Volume 31 — Mississippi Reports

Hon. Selden S. Wright, vice chancellor. The facts are sufficiently stated in the opinion of the court. 1. The deed was insufficient, as a memorandum, to take it out of the Statute, of Frauds. It is essential that it should have been delivered. 2. The contract on the part of Johnson and wife was an entire one, as stated in the bill. It cannot be divided.

Hon. John Watts, judge. The evidence. is sufficiently set out in the ppinion of the court, and was substantially the same on the first trial in this court as in the present, except that in the present the defendant below introduced as a part of his evidence to the jury, the mortgages to Watts and Binns, referred to in the opinion. To the introduction of which the plaintiff excepted.

Hon. E. Gr. Henry, judge and chancellor. John Alsworth, the plaintiff in error, filed his bill in the court below, seeking to establish a resulting trust in John Briscoe, to certain lands, and to set aside a sale thereof, made by the sheriff of Madison county under an execution issued upon a judgment rendered against one Robert W. Briscoe.

Hon. Reuben Ruff, judge. The facts are accurately stated in the brief of appellant’s counsel.

Hon. Henry Dickinson, judge. For the facts, reference is made to the opinion of the court. I. It is admitted, that by the common law, the husband could dissent to a deed made to the wife, and thereby divest her of the estate, but this rule is changed by the Acts of 1889 and 1846. The wife can now take the estate without the assent of the husband, and such was the rule in equity, before the passage of those acts. See 2 Story, Eq. § 1378. 2.

This bill was filed by Bacon et al., alleging that the Planters’ Bank transferred the judgment to them by delivery. It was demurred to; and this court sustained the demurrer, upon the ground that a judgment could not be transferred by delivery.

of Hinds county. Hon. John J. Guión, judge. The facts are sufficiently stated in the opinion of the court. 1. The instruction given on the mode of computing interest is error: because, first, the statute regulating the mode of computing interest does not apply to open accounts. Hutch. Code, 643, art. 7, § 7: and second, if it did, the rule laid down by the court.is directly contrary to the language of the statute.

Hon. John E. M‘Nair, judge. The facts necessary to understand the opinion of the court are sufficiently set out in the opinion. On the point, as to the right pf an assignee of a judgment to sue for his own use, on the administrator’s bond for a devastavit, cited, 3 Cushm. 36; Hutch Code, 432, § 10; 13 S. & M. 394, 395. Cited on same point, 3 Leigh, 89, 92; 25 Miss. R. 35; 2 Litt. 357; 3 A. K. Marsh. 1176; Hutch. Code, 441, 556.

<p>1. Administrator, in muee and de bonis non: no privity between. — There is no privity between the administrator in chief and the administrator de bonis non; hence, an execution issued after the revocation of the letters of the former, upon a judgment rendered against him, cannot be levied upon assets in the hands of the latter, without a revivor of the judgment against him.</p> <p>2. Same. — A judgment rendered against the administrator in chief, cannot be made the foundation of a suit against the administrator de bonis non and his sureties on his bond, for a devastavit.</p> <p>3. Judgment : assignment op. — A judgment is not assignable at common law, or by statute; the purchaser thereof is merely an equitable holder; and it is doubtful whether a court of law would so far recognize the title of an assignee of a judgment rendered against an administrator, as to allow him to make it the basis of an action against the administrator and his surety, for a devastavit.</p>

Hon. Robert C. Perry, judge. Richard Tidwell and H. R. W. Hill, filed their petitions in the court below, and obtained a supersedeas of the execution of a judgment rendered in said court in favor of Moses Groff, to the use of A. H. Dinkins, against said Tidwell and others, and moved that satisfaction might be entered of record on said execution.

Hon. Charles Scott, chancellor. A very full statement of the case will be found in the opinion of the court. Held: that a party purchasing property on which a judgment lien existed, could not be disturbed in his possession by the judgment creditor, unless he enforced his judgment by an execution and sale under it, before the expiration of the two years mentioned in the act. 11 Smedes & M. 43 ; 12 lb. 473 ; lb. 697; 13 lb. 427 ; lb. 509 ; 3…

<p>1. Mechanics’ lien: what bound by: parties. — The lien of a mechanic for the erection of a building only extends to, and binds the actual interest in the land of the person with whom he contracted: and such person is the only proper party defendant to a proceeding to enforce the lien. See I S. & M. 235; 8 lb. 444, 154.</p> <p>2. Same. — In a proceeding to enforce a mechanics’ lien, the rights of third parties to the land on which the building is erected cannot be inquired into, and it will, therefore, be error to make such third parties defendants to the petition.</p>

. In error from the Circuit Court of Noxuba county. Hon. John Watts, judge. The plaintiff below sued the defendant in assumpsit for $200, which he alleged in his complaint the defendant owed him for his work and labor, in building a gin-house, running-gear, and cotton-press. The defendant pleaded the general issue, and the cause was submitted to a jury, who found a verdict for plaintiff for $100.

<p>1.'Statute of limitations : foreign judgments. — Seven years from the date of a foreign judgment is the time limited by the Act of 1846, in which suit may be instituted on it in this State.</p> <p>2. Same. — The limitation of an action on a foreign judgment commences to run from the date of such judgment, and not from the time when the defendant comes within the jurisdiction of the laws of this State. See Maitland et al. v. Keeth, 30 Miss. R. 499.</p>

In error from tbe Circuit Court of Madison county. Hon. E. Gr. Henry, judge. Tbe pleadings are sufficiently stated in tbe opinion of the court.

In error from the chancery side of the Circuit Court of Holmes county. Hon. Ely Henry, judge. A full statement of the case will be found in the opinion of the court. 1. The Circuit Court, in determining a cause before it, by appeal from a justice of the peace, has no jurisdiction except that which is conferred by law on justices of the peace. The Circuit Court derive their whole jurisdiction, in such cases, from the appeal.

