Volume 3 — Mississippi Reports

Error from the Circuit Court of Wilkinson county. The material facts in this case are concisely stated in the opinion of the Court, and are fully set out in the argument of Mr. Gordon. We maintain that an execution cannot be sued-out after the death of a defendant, and satisfied out of his goods in the hands of his legal representative, without scire facias to revive the judgment.

Error from the Circuit Court of Hinds county. The facts are accurately set out in the argument of the Messrs. Briggs. The Mississippi and Alabama Railroad Company, suing to the use of Robert Jaffray, instituted an action of assumpsit to the May term, 1839, of Hinds Circuit Court, against Grimball, Long & McGowan, on a promissory note for $500, dated September 7th, 1837, and due at four months, made by said defendants, and one Trahern, who was not sued.

Error from the Circuit Court of Leake county. Thomas Myers recovered a judgment against George S. Fitch, Robert E. Halford, and Edwin Fox, on the 9th day of April, 1839, for the sum of $¡101.50, and costs ; on which judgment execution issued on the 16th day of January, 1843, and was levied on the same day, on two negroes and one wagon, as the property of Robert E. Halford.

This was an action of assumpsit brought to the May term, 1840, of the Circuit Court of Jefferson county, by the President, Directors and Company of the Agricultural Bank of Mississippi, against Thomas Allein, James Wood, James. Payne, and Peter Little, as the maker and indorsers of a promissory note. The declaration was in the usual form. The defendant, Little, pleaded the general issue ; and the other defendants also pleaded the general issue, and three pleas of payment.

Error from the Circuit Court of Holmes county. The facts are fully stated in the arguments of counsel, and the opinion of the Court. This is a writ of error, prosecuted by the plaintiff in error to a judgment of the Holmes Circuit Court.

Ekror to the Circuit Court of Carroll county. On the Sd day of July, 1S39, the defendant in error recovered a judgment in the Circuit Court of Carroll county, against the plaintiffs in error, for $1917.84, and costs. On which judgment an execution was issued, returnable to the October term, 1839. The execution was levied, and a forthcoming bond taken, and forfeited..

Error from the District Chancery Court. B. G. Simmons & Co., and William W. Curtis, filed a bill of complaint in the Vice Chancery Court, at Carrolton, to the June term, 1842, against Elisha North, James A. Kennedy, T. F. Lindsey, and Y. M. Lindsey ; alleging, that on the 16th October, 1839, North purchased of B. G. Simmons & Co. a negro woman and child, for whom he executed his promissory note for the sum of $1200, payable on the 1st of March, 1840, to secure the payment of…

Error from the Circuit Court of Yalabusha county. The facts are set out in the opinion of the Court. The first thing to be remarked by the Court, is the last thing that occurs in the bill of exceptions, to wit; the Court instructed an abstract point of law, that had no application to the evidence, and was well calculated, and no doubt did influence- the jury to disregard the testimony and the law, as applicable to the instruction asked for by the plaintiff in execution.

The pleadings are sufficiently stated in the arguments of counsel, and the opinion of the Court. This is an appeal from an order of the Superior Court of Chancery, overruling a motion to dissolve an injunction. The case was decided on the bill and answers ; no evidence had been taken on either side.

Error from the Circuit Court of Choctaw county. This was an action of assumpsit brought by Uriah Conner against John Pharis, to the September term, 1842, of the Circuit Court of Choctaw county, on a promissory note.

Error from the Circuit Court of Yazoo county. The facts of this case, so far as the opinion of the Court renders a statement of them necessary, are as follows, to wit: On the 9th day of May, 1840, Parham Buford conveyed, in trust for the benefit of his creditors, who are not named in the deed of trust, and never formally accepted itj to A. G. Harrisdn, all his moneys, debts, goods, chattels, and all his estate, real as well as personal.

Error from the Circuit Court of Claiborne county. Held: that a receipt is an exception to the general rule, that a writing cannot be explained or contradicted by parol. 1 Johns. Cas. 145 ; 2 Johns. Rep. 398 ; 3 Johns. Rep. 319 ; 8 Johns. Rep. 389 ; 9 Johns. Rep. 310 ; Greenleaf on Evidence, 353.

Error from the Circuit Court of Yazoo county. This is a bill in equity, filed in the Circuit Court of Yazoo county, to enforce alien which the complainant, as a mechanic, claimed upon the property described in the bill.

Error from the Circuit Court of Carroll county. This was an action of ejectment, brought by the plaintiff in error to the April term, 1841, of the Circuit Court of Carroll county. The defendants pleaded not guilty.

<p>It is not an error to issue a capias, after indictment for retailing spirituous liquors in less quantities than one gallon. That is the proper process whenever the offence is punishable by imprisonment as well as fine.</p> <p>A sheriff is authorized by statute to take the recognizance of any person he may arrest on the process of the circuit courts, and the amount of the security taken is left to his discretion.</p> <p>Judgment was rendered on a recognizance made returnable to the third Monday after the fourth Monday in April, at a court holden on the third Monday in March, the legislature having changed the time of holding the court from the former to the latter day, and directed all process to be returned to the latter; held, not to be error..</p> <p>It is error to render judgment by default, when the parties have agreed to consider a plea filed and issue joined.</p>

This was an action of debt, brought in the name of Tillman M. Tucker, Governor of the State of Mississippi, against James C. Stokes, Egbert Martin, Francis Clement, and Elias E. Gentry, to the May term, 1842, of the Circuit Court of Yallabusha county, founded on the bond executed in 1839, by the defendant, James C. Stokes, as assessor and collector of taxes for said county, with the other defendants as his surties therein, to recover the sum of five hundred dollars.

This was an action of assumpsit, to the December term, 1842, of the Circuit Court of Hinds county, brought by the Commissioners of the Sinking Fund, against George R. Fall and Volney E. Howard, upon a promissory note' for $3500. The defendants pleaded non-assumpsit.

