Volume 25 — Mississippi Reports

In error from the circuit court of Hinds county; Hon. P. W. Tompkins, judge. Held: that various writings that according to the law merchant were neither bills nor promissory notes were nevertheless negotiable, and that the indorsee could maintain the action. 9 S. & M. 462, and authorities cited. But it may be insisted, that they are entitled to protection because of the payment made to Tyson in May, 1839.

In error from the circuit court of Octibbeha county; Hon. John Watts, judge. Philip Edington and wife, in the circuit court, instituted an action of detinue against Harvey, for the recovery of a negro. The defendant pleaded the general issue, “ non detinet,” and “ statute of limitations,” upon which issue was joined; and a trial and verdict for the plaintiff at the June Term, 1851.

In error from the probate court of Tallahatchie county; Hon. S. H. Bullock, judge of the probate court. The opinion of the court contains a sufficient statement of the facts of the case. cited and commented on Hutch. Code, 504, § 125; Spann v. Collins, 10 S. & M. 624.

<p>Where a question has been once adjudicated by the pi’obate court, a suit will not lie in the circuit court for the same cause of action. Held, that the first judgment or decree will be regarded as final until reversed by the proper tribunal.</p> <p>The judgment as to the security is void, and does not affect the judgment which the court below had power to render against the plaintiff.</p>

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. This case was brought into the court upon points of pleading and practice, and they are sufficiently set forth in the opinion of the court.

In error from the circuit court of La Fayette county; Eton. Hugh R. Miller, judge. Held: in the case of Seioall v. Glidden, 1 Ala. 52, that .“where the donee of personal property was under age of twenty-one years, and lived with his father, the donor, the possession of the donor of the gift, is consistent with the donee’s rights, and is not even presumptive evidence of fraud; ” and, therefore, where the gift is perfect,…

In error from the circuit court of Choctaw county; Hon. F.. M. Rogers, judge. The defendants in the court below withdrew their plea in-abatement at the trial term, and asked leave to plead to the-, merits of the case, without affidavit being made of merits, which the court refused to permit them to do. This is the only error assigned, and defendants below, after judgment had been rendered against them, prayed this writ of error.

In error from the probate court of Madison county. The only point in this case was, whether the requisite legal notice had been given to the distributees before the day of distribution, they being non-residents. The statute requires four clear weeks from the day of publication, to make the notice legal of the day upon which the petition should be heard.

In error from the circuit court of Chickasaw county; Hon. John Watts, judge. Held: and by these presents stand firmly bound, to J. Myrick & Co., of Prairie Mount, in said county and State, in the penal sum of two hundred and forty dollars, lawful money of the United States, to be paid to the said J. Myrick & Co., their executprs, administrators, or assigns, to which payment, well and truly to be made, we bind…

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. David K. Fooshee sued Samuel Beeks, as president of the board of trustees of township No. 14, range 18 west, in Monroe county, to the April term, 1851, of the circuit court of said county.

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. This was a bill filed to subject a tract of land to the lien of the purchase-money.

Henry Dickinson, vice-chancellor. The bill filed in this case states, that on the 24th day of October, 1842, a judgment was rendered in favor of Andfew Armstrong, in the circuit court of Monroe county, Mississippi, against William O. Cook, as principal, and Walton and Vaughn, securities, for the sum of eight hundred and eighteen dollars; that execution issued, and was bonded by the said William O. Cook, and Henry Cook as security, to the April Term, 1843, of said court.

Henry Dickinson, vice-chancellor. This was a suit instituted in the vice-chancery court at Columbus. Held: that where one does an act, when he is under duress, or the influence of extreme terror, or of threats, or of apprehensions, even short of duress, the court will protect them, for in cases of this sort he has no free will, but stands in vinculis. 2 J. J. Marsh. 377.

In error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge. Walker and Atkinson brought suit in the circuit court of Itawamba county against Westmoreland, upon a promissory note, which was part of the consideration agreed to be given by W. to W. and A., for a slave purchased from the latter persons, and which negro slave they warranted sound.

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge. James Childress, as administrator of Thomas Meeks, deceased, brought suit against R. P. Williams and A. C. Blair, on a note given by them for the sum of one hundred and fifty ■dollars.

In error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge. This was an action of assumpsit on a promissory note, instituted in the circuit court of Lowndes county, by McDaniel and Hand against Jemison, given for $ 150; the consideration being the rent of a warehouse situated in the town of Columbus, and the notes were dated October 12, 1846, and payable twelve months after date. There was a written receipt given as follows, to wit: “ Received, of Geo.

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge.

In error from the circuit court of Lowndes county ; Hon. F. M. Rogers, judge. Taylor Nelson filed his bill on the chancery side of the docket, in the circuit court of Lowndes county, asserting an equitable lien for the purchase-money of a certain tract of land by substitution to the lien of the vendor of the land.

In error from the circuit court of Carroll county; Hon. F. M. Rogers, judge. This was a motion entered in the circuit court of Carroll county, to have two judgments in favor of plaintiffs in error against defendants entered satisfied.

In error from the circuit court of La Fayette county; Hon. Hugh R. Miller, judge. This was a suit instituted in the circuit, court of La Fayette county, by S. B. Redwine against Matthews and Addington, to recover the value of a horse which had been sold by Matthews, as constable, under an execution issued on a judgment rendered in the justices’ court in favor of Addington against Redwine.

