Volume 26 — Mississippi Reports

In error from the southern district chancery court, at Natchez ; Hon. James M. Smiley, vice-chancellor. This was a suit commenced by George Potts in the southern district chancery court, at Natchez, to foreclose a mortgage executed to him by William Ferriday and wife, on the 25th May, 1838, on a plantation of land and negro slaves in Washington county, to secure the debt and interest specified in the mortgage.

<p>At common law, tlie alienation by a husband, who was seized in the right of his wife, worked a discontinuance of the wife's estate, till the statute of 32 Hen. 8, c. 28, which provided, that no act of the husband alone shall work a discontinuance of, or prejudice, the inheritance or freehold of the wife ; but after his death, she, or her heirs, may enter on the land; and this provision has been incorporated in the statute law of this State.</p> <p>A tenant shall not deny the title of his landlord.</p> <p>B. was no party to the lease of the land, and at the time it was made, had no title to the land; and he could claim no more than H. himself could convey; and he was bound by every estoppel which bound H.; and the tenant in possession is bound by the same estoppel.</p> <p>The wife’s title vested on the death of her husband, and the possession of H., was only an enjoyment of her .title in reversion, and all claiming under him. Held, that H. had no interest in the land which could be sold.</p>

<p>In error from the circuit court of Oetibbeha county; Hon. F. M. Rogers, judge.</p> <p>The opinion contains the facts of the case.</p> <p>1. The court below refused to give the following charge: “ That under the statute upon which this action is brought, the defendant Perkins would, not be liable for the acts of his agents, unless acting within the scope of their authority.”</p> <p>This was manifest error, and tended to the manifest injury of defendant in court below.</p> <p>Principal not liable for act of agent or servant beyond what his directions extend to, and no wilful trespass of a servant, not arising out of the execution of his master’s orders, will make him responsible. Paley on Agency, 232.</p> <p>2. This statute highly penal, and to be construed strictly. Walker, R.</p> <p>No one can excuse himself from operation of a penal statute, by showing he acted as agent of another. Keffield v. State, 4 How. 304.</p> <p>3. If one by mistake should go beyond his own boundary and cut trees, under impression it was his own land, he would not incur the penalty. Russell v. Irby, 13 Ala. R. 131; 10 N. Hamp. 436.</p> <p>4. Action is debt, and judgment is in damages.</p> <p>The refusing to give the charge asked for by defendant Perkins, was calculated to influence the verdict of the jury. The testimony was by no means certain ; there was no proof that Perkins ever directed or authorized the cutting of the timber off of the land of plaintiffs; but, on the contrary, directed his agent, Freeman, who had the control of the hands, to be particular and not cut timber off of the Hackleman land.</p> <p>The defendant had a right, even supposing the weight of evidence to be against him, to have the law propounded correctly to the jury. It was not in the province of the court to determine what was the weight of evidence, before the finding of the jury.</p> <p>The title to the land was fully established. The facts present a very aggravated case of continued trespasses, from year to year. The proof is full and conclusive.</p> <p>' John Gayproved, that in 1846,1847,1848, and 1849, he acted as agent for the defendants in error, and that he saw the negroes of Perkins cutting down the timber, to get tan bark'; that in the spring of 1849, they cut one hundred and two red oaks, and about the same number each of the above-named years; that the hands were with a white man; that he, at different times, notified the hands that they were cutting the timber off of the land of the defendants in error, and in the spring of 1849, gave Perkins a written notice not to remove the bark; that, at different times after said notice, he saw Perkins’s wagon, day after day, hauling off said bark; that, in 1846, he notified Perkins that his hands were getting tan bark on the Hackleman land. The witness also proved that Perkins owned a tanyard about two miles from the land, which was the only one within seven miles.</p> <p>Hackleman, a witness, testified, that in the spring of 1849, before the institution of the suit, Perkins admitted to him that he supposed that he was chargeable with all the timber that had been cut down and skinned on said land; that he, the witness, counted the trees, and there were three hundred and fifty red oaks, and also about fifty trees cut down to throw these on, so as to skin them.</p> <p>A letter from Perkins was also given in evidence, dated 11th May, 1849, in which he offered to pay one dollar and fifty cents per cord, for the bark that had been cut on the land; and the letter went on to state, that he (Perkins) “ was ignorant, at the time of the cutting of the timber off of said lands by his hands, that the land was the property of defendants in error.”</p> <p>The witness Copeland proved, that in 1846 he pointed out to Perkins the lines of the land of the defendants in error; that he heard cutting going on upon the land frequently afterwards ; that he lived near, and saw Perkins’s hands on the land in 1846.</p> <p>The plaintiff in error then proved, by one of the Perkins family, that there was a good deal of timber cut off of the land by the different neighbors, for house logs and boards.</p> <p>We charged for none of these. The logs that were skinned for tan bark we were after.</p> <p>A certain “white man” named Freeman, was also introduced by plaintiff in error, who testified, that in the spring of 1849 he had charge of Perkins’s hands, for the purpose of getting tan bark; that he is the white man spoken of by Gay; that Perkins never authorized him to cut timber off of the land of the defendants in error, but pointed out to him the land off of which he cut the timber and got the bark, “ which is the same land claimed by plaintiffs ; ” that Perkins supposed it to be government lands; that he, the witness, cut the timber with Perkins’s hands, and got the bark on the land pointed out to him by Perkins; that he directed him to be particular and not cut timber off of the Hacldeman land ; that the line was not blazed out; that there was vacant land adjoining the Hacldeman tract, and witness did not know which was the land of the defendants in error, or which government land, but cut, and got bark where Perkins told him.</p> <p>Here the testimony closed.</p> <p>This was as clear a case as was ever made out under such circumstances.</p> <p>The pretext that he thought it was government land that he was plundering, will not avail him. If a party, intending to commit a trespass on public lands, through mistake cuts down trees on the land of another person, he is liable to the penalty. Givens v. Kendrick, 15 Ala. Rep. 648; 2 Greenl. R. 130. The Alabama statute is precisely like ours. If one by mistake should go beyond his own boundary, under the impression he was cutting on his own land, he would not incur the penalty. He would only be liable in trespass. Russell v. Irby, 13 Ala. R. 131; 10 N. Hamp. R. 536. That is right. But Mr. Perkins had no land, and as he contends, intended to plunder the government, instead of Elizabeth Hacldeman and others.</p> <p>But it is contended, that this excellent man, Mr. Perkins, who did not know the Hacldeman land after the lines were pointed out to him, and who continued his trespasses year after year, after due notice to quit, was greatly wronged in this; that the court refused to give the following charge to the jury, namely, “ That under tha statute upon which this action is brought, the defendant Perkins would not be liable for the acts of his agents, unless acting within the scope of their authority.”</p> <p>The charge is a downright abuse of terms, and an utter perversion of the doctrine of agency. Was it “within the scope” of the agent’s “ authority ” to commit a trespass ? Can one man confer “ authority ” upon another to commit an unlawful act?</p> <p>..... The principle of law is this: Whoever procures or commands another to commit a crime, or do a civil injury, is guilty of the offence himself, as principal, in the first degree. Hence, if a slave or servant commit a trespass by t}ie command or encouragement of the master, the master is guilty of it. In trespass, all are principals. 1 Black. Com. 431,432: 2 Murphy, R. 389; 2 Humph. R. 140, 141; 1 Hill (S. C.) 270.’</p> <p>It is true that no wilful trespass of a servant, not arising out of the execution of his master’s orders, will make him respond sible.</p> <p>In this case, there was no wilful trespass on the part of the ] Servants or agents, and every thing that was done not only I arose out of the master’s express orders and commands, but ' was in strict obedience to, and compliance with, such orders and commands.</p> <p>Freeman says he cut the timber and got the bark at the spot where Perkins pointed out and directed him to get it.</p> <p>The charge was also properly refused, because it was inapplicable to the facts of the ease. There was no evidence upon which to predicate it. And it is not every refusal to state legal principles to a jury, or every erroneous charge, which will be decided to be error; they should be applicable. 3 How. 143 j Ib. 338; 13 Smedes & Mar. 540. A verdict will not be set aside on account of instructions, “ if right upon the law and the facts.” Ib. 582.</p> <p>It is also urged, as error, that the action is in debt, and the judgment in damages. In an action like the present, it is the proper entry. But if not, it amounts to a mere clerical error, and is not a sufficient ground for reversal. 2 How. 735; 4 Ib. 40; 6 Ib. 193. We gain nothing, and Mr. Perkins loses nothing, by it.</p>