This was a special action on the case, brought by James P. Thompson against William H. Young, to the May term, 1838, of the Circuit Court of Hinds county.

Robert H. Buckner, Chancellor. The bill in this case stated in substance as follows. That Sarah Calvit, in the year 1834, in the Court of Chancery, obtained a decree against William F. Markham, Christopher Dart, and Peter C. Goosey, for about the sum of $ 10,000 ; the defendants appealed to the High Court of Errors and Appeals, and gave bond, with Thomas M. Green as security in the appeal bond.

This was a motion made in the Circuit Court of Yazoo county, by William E. Pugh, purchaser at the sale of the effects of Philip B. Pope, a bankrupt, against F. T. Grayson, surviving… Held: that a purchaser at sheriff’s sale purchases subject to the equities of the parties, and we can see no distinction upon principle between such purchaser and one at bankrupt sale. But we think the authorities cited for appellant, do not militate against the principles for which we contend.

In error from the Circuit Court of Yazoo county. This was a motion in the Circuit Court of Yazoo, by Plaintiff in Error v. Defendants, as attorneys at law, for failing to pay over money collected by them on a judgment in favor-of P. B. Pope, a bankrupt, (and whose assignee plaintiff in error is,) v. B. R. Grayson, for the sum of $433.99.

Error from the Circuit Court of Madison county. This was a motion to appropriate money collected by the sheriff. The facts are fully and accurately stated in the opinion of the Court. The counsel for appellant rely upon the following reasons why the order of the Court appropriating the money to the execution, should be reversed. It is true the judgment of Stewart & Mitchell v. R. Eubank, is the oldest.

This was an action of debt, brought by Nicholas McDougall, Judge of Probate of the county of Claiborne, for the use of Samuel Luckett, administrator with the will annexed, of the estate of James Luckett, against Robert B. Russell and his wife, Amelia A. Russell, Joseph F. Brock, William Henderson, and George Henderson, to the November term, 1840, of the Circuit Court of Claiborne county, founded on a bond for one hundred thousand dollars, executed on the 1st day of March,…

In error, from the Circuit Court of Warren county. Thi was an action of assumpsit, in the ordinary form, brought by th'e President, Directors and Company of the Commercial and Railroad Bank of Vicksburg, who sued for the use of William R. Bay, upon a note made by James Bland, payable to, and indorsed by William B. Pryor and by Levi Mitchell, dated the 12th day of February, A. D. 1838, payable six months after date, for the sum of thirteen hundred and fifty-six dollars and…

The appellant, Ann B. Green, filed her petition in the Probate Court of Claiborne county, setting forth, in substance, as follows : Abram Green died in the county of Claiborne in the spring of 1826, possessed of a large estate, consisting of twenty-five negroes, a plantation, with all the necessary implements of husbandry thereon, together with stock, &c., having a crop of cotton unsold, and provisions laid in for raising another.

James B. Robinson, executor of Raymond Robinson, on the 8th day of December, 1838, recovered a judgment in Claiborne Circuit Court, against Curtis Wood, for $2120.16. On the 12th of December, 1838, a fi. fa. was issued, returnable to the May term, 1839. This fi. fa. was levied on slaves, and a forthcoming bond given, which was forfeited. On the 6th of August, 1839, a fi. fa. was issued on the forfeited forthcoming bond, on which the sheriff made no return.

In error from the Circuit Court of Madison county. The defendant in error sued the plaintiff in the Court below upon a note, payable to Henry Hamblin, or order, for $500 in Citizens Bank funds. The defendant plead non assumpsit.

The case is fully stated in the arguments of counsel, and the opinion of the Court. This was a bill filed on the Chancery side of the docket of the Circuit Court of Choctaw county.

Error from the Circuit Court of Claiborne county. The facts of the case fully appear in the opinion of the Court. 1.

The facts of the case fully appear in the opinion of the Court. '1. The decree of the Probate Court must be reversed, and the bill dismissed, because the Probate Court has no jurisdiction to set aside its own decree for fraud after the term at which it was made. Judgments and, decrees can only be impeached and set aside for fraud by an original bill. This exclusively belongs to the Chancery Court. By the Constitution, full jurisdiction is vested in the Chancery Court.

On the 29th day of November, 1836, the President, Directors and Company of the Planters Bank recovered in the Circuit Court of Claiborne county, two judgments for the sum of $3702.66 each ; the one against Horatio N. Spencer as the second, and the other against Robert W. Campbell as the third indorser of the same bill of exchange. Executions were issued on both judgments returnable to the May term, 1837, both of which were levied, and forthcoming bonds taken'and forfeited.

This was a writ of habeas corpus ad subjiciendum issued upon a petition to the Hon Stephen Adams, Judge of the Ninth Judicial District, by John Smith, senior, to recover the possession of a negro boy named Jerry, alleged to be in the possession of William and George W. Hardy. The petition alleges that they took 'the slave from the possession of the petitioner by force, one being armed with a gun, and the other with a knife.

This was an action of debt, brought by Henry Anderson, et al., for the use of Augustine Willis, against Lucien B. Moore, in the Circuit Court of Monroe county. The declaration alleged the bill single, on which the suit was founded, to be lost.

This was a motion, made by Briggs, Lacoste & Co., for the use of the President, Directors & Company of the Farmers and Merchants-Bank of Memphis, Tennessee, against Silas L. Steen, sheriff of Rankin county, and John Lawrence, Elias Steen, John ,W. Webb, and Hardy Dear, Sen’r., his sureties, at the June term, 1842, of the Circuit Court.of Rankin county,- for failing to make due return of a writ of fieri fiadas placed in the hands of said sheriff.