In error from the probate court of Carroll county. This was a petition filed in the probate court of Carroll county by Loury and wife, who state, that Mrs. Loury is entitled to the property of her deceased husband, A. W. King, exempted by law from execution; that she has never received the same or any part thereof; but that J. H. Herbert, the administrator of said A. W. King’s estate, sold the same as the property of the intestate, and applied the proceeds for the benefit of…

Henry Dickinson, vice-chancellor. This was a bill filed in the district chancery court at Carroll-ton by Ellis, to subject the land in the bill mentioned to the payment of the balance of the purchase-money thereof. Ellis-sold the land to Cook on the 28th day of February, 1838, for the sum of $800, and entered into an article óf agreement with Cook, obligating himself to make Cook a title to the land by the 1st day of April next thereafter.

Henry Dickinson, vice-chancellor. This was a suit instituted by bill in the district chancery court, and it charges, that on the 9th day of July, 1839, complainant became the assignee of the Tombigbee Railroad Company of a judgment rendered in their favor against Henry Bell et al. and Lewis B. Taliaferro, on a forthcoming bond forfeited on the 4th day of March, 1839, for $4,207.59; and that the same is unpaid.

<p>In error from the circuit court of Carroll county; Hon. F. JVL Rogers, judge.</p> <p>This was an action of replevin to recover a horse and colt, which were alleged to have been wrongfully taken and illegally detained. Declaration filed in usual form. On the trial, bill of exceptions was taken to a charge given to the jury by the court.</p> <p>It was proven, that the plaintiff was the owner of the property in controversy, and had left it with one Hendricks to be kept safely until plaintiff returned, he having temporarily left the State; that Hendricks, against whom defendant had an execution, had no interest in the property; that plaintiff was not a party to the judgment and execution under which the levy was made ; and that defendant had levied on the property by virtue of an execution against Hendricks. The value of the property was also proven. This was all the proof.</p> <p>The defendant obtained from the court the following charge to the jury: —</p> <p>“ That if the defendant was an officer, and by virtue of an execution levied on property claimed by a stranger to the execution, an action of replevin could not be maintained for ‘ such taking or detention ’ by the claimant.” To this, plaintiff excepted. Judgment was rendered for defendant, and plaintiff prayed this writ of error.</p>

