Volume 32 — Mississippi Reports

IN error from the Circuit Court of Harrison county. Hon.. John E. M‘Nair, judge. Held: or before claimed, as depriving him of the right to change his mind and abandon the intent to act as a carrier from that point, or to abandon the calling of a carrier entirely. IL The demurrer to the complaint of M'Oaughan and wife, should have been sustained.

Hon. Charles Scott, chancellor. This was a bill, filed in the Superior Court of Chancery, to enforce the vendor’s lien for the unpaid purchase-money on certain land sold by the complainant’s intestate to Beatty, one of the defendants, and by him afterwards sold to Killingsworth, the other defendant.

<p>1. Chancery : district chancery court of holly springs. — A cause in-which a final decree had been rendered previous to the passage of the Act of 1848, which provided for a division of the Vice-Chancery District of Holly Springs, and the establishment of a new district, is not embraced in the provision of that Act, which required all causes belonging to the new district, and which were then “ undetermined,” to be transmitted from the court at Holly Springs to the new court thereby established at Hernando ; and therefore a bill to review and reverse a final decree, which had been rendered in the court at Holly Springs previous to the passage of the act, should be brought in that court, although the parties reside, and the property is situated in the new district.</p> <p>2. Chancery: bill of review: nature of. — A bill of review is an independent proceeding, and does not constitute a part of the original cause.</p> <p>3. Chancery: final decree: effect of. — After the expiration of the term of the court, at which a final decree is rendered, the cause can no longer be considered as depending, and all jurisdiction of the court over it is ended, except in cases where infants are parties defendants, and where there is an express reservation to them by the decree of time in which to contest it, and also in cases where the defendants are non-residents.</p> <p>4. Chancery : jurisdiction of old chancery courts over bills of review. — The Superior and District Chancery Courts, since the adoption of the constitutional amendment abrogating them, except for the disposition of causes then depending, have no jurisdiction to entertain bills of review, to correct final decrees rendered in those courts before the date of the amendment, except, perhaps, in cases where the defendant in the original suit was a minor, and time is expressly allowed him in the final decree to come in and contest it; or unless the defendant was a non-resident.</p>

<p>Appeal from the Probate Court of Jefferson county. Hon. J. M. Ellis, judge:</p> <p>The appellant, upon the revocation of the letters of the appellee as administrator of Wm. Broxton, deceased, was appointed administrator de ionis non of the intestate; and he thereupon procured a citation to be issued against the appellee, requiring him to render an inventory of said estate, suggesting that he was indebted to said intestate. The appellee answered, denying that he was administrator, and setting up a gift of the money claimed, by the intestate in his lifetime. Evidence was introduced by both parties on this point, and on final hearing, the court dismissed the citation, and E. Graskins appealed.</p>

<p>IN error from tbe Circuit Court of La Fayette county. Hon. P. T. Scruggs, judge.</p> <p>Cited Joslin v. Qaughlin, 27 Miss. R. 852; S. C. 80 Ib. 502; S. C. 26 lb. 140; Hoggins v. Bocraft, 1 Dana, R. 32 ; Greorge v. Bean, 30 Miss. R. 147.</p> <p>Cited 2 Kent, Com. 471; 3 Humph. R. 430; Henderson v. Overton, 2 Terg. 394; Martin v. Brady, Freem. Cb. R. 38; Brown v. Adams, 1 S. & M. 49; 12 Wheat. 183; 6 S. & M. 128; Comyn, Dig. D. 1, L. 12; 1 Saund. R.-274; Mosby y. Parlcer, 2 Smedes, R. 371.</p> <p>Cited and commented on the previous decisions of this Court in this case, and reported in 26 Miss. R.; 27 Miss. R.; and 30 Miss. R. He also cited Hudson v. Watson, 4 Cushm. R. 862; Frost v. Boyle, 7 S. & M. 68.</p>

