Volume 28 — Mississippi Reports

Henry Dickinson, vice-chancellor. The opinion of the court contains a sufficient statement of the facts of the case.' 1. The court below erred in not sustaining the demurrer to the cross-bill. See 2 Amer. Chancery R. 346; 1 Smith’s Chancery Practice, 459, note B. 2.

IN error from the circuit court of Tippah county; Hon. P. T. Scruggs, judge. The facts of the case are contained in the opinion of the court. The record in this cause presents but two questions for the consideration of the court, namely: The sufficiency of the original and amended complaints, and the illegality of the consideration of the note sued on.

Hugh R. Miller, judge. George W. Carroll petitioned for a mandamus against the board of police of Tishamingo county, to compel said board to levy a tax upon the people of said county, to pay certain warrants issued by the clerk of police court of said county on the 11th of August, 1840, and one of which warrants bears interest upon its face from date.

<p>Where A. agreed to build a house for B., •which was stipulated between the parties should not cost much more than $400; and after the work was, commenced, A. made a calculation, and told B. that he could put. certain extra work upon the house which would make the whole work cost not exceeding $500 or $600: Held, that this amounted to an agreement, that if B. would let the extra work be put on the house, that A. would not charge for it more than $600.</p>

In error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge. Held: that the high court of errors and appeals would presume that the parties waived the last demurrer. Smith v. Elder, 7 S. & M. 307.

In error from the northern district chancery court at Holly Springs ; Hon. Henry Dickinson, vice-chancellor. The opinion of the court, and the points made in Mr. Davis’s brief, contain a sufficient statement of the facts of the case. In this case, the vice-chancellor set aside a sheriff’s deed for land sold for taxes, on the ground that it was not assessed in the name of the owner at the time of assessment. The land was sold in 1847, for the taxes of the fiscal year of 1846.

<p>There is nothing in the statute (Hutch. Co. 841, 842) which authorizes the revival of any suit or action in the name of the executor or administrator of a deceased person, that prohibits the representative of the deceased party, either plaintiff or defendant, from coming voluntarily into court and making himself a party to the suit.</p> <p>The statute very clearly sanctions such a proceeding, by declaring that the court may render such judgment against a party brought in by scire facias, as it could render if he had come in voluntarily.</p> <p>The defendants below not having made any motion to have a discontinuance of the'cause entered, because two terms of the court had elapsed after L.’s death was suggested, before the administrator became a party to the suit, but elected to px-oceod to trial on the merits, have therefore waived the right to have the case dismissed.</p>

<p>Where A., as the agent of a bank, presented an account for money alleged to have been advanced by the bank to a firm, to one of the members of the firm, and requested payment, who at the time looked at the account, and said that they (the firm) had some money then in the house, which he could pay on the account, but he would rather the agent would wait a few days until his (B.’s) father (a member of the firm) returned home, &c., and no objection was raised by B. to the account: Held, that this'was not a sufficient acknowledgment of the account, as to justify a jury in rendering a verdict in favor of the plaintiff for the amount of the account.</p> <p>B.’s not objecting to the account amounts to nothing, unless it should appear that he was cognizant of the transaction, and it would seem that he knew nothing of the transaction.</p>

James F. Loury, judge of the probate court of Amite county. Martha Kell filed her petition in the probate court of Amite county, against the appellee’s executors of the will of David Thompson, deceased, and others, stating that she is one of the children of said David Thompson, deceased; that petitioner married-Kell in 1808; that her husband died in 1850; that her father, the said David, died in 1840; that after his death a paper was produced in the probate court of said…

Henry Dickinson, vice-chancellor. This case was before the court at a former term (24 Miss. 665), where a full statement of the facts of the case will be found. The bill in this case was filed by an indorser who had paid a judgment recovered against him and the maker of a promissory note, praying to be subrogated to the rights of the plaintiff in the judgment, and to enforce the same at law against the principal for the benefit of the complainant.