<p>In error from the circuit court of Pontotoc county; Hon. .Hugh R. Miller, judge.</p> <p>On the 5th day of October, 1849, George G. Reneau instituted an action of covenant against Wolf Steppacher on his warranty of a negro woman, bearing date May 28th, 1847, by which the said Steppacher warranted the said slave to be “ sound, both in body and mind, and that she was a slave for life.”</p> <p>The declaration was in covenant to recover the damages sustained by reason of the breach of the covenants of plaintiff in error. To which plaintiff in error (defendant below) plead covenants performed, in short, by .consent. And for further plea, that the said girl Delia, before and at the time of making the covenants, was not unsound and diseased in body, and was not valueless to defendant in error, (plaintiff below).</p> <p>At the April Term of said court, 1850, the cause was continued by consent of parties. At the October Term, 1850, it came tip to be heard, to wit, the 23d day of October, when the jury failed to agree; and thereupon, by consent of parties, a juror was withdrawn and a mistrial agreed to, and cause continued.</p> <p>At the April Term, 1851, to wit, the 24th day of April, the cause came up for trial, when the plaintiff introduced and read to the jury, as evidence, the bill of sale from defendant to him of the negro girl “ Delia,” which was in the words and figures following, to wit: —■</p> <p>“ Received of G. G. Reneau six hundred and fifty dollars, in full payment for a negro girl named ‘Delia/ about twenty or twenty-one years old; the title to which said negro girl I hereby warrant, as well as that she is perfectly sound, both in body and mind, and that she is a' slave for life. Given under my hand and seal, this 28th day of May, A. D., 1847.</p> <p>W. Steppaci-ieR, [seal.] a</p> <p>John Gillis, J. Shackeleoed.” Witnesses,</p> <p>Plaintiff then introduced John O. Gresham, who proved, that he had the girl in his possession two or three weeks immediately preceding the purchase of her by plaintiff; thought she looked unhealthy; she was a good seamstress and house servant ; thought her worth $600; was willing to have given that for her; did not want to buy her though; was afraid of her health, but to please his wife would have given $600 for her. Plaintiff then proved, by C. P. Coffin, that he was a practising physician ; that he had been engaged in practice at that place for twelve years; that on the 6th of October, 1847, he was called to see the girl “ Delia; ” that he found her diseased; she had dropsical symptoms; thought her affected with “ ame-norhea;” and treated her for that disease. He had been applied to two or three months before that time to prescribe for her, and did so according to plaintiff’s description of symptoms; and when he saw her he found her diseased as plaintiff had described, when he called for medicine for her; that he attended visited her some half dozen of times, (as often as he thought necessary,) and once a day or two before her death; that he famished medicine and prescribed for her during her sickness; that he did not suppose she had diseased heart until he had been attending her some time; that afterwards he believed it was diseased, from her walk, and her palpitation of heart and shortness of breath, and dropsical symptoms; that he (assisted by Dr. Herriford) made a “ post-mortem ” examination of the girl; found the heart very much diseased and enlarged, the liver enlarged and adhered to the side; found the womb diseased. That from this examination and his observation of the girl while sick, he was of the opinion she died of disease of the heart, and that it was chronic; and gave it as his opinion she was laboring under the disease at the time plaintiff bought her of defendant, and that she died of that disease; that the disease of the heart, when of long standing, was incurable; that if she was laboring under it at the time of the sale, (as he believed,) he thought her valueless; his medical bill was $>25 or $30. Upon cross-examination, witness could not say positively that she was diseased at the time of sale, but believed she was; no one could tell certainly when such a disease commenced; that they were ordinarily chronic, however; that her symptoms indicated the disease of longer standing than the bill of sale ; that in ordinary cases the dropsical symptoms did not appear until the disease was of two or three years standing or more, and in his opinion hers was an ordinary case; that when the heart became diseased by reason of any violence or sudden hurt, the disease developed itself in a shorter time; that in such cases, if the subject was young and properly treated, a cure might be effected ; that when he spoke of young subjects, however, he spoke of those fifteen or sixteen years old and under that age, and not one as old as the subject of this controversy. He further stated, that the disease of the heart was insidious, and not easily detected; that persons not skilful would not be likely to detect it.</p> <p>Plaintiff then introduced Dr. Wm. Herriford, who proved that he had practised medicine twenty years, and ten years at that place; that he had assisted Dr. Coffin in his “ postmortem” examination of the girl “Delia.” He proved the same facts in relation to her condition, that were proyen by Dr. Coffin at that time ; that his opinion was, that the disease of her heart was sufficient to produce death. He believed the disease to be chronic. His opinion was, that the disease existed at the time plaintiff purchased the girl; that the symptoms in her case would not ordinarily develop themselves in less than two or three years, or perhaps longer; that her disease was chronic; that he believed it an oi’dinary case of disease of the heart; that diseases of the heart are incurable except in very young subjects, and when produced by violence; that it is an insidious disease, not easily detected ; that a subject might be laboring under the disease of the heart, and skilful physicians not be able to detect it by ordinary means. It was his opinion, that “ Delia ” was diseased at the time plaintiff purchased her, and that she died of that disease. Reneau admitted he had the girl on trial a week or two before he purchased.</p> <p>Defendant than read as evidence the deposition of Mrs. “Elizabeth Wells,” the wife of “Wm. E. Wells,” the vendor with warranty of said girl, to Steppacher, defendant below ; to the reading of which plaintiff objected, which objection the court overruled. Mrs. Wells proved, that she knew the negro girl “ Delia” three and a half years, and that during that time she knew her to be healthy; that she was the house servant during the most of that time, and if she had been unhealthy witness would certainly have known it. On cross-examination, she says she does not know how long it was after her husband sold her before plaintiff purchased her; knows nothing of her state of health during that time, or whether her habits of life were such as to expose her to disease or not.</p> <p>It was admitted by plaintiffs, that Miss Mary Jane Wells, daughter of. Wm. E. Wells, and Mrs. Nancy Wells, his daughter-in-law, would state substantially the same as Mrs. Elizabeth Wells did, as above. Defendant then read the deposition of Mrs. Emeline M. Horsley, who proved that she knew the negro from 1845 to 1847, and that she appeared to be healthy.</p> <p>Defendant then read the deposition of Garrett J. Burse, who proved, that after plaintiff purchased the girl from defendant, he heard him say to defendant that she was an excellent seamstress, and he was much pleased with the bargain. Defendant told plaintiff, that if he had known her to be so valuable, he would not have let him. have her so low. Plaintiff laughed, and said he would not take a thousand dollars for her. Defendant then read the deposition of Dr. D. F. Alexander, who said, that he was the family physician of Wm. E. Wells during the years 1843 to 1846, and had no recollection of ever giving medicine to a negro girl by the name of “Delia.” The jury found a verdict for 'Reneau for $827, from which Steppacher prayed a writ of error.</p> <p>cited and commented on Ricks, AdtrUr, v. DillaJumtz, 8 Port. 138; Stone et al. v. Buckner et al, 12 S. & M. 73-88; Chitty on Contracts, 75; Wilson v. Troupe, 2 Cow. 195; Sumner v. Williams, 8 Mass. 214; Howland v. Leach, 11 Pick. 154; Hollingsworth v. Fry, 4 Dal. 345; Patrick v. GJrcmt, 2 Shepley, 233; Littlefield v. Winslow, 9 Maine, 394; Davis v. Beamy, 2 Gill & Johns. 382; 11 Vermont, 549; 2 Kent’s Con. 492; Stamps v. Bush, 7 How. 255; Chitty on Con. 458, (note); 20 Johns. 196; Wheel. Law Slav. 107, (note); 11 Wend. 584; 11 Pick. 99; 2 Marsh. 148; 11 Wend. 411; 4 How. 59; 5 lb. 165 ; lb. 495-499 ; Gould, Plead. 480 ; 2 S. & M. 17, &c.; 8 Port. 418; 3 Stew. & Port. 329 ; 4 Hals. 25; 1 McCord, 359; 1 Taunt. 566; 3 Starkie’s R. 32; .12 S. & M. 336-341.</p> <p>cited and commented on, in reply, Kinley v. Fitzpatrick, 4 How. 59; Anderson v. Bwnett, 5 lb. 165; Chapman v. Murch, 19 Johns. 290; 2 Cow. 13§ ; 4 lb. 422 ; 8 lb. 25; 6 S. & M. 133, &c.; 10 Johns. 485; 2 Caro. Law R. 607; 2 J. J. Marsh. 129; Com. on Cont. 116; 1 S. & M. 421; 3 How. 219; Nye v. Grubbs, 8 S. & M. 643; • Fisher v. Leach, 10 lb. 313; 12 lb. 618; 13 lb. 213; 5 How. 495; I S. & M. 29, &c.; 13 lb. 405; Etting v. Bank United States, 11 Wheat. 75 ; Graham on N. T. 245-401; 4 Plow. 388 ; 8 Port. 428 ; 11 Ala. 732-739; Walk. 150.</p>

<p>In error from the circuit court of Choctaw county; Hon. F. M. Rogers, judge.</p> <p>The opinion, contains the facts of the case.</p>

W. A. Tucker, judge of the probate court. At the February term, 1845, of the probate court of the county of Monroe, letters of administration were granted to the plaintiff in error, on the estate of Dr. Burrell Huggins, late of said county, deceased, who entered into bond and was qualified according to law.