<p>1. Executor and administrator: interest of administrator and distributee in the estate. — The legal title to a decedent’s property is vested in the administrator for certain special purposes — for collecting and preserving the assets, paying the debts, and for distribution. Subject to this, the whole interest in the estate vests, immediately on his death, in the persons entitled under the statute to distribution; and where there are no debts to be collected or paid, and where it is unnecessary for the purpose of distribution, that an administrator should be appointed, and none is in fact appointed, the legal title to the personal estate vests, without distribution, in the distributee, “ in the same way and manner” as the real estate descends to the heir.</p> <p>2. Same: distribution: effect of making to tenant for life.- — It is a settled rule in this court, that distribution of chattels personal, made to the tenant for life under a will, is also a distribution to the remainderman, and, as a general rule, an act of complete and final administration. Sail v. Sail, 21 Miss. R. 458.</p> <p>3. Same : where there is no limitation over. — Where a personal chattel is bequeathed to one for life, with no limitation over, and the testator dies intestate as to the quasi reversion expectant upon the determination of the life estate, and the reversion vests, as in other cases of intestacy, in the next of kin, who being as clearly made known by the statute of distributions as if the estate were expressly limited to them by the will, a distribution and delivery to the tenant for life, will be a complete act of administration and distribution to the next of kin.</p> <p>4. Power : construction op. — A devise to one for life, with directions that the property “ shall be delivered to the legatee as soon after the” testator’s “ death as possible, that he may have full control, and be empowered to dispose of the same as he may think proper,” vests in the devisee an estate for life only, but with the unrestricted power of disposing of the fee. See 16 J. R. 587; 14 S. & M. 184: 1 Sugd. Pow. 65.</p> <p>5. Will : construction op : meanins op “ estate.” — The word “ estate,” used in a will, embraces both real and personal property, unless it appear from the context that it was used in a less .extensive signification. 12 Mad. 592; Cowper, 279.</p> <p>6. Power of unrestricted disposition a part of the estate. — A power of unrestricted disposition, appended to a life interest in property, is a part of the “ estate” of the tenant for life.</p> <p>7. Power: when execution: rule in relation to. — Whether or not a testator has executed a power of appointment vested in him, is a question of intention, to be arrived at by the same rules of construction which apply in other cases in the interpretation of wills; and if he use general words, such as “ all my estate,” or “ all the balance of my estate,” which in themselves are sufficient to cover an execution of the power, it will be sufficient, although no reference is expressly made in the will to the power or the subject-matter upon which it may be exercised; and especially so, where it appears that these general words would be inoperative unless construed to be an execution of the power.</p>

<p>In error from the Circuit Court of Yalobusha county, Hon. "W. L. Harris, judge.</p>

IN error from the Circuit Court of Lawrence county. Hon. John E. M‘Nair, judge. The defendant in error, as executor of one T. Y. Grinstead, sued the plaintiffs in error as makers of a bill simple, dated 2d January, 1852, and payable to the plaintiff in error and one Hil-liard, jointly, as executors of said Grinstead. The complaint showed that Hilliard had, since the execution of said note, resigned his letters testamentary, and made a final settlement and been discharged.

<p>Appeal from the Probate Court of Franklin county. Hon. J. M. J ones, judge.</p>

In error from tbe Circuit Court of Copiah county. Hon. John E. M‘Nair, judge, made the following points, and cited the following authorities :— 1. The tax sale was void, because the land was not designated by the particular eighths by the tax collector in selling. Hodge v. Wilson, 12 S. & M. 504. 2. It was void also for the reason that it was sold by the fraud and collusion of the tax collector and Patton. Doughty v. Hope, 1 Corns.