Charles Scott, chancellor. Smedes and Marshall filed their bill in the superior chancery court against the State of Mississippi, claiming $1,798 as due them, the late reporters of the decisions of the high court of errors and appeals, with interest on the same, until it was due.

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

W. A. Tucker, probate judge. The opinion of the court contains a statement of the facts of the case. The demurrer should have been sustained, as the plea presented no issue, or one of law only; and that was, whether the recital in the order of the probate court was conclusive or not. By the demurrer, the question was raised as to its conclusiveness ; and it was determined by the court, that you could not go behind the order of court.

Henry Dickinson, vice-chancellor. The facts are substantially stated in the opinion of the court. A court of chancery will only interfere by way of injunction where the mischief is irreparable. There must be such an injury as from its nature is not susceptible of being adequately compensated for by damages. That a mere diminution of the value of the premises is not a ground for an injunction. See' 3 Dan.

In error from the northern district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. This case has been before the court at a previous term, and will be found reported in 14 S. & M. 33, where a history and full statement of the facts of the case will be found in the opinion of Chief Justice Sharkey. The facts upon which this case now depends, will be sufficiently set forth in the opinion of the court.

In error from the circuit court of Pontotoc county; Hon. Hugh R. Miller, judge. Richard W. Anderson, on 20th September, 1849, brought assumpsit against Randal D. Scales, in Pontotoc circuit court, for the use and occupation during 1847, of 151 13-100 acres of land in west half of section 21, township 15, range 6 east, in the Chickasaw cession of lands.

In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge. Jared E. Kirby, at the November term, 1848, of the circuit court of Panola county, sued J. J. Coldwell, in an action of trover, for the illegal sale and detention of a certain amount of corn and fodder, taken into possession of said Coldwell, by virtue of a writ of attachment which had been placed in his hands, as sheriff of said county, to be levied on the property of said Kirby.

In error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge. This case was dismissed because there did not appear to be any judgment of the court below in the record.

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

W. A. Tucker, probate judge of Monroe county. A sufficient statement of the facts of this case will be found in the opinion of the court. The statute (Hutch. Code, 660, § 75) requires of every executor, administrator, &oc., to file a complete and perfect inventory of all the personal assets of his decedent.

<p>To constitute a lien under the statute of 22d February, 1840, (Hutch. Code, 627,) for the benefit of mechanics, the contract must be made between the proprietor or lessor of the property and the person agreeing to do the work or to furnish the materials.</p>

In error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge. This was a suit instituted in the circuit court of Itawamba county, at the April term, 1851, by Cockerell against Estice, for the rent of land, and, before the trial, the case was, by agreement of the parties on a rule of court, submitted to arbitrators who made an award in favor of the plaintiff (Cock-erell), and returned their award into court at the next term thereafter.

<p>In error from the probate court of Panola county; Plon. Orville Harris, probate judge.</p> <p>The facts of the case are sufficiently "stated in the opinion of the court.</p> <p>A guardian suing to enforce the rights of his ward, must sue in the name of his ward. Longstreet v. Tilton, Cox, R. 38; Caskaclden v. McGhee, 7 Watts & Serg. 140; Sutherland v. Goff, 5 Porter, 508; McLeod v. Mason, 5 Porter, 223.</p> <p>The ward is not bound by the proceedings, being no party to the record. Moaré v. Hands, 11 Ill. R. 24; Tobin v. Addison, 2 Strobh. 3.</p> <p>A guardian is the mere agent of the ward, having an authority not coupled with an interest. Grmby v. Amherst, 1 Mass. 1; Mason v. Feltons, 13 Pick. 206.</p> <p>A guardian must show how he acts in that cenapacity, and that those for whom he acts are infants, and if he omits to do so, it is fatal on demurrer. Stanly v. Chappell, 8 Cow. 235 ; Brooks v. Sullivan, 1 Rice, 41. Unless he shows a legal appointment as guardian, his right to the thing demanded will not appear, and that is part of his title.</p> <p>Cited, in reply, Murdock v. Washburn, 1 S. & M. 555.</p>