<p>Where C. took the responsibility, as attorney, of dismissing a suit instituted by B. and G. against S., and received in payment claims upon other parties, C. became prima facie liable in an action on the case for the amount of the claim sued on against S.; and he can only be di^¿m^M^¡^Q|ying that a judgment, if rendered on the claim at the regulo: case would have been unavailing and valueless. '^k-***'</p> <p>A proceeding by motion made against alparty for money collected as an attorney, is no bar to a recovery in an t^fp^^^Amages, resulting from an illegal and unauthorized actí(¡ ■</p>

In error from the circuit court of Chickasaw county; Pión. F. M. Rogers, judge. This was an action founded on an administrator’s bond, instituted in the circuit court of Chickasaw county by Glover and others.

In error from the circuit court of Attala county; Hon. Robert C. Perry, judge. Held: that “ where a slave hired by the year, dies within the year, his wages must be apportioned.” The court assimilate this case to that of an overseer, whose wages they had previously decided could be apportioned. Now this court has adopted the South Carolina doctrine in relation to overseer’s wages. 6 S. & M. 634.

IN error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. The facts are contained in the- opinion of the court. The question is, whether a bill.drawn in this State, on a citizen of the State, and payable in Alabama, is a foreign bill. We say it is. The intent of the parties was to pay in Alabama; that was the designated place of performance; and the time and mode of payment, and rate of interest, were to be regulated by the laws of that State.

<p>In error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge.</p> <p>Richard C. Moore executed a deed of gift to Mariah White, in trust for his wife, and George H. Young, as a prior creditor, levied an execution on ai negro conveyed by the deed, and Mariah filed her claim under the statute, and replevied the property. Young’s debt was older than the deed; the judgment was younger. Moore was embarrassed at the time.</p> <p>The court below charged the jury, that a voluntary conveyance will be upheld to defeat prior creditors if it was made bond fide, and the party indebted had, at the time, “ ample and sufficient means to pay all his debts.”</p> <p>The jury found for the claimant of the property, from which verdict Young prayed this writ o'f error.</p> <p>This decision was made in the face of three adjudicated cases to the contrary, determined by this court. Bogard v. Gardley, 4 S. & M. 310 ; Swayze et al. v. Doe, ex dem. Me Cros-sin, 13 lb. 323; Vertner et al. v. Humphrey, 14 lb. 131; Henry v. Fullerton, 13 lb. 634.</p> <p>The plaintiff asked a charge in the very words of the opinion of the court in Doe, ex dem. O'Daniel v. Orawford, 4 Dev. Law R. 197, which case was approved by this court in Bogard v. Gardley, 4 S. & M. 310; but the charge was refused. 4 Dev. R. 197.</p> <p>I had supposed that the decisions of our own high court of errors and appeals settled the law, and that they were obligatory upon the circuit court judges; and besides, the weight of authority is with the court. 6 Ala. R. 506; 3 Port. 196; 3 Johns. Ch. R. 497, and cases cited; 4 Wash. C. C. R. 137; 11 Mass. R. 421; 2 Rand. R. 384 ; 4 Dana, 251; 8 New Hamp. R. 44 ; 4 Johns. Ch. R. 450 ; 4 Dev. R. 197 ; 3 lb. 83; 1 Halst. R. 450; lb. 473 ; 5 Cow. 67; 1 Brocken. 500; 2 lb. 138; 7 Pick. 533; 2 Hovd. on Frauds, 74, and cases cited; 8 Wheat. 229; 5 ■ Cond. 419 ; 11 Wheat. 199; 5 Cond. 270; Bald. 285 ; 2 Kent’s Com. 440, 441.</p> <p>There is some conflict of authority on the subject of voluntary conveyances, and the rights of creditors against them. There are decisions which go to the rigorous extent of the rule contended for on behalf of the plaintiff in error. But it was observed by the court, in Howard v. Williams, 1 Bailey’s S. C. R. 582, when speaking of the English decisions on that subject, “that they were all cases in which there was no other property out of which the existing debt could be satisfied; ” and the same remark is believed applicable to the American cases.</p> <p>The rule contended for by the( appellant, •would make every gift of a parent to children and settlement on a wife fraudulent, however prosperous the circumstances of the donor and inconsiderable the debt, if afterwards, by an unforeseen calamity, the donor should become insolvent, and a trifling liability remain which existed at the time of the gift or settlement.</p> <p>If the charge of the court is not correct, there can be no modification of the exceedingly harsh and unreasonable rule contended for by the creditor in this case.</p> <p>In Cadogan v. Kennett, Cowp. 435, Lord Mansfield said: “ The circumstance of a man being in debt at the time of making a voluntary conveyance, is only an argument of fraud. The question in every case is, whether the act done is bond fide, or whether it is a trick and contrivance to defeat creditors.” In that case the party was a creditor of Lord Montfoit at the time the settlement was made, and yet the settlement was sustained.</p> <p>The time rule is, that the property reserved must be sufficient to pay the debts, in the ordinary course of human events, and it will not affect the conveyance, if the property reserved ultimately turn out insufficient, by reason of some unforeseen event, as by fire, storm, or sacrifice at sheriff sale. 2 Nott & McC. 546 ; Hoioard v. Williams, 1 Bailey, S. C. R. 584.</p> <p>" A voluntary gift to a child is not necessarily void as to ■existing creditors, but will be supported, if there be abundant proof that the donor reserved an ample sufficiency to pay all of his debts, and that the gift was made bond fide, and is free from all taint or suspicion of fraud.” 1 Bailey, S. C. R. 585; Salmon v. Bennett, 1 Conn. 525.</p> <p>Whether a deed executed by a parent to his child, in consideration of love and affection, is fraudulent as against creditors, is a question of fact for the fury. Jackson v. Simmerman, 7 Wend. 436.</p> <p>A voluntary conveyance to grantor’s daughter, in consideration of love and affection, leaving amply sufficient means to meet all his debts, is valid against a subsequent mortgage to secure a previous debt; and if valid at the time of its execution, it is not rendered fraudulent by subsequent embarrassment of the grantor. Bracket v. Wait, 4 Verm. 389.</p> <p>A voluntary conveyance, made by one indebted at the time, is not fraudulent, if the grantor had other property sufficient, out of which the creditors may make the amount of their debts. Arnett v. Wanett, 7 Red. 41; lb. 341.</p> <p>A person indebted to a larger-amount than his property, gave his son-in-law, soon after marriage, a slave. Held, that the gift was not fraudulent per se, though a jury, from these and other circumstances, might infer fraud. Touhiin v. Buchanan, 1 Stew. 67.</p>

