Volume 30 — Mississippi Reports

<p>1. Kunaway Siave. — It is the right and duty of every citizen to arrest a runaway slave; and in so doing, if resisted, he may oppose force to force, even to the extent of taking the life of the resistant, if the resistance offered threaten the life, or great personal danger to the captor: hut this does not authorize the captor to slay the slave, to prevent his escape by flight.</p> <p>2. Same. — A person slaying a runaway slave, to prevent his escape by flight, is liable for his value to the owner: 1 Nott& M'Cord, 182,183; Iredell, 513; 4 Bibb, 222 ; 4 M'Cord, 156-161.</p>

<p>1. Feme covert’s separate estate. — The right of the widow to the personal estate of her deceased husband, exempt by law from execution, is a chose in action, and, goes to a subsequent husband under the rule of the common law; her interest therein not being protected by" the acts of 1839 or 1846.</p> <p>2. Same. — The acts of 1839 and 1846, for the protection of the rights of married women, only extend to the property enumerated in them.</p>

In error from the Circuit Court of Yallabusba county. Hon. T.,M. Rogers, judge. The facts of the case sufficiently appear in the opinion. The following brief was filed on behalf of plaintiff in error, by O. P. Sheppard. Brief. — The court erred in setting aside the verdict and judgment, and dismissing the scire facias. 1. The objection urged, could only have been taken by plea. The scire facias need only show an existing judgment; that being the basis of plaintiff’s title.

Hon. Henry Dickinson, vice chancellor. The appellees, M. E. H. Lawson, and her husband, Andrew Lawson, filed their bill in the Nice Chancery Court, against Robert Shotwell, James H. Turner, and Eliza W. Moore, alleging in substance, as stated in the opinion of the court. To this bill the defendants appeared and demurred, and assigned for cause of demurrer,— 1. Want of equity in the face of the bill. 2. That the complainants’ remedy was at law. 3.

<p>1. Bill roa specific performance, parties. — If the obligor in a bond conditioned to make title to land, treat the contract as at an end, by, conveying the legal title to a third person, the obligee cannot maintain a bill against such third person for a specific performance of the contract: he should proceed against the obligor if alive, and if dead, against his heirs.</p> <p>2, Same. — The purchaser of the legal title from a vendor, who has previously contracted by title bond to convey to another person, is not a proper party against whom a hill for specific performance should, be filed by the vendor in the title bond. He is a stranger to the contract, and in no way bound to convey by the terms of the title bond.</p>

1st error from tbe District Chancery Court, at Holly Springs. Hon. Henry Dickinson, vice chancellor. William L. Jordan and fifteen others, filed their bill in the District Chancery Court, at Holly Springs, against Larkin T. M‘Ken-zie and others, seeking to recover two slaves, which they alleged belonged to them as distributees of one Andrew C. Jordan, and which had been illegally sold to defendants, by the administratrix of the said Andrew C. Jordan.

IN error from the District Chancery Court at Carrollton. Hon. Henry Dickinson, vice chancellor.

Hon. Wm. L. Harris, judge. ¡ On the 24th day of April, 1854, the defendant in error, as administrator of one James Doherty, deceased, sued the plaintiff in error, upon a bill single for $750, due on the first day of November, A. D. 1842, and recovered judgment in said court for the full amount of said bill and interest. A motion for a new trial was made, but overruled; to which a bill of exceptions was taken, and a writ of error sued out to this court.

<p>IN error from tbe Circuit Court of Monroe county. Hon. William L. Harris, judge.</p> <p>. Thomas W. Brown, the plaintiff in error,' sued Joseph W. Speight, Mark Prewet, and Abner Prewet, upon an injunction bond executed by them to plaintiff.</p> <p>The complaint, and amended complaint, in substance alleged that, at the April term, A. D. 1848, of the Circuit Court of Monroe county, the plaintiff had instituted two several suits against the defendant, Speight, as administrator of one Jesse Speight, deceased; one for $482, and the other for $217.</p> <p>That during the pendency of these suits, the defendant, Speight, filed his bill in the Chancery Court at Columbus, praying that the plaintiff be enjoined from further proceedings in his said suits at law, and in answer to his prayer, he obtained an injunction; that in compliance with the order of injunction, the said defendants, on the 11th of October, A. D. 1848, entered into a bond to the plaintiff, in the penal sum of $1593, to be void on condition that the defendant, Speight, as administrator as aforesaid, should pay all money and costs due or to become due to the plaintiff in said actions at law, and also all such costs and damages as should be awarded against the said Speight, as administrator as aforesaid, in case the injunction should be dissolved; otherwise to remain in full force and virtue.</p> <p>That, at the November term, A. D. 1848, of said Chancery Court, the said injunction was dissolved, and the bill of complaint dismissed.</p> <p>That, afterwards the.said Speight resigned his letters of administration, and one Wynn was appointed. That he prosecuted his said suits against Wynn, as administrator as aforesaid, and recovered judgment in both for his debt and interest, and costs. That neither Wynn nor Speight has paid the same. That the estate of Jesse Speight is now insolvent, and the said judgment cannot be collected out of it. That at the time his said suits were enjoined, said estate was good, and plaintiff would have been enabled to make his money, except for his said injunction. That * Speight, at the time of his resignation and final settlement, had assets of said estate in his hands sufficient to pay said debts.</p> <p>Breach. — That said Speight has failed to pay said debts, and costs, and damages.</p> <p>To this the defendant demurred, and assigned for one of his causes of demurrer, that the chancellor had no right to require Speight to give said bond, and that it was void.</p> <p>The demurrer was sustained, and the plaintiff refusing to amend further, judgment final was rendered for the defendant. The plaintiff thereupon sued out this writ of error.</p> <p>1. The right to an injunction is not like the right to an appeal or writ of error ; the former is discretionary in the court to grant or refuse ; they may therefore impose terms upon the granting, but a party has an absolute right to his appeal, or writ of error; therefore, the decisions which hold that in appeals and writs of error an administrator shall not give bond, are not applicable to an injunction. When the chancellor required him to give bond, in order to arrest the proceedings at law before judgment, be merely put the administrator to his election, whether he would then arrest the suits and become personally liable for the debts, or whether he would let judgment go. Having' elected the former, he could not now complain. It was a voluntary assumption of a liability, in order to secure a benefit. Having enjoyed the benefit, he would not now be heard to deny the liability.</p> <p>2. That this court has decided, that if an administrator give a forthcoming'bond, in order to release the property of the estate from a levy by the sheriff, he is individually responsible. See Thompson v. Ross, 26 Miss. R. 198. That is strictly an analogous case to the one at bar. See, also, 8 Porter, 575.</p> <p>3. That the said Speight had assets sufficient to pay the debt at the time the bond was given, and if an administrator under such circumstances, promise in writing to pay the debt of his intestate, he is bound. 3'S. & M. 438 ; 6 lb. 199; 14 lb. 161; 23 Miss. R. 53. 1 Supplement U. S. Dig. 804, § 303.</p> <p>1. The only question involved in this case, is, can an administrator, who enjoins an action against him as such, be compelled to give an injunction bond ? If a point can be closed by repeated decisions, there is no room for argument or litigation.</p> <p>The statute exempts an administrator from all liability for the debts of the intestate, beyond the amount of assets in his hands.</p> <p>A judgment is rendered against him — he desires to litigate further, and appeals. The statute expressly requires a bond, as a condition precedent, in cases of appeal, generally. Both statutes must be construed together, and it has been decided that an appeal bond was illegal and unnecessary. Scott v. Scearles Moon, 1 S. & M. 590, 591. The reason given is, that the bond, if valid, might subject the administrator to the payment-of debts beyond the amount of assets in his hands.</p> <p>An administrator seeks to contest the levy of an execution, and applies for a supersedeas. The general rule is, that a person obtaining a supersedeas, must give bond in double the amount of the judgment, conditioned for its payment, in tbe event be fails to prosecute Ms suit with effect. Yet an administrator is not required to give such a bond, because he might thereby be made liable beyond the amount of the assets. 12 S. & M. 538, 534.</p> <p>Then, if an administrator, believing he has an equitable defence to an action at law, applies for an injunction bond, how can the chancellor require of him a bond, which will subject him to a liability from which he is exempt by law ? The injunction bond will operate, if valid, precisely as an appeal or supersedeas bond, that is, to make him liable beyond the amount of assets in his hands.</p> <p>2. If the chancellor, in violation of law, compels the administrator to give an injunction bond, it is an illegal contract, without consideration and void. It is not the voluntary act of the administrator ; it is done in compliance with an order of the court. The promise of an administrator to • pay the debt of his intestate in writing, is void, without a consideration. Thus, the execution of a promissory note, when he obtains credit in his account for the « amount thus settled, is on good consideration, and valid. The English cases hold, that the possession of assets is a sufficient consideration to uphold the promise; but our statute exempting him from liability beyond the amount of assets in his hands, destroys the foundation of these decisions. Tanner v. Brown, 3 S. & M. 425; Bird v. Holloway, 6 lb. 203; Hill v. Bobertson, 2 lb. 541.</p>

