined to be, the appellee filed an answer denying all fraud and misrepresentation whatever, and also denying that the said Warren was induced by any fraud or misrepresentation on appellee’s part, to take the said claim in consideration of, and for payment for the said lands; that appellee purchased the two tracts of land above mentioned of said Warren, and did let him have in part payment a claim on the general post-office department; that the claim had not been allowed at that time, and that Warren took the claim at his own risk; that a much higher price was paid for said lands, in consequence of the risk on said claim; indeed, a higher price than the lands were worth. That the said sale was fairly made, and the reason a title was not made at the time was, because Warren had not at that time the legal title. Appellant offered a record in answer, in reply to the answer of appellee, which answer was rejected by the court; to which rejection the appellant excepted, and tendered his bill of exceptions. The court then decreed, that the appellant should make and execute a title to said land to appellee.</p> <p>filed an elaborate written argument.</p>

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. This was an action of ejectment instituted by Reynolds' in the circuit court of the county of Monroe to the April term, 1849, against William H. Walton, the tenant in possession, to recover the following lots and blocks, in the town of Aberdeen, to wit: Nos. 881, 882, 883, 884, 885, 88.6, 887, 888, 889, 890, and block 108.

Henry Dickinson, vice-chancellor. Pollard, on the 8th of January, 1843, recovered a judgment in the United States court at Pontotoc, against Darrie, for the sum of $1,129.41, and the whole amount of the judgment, with interest, was collected by Topp and Evans, as attorneys, who refused to pay it to Pollard, and said they had paid over the same to Benjamin' Stanton.

In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge. The facts are contained in the opinion of the court. J F. Cushman, on the same side.

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

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. This was an action of assumpsit for money had and received to the plaintiff’s use, and was founded on the defendant’s receipt for the money. The plaintiffs, on the 30th day of October, 1846, recovered judgment in the circuit court of Monroe county, against one Gabriel M. Nagsdale, for the sum of $637.23, besides cost of suit. Execution issued, and returned no property found.

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