<p>The condition of the bond given by the clerk of the circuit court, is that he shall faithfully perform those duties required of him by law. Held, that it is no part of his duties to collect or receive the fees due other officers of the court.</p> <p>He is not, in such ease, the officer of the law to receive the fees, or agent of the officer for that purpose, but only the agent of the party paying.</p>

In error from the circuit court of Carroll county; Hon. F. M. Eogers, judge. The facts of the case are contained in the opinion of the court. If the promise should be considered to have been made at the same time with the promise to give indulgence, no such contract as the law requires was then made.

In error from the circuit court of Marshall county; ITon. Hugh R. Miller, judge. The opinion of the court contains the facts of the case. The power of the courts to quash an execution for an abuse of the process has often been exercised, and is unquestionable.

<p>On appeal from the circuit court of Tishamingo county; lion. Hugh R. Miller, judge.</p> <p>The only facts in this case are simply whether one joint co-tenant can file a bill or petition against the other co-tenant, to compel a division of the property jointly held by them.</p>

<p>In error from the probate court of Choctaw county; Plon. John Snow, judge of the probate court.</p> <p>The facts are contained in the opinion of the court.</p> <p>cited 1 Williams on Executors, 377-399.</p>

In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge. On the 25th of June, 1849, White-sued Goodman, in the circuit court of Marshall county, as a member of the firm of Goodman & Means, upon the following open account: — “ June 1, 1847. “ Messrs.

Stephen Cocke, chancellor. William D. English filed his bill in the superior court of chancery against the defendants in error, to rescind a contract for land upon the ground of fraudulent representations in the sale by the vendor. The bill was demurred to, and demurrer sustained by the court, and D. English appealed.

<p>In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge.</p> <p>The facts are contained in the opinion of the court.</p> <p>cited Kennedy v. McFaden, 3 Har. & Johns. 194, and case cited.</p>

<p>It is necessary to aver, to constitute a good plea of bankruptcy, that the-elaimi sued on was one provable under the bankrupt law, and that the defendant had been discharged by the judgment of the proper court, and had received a certificate of such discharge.</p> <p>The law makes the discharge and certificate the bar to the action, and that, which constitutes the bar must be pleaded.</p> <p>The certificate is not pleaded; and the judgment should have been respondeat ouster.</p>

This was a motion made to tax the plaintiff in error with the cost of the suit, upon the writ of error being dismissed for want of jurisdiction, and also to require, that the clerk of this court should tax the cost of making out the transcript in the inferior court, in the bill of cost in this court.

James M. Smiley, vice-chancellor. The opinion of the court contains a 'sufficient statement of the facts of the case.

In error from the circuit court of Harrison county; Pión. W. P. Harris, judge. This was an action of ejectment commenced in circuit court of Harrison county, on the 26th day of August, 1843, and the demise is laid on the 12th of June, 1843.

Henry Dickinson, -vice-chancellor. The appellants filed their bill in the vice-chancery court at Fulton, on the 31st day of October, 1848, against Boling C. Burnett. • The bill charges, that one Boling Clarke, of Dinwiddie county, and State of Virginia, on the 16th day of February, 1809, made his last will and testament, and afterwards, during the same year, departed this life; that the said will was duly admitted to probate; that the said will contained a bequest to Mary…

Henry Dickinson, vice-chancellor. Some time in the year 1835 or 1836, Angus Gillis purchased of Edward Orne, agent of Healey and Whiting, who were trustees of the Boston and Mississippi Cotton Land Compan}*-, section (12), township (7), range (7), west of the basis meridian, Chickasaw cession, for the sum of four thousand dollars, one third of which was paid in cash, and the balance secured by notes payable in one and two years, with interest from date at the rate of eight…

In error from the circuit court of Tippah county; Eton. Hugh R. Miller, judge. Suit was instituted at the March term, 1852, of the circuit court of Tippah county, by J. A. Gaillard against Henry F. Morrison and others, upon their joint writing obligatory, dated the 16th of January, A. D. 1851, and due twelve months after date, fdr $170.97 1-2 cents, to the said Gaillard.