Hon. Henry Dickinson, vice chancellor. This cause was submitted in this court upon the following agreed abstract:— On 27th September, 1850, Stewart and Sandford, trustees for Brown, Brothers & Co., and Hyde, Cleveland & Co., filed their bill in the District Chancery Court, at Holly Springs, against Thomas N. Niles, for the foreclosure of three mortgages, upon as many sections of land in the State of Mississippi, executed by said Niles to them, on 29th November, 1836, to…

<p>Ibt error from the Circuit Court of Monroe county. Hon. W. 1. Davis, judge.</p> <p>The defendant in error, on the 10th day of January, A. D. 1865, instituted her action of replevin in the Circuit Court of Monroe county, against the plaintiff in error, for the recovery of certain slaves. The defendant pleaded not guilty; and upon this issue there was a verdict and judgment for the defendant in error. Plaintiff in error moved for a new trial, which was overruled by the court.</p> <p>Prom a bill of exceptions taken to the overruling of the motion for a new trial, it appears that on the 25th of March, 1848, Albina Murphy was married to one Macon Murphy, in the state of Alabama: that they remained in Alabama until December, 1849, ■when they removed to Aberdeen, in this state: that Matthew Hobson, the father of defendant in error, resided in the state of Alabama, until his death, which took place on the 10th of January, 1851.</p> <p>That on the 22nd of December, 1852, distribution of his estate was had in Alabama, and the slaves in controversy, among others, were allotted to the defendant -in error, as one of the distributees of his estate; that soon thereafter the slaves were sent by one Wm. Tanner, to the defendant in error, who then resided in Aberdeen, Miss.</p> <p>It also appeared, that on the 6th of May, 1854, at Bladen Springs, in the state of Alabama, said Macon Murphy and Albina Murphy his wife, executed a deed of trust, by which they conveyed the slaves in controversy to B. H. Dalton, as trustee, to secure the payment of a debt of f3000, due by said Macon Murphy, to one Walker. By the provisions of said deed Dalton was authorized and required, upon default in the payment of the debt, to sell the negroes before the court house in the town of Aberdeen, for the purposes of the trust. The deed recited that all the parties were of the county of Monroe, and the state of Mississippi; this deed was executed in the presence of and attested by two witnesses, in accordance with the laws of Alabama. Macon Murphy soon after the execution of the deed, died at Bladen Springs.'</p> <p>There was some evidence offered on both sides, as to the domicil of Macon Murphy, at tbe time of tbe execution of tbe deed, whether it was in Mississippi, or Alabama. The opinion of tbe court renders it unnecessary that this evidence should be set forth. The slaves were in Aberdeen when the deed was éxeeuted.</p> <p>1. The deed was valid according to the laws of Alabama, where it was made: being valid there it is good everywhere, wherever might have been the domicil of the parties. Personal property has no locality : it follows the person of the owner. 1 H. Black. 690; Story, Conflict of Laws, § 380; 4 Johnson, 34-39 ; (greenwood v. Ourtis, 6 Mass. 368; Sherrill v. HopMns, 1 Cowen, 107; Milam v. Fitz James, 1 Bos. & Pul. 139; Thompson v. Ketchum, 8 John. 192; Andrews v. Pond, 13 Peters, 65-78.</p> <p>2. The capacity of a minor or married woman to contract is governed by the law of the domicil, by the rules of the Qivil Law ; but by the common law, their capacity or power to make a contract is governed by the lex loci contractus. Story, Confl. Law. §§ 85, 86, 89, 102, 103, 241; Putnam v. Putnam, 8 Pick. 433 ; West Cambridge v. Lexington, 1 lb. 504; Andrews v.. His Creditors, 11 La. R. 463 ; Nail v. Roberts, 3 Espn. R. 63.</p> <p>3. If the civil law is to rule this case, the deed is valid, because by that, the law of the domicil of'the wife at the time of her marriage determines her capacity to contract, and any subsequent change of domicil will neither increase, nor diminish her powers. Story, Con. Law, §§ 136,137,138,139, and authorities there cited.</p> <p>Mrs. Murphy’s domicil at the time of her marriage was in Alabama. They returned to Alabama, and made the deed according to the laws of that state. See 2 Kent, 458.</p> <p>4. The forms which appertain to a contract, and the solemnities attending its execution, which make it valid or void, are to be determined by the lex loci contractus. Story, Confl. Law, §§ 318, 372; Vidal v. Thompson, 11 Martin, R. 23; Lacón v. Higgins, Eng. Com. L. R. 427.</p> <p>5. That the property was to be sold in this state, does not make the validity of the contract determinable by our law. The general principle adopted by civilized nations is, the validity and interpretation of contracts is to be governed by tire law of tbe place where they are made, but the remedies are to be governed by the lex fori. Bank of U. 8. v. Bonelly, 8 Peters, 370; Story, Confl. . Law, 558; O’ Qállaghan v. Shomond, 3 Taunt. 82.