<p>1. Distribution : next of kin : whole and half blood. — An intestate's property will be distributed to the brothers and sisters of the whole blood, to the exclusion of, and in preference to, the brothers and sisters of the half blood. See Fatheree v. Fatheree, Walk. R. 311.</p> <p>2. Judicial decisions : stake decisis. — The construction of a statute which has been recognized and acted on for a long time, will not be departed from, unless the court be well satisfied, not only that the construction is erroneous, but that the rule established by it is a bad one.</p>

Hon. Charles Scott, chancellor. The appellees, W. C. Harper and Joseph B. Crockett, on the 21st of October, 1846, obtained a judgment against one Young, principal, and Berry and others, sureties, on a promissory note of which they were joint makers. Execution was issued on this judgment, a$d soon afterwards levied on a slave as the property of Berry, without any affidavit having been made and filed, setting forth the insolvency of Young.

<p>1. Partnership. — The legal interest of a debtor partner in the co-partnership property, is subject to levy and sale under execution or attachment, for his individual debts.</p> <p>2. Same : levy on interest op a partner. — The sheriff in making a levy upon the interest of one of several co-partners, in the partnership property, must seize the whole partnership property, if necessary to pay the debt, and not the undivided and unascertained interest of the debtor co-partner; and it is his duty after such levy to retain in his exclusive possession the partnership property, until it can be disposed of by due course of law.</p> <p>3. Same. — The effect of a levy of an execution or attachment against one of several co-partners, upon the co-partnership’s property, is to dissolve the co-partnership and to make the sheriff and the other partners tenants in common.</p> <p>4. Same : interest oe a partner in partnership’s property. — The legal interest of a co-partner, in the partnership’s property, is his proportionate share of the property belonging to the partnership, and not his proportionate share of what remains after a final- settlement of the partnership affairs, and it is this legal interest which the sheriff seizes and sells, under an execution or attachment, for the individual debt of a co-partner; but the solvent partner may, at any time, whilst the creditor is pursuing his remedy against the debtor co-partner, through the interposition of a court of equity upon proper showing, limit such creditor to the actual interest of the debtor co-partner in the partnership, after a settlement of the partnership accounts.</p>

<p>Appeal from tbe Supreme Court of Chancery.</p>

Hon. A. P. Hill, judge. Mrs. Elizabeth M. Lee, who was at the time a feme covert, and the wife of Thomas Lee, the appellant, during her last illness, made and published her last will… Held: that she has the jus disponendi, not by a will proper, but by a testamentary writing, in the nature of an appointment. Nothing is on the record of the case at bar as to Elizabeth M. Lee, deceased, having held her estate by deed of settlement, or any trust or contract ante or post nuptial.

Hon. Selden S. Wright, vice-chancellor.- A full statement of the case is contained in the opinion of the court. Cited Hutch. Code, 606, § 5. We insist for appellees :— 1.

<p>1. Executor : distribution : res adjudicata. — If in a plenary proceeding by the heirs, or one of them, against the administrator, for distribution of the estate, the accounts of the administrator he litigated and a decree rendered, settling the contested items, and ascertaining and fixing a balance due for distribution, it will not be competent for the administrator afterwards, on final settlement, to claim credit for items then settled against him, or to demand allowance for credits which then existed in his favor, and which he might then have presented and had allowed.</p> <p>2. Executor: final account : res adjudicata. — A plea interposed by the distributees to the final account of an administrator, that the matters and things therein contained had been adjudicated, or might have been adjudicated in a proceeding for distribution of the estate, which had theretofore taken place, is not good, as a technical bar to the audition and allowance of the account, but is valid as an exception to such credits claimed by the administrator in the account, as had been adjudicated, or might have been adjudicated, as stated in the plea.</p> <p>3. Executor : refundino bond : nature and effect of. — The refunding bond-required by law, of the distributees, when distribution is ordered before, final settlement, binds them to refund only their due proportion of debts and the costs attendant on their recovery, which may thereafter appear against the intestate ; hence an administrator will not be entitled to claim, on final settlement',, credit for debts due to him at the time distribution was made; it was his duty,, if any then existed, to have presented them for allowance in that proceeding.</p>

Hon. A. P. Hill, judge. Mary E. Nash, the appellant, being the widow of Madison Gr. Nash, deceased, filed her petition in the court below, seeking to have set aside to her the real and personal estate of her late husband, which, by law, was exempt from execution in his lifetime. The court sustained her claim as to the personalty, and overruled it, as to real estate. From this decision she appealed, and the executor of her husband took a cross-appeal.

In error from the Circuit Court of Rankin county. Hon. John E. M'Nair, judge. A full statement of the case will be found in the opinion of the court.

<p>Appeal from the District Chancery Court, at Yazoo city. Hon. S. S. Wright, vice chancellor.</p> <p>A statement of the case will be found in the opinion of the court.</p>

In error from tbe Circuit Court of Kemper county. Hon. John Watts, judge. Garner, Neville & Co., sued J. W. Hull, P. H. Gully, and J. B. Robinson, as partners under the firm name of Hull, Robinson & Co., upon two notes executed by defendants in their partnership name, and payable to plaintiffs. A summons was issued and personally served on each of the defendants.

In error from the Circuit Court of Attala county. Hon. E. G. Henry, judge. Cited 7 S. & M. 715; 12 lb. 604. A new trial will not be granted upon the ground that the verdict is contrary to the evidence, unless it be clearly and manifestly so. 1 S. & M. 381; lb. 400; 5 lb. 21; 10 lb. 313; 12 lb. 615; 13 lb. 202, 599.

Hon. Selden S. Wright, vice chancellor. The appellant filed her bill in the court below against her husband, the appellee, seeking for a divorce a mensa et thoro, to which he demurred; and the demurrer being sustained, and the bill dismissed by the vice chancellor, Mrs. Waskam appealed.