<p>In error from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge.</p> <p>A sufficient statement of the facts of the case will be found in the opinion of the court, and the points made by counsel.</p> <p>The appellant assigns the following causes of error: —</p> <p>1. The overruling the demurrer to the plea of failure of consideration.</p> <p>2. Because the court below ought to have granted a continuance of the case, to give the appellant time to file rejoinders to appellees’ pleas.</p> <p>3. Because the court below had no authority to instruct the counsel for appellees to put the case to the jury, after the counsel for appellant refused to appear in the case.</p> <p>The demurrer filed to the answers of appellees to the complaint ought to have been sustained by the court below, because the defendants could not plead the want of title in the slave sold whilst in the quiet possession of the slave, without any allegation of fraud in the vendor; for even a covenant of general warranty, or for quiet enjoyment, is not broken without eviction from possession.</p> <p>In the sale of chattels, the purchaser cannot resist payment in cases free from fraud, while the contract continues open and he has possession.</p> <p>The executor conveyed the purchaser such title as John Jos-lin, deceased, had in the slave; and at the sale he made no warranty, either of title or the soundness of the slave. The maxim of caveat emptor applies as well to sales made by executors as by other persons; and I contend it ought to be applied with more strictness in sales by one acting in a representative capacity. 2 Kent, Com. 600; lb. 608; lb. 16; Smith v. Winston, 2 How; 601; 10 S. & M. 476.</p> <p>It is a well-settled rule of law, that purchaser without covenants takes all the risks of title. 2 Thomas’ Coke, 355; 2 Caines; 1 Johns. Ca. 213; lb. 523.</p> <p>It is a question worthy of consideration, whether the probate court has any authority, under any circumstances, to order a sale of property devised to legatees by will, where it is not necessary to sell it to pay debts due from the deceased. Hutch. Code, 662, § 84; lb. 655, § 40; lb. 669, § 109. No such authority is given the court by the wording of the statute; and if such be the proper construction of it, then the acts of the probate court, in ordering a sale of the slaves, are void ab ini-tio ; and the sale stands good as if made by the consent of the legatees themselves.</p> <p>The plaintiff in error had the unquestionable right to show constructive notice to the heirs of Joslin, deceased, provided they had not received positive notice of the order of the probate court for the sale of either real or personal property; and this court has so decided in several cases. Campbell v. Brown, 6 How. 230; Moore v. Cason, 1 lb. 53.</p> <p>The court below ought to have continued the case for the reasons set forth in the affidavit of the counsel of plaintiff in error, as it was the first application, for a continuance, and no possible injury could have accrued to the defendant by a continuance of the case one term, and that, too, when it was of more importance to the plaintiff in error (who was plaintiff below) to try the case, than it was to the defendant. The affidavit made by plaintiff’s counsel, showed sufficient cause for a continuance in the court below.</p> <p>It has been determined in several other States, as well as our own, that where a party has been unable to present the merits of his cause to the jury, a new trial should be granted; or if manifest injustice, to a reasonable certainty, has been done, or the verdict of the jury is unreasonable and unjust, a new trial will be granted, although the verdict may appear to be fair and equitable. Jones v. Fennemore, 1 Green (Iowa) 134; Houston v. Gilbert, 3 Breva. 63; Taylor v. Sorsby, Walker, 97.</p> <p>It has been frequently decided by this court, that it will do what the court below ought to have done. Certainly the court below had no power to authorize the defendants’ counsel to put the case to the jury, when the counsel for plaintiff below refused to appear in the case. -Such a proceeding is one that I humbly think was never before heard of in a court of justice. The only thing the court below could do, when no counsel appeared for the plaintiff, was either to continue the case, or strike it from the docket, for want of prosecution. This was the extent of the judge’s power.</p> <p>The pleadings in this, case are to be governed by the act of 1850, p. 58, § 3, 4, which act requires special causes of demurrer to be assigned in all cases of demurrer. The. first cause assigned in the demurrer, that defendants are in the quiet, unmolested possession of the slave, is not a sufficient cause; for the complaint or answer does not show any such fact. It should have been presented to the court by replication to the answer.</p> <p>In public sales, by executors or administrators, of personal goods of the testator, made by order of the probate court, there is no implied warranty of title; and even an express warranty, made by an executor or administrator, will not bind the estate; and the vendee, when ousted of the possession of the chattel sold, is without remedy. Hence he is permitted to show that the vendor had no title to the chattel he sold, when suit is brought for the purchase-money.</p> <p>The order of the probate court which decreed the sale of the negroes, did not communicate any title to the defendants, because it was obtained without authority, there being no legal notice given to the claimants or legatees of John Joslin, deceased. How. & Hutch. Code, 661, § 82.</p> <p>The demurrer admits that the claimants or legatees had no notice of the application for the order of sale of the slaves; and the order of the probate court was made without notice given to the claimants or legatees, as required by the statute cited. Upon a well established principle, this order of the probate court is void, and, consequently, .all proceedings under it a nullity. Gwinn v. Me Carroll, 1 S. & M. 351; Craves v. Williams, 2 lb. 286; Prentiss v. Miller, 1 lb. 521; 7 lb. 85. Notice must be given, actual or constructive. Hutch. Code, 667, § 102.</p> <p>It has been decided by this court, that a sale of land for division cannot be legally made without due notice, summoning the claimants; and without such notice, the sale is void. This point, it is thought, is analogous to the one under consideration. 1 How. 439; 6 lb. 272; lb. 230.</p> <p>Partial failure of consideration may be pleaded. 1 Cushm. 320.</p> <p>The power of the circuit court to grant continuances, is entirely discretionary, and its refusal to grant them is no ground of error. Babcock v. Scott, 1 How. 100 ; lb. 315.</p> <p>The plaintiff’s counsel, (Cushman,) after the refusal of the court below to grant a continuance of the cause upon his affidavit filed, withdrew from the cause, and refused to put the case to the jury, or have any thing to do with the trial of the cause. The court instructed the defendants’ counsel to put the case to the jury, which they did. The failure of the plaintiff to appear in court by himself or counsel, is no cause of error. lie having failed to do so, he must meet the consequences of that act, because he knew he had a case in court.</p>

<p>An action of trover cannot be maintained against a party who severs corn from a field, and at the same time converts it to fiis own use.</p>

<p>In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge.</p> <p>The facts are contained in the opinion of the court.</p> <p>Contended that the requisitions of the statute had been substantially complied with. To put the construction on the attachment act (Hutch. Code, 803, § 13), under which this proceeding was taken out, which the court below did, would make the act a local, not a general act. It certainly was not intended to confine the operation of this act to any particular locality within the limits of the State. It would deprive a. man of its benefits who might have obligations executed to him in one county, and then removed to a distant county in the State in which his debtors resided, unless he should return to the county where the obligations were made, and then perhaps his debtors might have no effects in that county to attach. This would make the law a nullity to a certain class of creditors, and an absurdity within itself.</p> <p>The distinction between a warrant used in the statute and “ ordinary process,” is a distinction without a difference, and certainly is not supported by sound reason.</p>

<p>A. having been summoned as a garnishee by B., ívho vas the creditor of C., answered, denying that he owed C. any thing, which answer was contested, and, upon the trial, C., the defendant in the judgment, and the debtor of B.,. was introduced to prove A.’s indebtedness to Mm (C.). It is held, that C. ■was an incompetent witness to prove A.’s indebtedness to bimself.</p>

<p>In error from the northern district chancery court at Carroll-ton ; Hon. Henry Dickinson, vice-chancellor.</p> <p>Nancy Ann Alvis, a minor, by her next friend, on the 26th of October, 1846, filed her bill in the northern district chancery court at Carrollton, against the defendants, James Nations and Joseph Nations, to recover two negro slaves, Ellen and Matilda.</p> <p>On the 23d of January, 1838, James Nations sold and delivered to Tilford M. Alvis, the two negro slaves (Ellen and Matilda), and by a bill of sale duly executed, conveyed the negroes to Alvis, which contained a receipt for the purchase-money. On the 5th of February, 1839, Tilford M. Alvis, who is the brother of the said Nancy Ann Johnson, made and duly executed to her a deed of gift for said negroes, and transferred to her the title to them, by delivery of possession, who held them until February, 1843, when they were, in the county of Shelby, State of Tennessee, taken from her possession by defendants and brought back to Mississippi. The defendants have retained possession of the negroes, and the bill is filed to recover the negroes and their hire, from the time defendants took possession of them. The detailed statement of the facts will be found in the opinion.</p> <p>The vice-chancellor decreed in favor of the defendants (Nations), and complainants prayed a writ of error to this court.</p>

<p>A court of chancery may make a decree between codefendants, or in favor of one defendant against another, founded upon the facts stated in the complainant’s bill, which are admitted by the defendant who is sought to be charged by his codefendant, in a case where the bill is maintained and the relief sought is granted against one or both defendants, between whom there may be adverse equities growing out of the complainant’s suit, and not inconsistent with it.</p> <p>These equities are proper to be adjudicated between all the parties to a suit • whose interests are involved in the subject-matter of it, upon the principle of preventing a multiplicity of suits.</p> <p>But this rule does not hold good where the claim of one codefendant against another does not result from the recovery of the demand of the complainant - against one or both of them.</p>

In error from the circuit court of Issaquena county; Hon. R. Barnett, judge. Richard Stringfellow was indicted in the circuit court of Issa-quena county for the murder of Decatur Whitley, and at the November term, 1852, of said court, the accused was found guilty of murder, and sentenced to be hung.

