Volume 27 — Mississippi Reports

This was an action of assumpsit on a promissory note. The declaration contained two other counts ; one for the hire of certain slaves, and the other for money had and received by defendants to plaintiff’s use on the sale of the same slaves. The defence attempted to be set up was the illegality of the consideration, the note having been alleged to have been given for slaves introduced into this State as merchandise and for sale, since 1st May, 1833.

Stephen Cocke, chancellor. The opinion of the court and the points made by counsel contain the facts of the case. Held: that such language in a devise creates an estate tail. University of Oxford v. Clifton, 1 Eden, 473; 4 Kent, Com. 11; Bells v. Gillespie, 5 Rand. 292. By force of another clause of the statute, (Hutch. 609, § 24,) this estate tail becomes an estate in fee.

<p>In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.</p> <p>This was a suit instituted in the circuit court of Yazoo county 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.</p> <p>The facts of the case are fully set out in the opinion of the court; but the decision is chiefly made upon the proper construction to be placed upon the mechanics’ lien law.</p> <p>Cited and commented on Andrews v. Washburn, 3 S. & M. 109; Hutch. Co. 637; lb. 627; 2 Penn. 682; 15 Johns. 1.</p> <p>In reply, cited Hutch. Co. 542; 1 How. 26; 3 Cow. 48; 13 N. Hamp. 191; 2 S. & M. 255; 1 Peter, 301; 6 Monroe, 617; 4 McCord, 261; 2 Bay, 93; 3 Binn.; 2 Dali. 172; 4 lb. 137; 7 Bing. 395; 5 Wend. 277 ; 5 Shep. 113 ; 6 lb. 324 ; 8 lb. 810; 10 N. Hamp. 32; 12 Verm. 33; 9 Cow. 639.</p>

<p>In error from the circuit court of Kemper county; Hon. John Watts, Judge.</p> <p>Ruth Hill sued Mary Brown, administratrix, and David McWilliams, 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, and dated 2d October, 1839, payable in current banknotes.</p> <p>On the 28th day of October, 1844, the judge of probate granted letters of administration to the defendants, in vacation; on the 16th of April, 1845, the claim was presented to one of the defendants; on the 29th of April, 1845, the judge of probate ordered it to be paid. On the 7th of August, 1848, the court revoked the letters of administration granted to the defendants on the 28th of October, 1844, and granted letters of administration to the defendants, who made advertisement thereof according to law. Just before the commencement of this suit, the plaintiff in the court below, with a witness to prove it, appeared before the judge of probate in vacation, and requested him to probate the claim, — which he refused to do.</p> <p>The defences relied on are, 1st. That the statute of limitations of four years had perfected a bar; 2d. If not, that the claim was not presented to the defendants, within the time limited by law; and, 3d. That it was not probated, recorded, and certified, according to law.</p> <p>1st. That the statute of limitations of four years had perfected a bar.</p> <p>2d. If not, that the claim was not presented to the defendants, within the time limited by law.</p> <p>3d. That it was not probated, recorded, and certified, according to law.</p> <p>1st. That the statute of limitations of four years had perfected a bar.</p> <p>I'f the first grant of administration had become valid, by the lapse of time and the acquiescence of all parties interested, this suit could not be brought, more than four years having expired from the qualification of the defendants, as administratrix and administrator. Hutch. Code, 831, sect. 12. The first grant of administration had become valid, by the lapse of time and the acquiescence of all parties interested. Sanders v. Sanders, 14 S. & M. 81. And the order revoking it and making another, was void. Ib. And may be shown to be so even when it comes collaterally in question. Me Comb v. Ellett, 8 S. & M. 519.</p> <p>2d. If not, that the claim was not presented to the defendants, within the time limited by law.</p> <p>The statute of 1846, (Hutch. Code, 681, sect. 5,) enacts that “ hereafter, all claims against the estate of a deceased person shall be presented to the executor or administrator thereof, within two years after advertisement made of the grant of letters testamentary or of administration, or they shall be barred.” The second grant of administration having been made after the enactment of this statute, if this claim was not presented to the defendants, within two years after advertisement made of this grant, it was barred.</p> <p>It is clear from the words of the statute, that there can be no presentation of a claim, until letters testamentary or of administration have been granted. To hold that there could be, would be preposterous. In the cases in which it has been decided by this court, that knowledge or notice of a claim, by an executor or administrator, is equivalent to presentation, the facts from which such knowledge or notice was inferred, occurred after letters testamentary or of administration had been granted. A presumption of such knowledge or notice, by an executor or administrator, cannot be inferred from facts which occurred before he became executor or administrator. Presentation of a claim to one when he is not executor or administrator, will not authorize the presumption of knowledge or notice of it by him, when he afterwards becomes executor or administrator.</p> <p>The person to whom this claim was presented before the second grant of administration, had no power to do any act or make any admission, to charge or conclude the estate. “ A party can do nothing as administrator till letters of administration are issued.” Tol. on Ex. 95; lb. 128.</p> <p>3d. That the claim was not probated, recorded, and certified, according to law.</p> <p>The statute of 1846, (Hutch. Code, 681, sect. 5,) enacts, that “to authorize the collection of any claim and the payment thereof, by the executor or administrator, the same shall first be probated by the court in which the estateds administered ; shall be recorded therein, and shall be certified by the judge thereof, under his hand, as ‘ examined and allowed.’ ” The second grant of administration having been made after the enactment of this statute, this claim should have been thus probated, recorded, and certified, to authorize the collection or payment of it.</p> <p>The word “ collection,” is a very comprehensive one, and includes the coercion of payment by suit. The power to probate a claim, appertains to the court, not to the judge. The requirements, that a claim shall be recorded and certified, are so explicit as to render unnecessary any comment. It is clear from the words of the statute — “by the court in which the estate is administered ” — that a claim cannot be probated, recorded, and certified, until letters testamentary or of administration have been granted. The power to probate a claim, to have it recorded, and to certify it, is incident to the power to grant letters testamentary or of administration.</p> <p>To authorize the collection or payment of this claim, it should first have been legally probated, recorded, and certified; and it not having been thus probated, recorded, and certified, this suit could not be brought. The order of the judge, that the claim be paid, made in vacation, and before the second grant of administration, did not authorize the collection or payment of it. The refusal of the judge to probate it, was proper, — the statute of 1846 authorizes the court, not the judge in vacation, to probate this claim; and the judge having no power to probate this claim when 'the plaintiff requested him to do it, very properly refused.</p> <p>The presentment to the administrators was a good and sufficient presentment, whether the order appointing the administrators in vacation were voidable or not, and made in time, being about six months after the said grant of letters. That the probate court subsequently set aside said order on the application of said administrators, and granted them letters at a regular term of the court, cannot certainly be gravely insisted on as a valid objection to the presentment. The administrators were acting under color of legal authority, and whilst thus acting, the notes were presented. The same persons were appointed administrators at the regular term. They were directly affected with notice of the existence of the claims by the presentment which had been made, and qll the purposes of the law fully met in requiring presentment. Nor could the fact that the judge of probate subsequently refused to probate the claims after the second grant of letters, vitiate the action already taken, and the presentment already made. We think it clear that the first presentment was legal and sufficient, and was not affected by the revocation of the letters first granted. It was a work ‘ of supererogation to present the notes the second time for probate; the first probate was all sufficient.</p> <p>Again, the last section, the eighteenth of the act of 1844, Hutch. 832, prescribes the period of limitations of said act, to commence from the passage of said act, namely, 24th February, 1844.</p> <p>Second point insisted upon for reversal is, that if the first point just considered, to wit, that the statute of limitations of four years “ had not perfected a bar,” then, that the claims were not presented to the administrators within the time limited by law.</p> <p>Assuming that what has been said on the first point in relation to the presentment being made to those who were acting as administrators under color of legal appointment, is sufficient, we have this further to say, Will the idea be tolerated that parties shall voluntarily, and upon their own application, obtain letters of administration, continue for a period of nearly four years to act in that character, under those letters, during all which time presentments of claims are being made to them, they acting in that character, discharging all its duties, incurring all its liabilities, then come forward themselves, impeach the validity of their appointment, procure a revocation of it and obtain letters anew, then turn about and say, we were not, in the first instance, legally appointed, all our acts are void under that appointment; taking care to act under it, however, until the period arrives when they suppose they can interpose the objection urged here, and then say to the honest creditor, the first grant of letters was not legal, when you wish to prove presentment, but is very good when we wish to insist upon the four years statute.</p> <p>3d. The last point insisted upon for reversal is, that the claims were not probated, recorded, and certified according to law. The act of 1846, Hutch. Code, 681, § 5, is cited to sustain this point. It is enough to say on this point, that the probating was made prior to the passage of that act, and under the law as it previously existed. Code, 664, § 90, and 671, § 115, 116. If the claims were properly probated at that time, they were not to be affected by any law upon that subject subsequently passed. That they were properly and legally probated under the law in force at the time, we think will be-obvious from an examination of the statutes cited above. But we deny that this ground is any defence against the actions on the notes. The right of a party to sue on a note executed by a deceased person, does not depend upon having that note probated.</p> <p>The case must be governed by the statute of limitations in force at the time the publication of the grant of letters of administration was made. 23 Miss. R. 298.</p> <p>Any legal evidence that would establish the fact of the knowledge of an executor or administrator, (before the limited period has expired,) to the satisfaction of a jury, that a claim exists against his testator or intestate, will be a sufficient presentation under the statute to such executor or administrator. 2 S. & M. 403. Notice by mail of the dishonor of a note made by a deceased person, which fell due after his death, if received by his administrator, written in the proper time, is a sufficient presentation of the note to the administrator to prevent the statute of limitations from barring it. 8 S. & M. 552.</p> <p>To make the presentation of a claim against a deceased person, to his executor or administrator, good within the eighteen months prescribed by the statute, it is not necessary that there should have been previously a probate or an allowance by the probate court. This section of the statutes is only intended for the reciprocal benefit and protection of the executor or administrator, and distributees or devisees, or others entitled to the estate, and it in no manner whatever affects the validity of the claim in the hands of the holder, or his right of action thereupon. 1 How. R. 115.</p> <p>The law was only designed to protect the administrator against the consequences of wrongful payments which he may choose to make voluntarily; for if he discharge without the voucher required by law, he does it at his own risk. The creditor’s right to sue for the recovery of his claim, is not in any way affected by the statute. 3 How. 301.</p> <p>The authentication of a claim is not a prerequisite to presentment, in order to prevent the statute attaching as a bar. 4 How. 142. Miller v. Trustee's of Jefferson College, 5 S. & M. 651.</p> <p>The administrator must show affirmatively that publication of the grant of letters was commenced within two months after such grant was made. 7 S. & M. 356.</p> <p>The twelfth section of the act of limitations of the 24th February, 1844, limiting actions against an administrator to four years from his qualification as such, is prospective, and applies only to an administrator appointed after the passage of the act. 13 S. & M. 395.</p> <p>R will be observed by the court, that only the four years statute is insisted on by the plaintiffs in error, the six years statute is not set up.</p>