On the 26th of April, 1841, John D. Freeman, administrator of James W. Scanlan, deceased, filed his petition in the Probate Court of said county, showing that George Lake and Maria Louisa Whiting originally took out letters of administration on the estate of Amos Whiting, deceased ; that since that time, the said Maria L. Whiting had intermarried with Jeremiah M. Rhodes, who after-wards qualified as administrator ; that the sureties of the said George Lake and the said Maria…

<p>E. & B. sued out an attachment against J. E. B., and B. & L. executed a bond to E. & B., conditioned that J. E. B. should appear at the Circuit Court and answer the plaint of E. & B., and abide by and pay and satisfy any judgment that might be rendered against him; held, if the bond was intended as a contract between the parties, that E. & B. might sue and recover thereon against the obligors, or either of them, on J. E. B.’s failure to comply with the conditions of the bond.</p> <p>A plea of general performance to an action on a bond with conditions, when the declaration sets out the conditions, and assigns special breaches, is bad on demurrer.</p> <p>E. &B. sued L. on a bond executed by B. & L. in favor of E. & B., conditioned that J. E. B. should appear at the Circuit Court and answer the plaint of E. & B., and abide By and pay and satisfy any judgment that might be rendered against him; E. pleaded that at the time of the rendition of the judgment against J. E. B. he was amenable to the process of the Circuit Court, and that E. & B. failed to sue out a ca. sa. and arrest his body, &o.; held, that the plea was no answer to the declaration, and was therefore bad on demurrer.</p>

To the November term, 1839, of the Circuit Court of Hinds county, Levin R. Marshall brought an action of assumpsit against Thomas B. J. Hadley, as the maker, and Henry K. Moss and John A. Grimball, as indorsers of a promissory note for $4381.25, dated December 14th, 1837, and payable twelve months after date. The defendants pleaded the general issue. At the trial, the plaintiff read in evidence the note sued on, and a notarial protest thereof.

In error from the Circuit Court of Warren county. The defendant in error sued out an attachment against the flatboat of the plaintiffs in error, who replevied the boat, and entered themselves parties to the suit, according to the provisions of the act of the legislature, with reference to steamboats and other water craft, passed in the year 1840. Session Acts, 129.

In error from the Circuit Court of Yazoo county. Several cases were submitted to the Court at the same time, depending on the same questions of law and fact. The facts in one case only are stated. They are as follow: — On the 25th day of May, 1839, John H. Walker obtained a judgment against Peter C. Goosey and William K. Stone, in the Yazoo Circuit Court, for the sum of twelve hundred and seventy-one dollars ten cents, besides costs.

In error from the Claiborne Circuit Court. Suit was instituted in the Court below, upon a promissory note made by the plaintiffs in error, and a judgment by default final was rendered there on the 8th day of December, 1838. On the 6th day of March, 1843, a writ' of error was sued out by the plaintiffs in error from before the clerk of the Claiborne Circuit Court, and was executed on the 10th.of March, 1843. .

This was an action of assumpsit, brought in the Circuit Court of Yazoo county, by John Turner & Co., for the use of Robert Edrington, as administrator of the estate of Burwell T. Edrington, against Nancy Ann Brown, on a promissory note for $919.17, made by the defendant, and payable to the order of John Turner & Co., due on the 1st day of January, 1839. The declaration was in the usual form, and the defendant pleaded non assumpsit.

This is an appeal from the Superior Court of Chancery. The appellants, Archibald L. Yeizer, Joseph A. McRaven, Jacob B. Morgan, and Thomas J. Randolph, complainants below, filed their bill in June, 1839, in which they state that during the years 1835 and 1836, A. L. Yeizer, one of the complainants, had extensive transactions with Burke, Watt & Co., merchants of New Orleans, and with A. Fisk, Watt& Co., whom the former firm sue-ceeded in business ; that in the course of these…

This was a bill filed on the chancery side of the Circuit of Madison county, by William E. Douglass and William H. Hall, administrators of the estate of Henry L. Douglass, jr. deceased, to enjoin several judgments rendered against them, by a Justice of the Peace, in favor of Charles G. Sanders.

In error from the Copiah Circuit Court. The plaintiffs in error on the 15th March, 1842, filed a petition in the Court below, for a writ of error coram nobis, in which they stated in substance, that an execution had issued against them purporting to-be upon a judgment of the 4th of November, 1839, for the sum of $1131.12 ; that this execution had been levied, and they had given a forthcoming bond with sureties thereon ; that this bond had been forfeited on the 6th day of…

This was an action of ejectment brought by John Doe, ex dem. Moses B. Rogers, against John P. Lehr, the tenant in possession. The facts are stated in the opinion of the Court. 1 It is provided by the first section of our statutes on the subject of executions, that they shall be made returnable to the next succeeding term, provided more than fifteen days do not intervene between the teste and the term to which they are made returnable.

In error from the Circuit Court of Yazoo county. The'following plea in bar was filed in this case. Held: that a claim growing out of a breach of warranty was within the class of claims required by the statute to be presented. 4 How. 24’6. The only difference between that, case and this is, that the claim there was more easy of liquidation than it was in this case. They alike, however, belong to the class of unliquidated claims.

The bill in this case charges, that complainant, in March, 1838, filed his bill in Adams Circuit Court against H. Gridley, to foreclose a… Held: in equity, cognizant of the fact, that the money had not been paid, nor the sale confirmed, which facts appear upon the face of the title of Kane, or enough appears to put them on inquiry, and if they did not know the money was unpaid, it was crassa negligentia not to inquire and ascertain the fact, that the six months’ bond had or…

In error, from the Circuit Court of Smith county. Held: and the indictment found, is stated in figures ; and the whole caption, in relation to the empanelling the jury, and the finding the indictment, is in the past tense. The sheriff cannot be removed from office, except in cases specified in the Constitution and laws. Const, art. 4, sec. 28, art. 5, sec. 19.