The plaintiff in error, Miller, and the defendant in error, Keith, both applied to the probate court of Panola county, for letters of administration with the will annexed, on the estate of James C. Watson, deceased, who, at the time of his death, was a citizen of Georgia, and died in that State, in the year 1843.

In error from the circuit court of Yalobusha county; Hon. F. M. Rogers, judge. The opinion of the court, and the points made by counsel, contain a sufficient statement of the case. Held: and wisely and properly too, that where the assignee takes without notice, or with or without, and the maker promises payment to the assignee, and waives all defences, he will not be heard to set up afterwards a defence that existed at the time of such promise and waiv.er.

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge. The opinion contains the facts. Contended that at least five days’' notice must be given before the sitting of court, to authorize the plaintiff in an action like this, to demand judgment by default. In this case, the writ was executed on Rainey, one of the defendants in the court below, only three days before the term of the court at which the writ was made returnable.

William P. Tindall, judge of the probate court. At the February term, 1853, of the probate court of Pontotoc county, E. G. W. Butler, executor of the last will and testament of Eliza E. Donelson, deceased, late of Davidson county, Tennessee, made application, by petition, to file in said court and have recorded, a certified copy of the will of said deceased, and to take out letters of executorship upon the estate of deceased situated within the limits of this State.

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. The defendant in error, Spurlock, sued James L. Herbert in the justices’ court of Monroe county, upon a promissory note which had been previously executed by him for the sum of $55 by Walton, into whose hands the note had fallen, entered a credit on it without any consideration for the credit, so as to bring the note under fifty dollars, the amount limited to the jurisdiction of the justices’ court.

In error from the northern district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. The facts are stated in the opinion of the court. Cited and commented on 2 Story, Eq. § 977, &c.; Fonb. Eq. b. 2, n. a, 458; 1 Ves. 460, &c.; 1 Mad’x, Ch.-338; 6 Ves. 424; lb. 454. In reply, contended there was no error in the decision of the court below.

In error from the northern district chancery court at Columbus ; Hon. Henry Dickinson, vice-chancellor. John R. Mason, as surety for Wilkins, executed jointly with him, his bond to Moody for $3,650; and on the day of 184 , he (Moody) executed his promissory note to Wilkins for $2,750. In December, 1847, an attachment was sued out on said $2,750 note, for the benefit of Wilkins’s wife, and was levied on Mason’s negroes, in the State of Alabama.

IN error from the northern district chancery court at Columbus ; Hon. Henry Dickinson, vice-chancellor. The defendants in error, as heirs at law of Dabney Puckett, filed their bill in the district chancery court at Columbus, to •vacate a tax deed so far as it affects the north-east quarter twenty-five, township eighteen, range fifteen, in Oktibteha county, which land was purchased by E. A. Ably, on the 4th July, 1842, and by him sold to William Styles.

James M. Smiley, vice-chancellor. This was a bill filed on the 14th February, 1846, by A. B. Bacon, administrator, and states that he, complainant, is administrator ad colligendum of Owen Richardson; that on the 15th November, 1801, Pearce Tyner, then a resident of South Carolina, made a deed of gift, whereby he conveyed to his infant children John and Sarah a certain negro woman (Moll) and her increase, which was duly recorded in South Carolina, and the original lost; that…

In error from the circuit court of De Soto county, Hon. Hugh R. Miller, judge. This was an action of ejectment instituted in the court of De Soto, for a section of land lying in De Soto county. The land was sold on the 3d of April, 1848, for the unpaid county taxes due thereon for the fiscal year 1846, and Benjamin L. Jones became the purchaser and received the tax collector’s deed for the land.

In error from the circuit court of Tallahatchie county; Hon. F. M. Rogers, judge. Daniel Ross recovered judgment in the circuit court of Talla-hatchie county, against George L. Groce, on the 12th May, 1851, for $297.48. A fi. fa. was issued 6th June, 1851, and came to the sheriff’s hands, 26th August, 1851. It was levied on a slave Mahala, as property of Groce, which was replevied by his executors, giving forthcoming bond for the property.

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. On the 22d of October, 1851, Townsend and Millikin recovered a judgment in the circuit court of'Monroe county against John Lawson, for $1,075.06, and on the same day, in the same court, Henrys, Smith, & Townsend recovered a judgment against Dothord & Lawson (of which firm the same John Lawson wás a member) for the sum of $1,628.20.

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

In error from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge. This was a motion made and sustained in the court below to dismiss an action of unlawful detainer, because it did not appear in the record that an appeal had been taken in the case to the circuit court.

Henry Dickinson, vice-chancellor. Thomas Coopwood filed in the vice-chancery court a foreign attachment bill, alleging, amongst other things, that on the 19th of November, 1836, he, with James Davis, Jesse B. Clements, Benjamin Clements, 'William, H. Duke, Alexander C. McEwen, William McEwen, William Y. Goodall, David Henderson, and John W. Lane, who were partners, as land speculators, under the style of “ the Pontotoc and Holly Springs Land Company,” purchased from John…

In error from the probate court of Panola county; Hon. J. T. M. Burbridge, judge of the probate court. William Jolly died in Panola county, in the year 1847, and Keith and Yaiden took out letters of administration on his estate.

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. On the SOtli of October, 1846, Ledyard Hatter & Co. obtained a judgment in the circuit court of Monroe county against Gabriel Ragsdale for the sum of $637.23, damages and costs of suit.

In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge. The defendant in error sued out from the circuit court of De Soto county a writ of replevin against Ford, for two bales of cotton, which he (Ford) had attached at the suit of Laban and Johnson, as the property of Mrs. Bullard. To the declaration Ford plead three special pleas.

W. W. Whitehead, judge of the probate court. The opinion of the court contains the facts of the case. It is a well settled principle, that if the wife makes advances out of her separate estate to pay the debts of her husband, his estate will be chargeable with the amount advanced, unless it appear affirmatively that it was intended as a gift. Patricke v. Powlet, 2 Atk. 383; Clinton v. Hooper, Bro. Ch. R. 200. It must be proven affirmatively that it was a gift and not a loan.