<p>It has been repeatedly held by this court, that a strict compliance with the statute authorizing the probate court to order a sale of lands of a deceased person’s estate must be shown, in order to render such an order and the sale under it, valid.</p> <p>This rule applies with greater force to cases where a special and extraordinary-power, not legitimately belonging to the jurisdiction of the probate court, is conferred upon it by statute.</p> <p>It is necessary to the validity of a sale by an administrator, under the act of 1830, (Ilutoh. Co. 677,) that he should execute a bond for the application of the proceeds of the sale, such as the statute requires to be taken by the court at the time of ordering the sale.</p> <p>The failure to take such a bond will render the sale void.</p>

In error from the superior court of chancery; Hon. Stephen Cocke, chancellor. Passmore and Bell filed their bill on the chancery side of the circuit court of Hinds county, in July, 1847, to enforce their mechanics’ lien for work and labor performed upon the house of Graves, Crary & Co., and obtained judgment against a portion of the firm for $276, the amount due them; Graves being a married woman, was discharged on plea of coverture.

In error from the circuit court of Noxubee county; Hon. F. M. Rogers, Judge. The opinion contains the facts of the case upon which it was decided. The point to be settled is simply this r Must a claim, such as; the one sued on, be necessarily probated before any suit can be brought on it ?

In error from the superior court of chancery; Hon. Stephen Cocke, chancellor. The opinion of the court contains all the material facts of the case upon which the decision was made.

In error from the circuit court of Noxubee county; Hon. John Watts, judge. Neil Morrison sued Tyrus Bell, William Bell, Vincent Bell, Bird Farmer, John Dawson, and Matthias Crotty, in the circuit court of Noxubee county, in an action for damages for an assault and battery committed on him by the defendants. The suit was subsequently discontinued as to Vincent Bell. The defendants pleaded, “not guilty,” molliter manus imposnii, and son assault demesne, all, in short.

In error from the probate court of Holmes county; Hon. A. Wilson, probate judge of Holmes county. The opinion of the court contains the facts of the case. Cited Cox v. Brown, 5 Ired. L. R. 194; Kimball v. Deming, lb. 418. Cited 8 S. & M. 520 ; McNulty v. Lewis, lb. 526.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. The facts of the case are contained in the opinion of the court. Cited Smith v. Smith, 1 How. 102. In reply, cited Woodward v. May, 4 How. 389; Peck v. Critchlew, 7 How. 243; 5 lb. 454. The right of motion by a security against a principal has been given by the laws of other States, which have always been held constitutional.

Robert C. Perry, Judge. This was a motion made by the sheriff of Holmes county for instructions from the court, to which of two judgments to apply certain money made by the sheriff upon an attachment for rent, and also one upon an ordinary debt against the same defendant, the plaintiffs being different, but the judgments having been rendered at the same time. Cited 4 S. & M. 579; 14 lb. 75; 5 Wend. 161; 6 Pick. 232; 12 Johns. 434; Hutch.

<p>McK. recovered a judgment on tbe 23d of January, 1838, in the circuit court of Warren county, against G. W. II., who died in the year 1847, having made his will, by which he bequeathed to S. H. and J. G. II., his only children and heirs at law, then minors, a considerable estate in land and slaves; and appointed J. R. his executor, who proved the will in the probate court of Warren county, and took out letters testamentary, returning an inventory consisting of about $600 worth of personal property, the whole of which was expended by J. R. in the payment of debts and expenses, leaving McK.’s judgment unpaid. S. II., the father of G. W. II., died in 1841, possessed of a large estate, which he devised to the children of R. W.; but when the purported will of said S. H. was presented for probate, Gr. W. H., who was his only child and heir at law, contested its validity, and upon an issue directed to the circuit court, it was determined that the instrument of writing offered to probate, was-not the will of the decedent, (S. H.,) and that he had died intestate; and the case was brought to this court by writ of error, pending which a compromise was made between said Gr. W. II. and R. ~W., who acted as the next friend of the devisees under the will of S. II. In pursuance of which compromise, a bill was filed in the superior court of chancery, and a decree entered by consent of parties, intended to carry out the compromise, when, pursuant to the said decree, Gr. W. II., and R., the administrator of S. H., executed a deed of conveyance of the whole estate of which the deceased was seized and possessed, to L. and G. in trust, which trusts were specially declared in the deed; and among these, L. and G., the trustees, were to hold the said property, one moiety for the use and benefit of S. II. and J. G. H., the children and heirs at law of G. W. II., and the other moiety for the children then living of R. W., and the joint issue of said R. W. and S. his wife. McK. in his bill alleges further, that the deed executed for-said property was voluntary and without consideration, and void as to, his claim; and in the mean time L. and G. resigned their trusts, and other trustees were appointed in their place, who were made codefendants ; and a general demurrer was filed to the bill, which was overruled. Held, that the one moiety of the property conveyed and held in trust for the use and benefit of the children of G. W. H., should be made liable for the payment of McK.’s judgment, and the decree of the court below was correct.</p>

Ou appeal from the superior court of chancery; Hon. Charles Scott, chancellor. The opinion of the court contains a sufficient statement of the facts of the case. Cited Plutch. Code, 658, § 65, &c.; lb. 682, &c.; Wingate v. Wooten, 5 S. & M. 245; Lewis v. Brooks, 6 Yerger; 5 Wend. 148; 3 Phil. Evid., Notes on Decrees in Courts. In reply, cited Thompson v. Huckett, 2 Hill, S. C. 347; 12 S. & M. 556; McLaurin v. Thompson, Dudley’s R. 335; 2 Story’s Eq. § 825, &c.