<p>Vendor and vendee : mutual covenants : rescission or contract. — The vendor who has executed a title bond, conditioned to convey title upon the payment of the purchase-money, cannot, upon the purchase-money falling due and remaining unpaid, rescind the contract by a mere notice to the vendee that the contract is at an end; — the covenants to pay the purchase-money and to convey title being mutual and dependant, neither party can be put in default in the performance of the contract, without an offer on the part of the other to perform Ms covenant.</p>

IN error from tbe Circuit Court of Claiborne county, Hon. Stan-hope Posey, judge. 1. The bill of exceptions shows that the right of recovery was rested upon the title of A. Gr. Bowen, alone — there being no pre-tence that Pintard, the other lessor, ever had any title. After the granting of the new trial, to wit: at April term, 1854, the plaintiff’s counsel suggested the death of A. Gr. Bowen, and took an order for a sci. fa. in favor of his heirs to revive the suit.

<p>IN error from the Circuit Court of Choctaw county. Hon. W. L. Harris, judge.</p>

<p>IN error from the Circuit Court of J ones county. Hon. J ohn Watts, judge.</p> <p>The' plaintiff below sued the defendant for a trespass which he alleged that the defendant had committed by entering upon his land and removing the dwelling and out-houses and some fence-rails situated on the premises.</p> <p>The defendant pleaded not guilty.</p> <p>It appeared from the evidence that the defendant had purchased the improvements on the land from the person who made them, whilst it belonged to the government of the United States, and had under his contract entered into possession. The plaintiff af-terwards entered the land in the land-office at Augusta in the State. After plaintiff’s entry, the defendant removed from the premises the improvements, consisting of a dwelling and out-houses and fencing, the value of which was proven by a witness for the plaintiff to be $850.</p> <p>Upon the trial, the plaintiff offered in evidence the original books of entry of the land-office at Augusta, showing that he had entered the land in controversy. This was objected to by the defendant, but the court permitted the evidence to go to the jury.</p> <p>The court, at the instance of the plaintiff, instructed the jury in substance as follows: — That it is immaterial who made the improvements, if they believed that the plaintiff had title to the land at the time they were removed.; that the right and title to the land carried with it the right of possession, and that this was sufficient to enable the plaintiff to maintain trespass; that the jury were not confined to the actual value of the property removed in assessing damages, but that they might find for the plaintiff, if they believed he was entitled to recover, whatever sum they might think was proper under the circumstances, and that they had nothing to do with, the question whether the land was public or not, previous to the entry by plaintiff.</p> <p>The defendant asked the court to instruct the jury: — ■</p> <p>“ 1. That if they believed from the evidence, that the defendant was in possession of the property in good faith, and holding the right of possession, and was not aware of the fact that the plaintiff had entered the land when the trespass was committed, they must find for the defendant.</p> <p>“ 2. That a mere entry in a tract-book of the land-office is not of itself evidence of' title, and unless the plaintiff -has shown title in the land, they will find for the defendant.”</p> <p>The court refused' to give the instructions.</p> <p>The record recited that the jury was sworn “ a true verdict to give according to the evidence.”</p> <p>The plaintiff had verdict and judgment for $250.00.</p> <p>The defendant moved for a: new trial, which was refused, and he prosecutes this writ of error.</p> <p>Cited and commented on the following cases to maintain the point that the record did not show that the jury were properly sworn. Beal v. Campbell, 1 How. 24; Wolfe v. Martin, lb. 30; Irwin v. Jones, lb. 498; Dejarnett v. Haynes, 23 Miss. R. 600.</p> <p>Cited the- following cases, to sustain the sufficiency of the record as to the oath of the jury. Montgomery v. Tilbrethson, 1 How. R. 215; 6 Wend. R. 548; 3 Blackf. 269-304; 1 Douglass, R. 306.</p>

In error from the chancery side of the Circuit Court of Tippah county, Hon. P. T. Scruggs, judge. Insisted that the facts showed that this was not a case of usury. The agreement made, after the debt fell due, was to pay an additional sum for forbearance in foreclosing the deed of trust. Forbearance is a good consideration for a promise. JEtling v. Van-derlyn, 4 Johns. R. 23; Miles v. M‘Lellan, 2 Nott & M‘Cord, 133; Hob. 216; Oro. Eliz. 387; Ld. Raym. 357; 1 Com.