In error from the Circuit Court of Rankin county. Hon. Jno. E. M‘Nair, judge. The defendant in error sued the plaintiff in error in the court below, for the recovery of damages, which he alleges he had sustained by reason of the killing of several horses belonging to him, through the negligent misconduct of the agents of the railroad company, in running their engines and cars over them.

In error from the Circuit Court of Yazoo county. Hon. E. G. Henry, judge. The defendant in error sued the plaintiffs in error, in assumpsit, for the recovery of a promissory note, executed by the defendant, for $132. The plaintiffs in error pleaded payment, .and on the trial, tbe answer of Kerr to tbe bill of discovery, filed by Stam, was read to tbe jury.

Hon. Richard Barnett, judge. On the 30th of January, A. D. 1842, William Vick obtained a judgment against James J. Chewning for $9258, in the… Held: that notwithstanding the plaintiff had a valid subsisting judgment in full force, unimpaired, not vacated or reversed at that time, he is barred of and from all benefit of said judgment, or the means of enforcing payment thereof, not because the judgment itself is barred, but because he cannot avail himself of the process or…

Hon. A. S. Harper, judge. The appellee, Thompson, filed his petition in the Probate Court of Covington county, against the appellant, as administrator of Minerva Thompson, in which he alleged in substance, that the said Minerva had died intestate, leaving personal estate, consisting of a negro slave and money, which were in the hands of the appellant, as her administrator; that the said Minerva was, at the time of her death, his lawful wife ; and that she left surviving her,…

Hon. John I. Guión, judge. The appellant sued the City of Vicksburg, in debt on a bond executed by the corporate authorities, in the following words and… Held: and properly, that the title to these last bonds had not passed; but it is obvious from the tenor of the whole decision, that they would have held otherwise had the two sets of bonds been identical; or had they both been payable‘to bearer. 3. We come now to the consideration of the case of Sayre v. Lucas, 2 Stew.

In errror from the Circuit Court of Leake county. Hon. E. G. Henry, judge. On the 30th of August, A. D. 1852, the plaintiffs in error instituted an action, under the new Pleading Act, against the defendant in error, to recover possession of certain lands in his possession.' The complaint contained a statement of the facts upon which the plaintiffs predicated their title, but it is unnecessary to set them out further than will be noticed in the abstract of the testimony.

In error from the Circuit Court of Leake county. Hon. E. G. Henry, judge. The case is fully stated in the opinion of the court. Cited Ingersoll v. Kendall, IB S. & M. 611, 615; Crarland v. Stewart, Yerger, MSS. Cited 2 Kent, Com. 495; MPonald v. Kewett, 15 Johns. B., 394; Sanson v. Myers, 6 East. E. 614; Armstrong y. Stovall, 26 Miss. E. 281; 2 Black. Com. 307.

<p>1. Contract: consideration. — H. had a judgment against C., and 0. had a judgment against S. By agreement of all the parties, S. executed his promissory note to H. for the amount, and in satisfaction of his judgment against 0., and received a credit for the amount of his note on the judgment he owed to C. Held, that H.’s judgment against 0., being valid and unobjectionable, S. could not set up as a defence to the payment of his note to H., any infirmity that might have existed in the judgment of 0. against him; H. having parted with a valuable consideration for the note, was entitled to recover, even though S. had received no benefit thereby.</p> <p>2. Contract: novation: interest. — In the novation of a debt, the parties may legally contract for the same rate of interest which the old debt bore; although at the time of the novation, the legal rate of interest was lower than that contracted for.</p>

Hon. Charles Scott, chancellor. Eyler and Henderson filed their bill in the Superior Court of Chancery, to enforce the vendor’s lien upon a certain tract of land, sold by them, on a credit, to Nicholas O’Reilly, in his lifetime; the administrators of Nicholas O’Reilly, and also his heirs, (who were the children of his two deceased brothers, Philip O’Reilly and Edmund O’Reilly,) were made parties defendants to the bill.

Hon. Charles Scott, chancellor. The complainants in this case were, Sidney Fatheree, (formerly Fletcher,) and her husband Obediah Fatheree, and Horatio Wise, surviving husband of Mary Wise, (formerly Fletcher;) and Sidney and Mary were the children of defendants. The pleadings and proof are sufficiently stated in the opinion of the court.

Hon. Charles Scott, chancellor. . Filed an elaborate brief, in which they insisted that, the payment having been made to the sheriff after the return day, there was no such relation of trust and confidence between Scarborough, as would prevent the Statute of Limitations. That the fact that the sheriff never returned the execution, or notified the plaintiff of the payment, was not such a fraudulent concealment as would prevent the bar..

In error from tbe Circuit Court of Warren county. Hon. John I. Guión, judge. Held: “that if the husband depart from the State, with intent to reside abroad, and without the intention of returning, his wife becomes competent to contract, and to sue and be sued as a feme sole.” 2. It is also contended by counsel, that Mrs. Doss is barred ot her right of entry on the land, by the Statute of Limitations.

In error from the Superior Court of Chancery. Hon. Charles Scott, chancellor. Previous to the year 1840, (the precise date not appearing from the record,) the administrator of Phoebe Hunter and others, filed their bill in the Superior Court of Chancery, against John C. Jenkins, as administrator of John F. Carmichael, to recover a sum of money claimed by the complainants to be due to them by said Carmichael.

In error from the Circuit Court of Kemper county. Hon. John Watts, judge. The defendant in error, having recovered a judgment against one Pierce, procured the plaintiff in error to be summoned as a garnishee. The answer of the plaintiff in error to the summons was, on motion of Herndon, stricken out, and a judgment final was rendered against Holmes, for the full amount of the judgment against Pierce, and costs. From this judgment this writ of error is prosecuted.