In error, from the Yalabusha Circuit Court. The defendant in error, Thomas Carbry, on the 6th February, 1843, presented a petition to the board of police of Yalabusha county, praying to be allowed the sum of $6437.53, on account of ♦work done on the Court-house of the county, under a contract made between the board of police and one Bennet J. Higgins.

This was an indictment, found by the grand jury of Lowndes county, against Géorge Vaughan, for shooting at, with the intent to kill and murder Henry R. Owen. The weapon alleged to have been used was a shot-gun, loaded with gunpowder and divers leaden shot. The defendant pleaded not guilty. The evidence is substantially recited in the opinion of the Court. The jury found a verdict of guilty, and the defendant entered a motion in arrest of judgment.

Error from the Circuit Court of Yazoo county. The case is clearly stated in the opinion of the Court. The position assumed in support of the demurrer was, that the declaration omitted to state that prior to the institution of the suit a deed had been presented by Adams the sheriff to Griffin, formally' conveying the premises, and a demand made of the purchase-money. To the refutation of this position, I shall principally confine my argument.

Error from the Circuit Court of Madison county. This was a trial of the right of property. Lewis &> Nichols recovered a judgment in the Circuit Court of Madison county on the 1st day of February, 1840, against Wm. Smith. On the 22d day of April, 1841, the execution which was issued on said judgment was levied on a negro man named Dave. The negro was claimed by Horace M. Gilmer, who gave bond in accordance with the statute to try the right of property.

This was an action of ejectment brought to the April term, 1837, of the Circuit Court of Bolivar county, to recover 1280^^ acres of land. The declaration contained two counts, the first laying the demise in the names of Egbert Harris and Joseph R. Plummer, and the second in the name of Hugh Foster. At the return term John V. Newman was made defendant, and pleaded not guilty.

This was a petition to the Circuit Court of Warren county, by-William Harrison, for a writ of prohibition.

Error from the Circuit Court of Franklin county. Daniel A. Shell and Ransom Buncldey filed a bill in the Circuit Court of Franklin county, against Aaron Heckingbottom. The defendant demurred to the bill, and the Court overruled his demurrer.

This was an action of debt brought by Lydia Dowell against Samuel S. Boyd in the Circuit Court of Adams county. The declaration contained two counts.

<p>It is well settled, that a purchaser without covenants takes all the risk of title.</p> <p>In a quit claim, deed, the grantor does nothing more than to acquit the grantee from any title or right of action which the grantor may have; and taking a qui^ claim, in general, implies knowledge of a doubtful title.</p> <p>The statute of this state requires that an offset should be filed at the time of pleading, or it cannot be admitted, unless it he so particularly set out in the plea, as to apprise the opposite party of its nature.</p> <p>When a third person is to be benefitted or charged by the execution of a judgment, a scire facias is necessary to make him a party; but when an execution can neither benefit nor charge one who is not a party to the judgment, a scirefacias is unnecessary.</p> <p>H, in 1829, sued out a scire facias against the executors of K. to revive his judgment. In 1830, the orphans’ court decreed a sale of the real estate of K.; and the executors sold two lots, which were purchased by S. Subsequently, H., without a scire facias to revive against the heirs, or the terre tenant S. levied his execution on the two lots, and sold them.</p> <p>By the court: Scire facias was unnecessary to bring in the heirs, inasmuch as the sale under the decree of the orphans’ court, had divested them of all interest in the lots. Before the decree of sale by the orphans’ court, due notice was given, which was a virtual scire facias to all persons interested.</p> <p>Scire facias should have been issued against the ierre tenant S. The sale made as it was, without revival, was not void, but only voidable. It was good, until regularly set aside, which cannot be done in a collateral manner. S. purchased subject to the general judgment lien.</p>

This was a special action of assumpsit 'brought to the December term, 1834, of the Circuit Court of Yalabusha county, by Samuel Foster against John H. McKennie. Before judgment the defendant died, leaving a will,' appointing his wife Mary executrix, &c. A scire facias issued to revive the suit against the executrix, which was returned — not served.

This was an action of assumpsit, brought in the Circuit Court of Adams county, by the President, Directors and Company of the Planters Bank of the State of Mississippi, against Eli Montgomery and Philopcemen L. Mitchell, copartners, trading under the name and style of Montgomery & Mitchell, John Cameron and John Montgomery.

<p>By the act of the legislature of 1830, abolishing the tribal customs of the Chickasaw Indians, and extending the laws of this state oyer their territory, it is enacted, that all marriages and matrimonial connections entered into by virtue of any custom or usage of the Indians, and by them deemed valid, shall be held as valid and obligatory as if the same had been solemnised by the laws of this state.</p> <p>By the customs of the Chielcasaws, the husband acquired no right to the property of the wife, which she possessed at the time of marriage.</p> <p>No community of interest was produced by the marriage contract, with respect either to the original property of the parties, or to the acquests and gains during its continuance.</p> <p>Property belonging the wife, under the Indian customs, is not liable to the debts of the husband.</p>

This was an issue in the Court below, to try the right to property.

This cause was tried before the Hon. James Scott, at the March Term of said court, 1835. Plaintiff brought his action of debt upon the decree of the court of equity.

Error from the Probate Court of Yazoo county. The facts are substantially stated in the opinion of the Court.

THIS case came up on an appeal from the circuit court of Wilkinson county. The appellees instituted their suit on a promissory note, given by the appellant Williams, to Famish, endorsed by Famish to Stamps, and by him to Harris, Ferguson & Co., payable “ without plea or offset.” The defendants pleaded the general issue, and three special pleas.

This cause was tried before the Hon. Alexander Montgomery, at the November term of said court, 1832. . The governor of the state, at the instance of William Conway, instituted suit against the plaintiff in error, on his bond as coroner, for failure to make the money on an execution, which had been directed to him.