Henry Dickinson, vice-chancellor. The opinion of the court contains the facts of the case. No change had taken place in the condition of the parties or the land to render it improper for the contract to be carried out; a few days’ delay in the payment of the money, even a considerable delay, would not relieve the vendor from a specific performance, unless injury had . accrued to him by -the delay.

In error from the circuit court of Yalobusha county; Hon. F. M. Rogers, judge. The facts of the case are sufficiently stated in the opinion of the court. Warehousemen are required to bestow only ordinary attention in taking care of property under their control, and are responsible only for negligence. Story on Cont. 742, and cases ' cited. Unless the injury grew out of negligence, warehousemen are ..not responsible for any injury to property placed under their charge.

Charles Scott, chancellor. This was a bill filed in the superior court of chancery by Charles Lynch and others against Morgan McAffee, to vacate and set aside a land certificate for the north half of section fourteen, township sixteen, range one west, issued by the proper officer of the land-office, at Mount Salus, under the act of Congress granting yland for the relief of Jefferson College, and which certificate was issued to McAffee, on the 16th of August, 1834.

In error from the northern district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. Patrick McLoskey filed his bill in the district chancery court at Holly Springs, against Gordon, for certain land.

Henry Dickinson, vice-chancellor. The opinion of the court contains a sufficient statement of the facts of the case. Contended the decision of the vice-chancellor was erroneous, and to sustain his position cited and commented on 7 Ves. Ch. R. 470; 10 Mass. 276 ; 3 Page, 154; 6 Johns. Ch. Ill; 2 Cow. 147; 13 S. & M. 338; 1 Johns. Ch. 478 ; 4 lb. 536; 13 S. & M. 348; lb. 631; 3 lb. 560; 1 lb. 66; 7 Leigh, 88 ; 5 Munf. 305; 3 Johns.

In error from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge. The facts of the case are contained in the opinion of the court. It is not necessary to show to this court the statute of frauds does not apply in. this case. The charge by the court below, on this point, is evidently error. There was no necessity for a bill of particulars.

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge. The facts are sufficiently set forth in the opinion of the court. Another suit was brought, and is now pending, on the chancery side of the circuit court docket, by Porter, in which Speight is made a cocomplainant with him to enforce the vendor’s lien on the real estate for which the note sued on was given.

John A. Bullock, judge of the probate court of Talla-hatchie county. It is averred in the petition of Elenor B. Slack and others, filed in the probate court of Tallahatchie county, that the decedent in his lifetime advanced to John T. Slack, one of the dis-tributees, $564.16, and pray that the same be brought into hotchpot against him on distribution. The answer of John T. Slack denies that the same was an advancement, and claims that the same was a gift of the decedent.

IN error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge. The opinion of the court contains a sufficient statement of the material facts of the case upon which the decision is based. Several grounds of error were assigned by the appellant, the chief of which is, that Hill had no such interest in the property as could be sold under execution.

In error from the circuit court of Carroll county ; Hon. John Watts, judge. The facts of the case are contained in the opinion of the court. There is but a single question in this case, which arises on the construction of the amendment of the act of limitation of 1844, passed in March, 1846. Hutch. Code, 833.

Henry Dickinson, vice-chancellor. Alexander C. Blair filed his bill in the district chancery court at Holly Springs against the appellants, Curtis, Crawford, and Ayres, for the specific performance… Held: that whilst demand may be made for its payment, and protest for nonpayment, within business hours, still “ the maker has the whole of the day to pay in, if he thinks proper to seek the holder.” 3 Wend. 171.

James Childress, administrator, &c., brought suit in the court below, and recovered a judgment against Williamson and Blair, who sued out a writ of error to this court, where the judgment was reversed, and a judgment rendered against Childress for the costs.

William P. Tindall, probate judge. At June term, 1852, of the probate court of Pontotoc, a citation was ordered requiring the appellant, as administrator of Aaron Root, deceased, to appear at the July term following, and settle his administration account.

In error from the circuit court of Monroe county; Hon. R M. Rogers, judge. Timothy R. Thomas, late a constable of Monroe county, brought suit, for the use of A. Campbell, in an action of trespass against Joseph Brown, in the circuit court.

In error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge. The facts are contained in the opinion of the court. 1. Judgment was taken by default upon process directed to the sheriff of Lowndes county, and executed by “ J. K. Pierce, J. P. and acting coroner.” Judgment, without service of process, is illegal and void. 5 How. 688; 1 S. & M. 351; lb. 521; 7 lb. 85; 2 lb. 286; 2 Cushm. 188; lb. 648.

Henry Dickinson, vice-chancellor. Grey Skipwith, in the year 1838, purchased a tract of land from Henry Anderson, agent of the American Land Company, and he received Anderson’s bond for title. Skipwith rented the land to J. H. and F. G. Webster, and afterwards sold it to W. M. Winn, as agent of the Websters.

Charles Scott, chancellor. The bill states, that the wife of the complainant David Garrison was formerly the widow of one Gaskins, and as such entitled to dower in his real estate; that she married one Plenry Slavins in 1841, during which marriage she sold her dower interest in 1843, and with the money thereby received, purchased the slave in controversy, and took a bill of sale in the name of herself and her two children, complainants; that Slavins destroyed the bill of…

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

John Dickerson, probate judge of Lawrence county. The facts are contained in the opinion of the court. Contended the decree of the court below was erroneous, and cited and commented on H. & H. Dig. 338; 1 How. 53; 1 S. & M. C. R. 543. In reply, contended that every item in the account allowed was just, and the decree of the court below was not erroneous.

In error from the circuit court of Lawrence county; Hon. John Watts, judge. The opinion contains the facts of the case. - Cited Hutch. Code, 665, § 91, See.; 17 Verm. 244; 9 Ib.407; Treat v. Stanton, 14 Conn. 445; Weathers v. Ray, 4 Dana, 474; 'Lilkvrd v. Rucker, 9 Yerg. 64.

In error from the southern district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor. The opinion contains a statement of the facts of the case. Held: that when a suit is commenced by service of a subpmna on the parties, and the cause thereby in court, the statute of limitations ceased to run from the first step taken towards the commencement of the suit; a class of decisions entirely wrong, but followed' by modern decisions.

’In error from the circuit court of Covington county; Hon. John Watts, judge. The facts of the case are sufficiently set forth in the opinion of the court. Contended that the proof offered by the defendants below, which was rejected by the court, went to the consideration of the note sued on, and was properly admissible under the general issue. Morrel v. Legrand, 1 How. 150; Renfrow v. Shaw, 4 How. 651; Walker v. Bank of Wash. 3 How. (U. S. E.) 62; 2 Greenl.