Stephen Cocke, chancellor. This was a bill filed in the superior court of chancery by James F. Beazley’s administrator, against C. C. Mayson’s administrator. The record is very voluminous, and the facts are, in substance, that in the month of April, 1835, C. C. Mayson and James F. Beazley became partners in a saw-mill. James F. Beazley died in September, 1835.

Geo. B. Wilkinson, probate judge of Yazoo county. The appellees filed a bill of review in the probate court of Yazoo county, surcharging and falsifying the interlocutory and final settlements of appellant, (Gadberry,) as guardian of Mrs. Perry, while a minor; it points out many improper items in his allowance, and shows that during the whole time of his guardianship he obtained but one order allowing him to exceed the income, but that he had so managed as to consume not only…

; Hon. Charles Scott, chancellor. Joseph Wood filed his bill in the superior chancery court, against S. J. Ridley, as administrator, &c. The bill charges that Henry Ridley was indebted to Yeatman, Woods & Co., in a large sum of money, for which he had executed his notes. In the year 183-, Henry Ridley died, leaving a large estate, which is in this State.

Alva Wilson, judge of the probate court of Holmes county. The opinion of the court contains the facts of the case. The deeds of gift are good and valid against the donor, his heirs and assigns, and all others claiming under him, except creditors. This is not a suit between a creditor and the heirs of the estate; but it is an action by distributees, or portions of them, against the administrator of the estate.

W. W. Whitehead, judge of the probate court of Carroll county. The opinion of the court contains a full statement of the facts of the case. There are two points in this case arising on the construction of the will of M. S. Purnell, deceased, and the agreed state of facts in the case.

Charles Scott, chancellor. This was a bill filed in the superior court of chancery, by Glendy Burke, complainant, showing that on the 20th June, A. D. 1845, he recovered judgment in the circuit court of Hinds county against Vincent Murphy and Win.

Stephen Cocke, chancellor. Eleanor Yeizer died in the year 1834, seized of lands in controversy. She left the following children, namely, Daniel H. Yeizer, Arch. L. Yeizer, George W. Yeizer, Charles R. Yeizer, Elizabeth L. Yeizer, Eleanor Monks (wife of Samuel Neill), Prudence G. (wife of Walter Strother), and Mary L. (wife of Thompson Strother).

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. The opinion contains the facts of the case. The only question raised by the record in this cause, is, whether the court erred in overruling the demurrer of plaintiff to the fourth answer of the defendant. The defendant in error relies in support of'his answer on the first clause of twelfth section of the act of limitations of 1844, Hutch.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. The facts of the case are contained in the opinion of the court. If the evidence does not tend to show each essential fact, the instruction that the jury ought to find for the defendant was correct, and the new trial should have been refused. The suit should not have been revived against Frizell, the administrator of Hoy. The reviving of suits by scire facias is of statutory •origin.

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. The facts of the case are contained in the opinion of the court. 1. The court below erred in refusing the testimony of plaintiff in error to show that the court house or seat of justice was removed from Benton by a popular vote of the people of the county, and not by the legislature, but were authorized to vote by the act of the legislature. 2.

In error from the superior court of chancery; Hon. Charles ‘Scott, chancellor. This was a bill filed by D. O. Williams to enjoin the collection of certain taxes, and complainant states that it was the 'duty of the board of police of Issaquena county, to appoint ■levee commissioners immediately, who were to be freeholders and residents of the county.

In error from the circuit court of Lauderdale county; Hon. John Watts, judge. The facts of the case are contained in- the opinion of the court. Cited Hutch. Co. 804, § 15. .

Stephen Cocke, chancellor. This was a bill filed in April, 1845, in the superior court of chancery, and states that Johnson & Robinson recovered judgment 26th October, 1842, against W. W. Kincheloe for $558.53. That A. Lee, same date, recovered judgment for $621.29. Writs of fieri facias issued to April term, 1843, and were returned nulla bona. These judgments were duly enrolled 25th April, 1844.

Stephen Cocke, chancellor. ■ The facts of the case are contained in the opinion of the court. The demurrer ought to be sustained, because 1. The cestuis que trust are not made parties complainant. Story, § 159,165, 207; 2 J. Ch. R. 239; 1 Paige, R. 20. 2. The complainant sets up in his bill separate and distinct rights and interests against separate and distinct defendants, against whom there is no alleged privity or combination. 3.

In error from the circuit court of Kemper county; Hon. John Watts, judge.

In error from the circuit court of Hinds county; Hon. P. W. Tompkins, judge. The plaintiff in error brought an action of ejectment in the circuit court of Hinds county against the defendant, to recover certain lots situated in the town of Jackson.

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

Stephen Cocke, chancellor. The facts are contained in the opinion of the court and the brief of appellee’s counsel. Nailor purchased of Fisk the undivided moiety of the land in contest, he (Nailor) owning the other half. Fisk made title to Nailor, and Nailor gave his note. Nailor’s wife owned property separate from her husband.

<p>Error from the circuit court of Warren county; Hon. George Coalter, judge.</p> <p>The opinion contains a statement of the case.</p>

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. The facts are contained in the opinion of the court. The first instruction asked by defendant Wallace, raises the point whether one copartner can bind the other members of the firm by an usurious contract? We insist that no.such power exists, and that the copartner, not agreeing to such contract, is not bound.

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. The facts of the case will be found in the opinion of the court, and the brief of appellants’ counsel. This was an action of replevin instituted in the circuit court of Yazoo county, for the recovery of 153 tier of cypress timber; suit was brought against these defendants, and but one executed the bonds.

' Stephen Cocke, chancellor. The opinion of the court contains substantially the facts of the case. Filed an elaborate written argument, giving an exposition of the facts of the case. By reference to the bill and answers of defendants, Johnston, Woodward & Prewett, it will be seen that this is a contest between them and Dick, Hill & McLean.

In error from the circuit court of Noxubee county; Hon. John Watts, judge. The opinion contains a statement of the case. The objection to the statement in the record in regard to the jury being sworn, we think, has no force. The language is, “ who were sworn well and truly to try the issue joined between the parties, who upon their oaths do say,” &e. What is implied in their being sworn?

Charles Scott, chancellor. The facts of the case will be found sufficiently stated in the opinion of the court, and in the points made by appellant’s counsel. To the bill in this cause the defendant filed a plea of the act of limitations, which the chancellor sustained, on the ground that the matter set up in the bill raised a resulting trust from defendant for coinplainants, and that such a trust is barred by limitation.

Stephen Cocke, chancellor. This case is brought into court upon exceptions filed to a report of commissioners in chancery who had been appointed to sell certain mortgaged property, and the exceptions are fully stated in the opinion of the court.

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

In error from the circuit court of Neshoba county; Hon. John Watts, judge. H. E. Simmons brought suit in the circuit court of Neshoba county against Catharine Edwards, to recover an amount of money which he alleges he paid as her security.