AN appeal from the decree of the Superior Court of Chancery. Zecharie & Kerr exhibited their bill before the Chancellor, against William H. Bowers, all being non-residents of the State. The complainants averred that on the fourth of March, A. D. 1S41, they had recovered a judgment against the defendant in the Commercial Court of New Orleans, in the State of Louisiana, for thirty-four hundred and thirteen dollars and thirty-two cents, .besides interest and costs of suit.

This cause was tried at the November term of said court, 1S33, before the Hon. A. M. Keegan. The defendants, as plaintiffs below, brought their suit to recover a promissory note for 1080 dollars. The defendants below pleaded — 1. The general issue. 2. That Stevens, the payee, never assigned or transferred said note, nor any interest therein, to Stevens & Pillett. 3.

In error from the Circuit Court of Amite county. William H. Dillingham sued William Montgomery and William Jenkins in the Court below, in an action of debt upon a bill single, or promissory note under seal, for the sum of five thousand dollars. The plaintiff, in his bill, claimed title through one William M. Taylor, by indorsement. The following is a copy of the instrument sued on, artd the indorsement thereon, to wit : — “ ‡5000.00.

The defendants iu error sued out an attachment against Anne M’Causland for 74 dollars 84 cents, and garnished the plaintiff in error, who answered, and there was a judgment entered up against him at the November term of said circuit court, 1834. Berry brought his writ of error, and assigned the following errors in the judgment and proceedings below; 1.

The plaintiff in error was tried on an indictment for murder, at the October Term of the Wilkinson circuit court, 1835, before the Hon. Thomas A. Willis. The cause is sufficiently stated in the opinion of the court. cited Rev. Code, p. 134; 1 Chitty, 270; 4 Hawkins; Peck’s Rep. 310; Rev. Code, 116; 1 Chitty, 419; Jury Law, Act of Legislature, 1830; 1 Coke, 156, A; Leach, 87; Chitty, 165.

This was an action of assumpsit brought in the Circuit Court of Jefferson county, by Mathias W. Baldwin, George Vail, and George W. Hufty, against James Payne, Abner E. Green, and Robert Y. Wood, on two promissory notes,-dated on the 4th day of December, 1839, and payable at the Merchants Bank, in the city of New Orleans, one at sixty and the other at ninety days after date, and each for the sum of $6283.95. The declaration was in the usual form.

This cause was. tried at the September term of the circuit court, 1834, before the Hon. Alexander Montgomery. cited 1 Chitty’s Pleadings, 691; 1 Starkie, 153, note 1; 1 Saunders on Pleading and Evidence, 468, S, 70.

<p>An attachment process without bond and affidavit is declared void by the statute; and the defect will not be cured by the appearance and plea of the - defendant.</p>

This cause was tried at the May term of said court, 1836, before the Hon. James Walker. The record is, of a declaration upon a single bill, sealed by Farish, Smith and Singleton for 3000 dollars, dated October 1st, 1831, and payable three years after date. There are three counts, two on the bond, and one a money count.

The counsel for plaintiffs in error contend that there is error in the procedings of the court below, in this, that there is no sufficient return of the capias. A service by copy is not good unless under certain circumstances which should have been recited in the return of the sheriff. See Rev. Code, 114.

William and Isaac Mitchell filed their bill in the District Chancery Court, onthe22d Sept. 1840, against Benjamin P. Gates, Wm.

<p>ERROR to the Copiah circuit court.</p> <p>cited Amb. Com.' Law, 249; 1 Chitty, 357; Stephens on Pleading, 474; 1 M. & Selwin, 675; 4 Ibid. 94.</p> <p>cited 2 Wend. 144-5-6; 4 Wend. 182; 2 Cowen, 31; 2 Johns. Cases, 18; 12 Johns. Rep. 493; 13 Ibid. 361; 16 Ibid. 343; 17 Ibid. 469; Rev. Code, 124, s. 91 and 97; Walker’s Rep. 349.</p>

This was an action in the court below, on an inland bill of exchange, dated the 28th of October, 1835, payable fifteen months after date; accepted and protested 31st of January, 1837, for non payment. Upon the trial, the court instructed the jury, “ that the plaintiff was entitled to recover damages, at the rate of five per cent./’ to which opinion an exception was taken, and the decision below is now assigned for error.

LYDIA, widow of William Whitehead, filed her petition in the probate court of the county of Franklin, claiming dower, in the personal and real property belonging to the estate of said William Whitehead, deceased. Whitehead had been married twice, and there were several children by the first marriage, but none by the second. The petition asserted a claim of .dower to one half of the real and personal property, and in the growing crop.

In error from the Rankin Circuit Court. Tidence Lane, the defendant in error, filed his petition, praying the Circuit Court of Rankin county, then sitting, on the 9th June, 1842, to make an order upon William G. Ross, the plaintiff in error, to show cause on the succeeding Tuesday, why a peremptory mandamus should not issue against him, as tax collector of the county, to compel him to collect the sum of $‘6600, as a special tax on the inhabitants of Rankin county, and pay…

This cause was tried at the March term of said court, before the Hon, R. S. G. Perkins. All that is material to be stated in the cause is embraced in the opinion of the court. cited Angel on Limitations, 26. 149. 191; 2 Wheaton’s Selwyn, 965. cited Starkie on Slander, 94. 254.

This cause is amply stated in the argument of counsel and opinion of the court.

John B. Williamson and Cecelia M. J. his wife, on the 18th day of June, 1838, filed their bill in the Superior Court of Chancery, on which they alleged, that John Cook, the ancestor of Cecelia, entered in the proper office, the following tracts of land : The north-west quarter of section number twelve, township sixteen, range number four, east ; also the north-east quarter of section number twelve, township number sixteen, range number four, east; and fractional section…

This cause was tried at the October term of said court, 1836, before the Hon. George Coalter. It was an action of debt, instituted by the plaintiff below, on a judgment recovered against the defendant in the state of South Carolina. The defendant pleaded, 1. that the cause of action did not accrue within six years. 2. Nil debet. 3. Nul tiel record. 4. That the defendant had been regularly discharged from the debt under an insolvent law of South Carolina.