Henry Dickinson, vice-chancellor. The opinion of the court contains a sufficient statement of the facts of the case. Cited and commented on the following authorities: Hutch. Code, 660, § 71-75 ; lb. 661, § 79; 3 How. 257; Blanton v. King, 2 lb. 856; Green v. Creighton, 10 S. & M. 159; Caruth v. Anderson, 24 Miss. 60; lb. 183; 3 How. 255; 7 lb. 316; Compton v. Compton, 6 S. & M. 197. In reply, cited Hutch.

IN error from the circuit court of Calhoun county; Hon. Lock E. Houston, judge. Robertson and Williamson disputed about the length of time and the price of labor which the latter had performed for the former, when the matter in controversy was by them referred to arbitrators, who agreed to allow Williamson $19 per month for the labor he had performed for Robertson, and computed the time at six months.

Henry Dickinson, vice-chancellor. The facts of the case are sufficiently set forth in the opinion of the court. 1. The court should have sustained the defence of the statute of limitations. Hardy received his deed for the land in August, 1840. His written acknowledgment of Buckingham’s interest therein is dated in May, 1843. This suit was instituted the 24th September, 1851.

In error from the circuit court of Carroll county ; Hon. Vm. L. Harris, judge. The facts of the case are sufficiently set forth in the opinion of the court and the brief of appellant’s counsel, where also will be the instructions of the court below. The indictment is fatally defective, because it does not charge, either directly or by necessary implication, that the burning was malicious.

IN error from the district chancery court at Hernando; Hon. Henry Dickinson, vice-chancellor. The facts of the case are contained in the opinion of the court.

IN error from the northern district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor. The facts of the case are sufficiently set forth in the opinion of the court. On the rights of assignee. 7 Paige, 301; 11 lb. 204; 2 Johns. Cas. 438. On parol rescission of written contract. 3 Humphreys, 584; 8 Paige, 473; 2 Johns. Ch. E. 405. On the right of vendor to rescind. 4 Smedes & M. 600; 2 Leading Cases in Eq., Pt. 2, p. 16; 4 Johns. Ch. E. 559.

In error from the circuit court of Lowndes county; Hon. Wm. L. Harris, judge. A sufficient statement of the facts of the case are contained in the opinion of the court. Contended that the appellant is merely executor of W. C. Winston’s estate, and he cannot be charged in that capacity with the acts of trespass committed by another.

Os appeal from the district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor. The opinion of the court and the points made by counsel contain the facts of the case. 1. Held: that a court of equity is the proper and only tribunal for relief in such causes.,.

In error from the circuit court of Copiah county; Hon. W. P. Harris, judge.

James M. Jones, judge of the probate court of Franklin. The facts of the case will be found fully stated in the brief of appellant’s counsel.

IN error from the probate court of Wayne county; Hon. Samuel Jones, judge of the probate court of Wayne county. Assignment of errors. 1. The court below erred in overruling the third and fourth exceptions to the answer of defendant to complainant’s bill. 2. The setting aside the pro confesso, after the case was referred to a master in chancery before his report thereon, without withdrawing the reference. 3.

Charles Scott, chancellor. The facts of the case are contained in the opinion of the court. It is clear that the' deed is proved in accordance with the law of North Carolina. The proof of deeds in that State, is taken before the court, and the proof entered on the minutes.

IN error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. Antonio Chevalier filed his complaint to the November term, 1850, of the Adams circuit court, against the executors of Isaac Dunbar, upon an account amounting to §400.75, for medical services rendered to the deceased. The executors pleaded the general issue and payment.

IN error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. The opinion contains a statement of the facts of the case. The market value of the bank-notes loaned, at seventy cents per dollar, was about $6,156.50, the nominal amount being about $8,795, or $9,000, minus the discount.

In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. The following errors are assigned for the reversal of the judgment of the court below, by counsel for the appellant. 1. Held: that an acknowledgment of a debt, or a promise to pay a debt, barred by the statute of limitations, made by an executor or administrator, would not, as a general rule, revive the debt against the estate.

IN error from the superior court of chancery; Hon. R. H. Buckner, chancellor. The facts of the case are contained in the opinion of the court. Contended that the decree dismissing the bill was erroneous, and cited Farvels v. Graves, 4 S. & M. 707.