<p>Where S. brought suit before a justice of the peace on a note given by P. to him for $50, and on the same day he (S.) brought suit against P., before a different justice of the peace, upon two other notes due him fromP. for the sum of $47.60, and judgments having been rendered against P. in both cases, he appealed to the circuit court, where both suits were dismissed for want of jurisdiction in the justices’ court to render the judgments: — Held, that this was a correct decision.</p>

<p>Where three successive verdicts are found in the circuit court against K., and two new trials are granted to him (R.) in that court, it has no authority to entertain a motion for a third new trial to the same party. Hutch Code, S76.</p> <p>Where the court shall err as to the law on the trial of a cause, exceptions should be taken at the time, and made a part of the record.</p>

<p>The statute (Iiuteh. Code, 189, § 23) 'which provides, if any assessor of tax shall fail or neglect, “ from any cause, to perform the duties of assessor, it shall he the duty of the hoard of police to appoint another assessor,” &c., was intended to embrace cases of resignation, as well as a failure to perform the duties of the office of assessor from any other cause.</p>

John Watts, judge. This was a suit instituted by Hugh McCall, to recover damages from W. F. Trotter, for the detention of a slave hired by McCall, for the year 1850, from Trotter, as agent for his… Held: that where one party is in default, the other may elect to consider the contract at an end. Ketchum v. Evertson, 13 J. R. 363; Hill v. Green, 4 Pick. 113; Thorn v. Turnpike Company, 3 Penn. 446.

In error from the probate court of Claiborne county; Hon. James A. Maxwell, probate judge of Claiborne county.

In error from the circuit court of Clarke county; Hon. John Watts, judge. This was a suit instituted by George W. Harris against Lang and Hicks, as administrators of the estate of James Vance, upon a promissory note executed in the lifetime of Vance, to Harris, the appellee.

James M. Smiley, vice-chancellor. This was a bill of Bacon et al., filed November 29th, 1849, and charges, that on the 18th May, 1838, Morgan McAfee, John G. Parker, Jesse McAfee, and Joseph McAfee, made their promissory note of that date, payable to the Planters Bank ten months after date, for the sum of $4,650, negotiable at the branch of said bank at Monticello; that said bank, in the circuit court of Covington county, on the 20th November, 1839, recovered a judgment…

Stephen Cocke, chancellor. This was a bill filed in the superior court of chancery by Burnett and Withers against Hoopes and Purnell, to compel Davis H. Hoopes, one of the parties defendant, to convey to complainants, by a special warranty deed, two thirds of a house and lot, with the improvements thereon, in the town of Port Gibson, which he, Hoopes, as one of complainants’ attorneys, purchased with a judgment for the sum of $1,397.26, obtained by Hoopes and Purnell, as…

D. C. Graham, probate judge of Franklin county. The appellants filed their petition in the probate court of Franklin county, at the April term, 1851, against Dugald McMillan, administrator of the estate of Thaddeus J. Maxwell, deceased, praying for distribution, &c. The petition alleges that the petitioners, Margaret and Martha, with Mary Maxwell, the widow of said decedent, Franklin C. Maxwell and William C. Maxwell, infants, and Jane Parker, are the only dis-tributees of…

<p>The act of 1822, (Hutch. Co. 518,) requiring the net proceeds of the sales of runaway slaves to he paid into the county treasury, for the use of the counties, but requiring the county to pay the money to the owner on his proving property in the slave, was not repealed as to the county of Claiborne by the 6th section of the act 1838, declaring that the president and trustees of the Port Gibson Academy shall be entitled to all money arising from the sale of slaves as runaways in said county, but only transferred the right of the county in the money arising from such sale to the said academy.</p> <p>Any claim that could have been enforced by the owner of a runaway slave against the county of Claiborne, before the passage of said act of 1838, may be enforced against the president and trustees of said academy.</p> <p>There is no law of the State which says, that a man shall forfeit his right to the net proceeds arising from the sale of his runaway slave.</p>

Stephen Cocke, chancellor. John Ducker died in 1837, leaving property in Jefferson county, Mississippi, and also in Concordia parish, Louisiana. That Thomas A. Compton was appointed bis administrator in Mississippi, and Edward Sparrow his curator in Louisiana. That in 1848, Sparrow, as curator, made a sale of Ducker’s property in Louisiana; a large portion of which was purchased by Penelope McGill, who gave her notes for it to Sparrow, as curator.

<p>In error from the probate court of Amite county; Hon. John Walker, probate judge of Amite county.</p> <p>This was a proceeding filed in the probate court of Amite county, by William A. Daniel and Caroline his wife, against Justus Heard, who was the guardian of said Caroline, to procure, among other things, a final settlement of Heard’s guardian account. The whole matter of the guardian’s account was referred to a commissioner, to ascertain the amount due the ward, and state an account, and make a report of it to the court. The account finally allowed and approved by the court, showed a balance due the ward of $3,457.96, which Heard was decreed by the court to pay. The matter was then referred to Webb, the commissioner, who made two reports, to both of which many exceptions were taken on both sides. Exceptions being filed to the first report, it was sent back to the commissioner, to readjust his account with instructions to receive exceptions in behalf of Daniel and wife, to the annual settlements made by ■Heard in the probate court, and consider them.</p> <p>The first report of the commissioner shows, that he did allow Daniel and wife to surcharge and falsify the account, the annual settlements of Heard, and that he did disallow and reject many items which had been allowed him (Heard) by the probate court. So that, in taking the second account, the commissioner was merely instructed by the court, to do that which he claimed a right to do, and had done, in stating his first account.</p> <p>The record shows, that all the estate of the ward which came to the guardian’s hands consisted of slaves. And that any moneyed balance that might be found due the ward, would arise from the hire of these slaves.</p> <p>It appears from the commissioner’s first report, that Daniel and wife insisted before him that Heard had not charged himself with the fair annual hire of the ward’s slaves, in his annual accounts, settled in court, arid that he, the commissioner, having decided that these annual accounts were only primd facie evidence for Heard, and might be shown to be erroneous. They, Daniel and wife, claimed the right to show that the hire as reported by Heard, was too low, and that in truth he was chargeable with $10,000 for such hire.</p> <p>The commissioner then states, “ whereupon it was agreed by the parties, that the value of the hire of said slaves for the years 1838-1847, (which included the whole time they were in Heard’s possession,) should be submitted to the award of Hamilton McNight, C. C. Cage, and R. R. Webb.” (The defendant still retaining his objection to commissioner going behind said annual accounts.) 'The award of said arbitrators is filed with the report.</p>

<p>The assignees acquired, just such rights and interests in the notes as the hank could convey, having a due regard to the nature of the contract with her debtors; and that which the law made -a part of the contract when it was entered into, is an essential part of it.</p> <p>Where equity assists a party in obtaining his rights under a contract, it does so upon the principle that the very contract as assented to by the party in default, is alone to be enforced.</p> <p>Where the law says, that all debts due to the banks of t¡he State, may be paid at any time in the notes of such banks; a note payable to a bank after the passage of the law, must be understood as giving tbe debtor bis option, to pay in either the notes of the hank or in the constitutional currency of the country.</p> <p>The assignees acquired only such rights as the hank could transfer, the right to take tlie place of the bank. J-Ield, that the issue of the bank was a good tender.</p>

In error from the circuit court of Clarke county; Hon. F. M. Rogers, judge. This was a suit instituted in the circuit court of Clarke county by Hand, against Dunlap, to recover overseer’s wages, alleged by Hand to be due him from Dunlap.