<p>APPEAL from the-Warren circuit court.</p> <p>This cause was tried at the May term of the Warren circuit, before the Hon. George Coalter.</p> <p>cited 2 Starkie, 187, (edition of 1837;) 2 Saund. 187, a;- 2 N. R. 362; 5 Coke, 24; 1 Salkeld, 196; 3 Johns.. Cases, 180-2; 3 Wash. C. C. Rep. 508; 18 Johns. 459; 4 Johns. Ch. Rep. 566; 1 Peters’s C. C. R. 301-6; 13 Mass. Rep. 148; 7 J. J. Marshall, 418.</p>

<p>ERROR to the Madison ci</p> <p>Dig. 547; Ibid. 327, (C;) 2 Yerger, 337; 2 Croke’s Rep. and 70; 4 Term Reports, 470</p>

<p>APPEAL from chancery.</p>

This cause -was tried at the November term of the circuit court, 1834, before the Hon. Alex. Montgomery. It is- sufficiently stated in the opinion of this court. cited Rev. Code, 131; 1 Peters’s Rep. 355, 6; 5 Am. Dig. 163.

This was an action of debt on a sealed instrument. After issue joined, the jury returned the following verdict. “We, the jury, find for the plaintiff and assess his damages at three hundred and sixty-six dollars;” which verdict was assigned for error.

<p>Judgment by default will be set aside on motion and affidavit of merits and payment of costs, when opportunity for trial has not been lost.</p>

The appellant filed his hill in the court below, to rescind an'd cancel a gift made by him to the appellees, his children. The bill exhibits a writing, without seal, dated February 8, 1821, signed by complainant, and attested by George Fox, as appears by inspection.

<p>APPEAL from chancery.</p> <p>cited 19 Johns. 77; 1 Wheaton, 197; 5 Cond. Rep. 540; 12 Wheaton, 574; 3 Hay. 189, 190,191; 4 Pick. 228; 1 Johns. Ch. Rep. 609; 2 Cow. 129; Walker, 165-73; 3 Des. 85; 1 Marshall, 344-5; 8 Wend. 561; 5 Littell, 179-80; 1 Term Rep. 446 ; 2 Marshall, 513; 1 Fonbl. 117-18, and notes; 1 M’Cord, 122; 3 Rand. 507; 2 Ibid. 51; 6 Munf. 287; 2 H. & M. 173; 2 Burr. 1008-12.</p> <p>cited Dunlop v. Dunlop, 12 Wheaton, 574.</p>

This cause was tried at the January term of the chancery court, 1836. It is sufficiently stated in the opinion of the court. cited 4 Yesey, Jr. 521; 2 Vesey, 279; 8 Yesey, 377; Clancey, 262, 268,269; 4 Equity Rep. 448; Madd. Chan. 488; 7 Johns. Chan. Rep. 230; 1 Cowen, 691; 2 Ibid. 118 ; 2 Kent, 136; 2 P. Williams’s Rep. 316; 6 Johns. Chan. Rep. 178; 4 Mason’s Rep. 455; 4 M’Cord, 452; Reeves’s Domestic Rel. 163 j 5 Johns. Chan. Rep. 480 ; 4 Paige’s Chan. Rep. 457.

This was an application, by the District Attorney of the 7th Judicial District, made to this Court for a writ of error from a judgment of the Circuit Court of Hinds county, in a criminal prosecution, in which the jury found the defendant “ not guilty.” The application was made by the District Attorney on behalf of the State, in the following petition, to wit: To the Honorable the Judges of the High Court of Errors and •Appeals of the State of Mississippi.

This was an action of detinue brought in the Circuit Court of Marshall county, by Joseph H. Talbot against Janies Hunter, to recover two slaves, named John Williams (blacksmith), and John Oliver (striker). The declaration contained only one count, and that was in the ordinary form. The defendant pleaded non detinet. The case was argued and submitted without any instruction being asked by either party.

This was an action of ejectment tried'before the Hon. George Coalter, at the March term of said circuit court, 1837. On the trial of the cause, the plaintiff offered in evidence to the jury, a copy of a certificate from the register of the land office, which was as follows: “No. 921. Land office, Washington, Mississippi, 18th March, 1830.

This was an action of ejectment, brought in the Circuit Court of Rankin county, by John Doe, on the demise of Stephen Cocke, to recover several lots lying in the town of Brandon. Tidence Lane was made defendant. The jury found for the defendant.

<p>In a suit on a bill of exchange, the declaration must show that the bill was drawn on a person out of the state, or it will be regarded as a domestic bill, upon the protest of which, damages of five per cent, only accrue under the-statute.</p> <p>Where a bill was addressed to merchants in New-Orleans: Held, the court could not judicially know that this place is out of the State of Mississippi. It is error to calculate interest on the amount of a bill from maturity together with the damages up to the time of the rendition of judgment. Interest can only run on the amount for which the bill was drawn.</p>

<p>ERROR to- the Jefferson, circuit court.</p>

<p>It is incumbent on a party who applies for a new trial on the ground of newly discovered evidence, to satisfy the court that tlie evidence has come to his knowledge since the trial; that it whs not owing to the want of due diligence that it was not discovered sooner, and that it would probably produce a different verdict were a new trial granted.</p> <p>It is not enough to show “ from information” what a particular individual will testify, or that such individual assured the party to what he would testify: the affidavit of the witness must be produced, setting forth his evidence, or it must be shown that such affidavit could not be obtained.</p>

<p>Where the record is so defective that the true state of the pleadings cannot be ascertained, the presumption will be in favor of the correctness of the decision of the Court below.</p>