IN error from the superior court of chancery; Hon. Stephen Cocke, chancellor. This was a bill filed in the superior court of chancery, by Robert W. Harper and Catharine his wife, against Richard T. Archer and others; and upon Mrs. Harper’s death, the bill was revived in the name of Robert W. Harper, as her administrator. The bill charges that Edward F. Barnes died in April, 1827, leaving complainant’s wife Catharine, his widow, and one child, Eliza F. Barnes, his only heirs.

In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. This was an action of replevin instituted in the circuit court of Adams county in 1847, by John D. Anderson against John F. Roach, to recover a certain slave of the latter. The jury found a verdict for Anderson, and Roach prayed a writ of error to this court. The facts upon which the decision was made in the court below, as well as the instructions refused, will be found in the opinion of the court.

Amos R. Johnston, judge of the probate court of Hinds county.

In error from the circuit court of Coahoma county; Hon. R. Barnett, judge.

IN error from the southern district chancery court; Hon. James M. Smiley, vice-chancellor. The opinion of the court, and the points made by counsel, contain the facts of the case. Our first position is, that Read, one of the complainants, has no interest whatever in the subject-matter of the suit, and is therefore improperly a party complainant.

IN error from the circuit court of Lawrence county; Hon. W. P. Harris, judge. The facts of this case are contained in the opinion of the court. This was an action of replevin brought by Jayne against Dillon for a negro slave named Isabel.

A. B. Dawson, vice-chancellor. The plaintiffs in error, who were complainants in the court below, filed their bill alleging that they were the grandchildren of Duncan McLaurin, deceased; that they were six in all, the children of Jefferson and Catharine Love, of Madison county, and that the said Catharine’s maiden name was Catharine McLaurin, the daughter of said Duncan McLaurin, deceased; that three of complainants were of age or married, but the other three, infants of…

Henry Dickinson, vice-chancellor. The material facts of the case are contained in the opinion of the court. Who was entitled to the reservation under the treaty, Smith, the white man, or his wife, the Choctaw Indian ? In order to arrive at a correct conclusion on this point, we must look to the intention of the contracting parties, for the intention of the parties must govern in the construction of any treaty, and especially of this treaty. ■ 4 How. 559.

In error from the superior court of chancery; Hon. Charles Scott, chancellor. The facts of the case are contained in the opinion of the court. 'We rely upon the statute of limitations of seven years as a defence. Hutch. Code, 831, § 8. The bill was filed one day after the expiration of the seven years.

Charles 'Scott, chancellor. A sufficient statement of the facts of the case are contained in the opinion .of the court. On a bill to foreclose a mortgage, given to secure the payment of a bond, the bond must be produced, as the highest evidence of the debt. The recital .in the mortgage is not sufficient. .2 McCord, Ch. R. 14. . A mortgage is assets, and passes to the executor, and not tó ■the heir. 1 Bibb, 526; 5 Cow. 133.

Charles Scott, chancellor. The opinion of the court contains all that is necessary to a proper understanding of the case. In Carter v. Carter, 14 S. & M. 59, this case has been before adjudicated by the court.

Charles Scott, chancellor. Passmore Hoopes filed his bill against the executor and the heirs at law of Henry T. Irish, deceased, alleging… Held: in a somewhat analogous case, “ that a deposit of all the title deeds, as a security for a debt created at the time the deposit is made, is generally recognized as constituting an equitable mortgage; that such equitable liens have met with very decided opposition in England, though they have been generally sustained ; but it is…

•ON appeal from the district chancery court; Hon. A. B. Dawson, vice-chancellor. The opinion of the court contains a statement of the facts of the case. Held: where a ship is sold with all faults, the seller is not liable to an action, in respect to latent defects which he knew of, without disclosing at the time of the sale, unless he used some artifice to conceal them from the purchaser. The same doctrine is adhered to in the case of Pickering v. Downing, (4 Taunt. R. 779).

IN error from the southern district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor. This was a bill filed in the district chancery court at Natchez, ■ and the bill shows that the Planters Bank recovered a judgment :on the 30th of October, 1840, in the circuit court of Wilkinson county, against Thomas Lyne and James B. Richardson, on a promissory note.