In error from the circuit court of Yazoo county; Plon. Robert C. Perry, judge. Theophilus Prichard employed Richard Martin as an overseer for one year,' agreeing to pay him $400, to furnish his family with such provisions as were made on the place, and with thirty pounds Of coffee and fifty pounds of sugar.

In error from the circuit court of Neshoba county; Ho'n. F. M. Rogers, judge. The opinion contains the statement of the case.

In error from the circuit court of Ya zoo county; Plon. Robert C. Perry, judge. ■ The facts of the case are sufficiently stated in the opinion of the court. It is manifest from the act of 1846, section six, in connection with the others, that the defendant Abbey was entitled to judgment in his favor. The act requires the judge to render judgment for plaintiff for the land, and for defendant for excess. This is an entire judgment, and must be in conformity with the verdict.

Tompkins, judge. This was an action of ejectment brought in the circuit court of Warren county by the appellee for certain land. Notice was issued in the usual form, but was never served, and at the April Term, 1847, Alexander Gwin was admitted defendant in the room of the. casual ejector, and by his attorney pleaded the general issue, confessing lease, entry, and ouster. The plaintiff in the court below asked the following instructions to the jury, which were given. 1.

A. L. Dabney, judge of the probate court of Hinds county. The opinion of the court contains a sufficient statement of the facts of the case. 1. The act of 1821 on the subject of wills does not change the common law so far as femes covert are concerned, who, as well before as since that statute, were generally incompetent to make a will. See Hutch. S. C. P. 949, § 14, and authorities cited by counsel for defendants in error. 2.

In error from the circuit court of Holmes cqunty; Hon. Robert C. Perry, judge. The facts of the case are contained in the opinion of the court. The ability of a feme covert possessed of a separate estaté to make a contract and incur a liability binding on that estate in equity, has long been well settled.

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. This was a suit instituted by the plaintiffs in error against the corporation of Yazoo City, to recover damages on account of a ditch, sewer, or culvert made by the corporate authorities of Yazoo City, within and upon the sidewalks of said city, whereby the property of said appellants was greatly damaged.

In error from the circuit court of Holmes county; Hon. Robert C. Perry, judge. The facts of the case are contained in the opinion of the court. I. The court erred in sustaining the demurrer of defendant to the replication of plaintiffs to the third plea of defendant. 2. The court erred in giving final judgment upon sustaining the demurrer to plaintiff’s said replication. . The judgment should have been respondeat ouster.

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

In error from the circuit court of Madison county; Robert C. Perry, judge. The opinion of the court contains the facts of the case. Cited West Feliciana Railroad v. Stockett, 13 S. & M. 296. In reply, cited Hutch. Code, 841; lb. 827.

Robert C. Perry, judge. Haley Cotton filed his petition in the police court of Leake county, setting forth that Brajilla Ethurton was a citizen of said county, and unable to support herself; that since November, 1845, she has been afflicted to such an extent, that she could do no labor ; that she has resided at his house since, and he has clothed and fed her, and furnished her with medicine, &c., and prays the court to allow him the sum of about $12.50 per month for the same…

In error from the probate court of Hinds county; Hon. A. L. Dabney, judge of the probate court of Hinds county.

In error from the circuit court of Noxubee county; Hon. John Watts, judge.

In error from the circuit court of Kemper county; Hon. John Watts, judge. The opinion of the court contains a statement of the facts of.' the case. An award must be mutual between the parties, and .binding on both or neither party. 1 Caines, 304-, 3 Ib.,,253; Gibson v. Powell, lb. 727.

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. Stephen H. Gibbons, a minor, by his next friend, sued Henry Parr, in an action of detinue, in the circuit court of Monroe county, to recover the possession of a certain negro girl named Sarah, which he alleged to be his property, and averred that Parr unlawfully obtained the property from him; to which Parr pleaded non detinet.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. Held: that while his discharge could be pleaded in all courts, it could be impeached for fraud or wilful deceit in obtaining it, and his retaining possession of the property, which he pretended to have sold to his father and did not include in his inventory, raised a presumption of fraud, on ■which a verdict of a jury that it was a fraud,…

Stephen Cocke, chancellor. The facts of the case will be found in the opinion of the court. The record shows that on the 16th day of January, 1849, the appellant obtained a decree against William B. Heard, the appellee, for certain lands, and that in the decree is an order for habere facias possessionem ; the decree was obtained upon proof of purchase at sheriff’s sale by appellant upon bill confessed.

<p>By the provisions of tho bankrupt law, the liens of judgment creditors were continued in full force, and the rights of creditors protected according to tho laws of the State, till the liens expired by the statute of limitations.</p> <p>"When the liens of the judgment creditors of a bankrupt expire, the title to his property vests in the assignee absolutely for the benefit of the bankrupt’s cred- * itors generally.</p>

<p>A party whose property is about to be sold under an execution or deed of trust, can make a valid and binding contract, previous to the sale, with another person to become the purchaser at the sale, and to permit the party indebted afterwards to redeem the property: — Held, that in such a case, a court of equity will compel the purchaser to convey the property according to the contract.</p>

In error from the circuit court of Yazoo county; Hon. Robert •C. Perry, judge. The facts of the case will be found in the opinion of the court. 1. No day is given the heirs by the decree to show cause ■against it after their majority; a violation of a rule of chancery too familiar to require support from books. The court is, however, referred to Robinson’s Pract. 403, 416.

Robert C. Perry, judge. This case was decided upon a point of practice, and the opinion of the court gives a statement of the point upon which the decision was made.

<p>It is not a valid objection to a bill on the ground of nmltifariousness, that it contains several distinct matters of account between the parties; for courts of equity favor such a course as tending to prevent a multiplicity of suits.</p> <p>It is now the settled doctrine in equity, that if from the nature of the claim or situation of the parties, justice cannot be done at law, chancery will allow a, set-off not within the statute of set-off.</p> <p>If there is any part of a bill which is demurred to as a whole, to which the demurrer does not extend, the whole demurrer must be overruled.</p>

<p>On appeal from the probate court of Kemper county; Hon. James F. Bohannon, judge.</p> <p>The opinion contains the facts.</p> <p>Cited Acts of Leg. 1846, p. 184; Acts of 1852, p. 232; Gasque v. Moody, 12 S. & M. 153.</p> <p>Cited the same statutes.</p>

In error from the ■ circuit court of Noxubee county; Hon. John Watts, judge. This was an action of slander instituted at the June term, 1850, of the circuit court of Noxubee county, by John J. Black ■ggainst Francis J. Lewis, in which a judgment for the sum of $2,291 was rendered by the jury for Black.

Isr error from the circuit court of Warren county; Hon. R. Barnett, judge. On the 15th day of November, 1838, John Henderson & Co. recovered a judgment in the circuit court of Warren county against Washington Smith for $446 damages, and $83.26|-costs. On the 11th of January, 1845, an execution, issued on that judgment, was levied on a negro boy named Jack.

Stephen Cocke, chancellor. This was a bill filed on the sixth day of December, 1842, and states, that Charles Sevier on the 4th of November, 1840, purchased' from John Briscoe thirty-five slaves, and other personal property, took possession and has held the same ever since, and took a bill of sale. On the 11th of January, 1841, he purchased at marshal’s sale under execution against Briscoe, 1,200 acres of land, took a deed therefor, and has since retained possession thereof.

In error from the circui t court of MadismT county; Hon. Robert C. Perry, judge. The facts are contained in the opinion of the court. Henry L. Crutcher brought suit in the circuit court of Madison county against Wright Chumney and Thomas Richards, as makers, and Robert Smith, the appellee, as indorser, of a promissory note. The summons issued in the cause was served on one of the makers, Richards, and the indorser Smith. Richards pleaded the statute of limitation.