<p>1. Will : legacy or slave. — A bequest of a female slave does not of itself carry tbe title to her issue, born before the death of the testator.</p> <p>2. Remainderman: right to issue oe a slave, born during life estate. — The issue of a female slave, born during the existence of a tenancy for life in her, goes to the remainderman, upon the death of the tenant for life.</p> <p>3. Executor and administrator : distribution : remainder in chattels. — If a slave be given by a will to one for life, the remainder to another, a delivery and distribution of the slave by the executor, to the tenant for life, is a distribution to the remainderman, and vests the title in him; and upon the death of the tenant for life, the right to the possession of the slave vests immediately in the remainderman, without any further act or duty to be performed by the executor ; and if the tenant in remainder permit the executor then to resume the possession of the slave, and sell the same as a part of the testator’s estate, he cannot maintain an action against the executor and his sureties on his bond, for a failure to deliver the slave to him.</p>

Hon. Charles Scott, Chancellor. 1. The statutory bar to the trustees is a bar to the infants and Mrs. Shirley. Hill on Trustees, 503, 504; Revenden v. Annesley, 2 Scho. & Lef. 628; White v. Prentiss, 3 Monroe, R. 503. 2. The bill should have shown that James J. Shirley, at the time of Fearn’s purchase, was under no disability to sue.

<p>In error to the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

Hon. Charles Scott, chancellor. Insisted that as Thompson had no title, and could not therefore comply with his title bond, Hill had a right to abandon the contract at any time. That it is well settled, even at law, that the vendor who has given a title bond only, could not recover for the purchase-money, unless he had a good title, and was able to make a conveyance according to his bond.

In error from the Circuit Court of Hinds county. Hon. John I. Guión, judge. Eor a history of the case reference is made to the opinion of the court. Contended that the proof did not show that the sale was complete, and that the title to the property had passed to Garland. That it was a mere proposition to sell, which by the terms of the agreement was to remain inchoate and incomplete, until the draft was given and accepted, and the slave delivered.

In error from the Circuit Court of Newton county. Hon. John Watts, judge. The opinion of the court contains a full statement of the case. Cited Hutch. Code, 831, § 12; lb. 882, § 14; 10 S. & M. 100; 2 lb. 452; 13 lb. 395; 5 Cushm. 477, 478. Cited 7 S. & M. 361; 2 lb. 455; 5 Cushm. 477, 478; lb. 366; 2 lb. 255; 13 S. & M. 397; 2 lb. 455, 456; 10 lb. 100; 11 lb. 9; 4 Cushm. 547; 5 lb. 757; 14 Ala. E. 103; 3 Cushm. 621. Cited 7 S. & M. 356; 2 lb. 452; Hutch.

Hon. S. S. Wright, vice chancellor. The complainant was a partner in the firm of Andrews & Mann, in Yazoo city. He sold his interest in the firm to one Heth, the latter verbally agreeing to pay complainant’s share of the partnership debts. Heth & Mann carried on the business as co-partners for some time, when Heth sold out his interest to Mann, who afterwards assigned the assets to James R. Barnett and others, in payment of his separate and private debts to them.

In error from the Chancery side of the Circuit Court of Attala county. Hon. E. Gr. Henry, judge. A full statement of the case will be found in the opinion of the court. Held: that the assignment of a certificate of entry is not within the registration law, and is not inoperative against the sheriff’s vendee because of a failure to record it.

In error from the Circuit Court of Kemper county. Hon. Jno. Watts, judge. The case is fully stated in the opinion of the court. Insisted that the charge of the court was erroneous; that the statute (Hutch Code, 267, § 18,) did not apply to retail grocers, but only to inn-keepers.

In error from the District Chancery Court at Mississippi City. Hon. B. C. Buckley, vice-chancellor. A full statement of the facts will be found in the opinion of the court. Filed a petition for re-argument, in which he insisted, that the opinion of the court was correct, when applied to cross-bills, filed for defence only.

Hon. William G\ Gill, judge. The appellee, Elizabeth Webster, filed her petition in the Probate Court of Kemper county, seeking distribution of the estate of Mary J. Puchet. The following facts only are necessary to be stated: James Puchet died, and by his will left his estate to be equally devided between Mary J. Puchet, his widow, and Susan E. Campbell, wife of James M. Campbell, his only child. This will was never probated, except in vacation.

<p>In error to the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge.</p> <p>Contended, that a payment made to an administrator, in property, was as good as a payment made in money, and that an administrator had the right to release and compound debts due the estate. See 3 S. & M. 625; 10 lb. 404.</p> <p>In reply, insisted that the purchase made by Joel Grulledge of the slave, from Thomas Grulledge, in payment of the note sued on, was a misapplication of the funds of the estate to his own use, and a fraud upon the rights of his co-administrator and the distributees. That the power given by law to an administrator to compound and settle the debts due the estate, did not authorize an arrangement of this sort, where the debtors were perfectly good and solvent. They cited and commented on the following authorities: Prosser v. Leatherman, 4 How. 237; Miller v. Helm, 2 S. & M. 687; Scott v. Searles, 7 lb. 505; 2 Williams on Ex. 612; 5 Randolph, 195, 294; Berry v. Parker, 3 S. & M. 639; 10 lb. 405; Hutch. Code, 663-670, §§ 86-110.</p>

Hon. John Watts, judge. The defendants in error sued the plaintiffs in error, in the Circuit Court of Kemper county, on .a promissory note for eleven hundred and sixty-five dollars.