<p>ON appeal from the northern district chancery court at Fulton ; Hon. Henry Dickinson, vice-chancellor.</p> <p>The bill in this case was filed by Joseph Leake, to recover the value and the profits of three one hundredths of the value of the land and appurtenances (including a ferry across Tennessee river) of the land on which the town of Eastport, in Tishamingo county, is situated, which the complainant alleges he purchased from James E. Matthews in the year 1847. The bill charges, that the defendants, who are the joint owners of a portion of said property, have been receiving large profits since then- purchase, on account of said Leake’s interest in the property, and refuse to pay him any thing on account of the same. The bill prays for a division of the .property, and that an,account of the profits be taken and reported to the court,when the court granted the taking an account, from which decree the defendants appealed.</p>

<p>In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge.</p> <p>At the March term, 1851, of the circuit court of Tippah county, Taylor and Paulding brought suit on a promissory note, given to them by Ayres & Co., for the sum of $338.56. The complaint was verified by the plaintiffs before the cleric of the circuit court, and the defendants filed their answer, which was not verified. The plaintiffs, by their attorney, moved to strike out the answer because it was not verified by defendants, and the circuit court sustained the motion to strike out, but gave leave to defendants to answer over, which they declined to do, and judgment by default was rendered against defendants, who prayed this writ of error.</p> <p>Contended, that previous to the act of 1850, changing the mode of practice in the circuit courts, the court had no power to give judgment over a plea, even at the trial term of the court, without the intervention of a jury. The circuit court has no power to strike out a plea, good in substance, merely because it is not verified. The construction placed on the 6th section of the act of 1850, under which the court claims this power, is erroneous. The 12th section of this act gives the defendants until the second term of the court to make up their pleadings.</p> <p>The act of 1850, 12th section, says, that “the pleadings shall in all cases be made up and perfected for trial at the second term after filing the complaint.” This is very plain language, and- certainly does not command the pleadings to be made up at the first term, and was evidently intended to give the defendants a term within which to perfect the pleadings, or the language of the statute cannot mean any thing.</p> <p>The clerks of the circuit court, I apprehend, have no power to take affidavits to complaints filed like this in circuit courts. They can only take affidavits where they are “ the foundation of any official act to be performed by such clerk.” Hutch. Code, 433, § 158. This affidavit is clearly not the foundation of any official act to be performed by any officer of the court.</p> <p>In reply, contended, that the act of 1850 was intended to do nothing more than change the forms of pleadings. The 12th section of that act is intended only to give parties the most ample scope to amend their pleadings, and, therefore, requires that the pleadings shall in all cases be made up at the second term, “when the party shall be duly in court.”- The act was intended to give the parties power to amend freely until the second term after they were in court. The act does not say that the parties are not in court until the second term; for if the legislature had intended any other meaning than I have given for this section, they would have required all writs to be made returnable to the second term.</p> <p>It is said, that the act of 1850 was not intended to repeal the law of 1840, giving an imparlance term. This I admit, for under that law the plaintiff was entitled to judgment at the first term, unless the defendant filed his defence in conformity with the requirements of the law; and so the act of 1850 permits the same to be done. The last act, however, requires that where the first pleading is under oath, all subsequent pleadings shall be verified likewise. Neither countenances any pleading intended for delay.</p>

Henry Dickinson, vice-chancellor. The appellant, on the 16th of June, 1850, filed his bill, stating in substance: that Frederick W. Foy, on the 28th of August, 1849, had exhibited in the district chancery court his bill against Amos J. Foy, on the following case, namely; that said F. W. Foy was a minor, and owned a negro slave which his father sold to said Amos Foy, and for the purchase-money took a note or writing obligatory for the sum of f850, due and payable to said…

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge. Thomas J. Davidson, the appellee, recovered three judgments against John H. Brian, before a justice’s court in Tippah county, for the following amounts: $32.90, $10.76, and $33.82, upon which judgment executions were issued in due time; and on the 4th of December, 1850, they were levied on a negro girl, named Rosa, as the property of said John H. Brian.

ín error from the probatl court of Marshall county; Hon. B. S.. Lawrence, judge of the probate court. Robert Cherry, deceased, appointed his widow, Matilda S. Cherry, as executrix, and Fortunatas Jarratt as executor, of his last will and testament, and they were both qualified as such some time in 1851, in the probate court of Marshall county. The personal property of the estate, consisting almost entirely of slaves, was appraised at $15,015.70.

In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge. This was an action instituted in the circuit court of Panola county, by Pearce W. Perry, administrator de bonis non of the goods, chattels, rights, and credits which were of Simon Perry, deceased, against Jadob Kingkendall, James H. Dyson, and John Rayburn, to recover the amount (less credits) due on a writing obligatory, in these words: “ Oct. 7th, 1850. “ $786.

B. G. Lawrence, judge of the probate court. In January, 1847, Lewis Dilliard, of Marshall county, departed this life, having first published his last will and testament, devising his property to his wife. The particular clause of the will that is to be construed by the court is as follows: — “ Second.

IN error from the circuit court of Chickasaw county; Hon. F. M. Rogers, judge. At the March term, 1851, the defendant in error (who was plaintiff below) brought an action of replevin, as guardian of Richard H. Rockett, against the plaintiff in error, Vincent May, to recover’ possession of four negroes, to wit, Allen, a negro man; Matilda, a woman ; Louiza, a girl; and Douglass, a boy. Declaration in the usual form, and plea of general issue.