</p> <p>6. It is undoubted law, that the succession of personal property is governed exclusively by the law of the actual domicil of the intestate. Story, Confl. Law, § 481, and authorities there cited. Matthew Hobson, the father of Mrs. Iiobson,' died at his domicil, in Alabama; Mrs. M. being domiciled in Mississippi. By the law of Alabama, the property of Hobson descended to the sole and separate use of his married daughter. This was the law of the succession of his estate. I am aware of the rule which declares that where there is a change of the nuptial domicil, the acquisitions of property made after the change, are governed by the law of the actual domicil of the parties, at the time such acquisition was made; but this rule only- extends to acquisitions made in the new domicil, and not to descents of property in the old domicil. It cannot be so extended without a violation of well recognized rules governing the law of descents. Montgomery v. Agricultural Bank, 10 S. & M. 566.</p> <p>The wife and husband signed the deed in the presence of each other, and there was no private and separate examination of the wife apart from her husband. She did not acknowledge the deed before any oflicer or legal functionary, and the subscribing witnesses show affirmatively, that the deed was signed in the presence of her husband. He and his wife signed at the same time.</p> <p>The deed itself estops the parties trying to enforce it, from denying that this state was the place of domicil of the husband and wife. Another trust deed in favor of another creditor or surety, was also introduced as evidence on the trial, hy the plaintiff in error, which proves the same fact. The testimony is clear, explicit, and full on the question of domicil, and the jury have settled that matter ; and see evidence of Mrs. Hobson, A. C. Hobson, Sydenham Moore, and Mrs. Inge.</p> <p>Macon Murphy’s domicil was certainly in Mississippi, before he went to Bladen Springs for his health, and it remained in the former place until he acquired a new domieil. Where was the new domicil ? Story, Confl. Law, §§ 44, 45, &c., &c.; Hairston et al. v. Hairston, 27 Miss. R. 718, 719.</p> <p>The locality of the contract for the loan of money was here; the property was here; the parties all resided ancl had their domi-cil here; all the parties looked to this place as the situs where the trust deed was to be executed; and the trust is now being attempted to be enforced here; upon what principle, then, can the laws of Alabama be invoked, if they would avail any thing ?</p> <p>“ If, by the law of the place of the domicil of the husband, a married woman has capacity to make a contract, or to sue, or to ratify an act, her acts so done, will be valid everywhere; on the contrary, if she is deprived of such capacity by the law of the domicil of her husband, that incapacity exists in relation to all the like acts and contracts, even when done in a foreign country, or with reference to property in a foreign country. Story, Confl. Law, § 66; Gamier v. Poydras, 13 La. R. 177. “ Qualitas per-sonam sieut umbra sequitur.”</p> <p>A minor or married woman, who is deemed incapable of transacting business (sui juris,) in the place of his or her domicil, will be deemed incapable everywhere, not only as to transactions in the place of his or her domicil, but as to transactions in every other place. Story, Confl. Law, § 65.</p> <p>Under the laws of this state, the deed is void as to the wife, and does not bind her separate property. Davis v. Hoy, 7 S. & M. 64; Prost v. Doyle, 7 lb. 68; Garrison v. Pisher, 26 Miss. R. 352; Robertson and wife v. Bruner, 24 lb. 242; and the situs of the property was in this state; the money that was attempted to be secured, was lent in this state; and place of performance was in this state. The mere executing of a trust deed in Alabama upon property here, cannot prevent the operation of the rule, that the law here must govern. Story, Confl. Law, §§ 279, 287, 280, 299.</p> <p>By our law the deed is void. Macon Murphy, in the character of husband, acquired no title to the slaves. He and his wife were' living in Mississippi when Matthew Hobson died. Under the laws of either state, the property was the separate estate of the wife. Albina, at the time of the marriage, had no right or title to the property, and there was nothing for the matrimonial domicil to operate upon. Lyon v. Knox et al., 26 Miss. B. 566,567; Kneeland v. Qasley, Meigs, B. 620; Story, Confl. Laws;1 §§ 186, 187, 188.</p> <p>The judgment is right, upon the law and the testimony. It is correct in principle, and will not be disturbed. 27 Miss. B. 245; lb. 425; lb. 664.</p>

Hon. Henry Dickinson, vice chancellor. On the 27th day of September, A. b. 1850, George N. Stewart, and Thaddeus Sandford, as trustees for Brown, Brothers, & Co., and Hyde,… Held: that an attorney may plead the statute on his client, (fiduciary relations,) for money collected, though he did not notify his client of the collection of the money. Cook v. Rives, 13 S. & M. 328. Finally, in this cause, there was everything to put Stebbins upon active and stringent diligence.