<p>Appeal from the Probate Court of Lauderdale county. Hon. J. B. Hancock, judge.</p> <p>Hunt and wife, the appellees, filed their petition ex parte, in the Probate Court of Lauderdale county, asking for the appointment of commissioners to divide certain slaves remaining in the hands of the administrator, de bonis, after final settlement, equally between. Mrs. Hunt and the appellant, as legatees under the will of their father, James Gr. Pringle, deceased. By the terms of the will, the slaves were to be equally divided between Mrs. Hunt and appellant, and a brother of theirs, who had died since the demise of his father, without issue, and unmarried. The Probate Court appointed three commissioners to make the division, and directed them to give five days notice of the time and place of their meeting to make distribution, both to the general guardian and guardian ad litem, of the appellant. The commissioners gave the requisite notice, and made a division of the slaves into two shares, and allotted one share to Mrs. Hunt and the other to the appellant. Upon the return of the report of the commissioners the appellant appeared and objected to its confirmation, for the reasons stated in the opinion of the court. The .Probate Court overruled the objections and confirmed the report, and Pringle appealed.</p> <p>Contended that the proceedings in the court below were irregular and illegal, for want of the proper parties and notice.</p> <p>The statute does not require any notice to be given, either to the co-distributees or to the administrator, of the application to appoint commissioners. It provides for notice to such of the heirs and legatees as are within the State, of time and place of making the division. This has been done in this case, and the decree ought to be affirmed. Hutch. Code, 670, § 112; and 673, art. 2, §2.</p>

Hon. S. S. Wright, vice-chancellor. The appellees filed their bill in the court below,, to enforce a special lien reserved in the deed, to secure the payment of the purchase-money of a tract of land sold by them to one L. N. Dement. The bill was filed against the administrator of Dement, and also against his heirs at law.

<p>Corf oration : dissolution of. — The question whether a corporation has been dissolved by a non-user, or mis-user of its franchises, cannot be tried in an action instituted by the grantor to recover the possession of realty which had been conveyed by him to the corporation. It must be regarded as legally in existence, until a judgment of forfeiture has been pronounced in a proceeding of quo warranto.</p>

Hon. Charles Scott, chancellor. On the 28th day of August, A. D. 1843, an original bill was filed in the Chancery Court, by the appellee against the appellant, to remove certain clouds and incumbrances on land. Publication was made and pro confesso taken, and a final decree enrolled on the 16th day of January, 1849. The appellant filed his petition for a re-opening of the cause, and asking permission to file his answer, on the 3d day of July, 1849.

In error from the Circuit Court of Leake county. Hon. E. Gr. Henry, judge. On tbe 28th day of July, A. D. 1853, the plaintiff in error sued the defendants in error, in the Circuit Court of Leake county, for the last instalment of $600, which he alleged to be due to him from the defendants upon the following agreement:— “ H. Gr.

Hon. Henry G-. Johnson, judge. In 1845, Micajah Cargill and others, filed their petition in the Probate Court of Hinds county, against the… Held: that it is not every statement or tradition that can be admitted in evidence. “The tradition must be from persons having such connection with the party to whom it relates, that it is natural and likely, from their domestic habits, that they are speaking-the truth, and that they could not be mistaken.” Upon this principle,…

In error from the Circuit Court of Madison county. Hon. E. G. Henry, judge. The plaintiffs in error were indicted and convicted in the court below, for unlawful trading with slaves.

Hon. Charles Scott, chancellor. The appellants, who were the complainants in the court below, filed their bill against Robert S. Price, for the recovery of certain slaves, which they alleged belonged to them, as heirs of their mother, Nancy Price, formerly Nancy Tinnan, and who, a short time before the institution of the suit, had died intestate.

<p>Appeal from the Superior Court of Chancery. Hon. Charles Scott, chancellor.</p> <p>A statement of the case will be found in the opinion of the court.</p>

* Appeal from the Superior Court of Chancery, Hon. Charles Scott, chancellor. Cited Bunnells v. Jaclcson, 1 How. Miss. R. 356; Brow v. West, 7 lb. 181; Thompson v. Wheatley, 5 S. & M. 499; Beauchamp y. Robinson, decided by this court, and not yet reported.

Hon. E. Gr. Henry, chancellor. The appellee, Robert Brooks, filed his original and amended bill in the court below, against James Gr. Hutchins, administrator 0f-Hutchins, deceased; and also against the heirs at law of said Hutchins, seeking a rescission of a contract of the sale of a certain slave, made by the administrator to him.

<p>In error to the Circuit Court of Yazoo county. Hon. E. Cv Henry, judge.</p> <p>Cited Sedgwick on Damages, 431-462; Rawle on Covenants, 480-568.</p> <p>Cited Soy v. Taliaferro, 8 S. & M. 727; Glenn v. Thistle, 1 Cushm. 42.</p>

Hon. Selden S. Wright, vice-chancellor. The allegations of the original and amended bill are sufficiently stated in the opinion of the court.

<p>In-error from the Circuit Court of Warren county. Hon. Jacob S. Yerger, judge.</p>

Hon. E. Gr. Henry, judge. Contended that the quashing of an execution for any irregularity whatever, annulled it ab initio, and avoided all intermediate acts done in pursuance of it, and that its whole effect and force being thus destroyed, it could not take a judgment out of the Statute of Limitations; and he cited 2 Tucker, Com. 339.

<p>Husband and wife : husband’s right to wife’s slaves under the act of 1839.— The husband has a right to make a contract to part with the possession of the slaves of the wife, held by her under the Act of 1839; and such a contract will be binding on the wife during coverture; and hence, the right of the wife to sue in replevin for the recovery of the possession of a slave so sold, does not accrue until after the death of the husband ; and if replevin be brought within one year thereafter, it will be in time.</p>

<p>Appeal from the Probate Court of Yazoo county. Hon. R. B. Mayes, judge.</p> <p>Cited Hutch. Dig. 680 ; Session Act of 1852, p. 345; Edwards v. M}Nee, 5 Cushm. 93.</p> <p>Cited Hutch. Dig. 680; Session Act of 1852, p. 345; Acts of Special Session of 1852, p. 66.</p>

<p>In error from the Circuit Court of Hinds county. Hon. Jacob S. Yerger, judge.</p>

Hon. Charles Scott, Chancellor. N. B. Hooker and his wife filed their bill in the court below, in which they charged: that Nathan Hooker, the appellant, was the guardian of Martha Hooker, one of the appellees, from the year 1838 till her marriage in 1841. That they were at the time of the said marriage under the age of twenty-one years, and had great confidence in the integrity and honesty of said Nathan Hooker, who was the uncle of complainant, N. B. Hooker.