The case was this. In 1847, Mary Covington, tbe defendant below, inherited from her father, John Crosby, a slave named Viney, and held her as her separate estate under the Act of 1846.

<p>IN error from tbe Circuit Court of Simpson county. Hon. John E. MNair, judge.</p>

<p>Appeal from tbe District Chancery Court, at Monticello, D. W. Hurst, Esq., special vice-chancellor.</p>

<p>In error from the Circuit Court of Jasper county. Hon. John Watts, judge.</p>

IN error from the Circuit Court of Tallabatcbie county. Hon. W. L. Harris, judge. This was a suit brought by W. P. Spinks against A. W. Davis, upon an agreement entered into between Spinks and Davis, whereby Davis for a consideration, undertakes as attorney, to assume the administration of a certain estate, and collect a debt due to Spinks.

Hon. B. C. Buckley, vice-chancellor. This bill was filed in 1849, by the appellants, as trustees of the United States Bank of Pennsylvania against the appellee, to collect from him as one of the sureties of James A. Yentress, the amount of his promissory notes, which they had executed to the Planters’ Bank of this State, and which were over due in 1839.

IN error from the Circuit Court of Yalobusha county. Hon. W. L. Harris, judge. The substance of the complaint is fully set out in the opinion of the court. Upon the overruling of defendant’s demurrer to the complaint, he pleaded the Statute of Frauds in bar of the action; plaintiff demurred to this plea, which was sustained, and defendant then pleaded the general issue.

Hon. James F. Trotter, vice-chancellor. The chancellor, in this case, decreed in favor of the complainant, requiring Jones to convey the land to him, upon his being paid the money advanced and the interest, and Jones appealed. insisted that the agreement was void by the Statute of Frauds.

B. C. Buckley, vice-chancellor. Cited 1 Johns. Ch. R. 402; 1 Yesey, R. 120; lb. 284-289. Cited Story, Ecp PI. §§ 426, 428. 1.

. In error from the Superior Court of Chancery. Hon. Charles Scott, chancellor. .... On the 1st day of May, A. D. 1832, the plaintiffs in err or,.

Hon. Henry Dickinson, vice-chancellor. The appellant filed his bill in the court below for the recovery of the land in controversy, in which he alleged in substance, that be wished to give two of his sons a small tract of land each, and that with this view he attended the sale of the land in controversy, made by the administrator of one Pool, and purchased the same, with the understanding and agreement between his said sons and himself that if two settlements could be made…

<p>Infancy: trustee not compellable to pay to assignee of infant. — Infancy is so far not exclusively a personal privilege, that a trustee may refuse to pay to the assignee of an infant, his share in the trust estate.</p>

<p>Iif error from the Circuit Court of Calhoun county. Hon. William L. Harris, judge.</p>

IN error from tbe Circuit Court of Yazoo county. Hon. E. G. Henry, judge. This action was first commenced before three justices of the peace,, and the jury having found a verdict for Wilson, the defendant, Pugh, appealed to the Circuit Court of Yazoo county. Upon the trial in that court the plaintiff had verdict and judgment, and the defendant prosecuted this writ of error. The other facts are sufficiently stated in the opinion of the court.

IN error from the District Chancery Court at Hernando. 'Hon. Henry Dickinson, vice-chancellor. Yance, the defendant in error, filed his bill in the court below, to vacate certain sales of a tract of land under execution by the tax collector, and which he alleged constituted a cloud on his title.

In error from the Circuit Court of Rankin County. Hon. John E. M‘Nair, judge. Contended, that the amendment could not relate back to the commencement of the suit, and cure the want of a right of action in the plaintiff at that time. That the legal title must be in the plaintiff when the action is brought, and it is not sufficient if it be so at tbe time of tbe trial. 6 Birm. R. 454; 5 Harr. & J. 16 4; 5 Watts & Serg. 427; B How. Miss. R. 888; 11 S. & M. 452.