In error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge. On the 28th of June, 1851, Ezell, for the use of Walker, sued out a writ in Lowndes, and on the 2d of July another, to Noxubee, from Lowndes, in the same case, as a branch writ, and indorsed as such. The writ to Lowndes purports to be executed on the 26th of June, 1851, on Conner.

Henry Dickinson, vice-chancellor. In 1846, I. H. Hanah was the owner of certain land; in February, 1846, Hanah and wife sold and conveyed said tract of land to Charles Lisloff, Jr., for the price of… Held: that a trust could be established only by contemporaneous acts or declarations. See 17 Eng. Ch. R.; 2 Bevan, 447. Indeed, on principle, no other rule could be admissible.

The facts of the case are contained in the opinion of the court. cited and commented on Me Gee et ux. v. Ford et al., 5 S. & M. 769; 10 Pick. 428. In reply, contended the court below had no jurisdiction of the case. Jones v. Goon et al., 5 S. & M. 767.

In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. This was an action of debt upon an injunction bond brought by Helena Rubon, Caroline Stith, and John Brues, against Christian Stephan and Edward Dixon. The action was founded on an injunction bond given by the defendants and one John B. Dixon, deceased, in the penalty of $5,000, dated April, 1842.

James M. Smiley, vice-chancellor. This was a bill filed in the southern district chancery court, and states, that in 1815 Jaques Maiurin Ladner was in possession of, and claimed to own, twenty-five arpents of land, in then county of Hancock, Mississippi, bounded north, south, and east, by the bay of Biloxi, and west by a claim known as the Dorsette Richards claim.

In error from the northern district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. Held: that the proposition to sell- an interest of one third of the whole speculation, to any party that would advance the cost of the land, which had been stated to be $1,000 per section, and who would agree that “ the expenses attending locations and sales should be borne pro rata,” constitutes a part of it.

In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. ~ • This was an action of debt, in the name of Moore, as sheriff, use of Keyes, on the… Held: that such obligations as differ and vary from the form in words and circumstances only, are good, notwithstanding the statute. 1 Shep. Touch, 373, 374; Beawfage’s case, 10 Coke, R. 99. Our statute (code 910, art. 6,) authorizes a forthcoming bond to be given by the person whose property is levied on.

In error from the circuit court of Adams county; Hon. Stanhppe Posey, judge. Thomas B. Stalworth sued Charles B. Hatcher upon an order or writing made or drawn by M. A. Bott, (who is not sued,) bearing date the 7th day of June, 1847, and payable at sight, on said Hatcher for the sum- of $290 and interest on the same from the 1st day of March, 1843.

IN error from the circuit court of Adams county; Hon. W. P. Harris, judge.

In error from the circuit court of- Clark county; Hon. John Watts, judge. This was an action of debt instituted in the circuit court of Clark county, at the October term, 1848, by the Governor of the State, against James Lee and sureties, upon his official bond given as tax collector of said county, for failing and neglecting to collect the taxes assessed for the county, due the State, for the year 1846.

This was a motion made to modify the decree as to the defendants rendered in this court upon an appeal from the superior court of chancery. The case will be found reported in 2 Cushman, 208, Edward L. Whiles et al. v. D..M. Cooper et al., where all the facts may be found.

In error from the probate court of Adams county; Hon. Charles P. Duberson, probate judge. . This was a proceeding in the probate court of Adams county by William Burns, surviving executor of the last will and testament of George W. Smyth, deceased, in presenting his final account of settlement in said court of the said estate. Exceptions were filed by C. L. and L. M. Smyth, the legatees of the deceased, to the allowance by the probate court of the account of the executor.

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. Cited the statute of the State allowing motions against attorneys who refuse to pay over money collected for clients. Hutch. Co. 425, § 9.

Henry Dickinson, vice-chancellor. Richard Crowson, the' appellee, filed his bill on 1st September, 184-9, in the district chancery court, setting forth, in substance, that on the 14th of October, 1839, Edward Moore recovered against Joseph Ferguson, in the Carroll circuit court, judgment for $1,139.94; that Edward Moore transferred this judgment to Richard Crowson; that after the rendition of this judgment Joseph Ferguson died intestate and utterly insolvent, and the…

James M. Smiley, vice-chancellor. • The bill of complaint filed by the appellee in the court below avers, that the appellant’s intestate, Alexander H. Horner, on the 6th of April, 1849, recovered judgment against “the president and selectmen of the town of Grand Gulf” for $750., which was revived after the death of said Alexander, in the name of appellant, as his administratrix.

In error from the circuit court of Harrison county; Hon. W. P. Harris, judge. This was an action of ejectment instituted by A. Delpit against Benjamin Davis in the circuit court of Harrison county at the September term, 1851.

In error from the northern district chancery court at Columbus ; Hon. Henry Dickinson, Vice-chancellor. On the 15'th October, 1847, a judgment was entered up in favor of T. P. Miller & Co. against Thomas Winston and Green Hill, as partners, &c., for $3,373.46, with a stay of execution for six months. The debt on which said judgment was founded grew out of the partnership business of Winston & Hill.

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge.

J. Thurmon, appellee, filed his petition in the probate court of Plolmes county, in which he states that he is the administrator of M. Thurmon, his former wife; that appellant was the guardian of said decedent; that he, appellant, has in his possession part of the effects; that petitioner is entitled to the possession thereof; prays that the said Hunter surrender his letters of guardianship of said Minerva, and deliver said effects to petitioner.