Hon. I. M. Simmons, judge. The appellants, being severally the husbands of the aunt and grand-aunt of William J. Mills, deceased, applied to the Probate Court of Madison county for letters of administration on his estate, in right of their wives.

Hon. Charles Scott, chancellor. The following points and authorities are submitted to the court on the jurisdiction of the court; and also on the question, whether on the demurrer of some of the… Held: that a judgment and return of nulla bona, must first be obtained in this /State, (a judgment in a sister State will not do,) before a creditor can come into a court of chancery to subject equitable assets, or set aside fraudulent conveyances. 9 Wend.

Hon. Charles Scott, chancellor. H. D. Mandeville and others, who were trustees in an assignment made by the Planters’ Bank for the benefit of its creditors,… Held: that the right of the debtor to pay in bank-notes, was limited to cases where the debt belonged to the banh at the time of the proposed payment; that, as between an assignee of the bank and the debtor, “ the value of the notes constitutes the measure of liability.” Robson v. Manchester R. R. Co., 7 S. & M. 739.

In error from the Circuit Court of Yazoo county. Hon. Robert 0. Perry, judge. The pleadings and evidence are sufficiently stated in the opinion of the court.

In error from the Circuit Court of Yazoo county. Hon. E. G. Henry, judge. Peter Fisher, the plaintiff in error, as administrator of one George Fisher, sued Battaile, the defendant in error, in assumpsit for $20,000. Battaile pleaded payment and set-off; and on the trial the jury found a verdict in his favor, certifying that the plaintiff was indebted to him in the sum of $2298 25.

Hon. Charles Scott, chancellor. Cantzon filed his bill and obtained a decree against H. and P. Hilzheim, by which a certain lot was ordered to be sold, in satisfaction of a lien held by Cantzon on it for the purchase-money. The commissioner sold it to 0. Barrett, at auction, for $905, that being the highest and best bid. The commissioner made his report to the court, accompanied by a deed to Barrett, and the bond given by Barrett for the purchase-money.

In error from the Circuit Court of Hinds county. Hon. John I. Gruion, judge. A full abstract of the case will be found in Mr. Wharton’s brief. Contended that, as the bill was payable to Kibbee or bearer, the acceptor was liable to any one who might become the holder; and being primarily liable he can set up no want of consideration to the drawer. See Chitty on Bills, 183, 184.

Hon. Charles Scott, chancellor. The demurrer to the supplemental bill was properly sustained for several reasons:— 1. If the complainants had any remedy in chancery, it was not upon a supplemental bill, but by bill of review. The final decree rendered in December, 1847, settled the rights of the parties by that decree. The taking of the account and all subsequent steps, were but the execution of that decree.

In error from the Superior Court of Chancery. Hon. Charles Scott, chancellor. The appellee, who was the complainant in the court below, filed his bill in the Superior Court of Chancery, seeking to enjoin perpetually the collection of a levee tax assessed against him, and the construction of a levee proposed to be made on his land, by virtue of proceedings instituted under the Act of the Legislature of this State, approved 23d February, 1846.

Hon. E. Gr. Henry, judge. A full statement of the case will be found in the opinion of the court. 1. The action is barred by the Statute of Limitations. See Chandler v. Villett, 2 Saund. R. 121 a., n. 4; Ang. on Lim. 73, 74; lb. 327, § 7; lb. 226, 239, n. 2; Bell v. Morrisson, 1 Pet. 351; Moore v. Bank of Columbia, 6 lb. 86; Purely v. Austin, 3 Wend.

<p>In error from the Circuit Court of Noxuba county. Hon. John E. M‘Nair, judge.</p>

In error from the Circuit Court of Warren county. Hon. J. S. Yerger, judge. The defendant in error sued the plaintiff, for the recovery of the possession of lots Nos. 1 and 2, of section 21, and N. W. quarter of the same section; and also for that portion of section 22, being lot No. 3, lying west of Clear creek; all of said land being in township 16, range 5 east, in Warren county, in this State. The plaintiff claimed, as heir of his father, A. P. Burton, deceased.

Hon. A. P. Hill, judge. The appellees filed their petition in the court below, against the administrator and distributees of Edwin E. Nash, deceased, seeking distribution of his estate. It appeared from the petition that letters of administration on his estate, had not been granted for twelv.e months preceding the institution of the suit.

In error from the Circuit Court of Leake county. Hon. E. G. Henry, judge. Thomas, the defendant in error, sued the Jordans, the plaintiffs in error, in detinue under the new Pleading Act, for the recovery of a slave Hannah, and her child John, and her future increase; alleging that.the aggregate value of John and Hannah was $520 00.

Hon. J. M. Simmons, judge. Aun M‘Willie, by her last will and testament, bequeathed to her son, Abram A. M‘Willie, who was also made executor, certain property “in trust for my (her) daughters, Ann… Held: (in Qarmiehael v. Browder, 3 How. 254,) that “ exclusive jurisdiction was here intended to be given;” and that whatever are matters of equity, are confided exclusively to the Chancery Court.

<p>1. Estate op decedents : property exempt prom execution. — The children of a person dying intestate and leaving no widow, are entitled under the Act of 20th October, 1852, to the property of their father which was exempt by law from execution in his lifetime.</p> <p>2. Execution: property exempt prom. — Dentistry is not a “trade,” nor is a dentist a “mechanic;” and hence the instruments used by a dentist in the practice of his calling, are not exempt by law from execution, under the denomination of “tools of a mechanic necessary for carrying on his trade.”</p>

In error from Circuit Court of Kemper county. Hon. John Watts, judge. The facts of the case are sufficiently detailed in the opinion of the court. Cited 4 Kent, Com. 369, 370. 1. Tenants in common may join in an action to recover real property, or each may bring a separate action. 27 Ala. R. (new series,) 359; 18 lb. 417; 11 Pick. R. 269; 12 lb. 34, 120; 7 Mass. R. 135; 1 Root, 246; 13 Johns.