In error from the circuit court of Lauderdale county; Hon. F. M. Rogers, judge. The opinion of the court contains a statement of the facts of the case. The right of the administrator to sue is undoubted. Lucas v. Lockhart, 10 S. & M. 473. An estate for life created by will, with remainder over after the termination of the particular estate, is properly sued for in the name of the administrator or executor. Story, Eq. PI. § 76,171, 217, n. 1.

Stephen Cocke, chancellor. W. Dorsey, the testator of complainants, sold an undivided interest in certain lands to one Rasberry, and executed to him the conditional deed filed as exhibit A., which was duly recorded.. To secure the purchase-money, Rasberry executed two notes to. Dorsey for $1,250 each; one due on the 1st of February, 1839, and the other on the 1st of February, 1840.

In error from the circuit court of Kemper county; Hon. John Watts, judge. The bill of exceptions shows that an execution was issued in the name of Bacon on the 22d of January, 1853, against the defendants upon a judgment which said Bacon had in 1845 purchased for cost of this suit against defendants; and it appeared that a judgment upon a forthcoming bond given and forfeited on the 24th of October, 1842, had been rendered in the case.

James F. Bohannon, judge of the probate court of Kemper county. Margaret Rawls filed her petition in the probate court of the county of Kemper, A. d. 1851, at the October term, for dower in the personalty of James C. Rawls, deceased.

In error from the circuit court of Lafayette county; Hon. Hugh E. Miller, judge. This was a suit commenced in the circuit court of Lafayette county. The declaration is in debt founded on a judgment of the supreme court of the State of Tennessee, on the 1st Monday of December, 1838, in favor of plaintiffs against defendant’s intestate, W. E. Cox. First plea, is nul tiel record, and issue thereon by replication, which was decided by the court in favor of plaintiffs.

R. Barnett, judge. The facts are contained in the opinion of the court and the briefs of counsel. The record in this case raises the question, Is the judgment of a justice of the peace a lien upon the property of the defendant without the county where rendered? And if so, Is it a lien in • the hands of the vendee of the defendant’s vendee, purchasing without notice in another county ?

In error from the northern district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. Ephraim A. Talbot filed his foreign attachment bill in the court below against Mclver & Palmer as his absent debtors, and against L. Sims & Brothers as home defendants, who were alleged to be indebted to Mclver and Palmer. The original bill was filed on the 8th of January, 1849.

Henry Dickinson, vice-chancellor. The opinion of the court contains a statement of the facts of the case. Cited and commented on 1 Story, Eq. 307, 308; Murphy 'v. Sloan, 24 Miss.; Nelson v. Sims, 23 lb. 383. Cited in reply Acts of Legislature 1852, p. 47.

On error from the northern district chancery court at Hernando ; Hon. Henry Dickinson, vice chancellor. Healy and Whiting on the 4th day of January, 1850, sold a tract of land to one Irwin, who paid a part of the purchase-money for the land and executed his notes for the balance of the purchase-money, and received a bond for title from the vendors, and went into possession of the land.

In error from the circuit court of Choctaw county; Hon. F. M. Rogers, judge. John Henderson instituted his action of ejectment’ in the Choctaw circuit court at the March term, 1848, against plaintiff in error, for the recovery of the south half of section 21, township 19, range 9 east.

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

William L. Harris, judge. The opinion of the court contains the facts of the case. Held: in the decision made in the first demurrer, that the two companies were private corporations, and that the stockholders who had not signed the transfer were released from their subscriptions. This decision of the court, it is thought, is erroneous.

<p>The act of Congress of 1841, § 12, prohibits the assignment or transfer of their claims by persons obtaining rights as preemptors under its provisions, until after a patent has been issued. By the express words of this section, such assignments are declared to be “ null arid void.” 5 U. S. Stat. Law, 456.</p> <p>Where a party transfers land as his own, the title to which the law declares to be null and void; the party who takes such transfer receives no better title or greater right than he possessed who made the transfer. 1</p>

Henry Dickinson, vice-chancellor. On the 30th of August, 1836, Andrew Kerr, Joseph W. Matthews, P. F. Armistead, John Chisholm, Volney Peel,… Held: that “ if a party were a stakeholder without fault, he would not be chargeable with interest, though the money were in his hands for several years.” In Hubbard v. Charlestown Branch Railroad Co., 11 Met. 128, it was held, that “in general, when one has the money of another, having been guilty of no wrong in obtaining it, and no…

<p>Where S. E. G., as the administratrix of S. M. G., loaned a certain amount of money of the estate upon which a judgment was rendered, and which was by said administratrix transferred to a third person, and afterwards she made a final settlement in the probate court of her administration of said estate, but subsequently T. T. G., a distributee of said estate, filed a bill to prevent the party to whom said judgment was transferred, from collecting it, the said T. T. G. claimed said amount of the judgment as his own. No fraud is charged against the administratrix in the transfer, or notice of the alleged misapplication on the part of the party to whom the judgment was transferred, nor does the bill seek to set aside the final settlement or a new account of the matters embraced in the settlement; but the charges that said administratrix is insolvent, and after her final settlement of the said estate, the said administratrix and T. T. G. were joint distributees of the estate, and she carried on the planting business with the joint property of the estate : — Held, that the rights of third parties cannot be affected or prejudiced by the transfer of the judgment, unless it clearly be made appear that the party (T. T. G.) claiming an interest in it, has ascertained and established his right against the administratrix in a proper legal forum.</p> <p>S. E. G. was properly entitled to claim and control the judgment as her individual property until her final settlement shall be set aside, and it be made appear that she, as administratrix, has not accounted for that amount in her final account.</p>

<p>In error from the circuit court of Rankin county; Hon. W. P. Harris, judge.</p> <p>This was a suit brought upon an injunction bond by Samuel Pringle, as assignee of ■ Henry F. Shelton, usee of William H. Shelton, against Vincent T. Alexander, Isaac Alexander, and Matthew Alexander, to enforce the collection of a judgment at law on a forthcoming bond executed by Andrew M. Newman, Vincent T. Alexander, and the plaintiff, Samuel Pringle, to said William H. Shelton, usee of said Henry F. Shelton.</p> <p>The injunction bond sued on was assigned by Plenry F. Shelton to said plaintiff, Samuel Pringle, without reserve.</p> <p>At the May term, 1850, there were four pleas filed to the action, all of which were stricken out by the cburt, with leave to plead over within thirty days.</p> <p>The first plea was, in substance, a plea of accord and satisfaction.</p> <p>The second plea was, in substance, a plea of payment.</p> <p>The third plea was, in substance, a plea of non est factum, and was sworn to.</p> <p>The fourth plea was, in substance, that the said S. Pringle is the same identical S. Pringle mentioned in the condition of the said supposed writing obligatory in plaintiff’s declaration mentioned as a codefendant of said V. T. Alexander in said supposed statutory judgment in the condition of said writing obligatory, &c.</p> <p>After the above pleas were, on motion of the plaintiff, struck out by the court, the defendant, within the time given, filed twelve other pleas, some of which were demurred to, and upon some issue was taken.</p> <p>There were several new trials had in the ease, and judgment was finally rendered for the plaintiff, and Alexander prayed a writ of error to this court.</p> <p>It was error to strike out the pleas, and the defects in them, if any could only be reached by demurrer. Smith v. Commercial Bank of Rodney. 2 S. & M. 83. On the other points, cited 9 Mass. 138; 17 lb. 15; 6 S. & M. 440 ; 9 lb. 521; 4 lb. 549 ; Hutch. Co. 847 ; 23 Miss. 550; lb. 548; 3 Brev. 10.</p>

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. James A. Mitchell filed his complaint in the circuit court of Yazoo county, to recover the lands mentioned in the complaint, against Thomas and Bridgeforth Hodge. The suit was dismissed as to Thomas, and abated as to Bridgeforth, and comes up to this court upon the issues joined between the plaintiff in error,‘and Mitchell, the plaintiff below.