Stephen Cocke, chancellor. The appellee filed his bill in the superior chancery court, in which he alleges, that his intestate (Lee) died in Mississippi, leaving a large estate in Concordia Parish, Louisiana, and some in Mississippi; that in 1840, complainant was duly appointed, in Concordia Parish, administrator of said estate in Louisiana; that in 1841, he was duly appointed, by the Adams probate court, administrator of said estate in Mississippi.

In error from the police court of Hinds county. The record shows, that certain persons filed their petition in the police court of Hinds county, praying an order, and the preliminary steps for laying out a public road. A jury of review was impanelled, upon the order of said court, which proceeded to lay out the road.

P. W. Tompkins, judge. This was an action of ejectment instituted in the circuit court of Hinds county, on the 21st of November, 1848, by William C. Harper, to recover lots numbered 1, 2, 7, and 8,… Held: that where plaintiff and defendant claimed title, it was to be taken for granted as between them, that the State had parted with her title; the same presumption arises here, and Moody cannot gainsay it, as he cannot insist that he has no title, and yet claim title.

James M. Smiley, vice-chancellor. John Ely, deceased, in his lifetime filed a bill of complaint in the southern district vice-chancery court against plaintiffs in error and others, to subject their property to the payment of a certain sum of money, due him in consideration of services rendered their estate as overseer, during their minority. Decree for complainants below, from which this appeal is taken.

James M. Smiley, vice-chancellor. This suit was commenced by bill in the vice-chancery court on the 26th of October, 1849, and is on a judgment recovered by the Agricultural Bank of Mississippi against,th'e appellants, as executors of Benjamin Harman, deceased, in the circuit court of Adams county, at the November term, 1841, for $49,191.08; which judgment the Agricultural Bank, for a valuable consideration, transferred to the Commercial Bank of Natchez, at the instance of…

In error from the circuit court of Clarke county; Hon. W. P. Harris, judge. This was a motion made in the circuit court of Clarke county, to set aside an entry of satisfaction, made by a former sheriff upon a fieri facias, upon the ground that the return was false. The fieri facias was ..returnable to October term, 1847, of Clarke circuit court, and the motion was made at October term, 1848, one year after the return day of the writ.

In error from the probate court of Rankin- county; Hon. James Finley, judge of the probate court, &c. This was a petition filed in Rankin probate court by defendants in error, as distributees of Robert Steen, deceased, against the plaintiff in error, as administrator of William Steen, deceased, for a settlement of the administration account of said William Steen, as administrator of said Robert Steen.

In error from the circuit court of Rankin county; Hon. W. P. Harris, judge. Held: or insinuated, that the survivor and the representative of a deceased maker or obligor might be joined, the contract was joint only. Mann v. Sutton, 4 Rand. R. 253, is in principle a case in point. By an act of the Virginia legislature, a joint action was given against the drawer and indorsers of a bill of exchange.

In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. The plaintiffs in error sued the defendants in error in the circuit court of Adams county, as indorser upon the following bill of exchange, to wit: — Natchez, March 4, 1846. Exchange for $2,000. Fifty days after sight of this only of exchange pay to my own order two thousand dollars value received, and charge the same to account of your agency at Natchez. (Signed,) Jno. D. Henderson, Agent.

In enter from the northern district chancery court at Car-rollton ; Hon. Henry Dickinson, vice-chancellor.

In error from the southern district chancery court at Natchez; Plon. James M. Smiley, vice-chancellor. This suit was founded on a bill exhibited in the southern district chancery court, by Bacon and others, the defendants in error, alleging that the Planters Bank had recovered judgmént in the circuit court of Wilkinson county, the 3d May, 1839, for $¡3,568, besides costs of suit, against the plaintiffs in error, Holt and others, and one Joseph Johnson, deceased.

In error from the northern district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. Held: in all these cases, that the lien of judgments, rendered before the passage of the act, ceased at the expiration of two years from the date of its passage; and in the case last cited, it is further held, that it can make no difference that an execution was levied before the lapse of the prescribed period of two years, if the lien of…

In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge. In January, 1852, Ross and Waite, as executors of the last will and testament of James C. Alderson, deceased, instituted a suit in the circuit court of Marshall county against Houston and Cannon as the makers of two writings obligatory, for $400 each, dated December 8th, 1849, and made payable to Alderson at one and two years after date.

In error from'the circuit court of Marshall county; Hon. Hugh R. Miller, judge. On the 22d day of March, 1839, Plowell & McKendree recovered a judgment in Marshall circuit court, against Bour-land & Early, and Daniel McNeill, for the sum of $2,292.25. An execution was issued upo.n this judgment, and levied upon property of McNeill, who gave a forthcoming bond, with James Davis as security, and this bond was forfeited on the 5th day of August, 1839.

A. H. Bullock, judge of the probate court. On the 5th July, 1842, Mrs. Mary Smith was married to Samuel Hurd, in Alabama, and soon thereafter the parties removed to this 'State. Held: that it did not apply to an administration previously granted. Again, this court have held, that the acts of 1844, (Hutch. Code, 830, § 14,) and the act of 1846, (Hutch. Code, 833,) apply only to after acquired judgments, and form no bar to judgments previously acquired.

This was a bill filed on the 8th day of May, 1852, in the superior court of chancery of the State of Mississippi, by II. Held: and at the session of the legislature commencing in, January, 1837, on the 12th of February, 1837, the bill, chartering the Mississippi Union Bank, passed the house of representatives by a vote, 49 in the affirmative, and 7 in the negative..