In error from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge. 1. Michie, being a large tax payer in Yazoo city, was not a competent witness for the corporation. 2. The court erred in refusing to permit the sureties to show that the defalcation occurred before the election of Mann for the second term.

Hon. R. B. Mayes, judge. John Cason, after having made and published his last will and testament, died in the year 1836. Canada Cason, his executor, in October 1836, procured the same to be probated, and recorded in the Probate Court of Yazoo county, and qualified as executor.

<p>Appeal from the Probate Court of Yazoo county. Hon. R, B. Mayes, judge.</p>

In error from the Circuit Court of Yazoo county. Hon. E. G-. Henry, judge. Jones, being the owner of a lot of cooking-stoves, &c., and residing in Massachusetts, shipped them to W. B. Andrews, at Canton, in this State, to be sold by said Andrews, on commission, as his agent. The goods arrived at Yazoo city in transitu for Canton, being consigned there to Wesling, the plaintiff in error, who was a commission merchant and warehouseman.

<p>In error from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge.</p> <p>Cited 12 S. & M. 516; 25 Miss. E. 50; 26 lb. 427; 1 Nott & M‘Cord, 249; 5 Shepley, 327; 2 Greenl. E. 143; lb. 322; 16 Johns. E. 51; 19 lb. 95.</p> <p>Cited 6 Yes. Jr. 230; 5 Peters, E. 591; 12 S. & M. 519; 3 Black. Com. 157; 1 Ohitty, PI. 116; Bac. Abr. Tit. Cov. 551; Tate, Dig. 30; Harwood v. Lewis, 2 Cond. (U. S.) E. 307; Henderson v. Hepburn, 2 Call. E. 232; 25 Miss. E. 49; 26 lb. 425; 2 Spence, Eq. Juris. 860, § 861; 6 Yes. Jr. 328; 9 S. & M. 373; lb. 308.</p>

<p>1. Partial payments : application op. — Where a debtor owing more demands than one to the same person, makes a partial payment, he may then apply the payment to any of the debts he sees proper; if he fail to make any application of the payment, the creditor may then apply it; and if neither make any application of the payment to any one of the several demands, then the law will apply it.</p> <p>2. Same. — If the creditor procure possession of the money of his debtor, without his consent, (unless it be by a legal proceeding binding on the debtor,) the latter does not thereby lose his right to make application of the funds so obtained to any one of several demands held by the creditor against him; nor will he be bound by an application made by the creditor; and hence, where a debtor entrusted funds to an agent, with directions to apply them, by way of compromise, in satisfaction of two demands held against him by the same person, and the creditor knowing this fact, levied an attachment on the money so entrusted to the agent, and also on the money of the agent, all of which having been deposited to the credit of the agent; and thereupon the agent, in order to regain possession of his own money, assented under protest, to the application of the debtor’s money to that one of the debts which was unsecured, the application so made is not binding on the debtor, who may afterwards, when sued, apply the money to either debt, at his option.</p> <p>3. Attorney at law : when his power ceases. — The relation of client and attorney ceases whenever the suit which the attorney was employed to defend is dismissed, and he no longer has any power to act for or bind his client.</p> <p>4. Instructions : not error to refuse one inapplicable to the evidence. — It will not be error for the court to refuse to give an instruction, though it may be correct as an abstract proposition of law, if they have already, at the instance of the party by whom it is asked, given other instructions which cover the whole case, as shown by the testimony.</p> <p>5. Error : judgment not prejudicial, not error. — A party cannot complain of a judgment of the court which is not to his prejudice ; and hence, if the court overrule the demurrer of the plaintiff to the defendant’s special plea, which contains a substantial defence to the action, although it amounts to nothing more than the general issue, it will not be error; the plea in that shape being a benefit to the plaintiff, as it gave him notice of the defence relied on.</p>

Hon. A. P. Hill, judge. Contended that tbe Probate Court bad no jurisdiction to render so much of tbe decree as required a delivery of tbe possession of the dower assigned; that tbe defendant was a stranger, and not bound or concluded by tbe decree allotting dower to tbe widow, who would be bound to resort to her action of ejectment to recover as against him. See Pickens v. Wilson, 13 S. & M. 692; James v. Rowan, 6 lb. 401.

Appeal- from the District Chancery Court at Yazoo city. Hon. George W. Doherty, vice-chancellor. The appeal in this case was taken- from the decree of the vice-chancellor, sustaining the demurrer of defendants to complainants’ amended bill.

<p>1. Chanoeby: pleadins and peaotice. — If a bill in equity contain a prayer for specific relief, and also, a prayer for general relief in the disjunctive, any relief may be granted which the facts stated in the bill, and proven, will justify, although it be inconsistent with the relief especially prayed for. See 4 Paige, 396; 1 Bland. 252.</p> <p>2. Same : answeb : when evidence. — If a bill in equity charge that a certain transfer in litigation was made unconditionally, and not call for any discovery as to the terms and conditions upon which it was made; and if the answer deny the charge, and allege in support of the defendant’s title conditions upon which the transfer was made, the statement in the answer, in relation to the conditions of the transfer, is not responsive to the allegation in the bill, and. therefore not evidence.</p> <p>3. Chancery : pleading : bill : scope op. — The complainant charged in his bill that S. purchased from the State, on a credit, certain lots, and gave his notes therefor, with the defendant as his surety; that the certificate of purchase was taken in defendant’s name, to indemnify him against loss on that account; that defendant afterwards transferred the certificate to S. unconditionally, and that complainant had become, by assignment of S.’s interest, the owner of the lots, and had paid two-thirds of the purchase-money; that defendant, although released from the debt by his certificate in bankruptcy, had paid the remaining purchase-money to the State, and fraudulently procured the issuance to himself of a patent for the lots; but in the event that it should be holden that the procurement of the patent was not fraudulent, the complainant tendered the purchase-money advanced by defendant. The prayer was, that the defendant be decreed to convey the title to complainant, or for general relief. Held: That a decree, that the defendant convey, upon the complainant’s paying to him the portion of the purchase-money which he had advanced, was not beyond the scope and object of the bill, and was properly made, being sustained by the proof.</p>