<p>1. Arbitration, without a rube oj? court. — If parties to a suit agree to refer the matters in controversy between them to the decision of arbitrators, and that their award shall be the judgment of the court, who thereupon make and return their award into court, judgment may he entered on the award, although the submission to arbitration was without any previous rule of court. (Smith, C. J., dissenting.)</p>

Hon. R. M. Neilson, judge. The facts of this case are sufficiently stated in the opinion of the court. The question is, whether a certain paper, somewhat a deed of gift in form, is the testamentary act of Jehu Wall. Í maintain the affirmative. The form of the instrument is immaterial; it may be no less a will, because it is in form, a deed or letter, &c. 10 S. & M. 623; 2 How. 701; 4 Eccl. B, 108.

<p>Appeal from tbe District Chancery Court at Pulton. Hon. Henry Dickinson, vice chancellor.</p> <p>The opinion of the court contains a full statement of the facts.</p> <p>The question presented is, was Stewart bound to comply with his portion of the agreement, after Turman for three years and a half had failed to perform his part thereof? This would seem easy of solution, from the terms of the contract made by the parties : That if Turman paid Stewart one hundred and twenty-five dollars on the 1st of March, 1849, then Stewart should convey; if, however, he did not pay on that day, Stewart’s obligation should be void. What right has any court to change the terms of that contract? This court has decided that the contract thus made by the parties, shall be adhered to; that if the purchaser fails to pay, the vendor may consider" the agreement at an end, and lawfully sell to another. Moore v. Holloway, 4 S. & M. 594: and that if the vendor is unable to make a good title when the purchase-money is due and tendered, the vendee may cancel. 9 S. & M. 596. The vice chancellor, however, seems to have considered something else necessary: — that Stewart should have presented Turman’s note for payment, and have accompanied that presentation with a threat, that if not paid, he would cancel. The books, however, all say, that it is the duty of the payee to find his creditor, and tender payment. If Stewart at any time had the right to consider his contract at an end, would Turman’s failure to tender or pay, deprive him of that right? Or, would Stewart’s kindness to Turman, in permitting him to remain on his land rent-free, debar him of any right he possessed the moment Turman forfeited his contract ? It is conceived that the court will still regard its solemn adjudication of the principle involved in this cause, as entitled to some respect, notwithstanding the fact that the vice chancellor has clearly overruled the case of Holloway v. Moore, 4 S. & M. 594.</p> <p>The case of Lindsey v. Henderson, 27 Miss. R. 503, does not apply, as no payment was made.</p> <p>The defendant, Stewart, seeks to avoid the decree for specific performance of this contract, because the purchase-money was not paid at maturity. This is not sufficient, when the proof shows that the vendor acquiesced, and voluntarily agreed to the postponement of payment of the purchase-money.</p> <p>Default in payment to the day appointed, is not a bar of itself, but is only one circumstance to prove abandonment of the contract, and may be rebutted. Halls v. Carpenter, 1 Dev. & Bat. 356.</p> <p>In a case where the vendee contracted for the purchase of land and took possession, as in the case under consideration, but neglected to pay the purchase-money for a long time after it became due, during all of which • time the vendor held the note for the purchase-money, and did not offer to surrender it, but recognized the contract as still subsisting, from the fact that the vendor allowed the contract to subsist, after default by the vendee in the payment of the purchase-money, the vendor could not abandon the contract without previous and formal notice to the purchaser to come forward and fulfil it, or he would abandon it, &e. And on such a state of facts, it was held that the vendee could claim a specific performance. Halls v. Carpenter, 1 Dev. & Bat. 237.</p> <p>In Holloway v. Moore, 4 S. & M. 594, the Supreme Court say: “ If the vendee fail to pay at the time stipulated, the vendor has a right to consider the contract at an end. Hut suppose he does not so consider, and acquiesces in the delinquency of his vendee ?” This case goes further than any reported case, and even this does not apply to the case under consideration. In that case the vendee not only abandoned the contract, but the title-bond fell into the hands of Earp, who obtained a title-deed from the vendors after the death of the vendee. The vendors did elect in that case, to. consider the contract at an end, and sold to another. This deci~ sion is founded on the case of Hatch v. Cobb, 4 Johns. Ch. R. 559. In that case, the vendor, after long delay, twice demanded payment of the vendee, who refused and failed to pay. In the case on trial, the vendor voluntarily indulged and waited on the vendee, until he had sold to Gates. The first demand made, was for the bond and for rescission, when the vendee immediately offered to pay the money, which the vendor refused to receive !</p> <p>In the case of Kempshall v. Stone, 5 Johns. Ch. R. 193, (referred to in Holloway v. Moore,) the parties agreed to abandon the contract, and the vendee repeatedly applied to the vendor to have the money already paid, refunded. ' The vendor then sold to another.</p> <p>In the case of Benedict v. Lynch, also cited and relied on in Holloway v. Moore, the vendee not only failed and refused to pay, after repeated demands, but the contract was verbally abandoned. Rut in that case the court say, if the circumstances of the ease, and the conduct of the opposite party, afford grounds for a just inference that he had acquiesced and consented to the delay and default of payment, a specific performance will be decreed; that acquiescence in the delay may be inferred from the conduct of the party or vendor, p. 379, 380. See on this subject, Seton v. Slade, 7 Vesey, 265; and Paine v. Miller, 6 lb. 349.</p> <p>In the case under consideration, the bill charges, “that Stewart, the vendor, never demanded or pressed the collection of the purchase-money of the land, but indulged the vendee voluntarily until after the sale to the complainant, who is an innocent purchaser, &c., before any intimation was given by Stewart of intention to abandon the contract. That all this while Turman was in possession, making valuable improvements,” &c., &c.</p> <p>So far from denying this important allegation in the bill, the defendant admits, “that Turman was poor and involved, and Stewart did not sue him for the note, but permitted it to remain unpaid,” &c.</p> <p>In conclusion, we have only to say, that in all cases of this character, when a specific performance has been refused, it was upon the ground, first, that the parties mutually agreed to rescind and abandon, or second, the acts and declarations of one party show that he has abandoned and rescinded, or third, when one party has performed or offered to perform Ms part of tbe contract, and upon the refusal of the other, gave him notice that the contract was at an end. Johnson v. Jackson, 27 Miss. R. 498, 499.</p>

IN error from tbe Circuit Court of Yalabusba county. Hon. Frank M. Rogers, judge. Tbe plaintiffs in error, William N. Sberman and Tbomas D. Sberman, on tbe 31st day of March, 1853, sued out tbe writ of error in this case, from the clerk’s office of the Circuit Court of Yalabusha county, to which on the 24th day of January, A. 1854, the defendant in error filed his 'plea in this court, in the following words and figures:— HIGH COURT OB' ERRORS AND APPEALS,- AT JACKSON.