<p>In an action on the case for carrying a slave out of the State, contrary to the statute, (Hutch. Code, 520, § 49,) the damages and amount expended to regain the slave, must he proven.</p> <p>The value of the slave, or his services, in such a case, should he proven.</p>

Stephen Cocke, chancellor. The appellee, who was the complainant in the court below, filed his bill for the purpose of subjecting a house and lot in the town of Port Gibson to the payment of a note made by J. O. Pierson, with M. D. Shelby as his surety, for $3,500, dated June 19,1839, and payable six months after date.

In error from the circuit court of Jasper county; Hon. A. B. Dawson, judge. This was an action instituted in the circuit court of Jasper county, at the April term, 1846, by the defendant in error, Peter Finley, as president of the board of police of Perry county, against Jesse Hyde, on a promissory note given in the year 1837, for the sum of $400, payable twelve months after date, with various credits indorsed on it, for interest from the- year 1838 up to 1843.

In error from the circuit court of Clarke county; Hon. John Watts, judge. The president of the board of police of Clarke comity, brought suit upon a note executed to the board of police of said county, by James Vance with William Covington, Alexander Trotter, and Robert Collins, as securities on it.

A. B. Dawson, vice-chancellor. Robert H. Elam filed his bill in the vice-chancery court at Natchez, against Samuel B. Newman, sheriff and tax collector of Adams-county, to enjoin said Newman from collecting a tax assessed against said Elam, a negro trader, upon the amount of sales of slaves made by him during the year 1852. The bill alleges that Elam is a citizen of said county, residing there, and is a regular and permanent (not transient) vendor of slaves therein.

In error from the circuit court of Lawrence county; Hon. W. P. Harris, judge. The opinion contains the facts of the case.

Stephen Cocke, chancellor. This bill was filed by Whitney, one of the trustees appointed by the Jefferson circuit court, upon the rendition of judgment of forfeiture of the franchises of the Commercial Bank of Rodney, to recover from Freeland and Murdock the possession of the assets of the dissolved corporation, which they claim, by virtue of a deed of assignment executed by the bank prior to its dissolution.

In error from the circuit court of Amite county; Hon. Stan-hope Posey, judge. The defendant in error (McKowen) brought an action of trespass vi et armis, in the circuit court of Amite coupty, against McCoy and Haywood, for beating a female slave hired of defendant (McKowen) by the plaintiff, from the effects of which beating the slave died.

In error from the southern district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor. The opinion of the court contains a sufficient statement of the facts of the case. Fraud and damages coupled will entitle the injured party to relief in cases of this kind. 7 Johns. Ch. R. 200. A party is liable in equity for all damages caused by bis false assertions and fraudulent acts.

In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. The bill never having been indorsed, I contend the act of 1837, requiring drawers and indorsers to be sued in a joint action, is not applicable to the case, and this court has so held in the case of Thompson v. Planters Bank, 2 S. & M. 476. The letter and spirit of the act of 1837, (Code, 862, art. 7,) accords with this construction.

On an appeal from the probate court of Claiborne county; Hon. James A. Maxwell, judge of the probate court of Claiborne county. The estate of John L. Torry was reported and declared insolvent, in the probate court of Claiborne county, on the 30th October, 1850. At the May term, 1851, the clerk reported a list of the claims presented to him, against said estate. The following claims were presented by Adams, who claimed to be the owner of them. May 15, 1841.

In error from the circuit court of Wilkinson county; Hon. W„ P. Harris, judge. The facts are contained in the opinion of the court. If Lee claims title through Davis, he is liable to every defence, ' for fhe indorsement is in blank, and he is the immediate in-dorsee of Davis. 4 Hal. 144; Story, Notes, § 138. The intent of the party is to govern.

Charles Scott, chancellor. Hoel filed his bill against the appellee to énjoin an action of ejectment in Claiborne circuit court, brought to recover a town lot in Port Gibson. The bill as amended states, that S. Gibson was the owner and possessor of it at the time of his death, and that he left a will attested by three witnesses, authorizing his executors to sell his real estate.

In error from the circuit court of JefFersou county; Hon. Stanhope Posey, judge. In April, 1836, Christopher Dart and William Gardiner, as merchants and copartners, trading under the name of Dart & Co., for the use of Christopher Dart, sued Charles S. Lee, in the Claiborne circuit court. Lee appeared, and pleaded to the suit. In December, 1836, Lee’s death was suggested.

Stephen Cocke, chancellor. John Knott and Elizabeth Knott, his wife, filed their bill in the superior court of chancery against James M. Lyon and others, to recover certain slaves in their possession; and they charge in their bill, that the said Lyon, some time in the year 1844, in this State, in the county of Copiah, intermarried with Ma-lissa Speed, who, at the time of marriage, owned and possessed in her own right a number of slaves.

<p>If a party take a security or specific property, in satisfaction and discharge of a preexisting debt, which is thereby extinguished, he is a tona fide purchaser, and not affected by previous equities.</p> <p>A certificate of a married woman relinquishing her dower in land, which states that the “said E., being examined separate and apart from her husband, acknowledged that she signed, sealed, and delivered the same voluntarily, without any threats, fear, or compulsion of her said husband,” is hold to be a sufficient compliance with the statute.</p> <p>A literal conformity to the words of the statute, in the relinquishment of dower by a feme covert, is not required; but it is sufficient if its requisites are substantially complied with. Held, that it was only intended by the provisions of that.statute to prevent the undue influence arising from the presence of the husband, and it is not absolutely necessary to a valid relinquishment of dower by a feme covert, that the words on “private examination” should be inserted in the certificate of acknowledgment, but only that it-should appear that the acknowledgment was made out of the presence of the husband.</p>

<p>On appeal from the circuit court of Clark county; Hon. John Watts, judge.</p> <p>The opinion of the court contains the facts of the case.</p> <p>The note sued on, was payable to Mary Duffey, absolutely, and not to “ order ” or “ bearer.” The complainant does not allege, that it was indorsed to plaintiff, but, that it was transferred and delivered to him. This averment must be held as against the pleader to mean that it was “ transferred by delivery.” Such a transfer only invests the party with a right to use the name of the payee in a suit for his use or benefit. Pie cannot sue in his own name at law. In this State the executor of Mrs. Dufi'ey could not sue, because he has not taken out letters in Mississippi, nor has he the power, by a mere transfer by delivery, to invest another here, with a right of suit, which he himself does not possess under the laws of a State in whose courts the remedy is sought to be enforced. The remedy of the holder of the paper, if any he has, is in equity.</p>

In error from the southern district chancery court; Hon. ■ James M. Smiley, vice-chancellor. The facts of the case are sufficiently set forth in the opinion of the court. Held: “ that it held, in administration cases where the court of chancery had jurisdiction previous to our amended constitution, it still retained it; and that distributees are not’ bound to take out letters.” cited Varick v. Smith, 5 Paige, 137.