<p>IN error from tbe Circuit Court of Yalobusha county. Hon. W. L. Harris, judge.</p>

Hon. P. T. Scruggs, judge. Contended, that where there were more demands than one against the debtor, in whatever shape they might exist, he has the right to apply a voluntary payment made by him to any of them he saw proper; and that this right was not affected by the Enrolment Law of 1844, which, by its terms, only applied to payments coerced by the sheriff by a sale of the defendant’s property. Cited Hutch.

<p>Appeal from the Probate Court of Adams county., Hon. R.' Bullock, judge.</p> <p>cited 2 Barb. Ch. R. 216.</p>

<p>1. Probate court : jurisdiction after final settlement. — The Probate Court has no jurisdiction, after the death of the administrator, to enforce against his personal representative a decree rendered against the administrator on final settlement.</p> <p>2. Statute of limitations : deoree in probate court bound by. — The Statute of Limitations will run against a decree rendered in the Probate Court in favor of a distributee against the administrator, on final settlement.</p>

James F. Trotter, vice-chancellor. It is only necessary to state in addition to the facts set out in the opinion of the court, that the bill charged as the ground of complainant’s title, that the defendant received all of the slaves sued for and devised by the will of Joseph Woods, as the agent of complainant, and as guardians for her brothers and sisters.

Hon. Charles Scott, chancellor. This bill was filed by the appellees against the appellants, on the 7th day of May, 1855, and alleged in substance, that on the 26th day of May, 1847, the appellant, J. B. Nevitt, made his three promissory notes to the Planters’ Bank; the first due in one year from that time, the second in two years, and the third in three years.

<p>1. Statute oe limitations: in ejectment — The Statute of Limitations commences running against an action of ejectment for the recovery of land, from the time the claimant’s cause of action accrued, and not from the date the title vests in him.</p> <p>2. Amendment. — Amendments should be liberally allowed, under the Pleading Act of 1850, but they should be made always exclusively for the purpose of reaching the merits of the controversy: an amendment, therefore, will be ill-advised and improper, which, being allowed after the evidence is closed, substitutes instead of the plaintiff, the name of a third party, who is shown by the proof to have no title to recover the thing demanded by the suit.</p>

<p>Statute or limitations : fraud. — A right of action accrues to the- purchaser of a slave against a third person, for false and fraudulent representations, made by the latter in relation to the title of the slave, from the date of such representations ; and hence, the Statute of Limitations will commence running from that time, and not from the date of the judgment of eviction; hut if there be any relation of confidence and trust existing between the purchaser and such third person at the time of the sale, by which it was the duty of the latter to disclose the true state of the title, then the statute would commence running from the date of the discovery of the fraud. See Battley v. Faulkner, 3 B. & A. 288; Wilcox v. Plummer’s Executors, 4 Peters, 112 ; 4 Leigh, R. 414; Buchner and Stanton v. Galeote, 28 Miss. R. 432.</p>

<p>Appeal from the District Chancery Court at Fulton. lion. Henry Dickinson, vice-chancellor.</p> <p>The bill showed, in addition to the facts set out in the opinion of the court, that in 1845, the legal title to the lots in controversy had been divested out of the trustees of the town of Aberdeen, by a sale under the decree of the Chancery Court, and that it was afterwards vested in the defendant. The proceedings by which this was accomplished are charged in the bill to be fraudulent, and the facts upon which the charge of fraud is based are also stated, but it is unnecessary further to set them out.</p> <p>Contended that the bill was barred by the Statute of Limitations, and on this point cited Trotter v. Frwin, 27 Miss. E>. 772.</p>

<p>Statute op limitations: promise to save the bar. — An acknowledgment by the debtor of an indefinite balance due on the claim, will not save the bar of the Statute of Limitations as to any amount whatever.</p>

<p>Partners: remedies against eacii other. — A co-partner may sue his associate at law upon a note or due-bill given to him on a partial settlement of the partnership affairs ; but the defendant cannot, in such an action, set off against the demand of his co-partner a written acknowledgment of money received by the plaintiff on account of the partnership, as it is only an admission of indebtedness to the firm, and not to the defendant individually.</p>