In error from the circuit court of Pontotoc county; Hon. Hugh R. Miller, judge. The facts of this case will be found in the opinion of the court, and in the case of Wray v. Doe, 10 S. & M. 452, where many of.the same questions were raised by counsel, and decided by this court. The first bill of exceptions taken in this causé discloses a fatal error in the proceedings therein in the circuit court.

In error from the circuit court of Attala county; Hon. Robert C. Perry, judge. The facts are contained in the opinion of the court. To show that the certificate of the judge was not sufficient, cited 3 Phil. Ev., C. & H. notes, 1131, 1132. Cited Bibb v. Jones, 7 How. 397; 5 lb. 621; 7 lb. 408 ; lb. 554; lb. 386 ; 2 S. & M. 248 ; 4 lb. 118 ; Freem. Ch. 116.

In error from the northern district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. The opinion of the court contains a statement of the facts of the case. For former decision of the same case, see 14 S. & M. 207. , Contended that the foundation of the whole proceeding is void; it being against a feme covert in which her husband was not joined, and cited Hutch.

superior court of chancery; Hon. Charles Scott, chancellor. This was a bill of complaint filed on the 18th of February, 1852, by J. H. Johnston & Shepherd Brown against Bacon, Symington & Robins, and James Woods & William Fitzpatrick, and John'L. Harris.

Isr error from the circuit court of Madison county; Hon. Robert C. Perry, judge. T. B. Hoover recovered a judgment in a justice’s court against E. M. Chambers as administrator of Sylvanus Chambers, deceased, and on the 2d July, 1846, a fieri facias issued thereon, and was returned nulla bona. The plaintiff, according to the statute, suggested that William Sadler and others were indebted to said Chambers as administrator.

In error from the circuit court of Hinds county; Hon. P. W. Tompkins, judge. The opinion contains the facts of the case on which the decision was made, as well as the instructions of appellants refused by the circuit court.

Charles Scott, chancellor. This was a bill filed by Robert S. Price, the defendant in error, who intermarried with Nancy Price, formerly Nancy Tinnin, in August, 1852, to have a receiver appointed to take charge of certain personal property taken possession of by H. P. Tinnin, administrator of _ Nancy Tinnin, deceased. The property, it seems, was returned by the administrator to the probate court as the property of Nancy Tinnin, deceased.

<p>W. filed his petition in the probate court of Lowndes county against said county for ex officio services rendered as clerk of the probate court of said county, without any specification of the services rendered. Held, that the petition was properly dismissed, there being no proof as to the subject-matter of the petition.</p>

In error from the circuit court of Tallahfitchie county; Hon. P. T. Scruggs, judge. Elijah Ray instituted an action against James N. Harper for overseer’s wages due Ray from Harper, for the years 1849,1850, and 1851.

<p>F. H. P. in 1845 purchased of A. L. & D. H. Y. and S. H. N., with others, a tract of land in the county of H., for which he paid the sum of three thousand dollars in cash, and gave his four notes for the balance of the purchase-money, amounting to the sum of two thousand dollars; and to the notes a condition was annexed, that they were not to be paid until the said F. H. P. should obtain a title to the land by virtue of a sale to be made under a decree of the chancery court in a case then pending in which the said A. L. & D. H. Y. were complainants, and the said S. TI. N. and others were defendants. A decree having been rendered in the case, a sale was advertised to be made under it in September, 1846 ; and L. W. P., who had in the mean time purchased the land of F. IT. P., attended on the appointed day of sale for the purpose of purchasing it under the decree, and paying off the four notes given by P. H. P., two of which were then held by W. M. P., and the others by A. L. Y.; but hearing that one W. B. had recently filed a bill in the chancery court, setting up a deed of trust on the land executed to him by the said D. H. Y., and learning from consultation with counsel that the suit of W. B. would likely be prosecuted with success, he declined having the sale made under the decree; but A. L. Y. instructed the commissioner to proceed with the sale, when W. M. P. became the purchaser of the land for one hundred dollars, which was not one fifteenth part of the value of the land, who alleged as the main reason for his purchase a desire to collect his notes, which h‘e believed P. H. P. could not avoid paying; and W. M. P. now insists on holding a title to the land. The claim of W. B. was decided adversely to him. Held, that W. M. P. having purchased the land with a full knowledge of all the facts and circumstances under which it had been sold to L. W. P, he (W. M. P.) cannot be protected in his purchase, and it will be declared void.</p>

In error from the northern district chancery court at Holly Springs; Plon. Henry Dickenson, vice-chancellor. The facts upon which the decision was made are contained in the opinion of the court.

Charles Scott, chancellor. The appellant, while she was Mary E. H. Shotwell, filed her bill on the equity side of the circuit court of Lowndes county, against her then husband, Robert Shotwell, for a divorce which was granted her by the circuit court.

Charles Scott, chancellor. In January, 1849, William R. Beall obtained a decree in the superior court of chancery against Nye and wife, to foreclose a mortgage, and after that decree was rendered, Beall died, when N. G. Slaughter took out letters of administration upon his estate, and filed a bill against Nye and wife to revive the decree in his name, as administrator of Beall’s estate.

In error from the circuit court of Hinds county; Hon. R. Barnett, judge. On June 3, 1848, plaintiffs in error executed their bond, payable at twelve months, to George Work, president of board of trustees of section sixteen, township six, range one east, or his successors in office, for $765, money loaned of said township, with ten per cent, interest.

Charles Scott, chancellor. In November, 1836, Nicholas Gray purchased of John A. Gibson a plantation and the negroes thereon, about fifty in number, for which he agreed to pay $122,000.

In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge. This was an action instituted in the circuit court of Marshall county by Howell Hinds against Wyatt Epps to recover the sum of $185, which had been stolen from the son of Hinds whilst he was lodging in the tavern house or inn of Epps, in the town of Holly Springs, in September, 1850.

In error from the circuit court of Winston comity; Hon. Robert C. Perry, judge.

R. Barnett, judge. This was an action of ejectment, commenced in the circuit court of Warren county, on the 31st of August, 1850, by James W. and Elizabeth Gaskins, minor heirs of James W..Gaskins, deceased, by their next friend, to recover of Benson Blake four hundred and thirteen acres and a fraction of land, lying in Warren county.

Stephen Cocke, chancellor. W. B. Dozier filed his bill against Lewis, Lane, and Collins, charging that on the 7th of May, 1839, the Mississippi and Alabama Railroad Company, use of Moffit, recovered a judgment in Jasper circuit court, against said Lewis as principal, and said Dozier and others as sureties, on a note for $1,000; that the defendants to the bill .confederated together to defraud complainant, and compel him to pay said judgment, and to that end contrived that…

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

Charles Scott, chancellor. The facts of the case are contained in the opinion of the court. The appellant is unquestionably entitled to the monthly amount decreed her by the chancery court. Bishop on Marriage and Divorce, 548, says, “Alimony is the allowance which a husband pays, by the order of court, to his wife who is living separate from him, for her maintenance.

A. H. Bullock, probate judge of Tallahatchie county. The facts of the case are contained in the opinion of the court, and the points made by counsel. In Tanner v. Hicks, 4 S. & M. 294, this court held “ that the retention of title by the vendor is, in effect, the same thing with conveying the title and taking a security by mortgage.” See also 10 S. & M. 184.

<p>On appeal from the superior court of chancery; Hon. Charles Scott, chancellor.</p> <p>The facts of the case are contained in the opinion of the court.</p>

N. E. Goodwin, judge of the probate court of Lowndes county. The opinion of the court contains a statement of the facts of the case. The following points were made by him in the argument of the case: — I. Which was the domicil of Robert Hairston at the time of his death ? Virginia, or Mississippi ? 2. If he had changed his domicil to Mississippi, does the law of this State or of Virginia give the rule as to the property acquired in the marital domicil ?