Charles Scott, chancellor. W. D. Bibb, the plaintiff in error, filed his bill in the Superior Court of Chancery, against the appellee and the heirs of John Martin, deceased, in which he charged, in substance, that the appellee and said John Martin and others, were at one time partners as commission merchants, in New Orleans, in the State of Louisiana, under the firm name of Martin, Pleasants & Co.; that the said firm, about the year 184-, became involved and embarrassed with…

<p>In error from the Circuit Court of Holmes county. Hon. E. Gr. Henry, judge.</p>

Hon. George W. Dogherty, vice-chancellor. The original and amended bills set forth clearly and concisely the facts upon which complainants claim the relief denied to them by the decree of the Vice-Chancery Court. The case made by these facts, as alleged by complainants, and admitted by the demurrer, presents two questions for consideration. First.

In error from tbe Circuit Court of Yazoo county. Hon. JB. (N Henry, judge. For the plaintiff in error it is contended, that the court below erred in ruling out the record and receipt offered in evidence, because it did not appear that any affidavit of the insolvency of the drawer was filed in the cause, or any other evidence of such affidavit having been made before the payment of the execution by Pope. The statute, (Hutch.

<p>Practice : verdict and judgment without plea : when not erroneous. — If the plaintiff, without demanding judgment by default against one of several defendants who has failed to plead, submit the cause to a jury upon the plea of the others, and verdict and judgment be rendered in favor of all the defendants, it will be an irregularity occasioned by his own negligence, and of which he has no right to complain.</p>

<p>1. Partition: among oo-parceners mat be by parol. — A parol agreement between co-parconers, for the partition of lands held by them as such, when carried out by the parties taking possession in severalty, according to the agreement, is valid and effectual to conclude the rights of the others against those holding in severalty. See 14 Wend. 619; 4 Johns. E. 202; 50hioE. 243; 2 Eichardson, 621.</p> <p>2. Evidence ; judicial proceeding competent as part of res gestae. — Although a judicial proceeding for the partition of land among co-parceners may be void for uncertainty in the designation of the parcels allotted to the several parties, yet if it be referred to, in a parol agreement made between them to divide the land, it may be introduced in evidence as a private writing, being a part of the</p>

Hon. Selden S. Wright, vice-chancellor. The substance of the bill is set out in the opinion of the court. Held: that though a creditor might file a bill against a fraudulent vendee and the administrator (that is, when fraud in the administrator was charged) yet an administrator might do it; and in that State there are no statutes disabling the creditor in his remedies.

<p>Statute of limitations : revivor of judgments, etc. — A judgment at law cannot be revived against the administrator or heirs of the debtor, after the lapse of seven years from the date of its rendition; nor can a bill in equity be maintained in such a case, to subject property fraudulently assigned by the debtor, to the payment of the judgment. The judgment being barred at law, cannot be collaterally enforced in equity. — See Ohewning v. Tide, ante, p. 201.</p>

<p>A new bill in equity, brought within one year after the reversal by this court of a decree rendered in the Chancery Court, upon a bill filed by the complainant for the same cause of action, is within the 14th section of the Act of Limitations of 1822, (Hutch. Code, 82'7,) which allows one year for bringing a new action after judgment rendered for the plaintiff shall be reversed ; or after judgment in the court below shall be arrested, upon verdict rendered for the plaintiff; and it makes no difference in this respect, that the former bill was dismissed in this court because the Chancery Court had no jurisdiction to render the decree, on account of the bill having been dismissed for want of prosecution in that court and improperly reinstated.</p>

In error from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge. This was an action against a surety, to recover the amount of a promissory note executed by him and one Blackman, his principal, who has since died. The defendant pleaded four pleas in bar of the action; the two first are sufficiently set out in the opinion of the court.

In error from tbe Circuit Court of De Soto county. Hon. P. T. Scruggs, judge. Held: that a law is not unconstitutional which declares certain persons incompetent, because of atheism, &c. In fact, the section of the law in question is purely one of evidence, and no decision can be found which will deny to the legislature the power to declare what shall or shall not be legal testimony.

In error from tbe Chancery Court of Yalobusha county. Hon. W. L. Harris, chancellor. Held: that “ this was not a covenant distinct from the franchise, but identical with it, and subject to the same laws.” In the case of Backus v. Lebanon, a turnpike incorporated by the legislature of the State, was appropriated by a corporation subsequently incorporated and used in the construction of a free road.

<p>Appeal from the District Chancery Court at Natchez. Hon. B. C. Buckley, vice-chancellor.</p> <p>Cited 4 Cushm. 232; 2 lb. 180 ; 5 S. & M. 354; 29 Maine, 455; Benson v. Stewart, 30 Miss. R. 49.</p> <p>Cited 27 Miss. R. 94; 25 lb. 197; Story, Eq. Bl. § 175, 196.</p>

<p>In error from the Circuit Court of Tishomingo county. Hon. P. T. Scruggs, judge.</p> <p>G. JE. Koolcer, on same side.</p>

The city is out of possession, the appellees are holding under claim of title. Now the remedy at law, if one there be, is by action of ejectment, in which the plaintiff must recover on the strength of his own title, not the weakness of his adversary’s. True it is, that one judgment in ejectment is not final, either at common law, or by statute; Tillinghasts’ Adams on Eject. 294 ; Hutch.