<p>1. Experts : opinions oe — evidence.—The opinion of an expert is competent evidence to go to the jury, on an issue involving the genuineness of a written instrument, although such expert be unacquainted with the handwriting of the writer of the instrument: but such evidence is intrinsically weak, and ought to be received and weighed by the jury, with great caution. Moody v. Rowel, 11 Pick. 493.</p> <p>2. Evidence.. — The rules of evidence ought to be liberally construed for the advancement of justice.</p> <p>3. Instruction. — It is not error for the court to refuse an instruction which has already been substantially given.</p> <p>4. Writing: : alteration oe. — The immaterial alteration of a written instrument by the holder, does not vitiate it, although made with a fraudulent design: the motive for an act cannot be inquired into, unless the act itself affects materially the rights of the parties.</p>

In error from the Circuit Court of Chickasaw county. Hon. Phineas T. Scruggs, judge. The name of the payee need not be inserted on the face of the note, and if it can be ascertained from the designation given, who was intended by tbe term used, it will suffice. Story on Notes, 40, § 36, and note 2, and authorities there cited.

In error from the Circuit Court of Yalabusha county. Hon. William S. Harris, judge.

Hon. Charles Scott, chancellor. The demurrer should have been sustained and the cross-bill dismissed, because it is apparent upon the face of the bill, and of the exhibits referred to, and made a part of it, that the bar of the statute has attached to the judgment, in consequence, alone, of the laches of the complainants.

<p>On appeal from the District Chancery Court at Holly Springs. Hon. Henry Dickinson, vice chancellor.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

IN error from the Circuit Court of Chickasaw county. Hon. William L. Harris, judge. The plaintiff in error sued the defendants in error, in the Circuit Court of Chickasaw county, upon a promissory note for $1570, given by the defendants to secure the purchase-money of two slaves, sold by the plaintiff in error, as administrator of Spencer' George, deceased*.

Hon. Stephen A. Brown, judge. Abram D. Thomas, the appellee, as administrator of the estate of one Joseph Thompson, filed his final account for audition and allowance, in the Probate Court of Lowndes… Held: that although the creditors of the deceased are the first and special object of its regard, yet that the next of kin among whom the surplus is to be distributed, take an interest which vests in them by operation of law immediately.

In error from tbe Probate Court of Yalabusba county. Hon. Thomas A. Cheves, judge.

Hon. Henry Dickinson, vice chancellor. The facts sufficiently appear in the opinion of the court. Filed an elaborate written argument, reviewing the facts of the case, and the law. He contended for the following propositions:— 1. It is incompetent for the husband to show any other consideration than the one mentioned in the deed to Acher. 2 Lomax, Dig. 193, and authorities there cited. 2. That the wife has no authority in law, to give her separate estate to the husband.

IN error from tbe Circuit Court of Tishamingo county. Hon. P. T. Scruggs, judge. On the 28th of August, 1854, appellee instituted an action of ejectment in the Circuit Court of Tishamingo county, to recover the possession of the south-west quarter of section 20, township No. 3, range No. 8, east, situate in said county. At the September term, 1854, the defendant appeared and pleaded not guilty.

In error from the Circuit Court of Tallahatchie county. Hon. William L. Harris, judge. On the 20th day of November, a. d.1854, the defendant in error, who was plaintiff below, commenced his action of assumpsit, in the Circuit Court of Tallahatchie county, againstElias Lawrence, administrator of Richard Coleman, upon an open account for $1500, for money advanced in 1845, which sum was reduced by credits allowed on the account, to $610.

In error from the chancery side of the Circuit Court of Chickasaw county. Hon. William L. Harris, judge.

Hon. Henry Dickinson, vice chancellor. The appellant, who was the complainant in the court below, filed his bill against the appellees, charging in substance as stated in the opinion of the court. The appellees appeared and demurred to the bill, on the ground of a want of jurisdiction in the Chancery Court. The demurrer was overruled, and the appellees then answered; and on' final hearing upon bill, answer, and proof, the bill was dismissed.

<p>IN error to tbe chancery side of tbe Circuit Court of Lafayette county. Hon. P. T. Scruggs, judge.</p> <p>Cited Hutch. Code, 940; 12 S. & M. 571.</p> <p>Cited Story, Eq. PI. § 214; Mitf. E. PI. 175, 6; Ad. Eq. 318; 1 Barb. Cb. Pr. 44; 1 Dan. Cb. Pr. 43; Ad. Eq. 301.</p>

<p>The consideration of a sealed instrument can only be impeached in a court of law by special plea: it cannot be done under the general issue.</p>

In error from the Circuit Court of Tallahatchie county. Hon. William L. Harris, judge. Isaac Wheatly sued the plaintiff in error in the Circuit Court of Tallahatchie county, for damages sustained by him, by reason of a breach of warranty of title of a slave sold by plaintiff in error, to him. There was also one count upon a fraudulent warranty. The defendants below pleaded the general issue.

IN error from the Circuit Court of Carroll county. Hon. William L. Harris, judge. The plaintiffs in error, as heirs of William Hampton, deceased, sued the defendant in error in replevin, for the recovery of a slave, Patience, and her increase. The defendant in error was the sur- . viving husband of Martha K. Irby, who had departed this life in the year 1853.

IN error from the Circuit Court of Monroe county. Hon. William L. Harris, judge. The record in this case is voluminous, but the only facts necessary to be set out are as follows: In April, 1847, Mark Prewett sued Thomas Coopwood, in assumpsit, upon an open account for $1044.28, and such proceedings were thereupon had, that at the March term, 1853, of the’ Circuit Court of Monroe county, a verdict was rendered for defendant.

IN error from the Probate Court of Chickasaw county. lion. J. L. Elanagan, judge. A statement of the case, will be found in the brief of counsel for plaintiff in error. One James H. Morrison died on tbe 24tb October, 1852, seised of a single quarter of land. His estate was afterwards declared insolvent, tbe land remaining unsold. On tbe 20tb October, 1852, tbe act exempting land from sale, after death of tbe debtor, was passed at its called session, 1852, p. 66.