Reuben Ruff, judge of the probate court of Noxubee county. The opinion of the court contains a sufficient statement of the facts of the case. To establish the will recited in the petition, it is necessary to prove, by two witnesses, that the testatrix, Mrs. Hinkle, called on some person present to take notice or bear testimony, that such is her will, or words of like import. Hutch.. Dig. 650, § 18,19, 20.

In error from the southern district chancery court at Mississippi City; Hon. James M. Smiley, vice-chancellor. The facts of this case, so far as they can be gathered from the record, where they are very voluminous, are stated in the opinion of the court. Filed an elaborate written argument in the case.

<p>In error from 'the circuit court of Lawrence county; Hon. Wiley P. Harris, judge.</p> <p>This was a bill filed on the equity side of the circuit court of Lawrence county, by the appellees, to recover of the appellants mesne profits and rents subsequent to the laying off dower to the wife of appellee, (M.) who was the widow of K., deceased, and claimed dower in the real estate of deceased.</p> <p>The opinion of the court contains a full statement of the facts of the case. The court below rendered a decree in favor of M. and wife, and the defendant below prayed a writ of error to this court.</p> <p>This court is bound to presume that when in July, 1848, the dower was allotted by metes and bounds, that the applicant was put into possession of the dowry by the sheriff who had the writ for that purpose, and if this be true, then the decree is erroneous for all that is allowed by the decree for rents after that allotment.</p> <p>The demand either of mesne profits or of rents after allotment of dower, is purely a legal demand, for which the complainants had ample remedies at law, and a court of equity will not relieve the party who has an unembarrassed remedy at law. Blewitl v. Vaughn, 5 How. 418; Martin, P ,8f Co. v. Glascock, 1 S. & M. 17; Freeman v. Finnall, lb. 623.</p> <p>Besides, the demand for mesne profits of the estate from the death of the husband to the time of dower allotted, could not be maintained by the widow even at law against a tenant from year to year, 10 Yerg. 472; and the bill nowhere shows that the plaintiffs in error are not sneh tenants, but in fact shows that some .of them are such. Nor will equity, after assignment of dower on petition at law, entertain a bill for mesne profits during the detention of the dower, unless some equitable circumstance exist, such as loss or destruction of deeds, or discovery be necessary. 1 Murph. 128.</p> <p>Damages for the detention of dower must be prayed for when dower is assigned, and if not given, they cannot be after-wards recovered. 1 Murph. 128. And further, if dower be assigned upon petition, the suit is at an end. 4 Dev. & Bat. 501.</p> <p>The petition in this case merely asked • for an assignment of dower; this was done, and thus the suit for dower and every thing in connection with it, was at an end, and if beyond this, the widow deemed herself entitled to any thing, it was to be obtained by a new suit; the rents, prior to the assignment of dower, belong to the heir, but he is answerable to the widow for them as damages for not assigning dower, and her remedy, of course, must be at law. 2 Murph. 79.</p> <p>But surely she cannot, upon a demand of this kind, purely legal and sounding in damages, without showing such “ equitable circumstances ” as are alluded to in the case from 1 Murph. above cited, ask a court of equity to grant relief; she is entitled to receive her one third part of the rents, but she has mistaken her remedy, and brought parties into her bill that are not liable to her in any event, and certainly she cannot recover the rents after assignment of dower, when she has not nor cannot show that the dower so assigned has been withheld from her. The allegation that the estate is indivisible is negatived by the report of the committee to assign dower, who reported the division by metes and bounds, and it was in her power to force her possession under it if desired. Rop. on L. 137; Palm. 265; Keb. 743.</p> <p>Another objection to the validity of the assignment of dower is, that the record does not show that there was any sufficient evidence to authorize the decree; there was no proof of the marriage of Lavisa Morris with Michael King, in whose lands dower is claimed ; no proof of seizin in him; no proof his death, and no proof of the fact that dower had not been all relinquished by said Lavisa; her assertions will not do, she was bound to prove it before the court. James v. Rowan, 6 S. & M. 393; Ware v. ■ 'Washington, 6 lb. 737.</p> <p>1st. The only question for the consideration of this court is, whether a defendant in the court below,'after suffering a judgment by default to be taken against. him, can then come into court, and by a motion merely, set aside all the proceedings previously had in the cause. 2 How. 736.</p> <p>2d. The appellees were regularly .served with notice, as it appears from the records, but made no defence, and thereby admitted the cause of action. They should have made their defence when summoned by the court, and having failed to do so, they cannot now gainsay the judgment. 2 How.-727, 902.</p> <p>3d. The only mode of setting aside a judgment by default, is on motion and affidavit of merits and payment of costs. 2 How. 736. But there was no affidavit in this cause, nor payment of costs, and even in that event the court would not set ¡aside the default, because their opportunity for trial was lost. .2 Johns. Dig. 271.</p> <p>4th. All defects in the pleadings, whether in form or substance, ¡should have been a ground and are cured by judgment. 5 .How. 484; 2 lb. 930; 3 Leigh, 196.</p>

In error from tbe probate court of Wilkinson county; Hon. Francis Gildart, judge of the probate court of Wilkinson county. On the 9th of December, 1848, a decree was rendered in the probate court of Wilkinson county, confirming a report of commissioners and referees appointed to examine and allow claims against the estate of Lorenzo D. Brown, which estate had been reported by the commissioner to be insolvent.

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

Charles .Scott, chancellor. This was a bill filed in the superior court of chancery by William F. Beresford and wife, the appellees, to set aside and rescind a contract of sale made by Alexander, the appellant, to the appellees of a tract of land in Rankin county, Mississippi. The bill charges that the complainants desired to purchase a tract of land for planting and farming purposes, and that William F. Beresford visited Rankin county for this purpose.