In error from the circuit court of Claiborne county; Hon, Stanhope Posey, judge. On the 30th Sept. 1846, Anketell filed his declaration in assumpsit, in the Claiborne circuit court against Logan, Vm.

In error from the superior court of chancery; Hon. Stephen Cocke, chancellor. All the material facts of the case will be found in the opinion of the court. Did Mrs. Spain acquire any title to the slaves in controversy, which she purchased at the sale made by her as adminis-tratrix ?

IN error from the circuit court of Lawrence county; Hon. W. P. Harris, judge. The opinion of the court, and the points made by counsel, contain a sufficient statement of the case. The second count in the declaration was demurred to, and demurrer sustained. The rule of the court on this demurrer is clearly wrong.

IN error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. The plaintiffs in error filed their declaration in assumpsit to May term, 1845, against Evans as principal, and Watson and Woodhouse as his sureties, upon a promissory note for $1,749.15. The defendants in error pleaded the general issue; Evans, the principal, made no defence, and judgment by default was rendered against him.

IN error from the probate court of Covington county ; Hon. Frederick Pope, judge of the probate court of Covington county. Plaintiffs in error filed their petition stating they were heirs and distributees of Jesse Burkhalter, deceased. That defendant was administrator of said Jesse’s estate. That in the lifetime of said Jesse, the said Joshua, Jesse, and one John Burk-halter were copartners, and as such owned fourteen negroes, having purchased the same for the sum of $ 4,952.

In error from the southern district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor. This was a bill exhibited in the southern district chancery court at Natchez, by H. D. Mandeville et ah, to recover a decree for money against Thos. G. Stockett and his codefendants. The bill states that the President, Directors, & Co. of the Planters Bank on October 14th, 1842, recovered judgment against defendants, Mrs. Pinson, Brown, and Thos.

Oh appeal from the probate court of Amite county; Horn James F. Lowry, judge of the probate court of Amite county. The opinion of the court contains a sufficient statement of the facts of the case. The probate court was of competent jurisdiction to decide whether the paper was or was not testamentary. It decided that it was, and constituted “part and parcel of the will.” If there was error, that decision should have been appealed from..

James M. Smiley, vice-chancellor. This was a bill filed in the superior court of chancery, but afterwards removed to the vice-chancery court at Mississippi City. The object of the bill which was filed by the ancestor of plaintiffs in error, was to enjoin a judgment in ejectment obtained by the defendants in error, (the heirs of J. B. Corquette,) for a certain lot on the Bay of Beloxi.

Charles Scott, chancellor, having been engaged as counsel in a branch of this case, the Hon. Di C. Glenn sat as special chancellor, and delivered an opinion which is here published by permission of… Held: B. & S., upon principles of justice, are estopped from denying the existence, amount, and validity of said indebtedness, both as to C. and his assignee. 4. Partnerships. Bankruptcy.

E. G. Henry, judge. This was an action of ejectment, instituted by Wilkinson to recover an undivided one half interest in two lots in Yazoo City. The consent rule was entered into by Hughes. Held: that this judgment so revived was not void, but voidable only, and that a sale made under it would be-valid.

In error from the southern district chancery court at Natchez; Hon. B. C. Buckley, vice-chancellor. The bill was filed by Bacon et al. against Holmes as administrator of Mrs. Kirkland, B. B. Ellis, and Joseph L. Roberts.

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

Ik error from the circuit court of Hinds county; Hon. John J. Guión, judge. This case was before the court at a former term, (25 Miss. 484,) where the facts will be found fully set forth. A plea was filed by the appellee that the appellant had obtained an injunction, and had thereby released all errors, which was overruled by the court.

In error, from the circuit court of Warren county, Hon. George Coulter, judge. On the 16th of April, 1849, Queen, use of, &c., obtained judgment against Newet H. & Wm. Vick, for $493. On the first of June, 1849, an execution issued on this judgment, and was returned on the 4th of the same month nulla bona.