<p>IN error from the Circuit Court of Lowndes county. Hon. F. M. Rogers, judge.</p> <p>The defendant in error sued the plaintiff in error, on a note payable to him “for the benefit of Robertson and Anderson.” The original complaint was for the “ use of Robertson and Anderson.” In this complaint the defendant below filed several answers, upon which.issue was taken. Afterwards the plaintiff obtained leave of the court, and filed an amended complaint, by which the action ,was prosecuted for his own benefit. To this the defendant filed two pleas, which, in substance, are stated in the opinion of the court. ■The plaintiff demurred, and his demurrer being sustained the defendant declined further to plead, and the court entered judgment final for the amount of the note and interest, against the defendant, without having made any disposition of the issues on the pleas to the original complaint. From this judgment the defendant prosecuted this writ of error.</p>

<p>Ik error from the Circuit Court of Choctaw county. Hon. W. L. Harris, judge.</p> <p>Contended that the instruction of the court given at the instance of the plaintiff was manifestly erroneous. That the proof showed that Hunt had collected only one or two small debts due to the firm of which King, the deceased, was a member, and that he was liable to account to the survivor, and not to the representatives or creditors of the decedent. ■ See Stewart v. Buclchalter, 28 Miss. R. 396.</p> <p>In reply, insisted that the court would not disturb the verdict of the jury which convicted the defendant with intermeddling with the estate of King; as there was no such preponderance in the evidence against it, as by the numerous decisions of this court is required to authorize it to be set aside. Jenkins v. Whitehead, 1 S. & M. 157; Leflore v. Justice, lb. 381; Fllzy v. Stone, 5 lb. 324; Fisher v. Leach, 10 lb. 313; Watson v. Dickson, 12 lb. 608; Mann v. Manning, lb. 615; Cicely v. The State, 13 lb. 202.</p>

<p>1. Pleading : general issue : deeence .under. — In an action by a mechanic, to recover for work and labor done and performed for the defendant; his failure to complete the work according to contract may be given in evidence under the general issue.</p> <p>2. Error: no reversal for error not prejudicial. — It is not error to the defendant’s prejudice, for the court to sustain improperly a demurrer to a special plea, setting up a defence which could have been made under the general issue, which was also pleaded by the defendant.</p>

<p>1. Attachment : bond and affidavit by attorney sood. — The bond and affidavit in a proceeding by attachment may be made by an attorney, whether the attaching creditor be a jion-resident or not. Hutch. Dig. 845; lb. 802, \ 8.</p> <p>.2. Peaotice : garnishment. — It is unnecessary to demur to the answer of a garnishee, in order to test the legal sufficiency of the facts therein stated, to show that no judgment should be rendered against him for the plaintiffs; a motion for judgment on the answer is sufficient.</p> <p>3. Gonflict of daws: insolvent proceeding: effect of as to non-eesident creditors. — Insolvent proceedings in one of the States of the union, to which a creditor residing in a sister State has not assented, does not discharge a debt due to him by the insolvent.</p> <p>4. Same : poeeign assignment under insolvent proceedings : effect of. — A prior assignment under the insolvent laws of the State of Louisiana, will not prevail against a subsequent attachment (by a creditor not bound by the insolvent proceeding,) of a debt due by a citizen of this State to the insolvent.</p>

Hon. P. T. Scruggs, judge. Newberry and wife, instituted their action of trespass in the court below, to recover damages for the wrongful taking and detention of their slaves, by the defendant. It appeared that the plaintiff ivas 'in possession of the slaves at the time the trespass was committed, and that defendant went to the plantation of plaintiffs, where the slaves were at work, and carried them away.