Hon. Henry Dickinson, vice chancellor. The appellees, A. Edwards & Co., Richard Kingsland & Co., T. M. Wiley & Co., Smith, Wright & Co., and Timothy T. Kissom, on the 3rd day of October, A. D. 1853,… Held: that the plaintiffs in the senior judgments could not come into equity to enforce their claim against the parties .who received the money.

IN error from the Circuit Court of Monroe county. Hon. William L. Harris, judge.

IN error from the Circuit Court of Lafayette county. ITon. P. T. Scruggs, judge. Held: and now holds, a set-off against the said note, upon the said Wyatt & Spencer, to a larger amount, to wit, $92, than the amount of the note executed by him to the said Spencer & Wyatt, now sued on, and which he prays may be allowed as a set-off against the said promissory note given by him to the said Wyatt & Spencer, and now'sued on…

IN error from the Circuit Court of De Soto county. Hon. P. T. Scruggs, judge.

Hon. Henry Dickinson, vice chancellor. The facts are sufficiently stated in the opinion of the court. 1. The title-bond was void, because Mrs. Evans did not privately, separate and apart from her husband, acknowledge it. She could not therefore have been compelled to execute a deed. Frost v. Boyle, T S. & M. 68; James v. Fish, 9 lb. 144; Warren v. Brown, 3 Cushm. 66; Boberson v. Bruner, 2 lb. 243, 244; Self v. Uowlan, 1 lb. 264. 2.

IN error from the Circuit Court of Oktibbeha county. Hon. Reuben Davis presiding as special judge. The facts are fully set out in the opinion of the court. It is very clear that the action was barred, and that the absolute title was with the possession. Archer T. Dunn was of full age in 1844, and Josiah B. Dunn arrived at majority more than three years next before the commencement of this suit.

In error from the District Chancery Court at Fulton. Hon. Henry Dickinson, vice chancellor. The defendants in error, on the 26th of March, 1854, filed their bill against plaintiffs in error, for a’specific performance of a contract for the sale of land. In their bill they allege, that on the 6th of July, 1849, they contracted with said Eckford and Gates, to sell them certain lots, in the town of Aberdeen, for $1300.

Ik error from the Probate Court of Lowndes county. Hon. Nathaniel E. Goodwin, judge. Held: in the same class of cases, that inoperative conveyances which have failed for want of completion, and wills not executed according to the. statute, would amount to a revocation.

Hon. Henry Dickinson, vice chancellor. The brief of Judge Clayton contains a correct history of the case. This is an appeal from the District Chancery Court at Her-nando.

Hon. Stephen A. Brown, judge. •On tbe 12th day of December, A. D. 1854, James Cook, the appellee, filed his petition in the court below against the appellant, as executor of the last will and… Held: that he was barred by the Statute of Limitations. Coleman v. Davis, 2 Strobh. Eq. E. 334. And in Glover v. Lott, 1 Strobh. Eq. E. 80, the receipt for the legacy was signed by an infant, and the court say: “ The release was a void contract, by reason of the infancy.

Hon. W. A. Tucker, judge. On tbe 7th day of January, A. d. 1850, tbe appellant, Reuben T. Sims, filed bis petition in tbe Probate Court of Monroe county, praying that tbe will of Benjamin E. Sims be admitted to probate, and that be be qualified as executor thereof.. Tbe will was admitted to probate, and tbe appellant qualified as executor. Benjamin E. Sims died in tbe month of September, A. d. 1849.

IN error from the Circuit Court of Monroe county. Hon. William L. Harris, judge. On the 26th clay of August, 1852, Bartlett Deans, the plaintiff in error, sued, in the Circuit Court of Monroe county, Lewis McLendon and John T. Brooks, on two promissory notes, executed by them on the 11th day of November, 1848, the one due on the 1st of March, 1850, and the other, 1st of March, 1851, for $675 each. To which defendant filed four several pleas, in substance as follows:— 1.

IN 'error from the Circuit Court of Lowndes county. Hon. William L. Harris, judge. The evidence and pleadings are sufficiently stated in the opinion of the court. It is shown by the complaint and bill of particulars, that the action was on an open account. The evidence established a special contract, not sued on; there was no evidence establishing the account sued on. It is apparent that the whole proof was as to a special contract.

Hon. Henry Dickinson, vice chancellor. % On the 5th day of March, 1845, the appellee, William C. Coop-wood, as administrator of one John C. Cherry, filed his bill in the court below, in which he alleged in substance: — That John C. Cherry died in Monroe county, in this state, on the 13th day of June, 1834, intestate, leaving .a widow, Eveline Cherry, and an infant son, Newell C. Cherry, who are still alive.

In error from tbe Superior Court of Chancery. Hon. Charles Scott, chancellor. Tbe facts are sufficiently stated in tbe opinion of tbe court, and briefs of counsel. This case is manifestly erroneous, and should he reversed. On the ninth day of November, 1842, a judgment was rendered in the Circuit Court of Copiah county, against John M‘Donald, John Curtis, Stephen Tillman, and William Matheny, in favor of the Grand Gulf Bail Boad and Banking Company.

<p>Judgment by default. — It is error to enter judgment by default on the declaration, whore there is a valid plea to the action in file. ■</p>

In error from the Circuit Court of Jefferson county. Hon. Stanhope Posey, judge. William Kinnisson, was tbe father of Nathaniel Kinnisson, the plaintiff’s intestate; and Mary Kinnisson, the defendant’s intestate, was the mother of said Nathaniel. William died in 1843, Nathaniel in 184T, and Mary, since the commencement of the suit.

Ik error from tbe Circuit Court of Copiah county. Hon. John Watts, judge, presiding, by interchange with the Hon. John E. M£Nair. Alfred Ingraham, sued William W. Speed, in ejectment, in the Circuit Court of Copiah County, for the recovery of certain tenements situated in said county.

In error from the Circuit Court of Jasper county. Hon. John Watts, judge. The proceedings are fully set out in the opinion of the court.

In error from the Circuit Court of Copiah county. Hon. Wiley P. Harris, judge. The facts are fully set forth in the opinion of the court. 1. The copy of the will was improperly admitted in evidence. It does not appear that the will was ever probated. The allowance of a paper propounded as a will, is a judicial act — the judgment of tbe Probate Court; and the evidence of that fact should appear of record, on the minutes of the court. It can be shown in no other way.

IN error from the Circuit Court of Covington county. Hon. John E. MNair, judge. William Leggett, sued Joshua Burkhalter, Joseph MiAfee and Willis Magee, in the court below, upon an injunction bond, executed by said Josiah as principal, and the other defendants as his sureties.