In error from the circuit court of Harrison county; Hon. Wiley P. Harris, judge. The facts of the case are contained in the opinion of the court. The objection of the failure of the magistrate to return the bond into court, cannot prevail. The plaintiff cannot be held responsible for his neglect. Moreover, the motion comes too late ; the bond was filed before the motion was made.

IN error from the circuit court of Pike county; Hon. John Watts, judge. This suit was commenced on the 7th day of October, 1853, of Pike circuit court, in the name of “ Henry Stuart Foote, governor of the State of Mississippi, and successor in office of Joseph W. Matthews, late governor of said State,” to whom the bond sued on was made payable, against a certain Jonas S. Parker, principal, and the plaintiff in error as security.

IN error from the probate court of Kemper county; Hon. James F. Bohannon, judge of the probate court of Kemper county. The opinion of the court contains, in substance, the facts of the case. The petition for the appeal shows' the facts of the ease, as developed by the record. These facts present two questions: First.

IN error from the circuit court of Hinds county; Hon. Richard Barnett, judge. The facts of the case are sufficiently set forth in the opinion of the court.

Os appeal from the superior court of chanceryHon. Charles Scott, chancellor. The facts of this case will be found in the opinion of the court.

IN error from the circuit court of Yazoo county; Hon. E. G. Henry, judge. The facts of this case may be found set forth in the opinion of the court, and the points made by counsel. This case was before the court at a former term, (26 Miss. R. 35,) where most of the facts upon which the present trial was had, will be found. The plaintiff, Bonney, has been permitted to recover the land •without a tittle of testimony to support the verdict.

<p>It has been settled by this court, that a deed of gift directly from a husband to his wife, where there is no ground to suspect fraud, and it only amounts to a reasonable provision for the wife, is valid in equity against the claim of the husband or his representatives. Ratcliffe v. Dougherty, 24 Miss. K. 181; Warren v. Brown, 25 lb. 66. Held, that regarding this transaction as a direct conveyance by the husband to the wife, and there being no circumstance to show fraud, there is nothing disclosed in the bill to impeach its fairness and validity.</p> <p>A voluntary conveyance is presumed to be fraudulent as to subsequent purchasers; but this presumption may be destroyed, and if the conveyance, though voluntary, appear to have been made upon a meritorious consideration, without fraud or covin, it is not void against a subsequent purchaser.</p> <p>Not all voluntary conveyances, but all fraudulent conveyances, are void.</p> <p>The act of 1846, (Hutch. Code, 498, § 7,) which requires a schedule of all such property to be recorded, does not make that a condition to the right of property in the wife, nor is there any penalty annexed to the failure to make a registration of it. Held, that the failure to make the registration does not work a forfeiture of the property.</p> <p>The act of 1839 in regard to the rights of married women, recognizes the absolute property of the wife in her slaves; and certainly contemplates that they are to remain in such a condition as that the wife’s property in them can be readily asserted without embarrassment; and the legislature did not intend to vest a distinct estate in the slaves for any term or period of time in the husband, but simply to give him the management of them, the direction of their labor, and the receipt of its proceeds.</p>

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

<p>It is not competent to show otherwise than by the record, that .a ward had notice of a proceeding in court, or to show a waiver of such notice by his personal appearance in court; for in order to render such proceeding of the court regular, it was necessary that every thing requisite to show the jurisdiction, should appear by the face of the record.</p> <p>It is not shown, in this case, that the account was allowed and ordered to be recorded by the court, or that the ward was present when it was before the court for its action. The guardian was still liable to the jurisdiction of the court, until he should render a regular and complete account of his trust. Held, that it is no objection to the liability of the guardian, that the ward had acquiesced at the time in an irregular account not made in accordance-with law, by receiving a balance due him as stated in the account.</p> <p>Courts look upon settlements made by guardians with wards, recently come of age, with distrust, and will not consider them binding unless made with the fullest deliberation, and the most abundant good faith on the part of guardians. Held, that the petition in the probate court was improperly dismissed.</p> <p>Fisher, J., dissent. — The private settlement of the ward with his guardian after the ward became of age, and his acknowledging it to be a correct settlement, and the ward having given the guardian a full acquittance, is a good defence to the future application by the ward to compel the guardian to account.</p> <p>Fisher, J., dissent. — The probate court having authority to compel a guardian to account in a proper case, must, of necessity, have authority to determine what1 shall he a sufficient justification for his not so accounting.</p>