<p>On appeal from the northern district chancery court at Fulton ; Hon. Henry Dickinson, vice-chancellor.</p> <p>This was a proceeding instituted against Thomas E. Buckingham in the chancery court, and the bill states that Riggs, Son and Aertson, at the October term, 1838, of the circuit court of the cotmty of Monroe, recovered a judgment against Thomas E. Buckingham and Charles M. Weaver, for the sum of $2,025.33, together with costs of suit; that on the 3d day of September, 1839, a fieri facias was issued, founded upon said, judgment, and returned by the sheriff of said county to the succeeding October term of said circuit court “no property found;'” that on the 15th day of December, 1839, the said plaintiff sued out an alias writ of fieri facias on said judgment, which was also returned by the sheriff to the April term, 1840, “no property found;” that since the rendition of said judgment, Romulus Riggs has departed this life, and Charles M. Weaver has been discharged in bankruptcy; that said recovery is still due from said Buckingham, except the payments made in 1841, amounting to $2,100.61; that the said Thomas E. Buckingham, combining with others to defraud the complainants, although he owned and possessed property and effects, of value more than sufficient to pay all the costs in said suit,'as also the balance due upon said judgment, fraudulently concealed the same from the complainants and the sheriff, and thereby caused said executions to be returned nulla bona; and procured such proceedings to be had, in the circuit court of Monroe county, as at the April term, 1844, for judgment to be had against the plaintiffs for costs, and that said recovery be sold to satisfy the same, when at the same time Buckingham owned and possessed property and effects of value more than sufficient to pay said costs, and the balance due on said judgment; that on the 3d day of July, 1844, an order of sale to sell said recovery issued from the office of the clerk of the circuit court, and on the 21st of October, 1844, said recovery was offered for sale by the sheriff at public auction, and which was struck off to the defendant Buckingham, at the sum of ten dollars, but which was not paid by him to the sheriff, but if mistaken in this, the complainants submit to the court whether the defendants could purchase, being bound to pay debt and costs, having sufficient property concealed to do it; that at or before said bid, the defendant Buckingham had, by some arrangement, contract, or agreement with one James J. Standefer or others, not to bid against him for said recovery; that in consequence of said arrangement, the persons present at the sale did not bid, and who otherwise would have bid therefor; that said pretended purchase is fraudulent and void as to complainants; that complainants had no notice of the proceedings to sell said recovery, or they would have paid the costs; nor did they know the fact that at the time said executions were returned nulla bona, that the defendant Buckingham had property and effects more than sufficient to pay the recovery, and at the time of said judgment against the plaintiffs for costs, and said pretended purchase by Buckingham, he had and owned the same; all which had been fraudulently concealed by Buckingham, until they discovered the same just before filing the bill.</p> <p>The bill prays that said pretended purchase be set aside, and that they have leave to have their execution at law, and for,general relief.</p> <p>The answer admits the recovery of the judgment, the time, the amount, the issuance, and return of fieri facias, as stated; insists that more than seven years have elapsed since the issuance of the last, and that the judgment is barred by the act of 24th of February, 1844; admits the discharge of Weaver, but insists that the defendant is the bond fide owner and purchaser thereof; admits that the order was obtained, and the judgment sold at the time stated, and purchased by defendant at ten dollars, which was paid shortly after to J. H. Buckingham, but denies that the order of sale was procured at his instance; that thereby he became entitled to all the rights of the complainants in said judgment; denies expressly the making of any agreement with any person to prevent competition at said sale; states that at the time of the sale, he owed more money than he could pay; claims the benefit of a demurrer to the bill, and relies upon the statute of limitations.</p> <p>The testimony established that Buckingham, not only at the time of the return of the executions nulla bona, but from thence up to the sale of said judgment, had ample effects concealed, of value more than sufficient to pay said judgment and costs. James J. Standefer proves expressly the agreement made with Buckingham, by which he was induced not to bid for the judgment, and a compliance upon the part of Buckingham afterwards with that agreement.</p> <p>■ The vice-chancellor set aside the sale, from which decree the defendant appealed.</p> <p>In this case we rely on the seven years’ limitation of the act of February, 1844. The judgment was rendered on the 23d of October, 1838. An execution was issued on it 3d of September, 1839. An alias was issued the 15th of December, 1839. This was the last effort made to enforce the judgment. The bill was filed the 28th of March, 1849, nearly ten years after the issuance of tlje last execution. The plain letter of the act is, that no proceedings shall be had to enforce a judgment, “ after the expiration of seven years next after the date of such judgment.” There is no fraud shown either in the concealment of property upon which the executions issuing on the judgment might have been levied, or any fraud in the sale or purchase.</p> <p>1. The purchase by defendant of complainants’ judgment against him should be set aside, for his fraud in concealing means more than adequate to satisfy the balance due upon the recovery (at least the costs) and- thén purchasing himself. He does not occupy towards the plaintiff in that judgment, the same position a third person would; for he was the cause of the necessity to sell, upon a false, though legal appearance of facts, his supposed insolvency. The statute did not contemplate his paying off his judgment by withholding his means, till judgment sold, and then developing them in a purchase of it for a trifle.</p> <p>2. Also, upon the ground of the defendants’ fraud in proeuring others not to bid against him ai the sale, which is fully proved by Standefer.</p> <p>3. The act of 24th of February, 1844, did not commence running till its date, (Hutch. Co. 832, § 18,) if it had any application. It does not apply in this case, because the bill was filed within seven years after its passage.</p> <p>4. The statute of limitations will only run against a fraud from the time of a full and complete discovery, but does not run against them to whom it is not discovered. 3 Desa. 223, 238, cited in 1 Barb. & Harr. Dig. 564, No. 39; 2 Story, Eq. Jur. § 1521, a ; 7 Johns. Ch. R. 122.</p>

In error from the circuit court of Kemper county; Hon. John Watts, judge. This was a suit instituted in the circuit court of Kemper county, by H. L. Adcock for the use of Fyson against John B. Holton, upon a promissory note executed on the 12th. of March, 1849, for $100. The defence set up to the note was, that it was given by Holton to Adcock for an improvement on public land.

In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge. The facts of the case are contained in the opinion of the court. In Brown v. Curtis, 2 Comst. 227, the court say, “ I do not mean that the very words of an agreement are always to be followed. Construction is often necessary to ascertain what the parties intended by the wo.rds which they used..

John J. Guión, judge. This was a motion made by the counsel for the defendant in error to dismiss the appeal, because the bond had not been properly approved.

In error from the probate court of Kemper county; Hon. James F. Johannon, judge of the probate court of Kemper county. The opinion of the court contains the material facts of the case. The excess of interest received by the administrator was not a subject-matter for hotchpot distribution, but would constitute him only a debtor to the estate. Crosby v. Covington, 24 Miss. R. 619.

Henry Dickinson, vice-chancellor. The facts of the case will be found in the opinion of the court, and the points made by counsel. James Erwin in his bill says, that in 1837 he sold Ford a tract of land, and in consideration thereof, beside several payments, Ford gave him ■ notes due in one, two, and three years, all of which are paid but the last, for $1,000, due in January, 1840. Ford left Mississippi in 1843, and is insolvent; prays a sale of the land to pay the debt.

R. Barnett, judge. Martha Hicks, as administratrix of the estate of Benjamin J. Hicks, brought suit in the circuit court of Warren county against Andrew Gamble for the recovery of $176, which she had paid Gamble in her representative capacity, and which she had subsequently discovered had been paid said Gamble by the deceased, Hicks, in his lifetime.

Lowndes county; Hon. N. G. Goodwin, judge of the probate court of Lowndes county. This was an application filed in- the probate court of Lowndes county, on the part of Ann E. Powell, the. plaintiff in error, to have her share of the estate of her deceased husband, •John R. Powell, allotted to her.

In error from the probate court of Yalobusha; Hon. T. A. Cheves, judge of the probate court of Yalobusha county. The probate court of Yalobusha county, on due notice given, allowed the final account of Thomas Carbry, executor of William Kerr, deceased, .on the 12th of November, 1850.

Charles Scott, chancellor. • In the year 1840, complainant Moody filed his bill in chancery, stating that on the first Monday of August, 1839, he had purchased at sheriff’s sale, as the property of John Shields, defendant in the execution, lot No. 4 in fractional square No. 1 south, in the city of Jackson, and received a sheriff’s deed therefor.

In error from the circuit court of Tippah county; Hon. P. T. Scruggs, judge. The facts of the case are contained in the opinion. Cited Hutch. Co. 669, § 109; lb. 661, § 82.

Stephen Cocke, chancellor. On the 19th day of May, 1848, James Brown filed his bill against the defendant, Nevitt, to foreclose a mortgage on an… Held: that the note given in pursuance of this agreement was void for usury, though the borrower stated at the time, that he could make the Virginia notes answer his purpose in the payment of his debts to others. Ehringhaus v. Ford, 3 Ired. 522. The mere sale of a chose in action, not connected with a loan, is not usurious per se.

In error from the circuit court of Yalobusha county; Hon. John Watts, judge. The plaintiff in error was sued as the executor of the last will and testament of Thomas Hurd, deceased, for a debt due to the defendant in error by Mrs. Hurd, in her lifetime. This debt was due by Mrs. Hurd, formerly Mrs. Smith, at the time of her intermarriage with Hurd.

Stephen Cocke, chancellor. The facts are contained in the opinion.

In error from the circuit court of Tishomingo county; Hon. Hugh R. Miller, judge. This was an action of unlawful detainer commenced under the statute by Tuggle and wife against the defendants, in the justices’ court, for the possession of the north-east quarter section fourteen, township two, range seven, lying in Tishomingo county. Several bills of exceptions were taken during the trial of the case.

In error from the probate court of Hinds county; Hon. A. L. Dabney, probate judge of Hinds county. The facts of this case will be found in the opinion of the court.

In error from the circuit court of La Fayette county; Hon. P, T. Scruggs, judge. The opinion of the court, and the points made by counsel, contain a! sufficient statement of the facts of the case. Held: that where there is no express warranty, a defective title may be set up before eviction.