<p>The invariable rule is, that when the parties reside in the same city or place, notice of the dishonor of bills or notes must be personal, or something tantamount, such as leaving it at the dwelling-house or place of business of the party, if absent.</p> <p>-If the party to be served with notice of protest resides in a different place or city, it may be sent through the post office, to the post office nearest the party entitled to notice.</p> <p>When the party and his family are temporarily absent at the time of protest, notice through the post office of the residence of the party, is not sufficient; the notice must be personal, or something tantamount, such as leaving it at the dwelling-house or place of business of the party temporarily absent.</p> <p>No custom of protesting by notaries public, in violation of law, can change, or in any way affect the application of the law itself.</p>

Error from the Circuit Court of Yaiabusba county. The facts áre fully stated in the argument of counsel and the opinion of the Court, except that the defendants entered a motion for a new, trial, which the Court overruled ; to .which judgment, overruling said motion, they excepted. This was an action of assumpsit, founded upon a .promissory note, executed by plaintiffs in error to the Mississippi Union Bank.

ERROR from the Circuit Court of Tishemingo county. On the 4th day of February, 1840, a summons was issued by a Justice of the Peace of Tishemingo county, against William B. Frost, as garnishee, commanding him to appear before M. Suratt, a Justice of the Peace, and answer what he had in his hands, or what he was indebted to John Payne, against whom an execution had been issued in favor of A. J. & S. Fraley, administrators, &c. by the said Suratt, Justice.

This cause was tried before the Hon. George Coalter at the March term of said circuit court, 1837. It is sufficiently stated in the argument of counsel, and the opinion of the court. This was an action of indebitatus assumpsit for goods, wares and merchandise, sold in 1816, in Baltimore, by Luke Tiernan and his deceased partner, to Joseph E. Davis, Michael Tiernan and Patrick Tiernan, merchants, then doing business in copartnership in the state of Mississippi.

In error from the Circuit Court of Warren county. This cause had been pending in the Court below for some time. The case having been brought to this Court, a motion was made by the defendant to dismiss the case for want of service of citation.

Samuel M. Hanna, the complainant, filed his bill to restrain the collection from him of the purchase-money of certain land bought by him from defendant Harper. Pe alleges, that on the 16th day of January, 1840, he purchased of Harper certain lands, which he describes, for the sum of eight thousand dollars.

<p>The superior court of chancery has no original jurisdiction oyer the subject of wills.</p>

<p>APPEAL from the circuit court of Claiborne county.</p> <p>This cause was tried at the November term of said court, 1836, before the Hon. W. S. Bodly.</p> <p>cited 4 Mass. Rep. 319-321; Rev. Code, 44, sec. 58; 6 Mass. Rep. 392; 2 Johns. Rep. 376; 13 Johns. Rep. 437; 1 Chitty, 703-4; 3 Caines’s Rep. 89, 265; 5 Johns. Rep. 476; 9 Mass. Rep. 199, 200; 13 Johns. Rep. 264. 402; 1 Johns. Rep. 65. 385; 2 Mass. Rep. 541.</p> <p>cited 15 Eng. Com. Law Rep. 174,</p>

<p>In an action of trespass for an assault and battery against A, B, and D, the the writ was not served on D, whose death was afterwards suggested.</p> <p>By the court. D, not being a party to the record, his admissions are not evidence to prove the assault by A and B.</p>

<p>When the surety of an administrator pays a debt of the intestate •which the administrator had become bound to pay, the surety is entitled to the same lien on the estate, which sueh payment would have given the administrator had it been-made by him.</p>

<p>MOTION in this court to dismiss the appeal.</p>

<p>ERROR to the Adams circuit court.</p> <p>This was an action against Gridley, as sheriff of Adams county, for taking an illegal forthcoming bond.</p>

<p>Jurisdiction of the probate court. If the administrator has failed to return an inventory, or has received the profits of the estate and converted them to his own use, or squandered them, he is liable on his bonds.</p> <p>If the administrator illegally sell lands, or personal property, such sale will not change the title. And when the sale is legal he is liable for the proceeds. -</p>

<p>Where pleas of justification, are pleaded and withdrawn in an action of slander, such pleas are not a part of the proceedings, and, therefore, not legal evidence for the jury.</p>

Farish filed his hill in the chancery court, against the State of Mississippi, to recover damages for a breach of contract. The Attorney-General filed a demurrer, which was sustained, and the bill dismissed for want of jurisdiction. The complainant prayed an appeal to this court. This suit was commenced by bill in the chancery court.

The appellant assigned for errors below: . 1. That the judgment was by default, final upon an insimul computassent account without executing a writ of'inquiry. 2. It was a general judgment upon the promises and undertakings in the declaration mentioned without executing a writ of inquiry.

The appellees filed their bill in the chancery court to assert their claim to certain property as the heirs at law of Elisha Brazealle. Elisha Brazealle left his residence in this state some time in the year 1826, and took with him to the state of Ohio a negro woman and her-son, John Monroe Brazealle, with the intention of emancipating them and bringing them back to the state.

<p>ERROR to the Madison circuit court.</p>

This cause was tried before the Hon. James Walker at the April term of said court, 1837. It was an action of trespass brought to recover the sum of 1200 dollars for shooting a negro man slave. On the trial, the defendant introduced a witness to prove that the manner of the killing was related to the plaintiff by the defendant Williams, and that the plaintiff did not contradict the facts as stated to him by the defendant.

<p>ERROR to the Hinds circuit court.</p>

<p>ERROR to the Madison circuit court.</p>

MOTION to dismiss the cause, because the appeal bond was not executed at the same term the appeal was granted. Marsh, in opposition to the motion.

This was a suit in chancery, commenced by original bill, to review the proceedings of the probate court of the county of Jefferson. The defendants below filed their demurrer to the bill, and assigned the following causes: 1. That the chancery court has no original jurisdiction of the subject matter set forth in the bill, but that the same belongs to the court of probate of Jefferson county. - 2.