Stanhope Posey, judge. The facts may be found in the opinion of the court, and the points made by counsel. Held: “ that there is no limit within which to amend a judgment under the statute, lapse of time does not bar such an application.” If the statute authorizing • the circuit judges to call a member of the bar to the bench, in cases where he is incompetent to sit; and if, in this case, Judge Posey had no authority to place L. K. Barber in…

<p>The object of the enrolment act was to protect the rights of persons who should become purchasers of property, and especially at execution sales; and unless judgments rendered shall be entered upon the “judgment roll” so as to enable persons desiring to purchase property to ascertain readily by reference to the “ roll ” whether any judgment existed against the person from whom the purchase was about to be made; all such judgments would cease to be a lien upon the property purchased. Held, that it is not necessary that the entry on the “ roll ” should show that the* judgment was in existence against more than one of the defendants, but it is sufficient that it shows that a judgment is in existence against a particular person in relation to whom the information is wanted. Nor is it necessary that great precision should be observed in showing the names of plaintiffs.</p> <p>A judgment rendered in the name of the “ commissioners of the sinking fund,” and enrolled as such after such commissioners had been superseded by the State commissioner, is as good for all substantial purposes as if enrolled in the name of the latter.</p> <p>The 13th section of act of limitations of 1844, and the 11th and 13th sections of the enrolment act, are all in fact statutes of limitations, but upon the well-settled doctrine cannot affect the rights of the State.</p> <p>By the provisions of the general lien act of 1824, and the “abstract act” of 1841, the rights of the State are not affected, unless the State'is specially included or by necessary implication, and the lien attaches to the property of the defendant in any county of the State; because the rights of the State, upon well-settled doctrine, are paramount to those of the individual citizen, and the State, is not considered as embraced in a statute unless such an intention is clearly manifest.</p> <p>No laches is to be imputed to the State, and against her no time runs so as to bar her rights; and the general words of a statute do not include the State or affect her rights, unless she be specially mentioned or clearly intended from the act, to be included. Held, that there is nothing in the statutes under consideration that would take them out of the rule of ordinary statutes of limitations in reference to the rights of the State, or that would include the State in their operation.</p> <p>Mr. Justice Fisher, dissent. — The act of 1841, (Hutch. Co. 890, § 1,) in using the words “all judgments or decrees,” clearly embraces those to which the State is a party, and such was the policy of the law.</p>

IN error from the circuit court of Lawrence county; Hon. Wiley P. Harris, judge.

IN error from the circuit court of Franklin county; Hon. Stanhope Posey, judge. Hickingbottom filed his complaint against Long to the March term, 1853, of that court. Held: that the bond, though executed as agent, was his own bond, and an action can be maintained on it as if executed by him personally. Ib. 410; 2 Kent, 631; 2 Wheat. R. 56.

Charles Scott, chancellor. H. A. H. Lawson filed his bill, showing that Fitz entered and received patents for lands in Issaquena, and conveyed them to J. B. Morgan. That in 1841, Morgan conveyed them to the assignees of the Mississippi Union Bank for some $17,000, as shown by his deed C. made part of the bill.

IN error from the circuit court of Yazoo county ; Hon. E. G. Henry, judge.

IN error from the circuit court of Madison county; Hon. R. C. Perry, judge. Held: on that account, to be void. The court held that the consideration was in fraud of the insolvent act, and hence could not support the note; that the note was void.

fe error from the circuit court of Copiah county; Hon. Wiley P. Harris, judge. Edwin R. Brown sued Dread Smith in an action of ejectment in the-circuit court of Copiah county for certain land, and Smith answered denying Brown’s right to the possession thereof, and also denying that he, defendant, held possession thereof, but asserting that said land was held and possessed by one Mary Smith. Plaintiff replied, taking issue on said answer.