Hon. B. C. Buckley, vice chancellor. filed their hill in the District Chancery Court at Natchez, against Thomas A. Compton, John M. Pintard, and John Payne, by which they sought satisfaction of a judgment rendered in the Circuit Court of Jefferson county against the said defendants, in 1839, in favor of the Commercial Bank of Rodney, for $817, and costs; and which had been assigned to them by the said bank, with its other assets, for the benefit of creditors.

<p>Uiílawpul detainer : who entitled to. — To enable a party to maintain an action of unlawful detainer, the defendant must hare entered into possession under the plaintiff, and must continue in possession in violation of the contract; hence a purchaser of land sold at a trustee’s sale by virtue of a deed and power of sale, executed by the owner, cannot maintain this action against the owner if he refuse to surrender the premises.</p>

Hon. John Dickinson, judge. The facts are sufficiently stated in the opinion of the court. 1. The Probate Court had no power, under the statute, to grant the petition of Jane Turner, nor to appoint commissioners to appraise the estate. 2. The widow having accepted the provisions of the will, is now barred from any further or additional allowance. Hutch. Code, 620; art. 1, §§ 45, 46, 47.

IN error from tbe Circuit Court of Adams county. Hon. Stan-hope Posey, judge. Assumpsit by Folkes, against Warner and Dubuisson; judgment by default as to Warner.

Hon. John E. McNair, chancellor. > David R. Wingate filed his bill in the Court below, to foreclose a mortgage executed jointly by Russ and wife, to secure their joint note, payable to said Wingate. The defendants demurred to the bill, upon the ground stated in the opinion of the court. The demurrer was overruled, and defendants required to answer. From this they appealed. 1.

IN error from the Circuit Court of Chickasaw county. Hon. Locke E. Houston, judge. Garner and Neville, sued Joshua Myrick and W. Tompkins, and George Franks, as co-partners, upon a note made in the co-partnership name. Judgment by default was taken as to Myrick, and the suit dismissed as to Tompkins, no service ever having been had on him. Franks denied under oath, that he was a member of the firm at the time the note was made, and the cause'was submitted to a jury.

of Jefferson County. Hon. J. M. Ellis, judge. Rosaline Erisby, by Norman Erisby, her guardian, filed ber petition in tbe Probate Court of Jefferson county, against Wade Harrisson, in which she alleged, that in 1847, one Sarah Woodward died in said nounty, and said Wade Harrisson was appointed her administrator. That Martha Jane Frisby, the mother of said Rosaline, was niece and heir at law to said Sarah Woodward.

Hon. James M. Jones, judge. Thomas P. Kell, the appellee, was appointed guardian for Joseph E. Sessions, the appellant, by the Probate Court of Franklin county, and whilst said Joseph E. Sessions was a minor, and under the age of fourteen years. After Joseph arrived at that age, he filed, by his next friend, his petition in said court, against said Kell, in which he alleged that his father had made no appointment of guardian for him, either by deed or will.

IN error from the Superior Court of Chancery. Hon. Charles Scott, chancellor.

IN error from the Circuit Court of Clark County. Hon. Johsa Watts, judge.

Hon. Charles Scott, judge. On the 11th day of June, 1858, the appellees, William J. Bris-coe, James Andrews, and William S. Scott, filed their bill in the Superior Court of Chancery against the… Held: that the jurisdiction of the Probate Court is limited by the terms of the clause of the constitution which creates it, and that its powers shall be confined strictly within those limits. Smith v. Qraig, 10 S. & M. 447.

Hon. John E. M'Nair, judge. Robei’t C. Cowan and wife, sued James Newell, in trespass, under tbe New Pleadings Act, to recover damages for tbe loss of a slave, belonging to Mrs. Cowan, and wbicb tbejj alleged bad been drowned, by tbe illegal act of defendant’s slaves, in endeavoring to arrest bim, in obedience to defendant’s orders.

In error from the Circuit Court of Panola county. Hon. P. T. Scruggs, judge. On the 21st day of October, 1854, the plaintiffs in error sued John H. Keith, as administrator with the will annexed, of one James C. Watson, upon the record of a judgment recovered by them against said Watson, in the State of Georgia, on the 4th of October, 1842.

<p>In error from the Circuit Court of Lafayette county. Hon. P. T. Scruggs, judge.</p> <p>Cited 27 Miss. It. 852; 1 Dana, 30; 5 Monr. 272; 9 B. Monr. 526; 10 S. & M. 120; Chit. Cont. 513; 26 Miss. E. 88.</p> <p>Cited Brown v. Smith, 5 How. 387; Campbell v. Brown, 6 lb. 230, 272; White v. Trotter, 4 Cushm. 88; 12 S. & M. 336; Hoover v. Peirce, 5 Cushm. 9; Creen v. Bobinson, 5 How. 30; Qowen v. B,izer, 5 How. 769.</p>

IN error from the Circuit Court of Franklin county. Hon. Stanhope Posey, judge. D. B. Cani, as administrator ad colligendum of John Holloway, deceased, sued in replevin, A. W. Armstrong, for tbe recovery of a negro girl, Ann. This suit was instituted on the 24th day of December, 1852. Cani afterwards resigned, and W. L. Holloway was appointed administrator of said estate, and a scire facias was sued out to revive the suit in his name.

In error from the Circuit Court of Ada^s county. Hon. Stan-hope Posey, judge. The proceedings in the court below are sufficiently stated in the opinion of the court. We hold that this action cannot be maintained, because:— 1.

In error from the Circuit Court of Wilkinson county. Hon. Stanhope Posey, judge. Joseph Johnson, the defendant in error, sued Jacob Wolf and Henry Burgower, upon a note made by them payable to him, as administrator of one Joseph Johnson, deceased. The note was for $300, and given by said Wolf and Burgower, as the amount of the rent for certain premises, belonging to said Joseph, deceased, which was leased to them for the year 1858, by the plaintiff.

In error from the Circuit Court of Claiborne county. Held: that a printer could not recover for work and labor done, where he had failed to comply with this requirement. Little v. Poole, 9 B. & C. 192; 17 Eng. Com. Law R. 335. The 47 Greo. 3, required a person selling coal from carts, to deliver a ticket containing the name of the meter, under a penalty.