■ On appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor. Samuel Jones and wife filed their bill against Richard Archer et al. in the superior court of chancery. The bill states that Stephen Cocke died in Amelia county, Virginia, in 1794, having first duly made his will, which was recorded 22d January, 1790.

In error from the circuit court of Franklin county; Hon. Stanhope Posey, judge. This was an action of trover brought by Varner against Mrs. Gregg for the recovery of a slave alleged by Varner to have been given to him, the husband of Amelia, daughter of Mrs. Varder, she the said Amelia having died without leaving issue, before the commencement of this suit.

^ On appeal from the probate' court of Clarke county; Hon. Alexander McLendon, probate judge of Clarke county. The facts of the case will be found in the opinion of the court. 1. It was error to decide a case without a shadow of proof against the sworn denials of plaintiffs in error. 2. It was error to overrule the defence of the statute of limitations.

In error from the southern district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor. William B. Wall, the defendant in error, filed his bill in the southern district vice-chancery court at Natchez, at the June term, 1849, against the plaintiff in error as administrator of Sibley, deceased. The bill charges that Sibley and Wall, in the year 1846, were parties by verbal agreement, in a small planting establishment' in Amite county.

<p>On appeal from the probate court of Clarke county; Hon. Alexander McLendon, probate judge of Clarke county.</p> <p>The opinion of the court contains the facts of the case.</p>

Stephen Cocke, chancellor. The bill was filed by the appellee, as administrator of Maborn Cooper, deceased, for the purpose of subjecting lot No. 1 in square No. 9, in the suburb St. Mary, of the town of Port Gibson, to the payment of two judgments held by the intestate of appellee Bush.

In error from the southern district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor.

<p>Where A. sued B. upon a promissory note, the consideration of -which was certain negroes sold to B. as merchandise, contrary to the constitution of the State, and a count was included in the same declaration for the hire of certain negroes, and also one for moneylhad and received to the use of A., arising from the sale of the same negroes, they having been sold by B. at an enhanced price: — Held, that the note given for the slaves, being in contrar vention of the 7th ai’t. 2d sect, -of the constitution of the State, it is voidable ; and as a general rule, a party cannot recover money which has been paid upon an illegal consideration.</p> <p>Where two parties agree in violating the laws, a court will not entertain the claim of either party against the other for the fruits of such an illegal bargain.</p> <p>In such a case, no distinction, founded- on principle, exists between money, chattels, or land paid upon an illegal consideration, and courts will not lend their aid to a party who has parted with his property on an illegal consideration, to regain possession of it. Held, that A. not being entitled to invoke the aid of a court to recover back the slaves, he cannot maintain an action to recover the proceeds of the sale.</p> <p>Courts of original jurisdiction, in the trial of causes before them, are clothed with discretionary authority which it is difficult to define and limit to any general rule; but as a general rule, after the evidence in a case has been closed, additional testimony should not be introduced by either party; but it rests with the courts, in the exercise of a sound discretion, to determine whether a particular case does not warrant a departure from this rule.</p>

<p>F. executed Ms last will and testament, which contained the following clause in substance, whereby he gave to his wife absolutely one third part of all Ms personal estate and two hundred acres of land to be taken off his lands in South Carolina, the land to be held by Ms wife, with remainder to Ms children. The third clause is in these words: “ I order that my negroes, after the above-mentioned third are taken off, shall be equally divided among my children, though it is my wish that my property shall not be divided while my wife remains a widow, or until one of my children becomes of ago or marries, then it shall be divided without a sale of any of my negroes, so that the child who becomes of age or marries may get Ms or her part, and then the balance shall remain undivided until another of my children becomes of age or marries, then to be divided equally again, so that he or she may get their part, and so on in succession, until each of my children may get his or her part when they become of age or marry; though it is my wish when my negroes are divided, that the lot that Bordeau may be in shall not be drawn for while my wife remains a widow, or until my youngest child becomes of age or marries; it is my wish that my lands in South Carolina, after the two hundred acres are laid off before mentioned, be equally divided among my children when my first child becomes of age or marries, and their part appointed to them of said land; and if any of my children shall die without issue, the property shall return to my surviving children. My lands on Leaf Fiver shall not be divided while my wife remains a widow, but shall be kept together for the good of my wife and children, though if my wife should marry, it is my will that it shall be equally divided between her and my children ; if my wife does not return to South Carolina to live, then I order that my lands in South Carolina be sold, and one third of the money arising from the sale of said lands I give to my wife, and the balance of the money shall be equally divided among my children; my horses, wagons, and plantation tools shall be kept together for the good and support of my wife and children: ”— Held, that the words “ the property,” in this clause of the will, embrace and relate only to the landed estate in South Carolina just before mentioned, and any other meaning given to them would be irreconcilable with the disposition of his property generally as intended by the testator.</p> <p>The will gives the testator’s children an absolute estate in the slaves, and upon the allotment to Mrs. W. of her share of them, they became the property of the husband.</p>

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. This was a suit instituted in the circuit court of Yazoo count3>- by Shands & Johnson, against Charles Holmes, to enforce a statutory contract, under the mechanics’ lien law of the State, for labor performed and articles furnished by them, Shands & Johnson, in the erection and completion of a building for Holmes.

In error from the circuit court of Kemper county; Hon. John Watts, judge. Ruth Hill sued Mary Brown, administratrix, and David Mc-Williams, administrator of the estate of Jacob K. Brown, deceased, in the circuit court of Kemper county, upon a writing obligatory made by the deceased, payable eighteen months after date. The case is brought into this court upon an agreed state of facts, which will be found set forth in the opinion of the court.

In error from the circuit court of Hinds county; Hon. R. Barnett, Judge. William C. Currie, as administrator of the estate of Abraham Whitaker, deceased,-sued upon a writing obligatory executed by William B. Stewart et al., for the purchase-money of a tract of land sold by Currie, administrator, &c., under an order of the probate court of Hinds county.

In error from the circuit court of Hinds county; Hon. P. W. Tompkins, Judge. Passmore and Bell filed their bill on the chancery side of the circuit court of Hinds county, to enforce their mechanics’ lien for work and labor performed upon the house of defendant. All the material facts of the case will be found in the opinion of the court.

<p>It is not necessary that a claim should be first probated, recorded, and certified by the probate judge, as examined and allowed, before suit can be maintained on the claim against the executor or administrator of the deceased.</p> <p>It has been settled by the court, under the act of 1822, (Hutch. Code, 664, § 90,) that no such probate is necessary before the institution of a suit. 3 How. 216 ; lb. 303 ; 4 lb. 242.</p> <p>The act of 1846, (Hutch. Code, 681, § 5,) makes no alteration in the law in this respect.</p>

<p>The charter of the hank, prohibiting a rate of interest exceeding six per cent., confines such transaction to the State of Pennsylvania; and the bank, having general power to make loans, she can make any contracts in other States not forbidden by the laws thereof.</p> <p>The ordering of a sale for cask in such a case, without the consent of the parties interested appearing of reqord, has keen held by this court to be erroneous. Dean v. Lezardi, 24 Miss. 424.</p>