This was an action of debt. The defendant below pleaded specially, and concluded to the country, upon which the plaintiff joined issue. There was a trial und verdict for the defendant. The plaintiff moved the court below for a judgment for his debt and costs, which motion was overruled. cited IS Johns. Rep. 14-22; 6 Cowen, 225-234; 2 Wend. 624; 4 Ibid. 472; 1 Call.

At the January special term of the Copiah circuit court, 1835, the grand jury found a true bill against William P. Rose for an assault committed on the 25th of said month, on which a bench warrant issued. Rose was taken on the 16th of January, 1836, and entered into bond with the defendant, Young, as security in the sum of 200 dollars. At the May term of said court, 1836, a scire facias issued against Young.

A statement of the case is given in the opinion of the court. cited 2 Kent, 146; 1 Johns. Chan. Rep. 456-7; 3 Ibid. 547. cited 2 Kent’s Comm. 300-1; 3 Bac. Abr. tit. Executors and Administrators, p. 64; 2 Bl. Comm. 122-3; 1 Comyn’s Dig. 88, sec. 23, 24, 25; 3 Leigh’s Rep. 255.

This case was tried before the Hon. Thomas A. Willis, at the February term of said court, 1836. It was instituted by John W. Scott against Hall, Buckner, Harris, E. G. Peyton and Haliday, on a joint and several promissory note. Peyton & Haliday pleaded severally, non assumpsit, and a verdict was rend,ered.against them. A judgment by default was taken against Harris for want of a plea. A nolle prosequi was entered as to Hall, before judgment had against the others. 1.

Thomas Brian filed his bill in the superior court of chancery, setting forth, that on the 1st day of August, 1834, being a carpenter and joiner, he in that capacity contracted, for the sum of 3475 dollars, to build for Wilson and M’Donald a store and warehouse of certain dimensions; that their contract for that purpose was reduced to writing, signed by the parties, and recorded in the clerk’s office of the probate court, within three months from its date.

<p>APPEAL from a decree of the superior court of chancery.</p> <p>cited 6 Johns. Rep. 14; Hardin’s Rep. 201; 9 Vesey, 67; Carpenter v. Roebuck, 1 Yesey, 225; 1 Comyn’s Dig. 683; 3 Munroe, 259.</p> <p>cited 1 Fonblanque, 149; 6 Wheaton, 528.</p>

<p>MOTION to dismiss for want of a writ of error.</p>

<p>A writ of inquiry can be awarded and executed only upon the rendition of a judgment by default. ,</p>

<p>ERROR to the Hinds circuit court.</p>

<p>Where certiorari to a justice’s court has been improperly awarded it may be dismissed by the circuit court upon motion.</p>

This cause is stated in the opinion of the court. cited 2 Pirtle’s Dig. 477, sec. 35; Ibid. 484, sec. 84. 491; Ibid. 506, sec. 202; Ibid. 487, sec. 106; 2 Bibb, 566; 1 Johns. Chan. Rep. 363; 1 Pirtle’s Dig. 171, sec. 12.

<p>APPEAL from the circuit court of Adams county.</p> <p>This was an action of ejectment.</p>

<p>APPEAL from the probate court of the county of Adams.</p>

<p>Where in an action of trespass on the case on a promissory note, the declaration contained four counts and the defendant pleaded substantially non assumpsit, tendering an issue to the country, in all of which the 'plaintiff joined with a similiter, with the exception of the plea to the third count, and verdict for the plaintiff: Held, the error is cured by the statute of jeo-fails.</p>

<p>A trustee for sale, in default of payment of mortgage money, may execute the trust, and sell without an order from a court of equity; and such sale is a perfect foreclosure, and bar to the equity of redemption on the part of the grantor or mortgagor.</p>

This was an action by M. A. Levy, against the plaintiff in erról-as endorser of three several promissory notes, for the sum of 863 dollars 56 cents, each, bearing date July 11, 1836, and maturing at six, seven and eight months. Judgment was had in the court below by default, for 2626 dollars, being the aggregate amount of the three notes, with interest.

<p>A transcript from a record of a probate court of another state, is not legal evidence to establish heirship.</p> <p>The remedy against an administrator for past acts of mal-administration, is on his bond; but inasmuch as the bond affords only an ultimate indemnity, where injury to the estate may be reasonably apprehended, the probate court may remove the administrator to prevent it.</p> <p>"Where the administrator at the time of an application for his removal, possessed the same capacity, as he did when appointed, the court refused to remove him for want of capacity, although his appointment might have been injudicious.</p>

<p>ERROR to the Lowndes circuit court.</p>

<p>ERROR to the circuit court of Adams county.</p> <p>cited 1 W. Blackstone; 13 Johns. Rep. 405; 5 Bacon, 368; 10 East, 33-44; 4 T. B. Moore, 153; 16 Eng. Com. Law Rep. 368; 6 Vesey, 733-4; 9 Wheaton, 720, 736; 1 Paine, 125; 2 Johns. Chan. Rep. 559; I Bos. & Pul. 419; 4 Desauss. Rep. 664; 3 Yeates’sRep. 160; 1 Gallison, 32-35.</p>

<p>APPEAL from the.chancery court.</p> <p>cited 7 Johns. Chan. Rep. 222; 10 Johns. Rep. 537-8.</p>

- APPEAL from a decree of the superior court of chancery, directing that the heirs of William Downs convey certain lands to the heirs of Henry Downs. The complainants below, the heirs of Henry D. Downs, claim the land in controversy, in exclusion of the other heirs of his father William Downs, by virtue of a supposed transfer of William Downs, dated 1802.

<p>ERROR to the Madison circuit court.</p>

<p>IN error.</p> <p>This was an action of debt.</p>