Hon. Henry Dickinson, judge. The appellants, who are the collateral relations of John Thurman, deceased, being the descendants of his brothers and sisters who were living at the time of death, filed… Held: that where an estate of freehold is given with a remainder or reversion to right heirs of donor, he will take, who answers that description at the termination of the life estate. So in 2 Dev. & Battle, Eq.

Hon. S. S. Wright, vice chancellor. In addition to the facts stated in the opinion of the court, it is only necessary to set out the condition of the title-bond of Wilson, which is as follows:— “ The condition of the above obligation is such, that whereas the above bound J. M. Wilson has this day sold unto the said Walton and Saffold, a certain tract of land lying in the county and state aforesaid, and known as the east half of the south-east quarter of section five, of…

Hon. E. G. Henry, judge. The facts sufficiently appear in tbe opinion of the court. 1. It has been decided by this court, that magistrates’ judgments are embraced by the provisions of the “enrolment law.” Brian v. Davidson, 25 Miss. Rep. 213. By the sixth section of that law, (still in force as to magistrates’ judgments,) judgments become liens, 11 from the time of enrolment.” 2.

<p>Appeal from the Superior Court of Chancery. Hon. Charles Scott, chancellor.</p> <p>Sharkey and Wilkins, on same side.</p> <p>W. Cf. and S. JE. Wye, on same side.</p>

county. Hon. W. G-. Gill, judge. The will of Samuel Eulton was proved in the Probate Court of Kemper county, at the October term, 1852. On the 9th clay of March, 1854, the appellant, the widow of • said Samuel Fulton, filed her petition in said court, for dower in his lands. The defence to the petition was:— 1. That the second clause of the will of the said Samuel Fulton, contained a pecuniary bequest to the petitioner, which she had not renounced. 2.

<p>Writ or error: nonsuit. — This court will not entertain a writ of error, to review the action of the Circuit Court in excluding evidence offered on behalf of the plaintiff, if upon such exclusion, he suffer a voluntary nonsuit; he should have permitted a verdict and final judgment to have been entered against him.</p>

Hon. B. C. Buckley, vice chancellor. '• Deborah W. Sharp, by her next friend, sued Maxwell and wife, for the specific recovery of a certain slave Antoinette, if to be had, and if not, for her value. Complainant claimed title by virtue of a purchase of said slave made by her husband, for her and as her agent, in the fall of 1839.

Hon. E. M. Wells, judge. The appellees filed their petition against appellants in the court, seeking to set aside the probate in common form, of the will of one Greely. Two of the appellants were infants: no guardian ad litem was appointed for them, but an attorney appeared on their behalf; and by consent, an issue of devisavit vel non, was made, and certified to the Circuit Court of that county.' A trial was had, and the jury found the issue against the validity of the will.

IN error from tbe Circuit Court of Yazoo county. Hon. E. G-. Henry, judge. Young C. Bovard, tbe plaintiff in error, was indicted in tbe Circuit Court of Yazoo county, for tbe murder of Amanda J, Bovard, bis wife, on tbe 20tb day of November, 1855. There was no controversy as to tbe fact, that tbe prisoner committed tbe homicide. Tbe defence relied on was, that tbe act was done whilst tbe prisoner was insane.

In error from the Circuit Court of Neshoba county. Hon. John Watts, judge. that the act of 1846, requiring the county treasurer to give bond, for the safekeeping of common school fund, was repealed by the act of 1848, so far as the county of Neshoba was concerned: that the bond in this ease was not therefore required by law, and was a voluntary bond, and not binding, and cited Hutch. Code, 230, 243, 396, 460; Acts of 1850; Acts of 1852, p. 146, 147.

IN error from tbe Circuit Court of Holmes county. Hon. E. G. Henry, judge. John D. Browning and Gaston E. Browning were jointly indicted in tbe Circuit Court of Sunflower county, for tbe murder of one Jobn~Wl Neal. Upon tbe application of tbe prisoners, tbe Tenue was changed to tbe county of Holmes.

Hon. John Watts, judge. The facts are fully stated in the opinion of the court, and the instructions are contained in the brief of counsel for plaintiff in error. The court charged the jury, at the request of Wells, that if they believed, from the evidence, that Burton got entire possession of the land by agreement with Wells, and retained the same in pursuance thereof, that was a sufficient consideration for a promise to refund the $50 paid by Wells.

<p>IN error to tbe Circuit Court of Kemper county. Hon. John Watts, judge.</p> <p>cited, Hutcb. Code, 881, § IT.</p>

Hon. Richmond J. Brown, judge. The appellees, George Elam and others, heirs of one Jonathan Carter, deceased, filed their petition in the Probate Court of Holmes county, against Joseph Barksdale, the appellant, the executor of the last will and testament of said Carter, in which they sought distribution of certain slaves, viz: Jane, William, Harriet, and Eanny.

<p>IN error to the Circuit Court of Rankin county. Hon. W. P. Harris, judge.</p> <p>For the facts, reference is made to the opinion of the court.</p> <p>Cited, 13 Johns. Rep. 290; 7 Yerger, 384; 2 lb. 403; 2 Rand. 306 ; 7 S. & M. 130; ll'lb. 422; Pamphlet Acts of 1830,173; Hill on Trustees, 316 ; 7 Term Rep. 118, 123; 2 lb. 684; 9 Cow. 86.</p> <p>Cited, Laws of 1828, p. 116; Laws of 1830, p. 176,177; Laws of 1839, p. 355.</p>

<p>Administrator — detinue—Judgment in. — If an administrator claim property levied on under an execution against a third person, and his claim be not sustained, it will be' error to render judgment against him for the property, or its alternate value, to be levied of the goods of the intestate: it should.be against him individually.</p>

IN error from tbe Circuit Court of Claiborne county. Hon. Stanbope Posey, judge. sued Tbe Steamboat General Worth, in assumpsit, for $75, for so much money bad and received by the boat for the use of plaintiff, and also for money paid out, and advanced by plaintiff for tbe defendant.

IN error from the Circuit Court of Kemper county. Hon. John Watts, judge. This was a motion, tried in the Circuit Court of Kemper county, upon an appeal from a judgment of a justice of the peace of that county, against a constable and his sureties, upon his official bond, on account of money collected by said constable. The judgment in the justice’s court was rendered against James Hull, one of the sureties, the summons having been returned “not found” as to Jas.