<p>In error from the Circuit Court of Yalobusha county. Hon. Wm. L. Harris, judge.</p>

<p>Evidence : onus of proof on traverse of garnishee’s answer. — üpon the trial of a traverse of a garnishee’s answer, denying indebtedness to the attachment debtor, the burden of proof is on the plaintiff; and if it appear that the attachment debtor had assigned a note due to him by the garnishee, the transfer will be presumed fair and bona fide, and it is incumbent on the plaintiff, if he attack it on that ground, to show that it was fraudulent.</p>

<p>1. Judgment : presumption op payment : pleadings in probate court. — No presumption in favor of the payment of a judgment will arise before the lapse of a year and a day from the date of its rendition ; hence if within that time a judgment creditor of an insolvent estate, file his petition in the Probate Court, for the purpose of compelling the administrator to give better security, it will be unnecessary for him to allege in it that the judgment is unpaid.</p> <p>2. Probate court: practice : insolvent estate. — A judgment creditor of an insolvent estate, has the right to proceed against the administrator for better security, although he has not presented his judgment before the commissioner of insolvency, if the time for such presentation lias not elapsed.</p>

<p>Evidence : mortgage : presumptions of payment. — Possession by the mortgagor after the maturity of the mortgage, of the property pledged, is not presumptive evidence of the satisfaction of the mortgage debt, without proof that the property had once been delivered to the mortgagee: aliter, where the property had been in the mortgagee’s possession, and re-delivered by him to the mortgagor.</p>

Hon. Stanhope Posey, chancellor. Eliza Bates, during her first marriage, had issue the three complainants. Her first husband died anterior to 1839. On the 28th of February, 1839, she intermarried with Richard Bates, one of the appellants, and in 1842, became possessed in her own right of certain slaves, by distribution from her father’s estate. Three children were the fruit of the marriage.

Hon. B.‘ C. Buckley, vice-chancellor. The certificate of the acknowledgment of Mrs. Johnston to the deed releasing the land to Heidelberg, is as follows: “ The State of Mississippi, 1 Jasper county. j “ Personally appeared before the undersigned, James A. Chapman, clerk of the Probate Court, the above-named Jane Lee Johnston and William Cherry, who acknowledged that they signed, sealed and delivered the foregoing deed, as their voluntary act and deed, and for the purposes…

<p>Appeal from the District Chancery Court at Mississippi City. Hon. B. C. Buckley, vice-chancellor.</p>

<p>Appeal from the District Chancery Court at Mississippi City. Hon. B. C. Buckley, vice-chancellor.</p> <p>Cited Hutch. Dig. 499, § 2; Davis v. Doy, 7 S. & M. 64; Diclc-son v. Miller, 11 S. & M. 602; 9 Yes. 182; 3 Maddox, 98; 8 Burrows, R. 1776.</p> <p>Cited 2 Hen. Dig. (La) 920, §§ 19-20; Civil Code, (La.) art. 1779; 1 Dessaus. R. 455; 2 Iredell, Eq. R. 553 ; 7 B. Monroe, R. 443 ; 2 Cushm. 417; 1 lb. 269.</p>

Hon. B. C. Buckley, vice-chancellor. On the 29th day of December, 1851, the appellee filed her bill in the District Chancery Court, against the appellant, for a divorce and alimony, and for the recovery of the sum of $25 which she alleged that she had loaned him, and the sum of $115, which he had taken of her separate property.

In error from the Circuit Court of Simpson county. Hon. Green Perm, judge. At the October term, 1855, of the Probate Court of Simpson county, a paper purporting to be the last will and testament of Isaac Alexander, deceased, was, upon the petition of M. A. Banks, the executor named therein, duly admitted to'probate, and recorded as the last will and testament of said Isaac Alexander.

Contended, First: That as the petition charged and the demurrer admitted, that the slaves were bequeathed to Seaton et al. in secret trust, for the purposes of emancipation, the bequest was void by the statute, Hutch. Code, 539, § 11. Second. That the trust being void, the slaves would go to the heirs, and not to the trustees. See Code before cited, and 1 Jarman on Wills, 457, §§ 503, 504; 2 Story, Eq. Jur. §§ 1245,1246 ; 2 Madd.

Hon. Jackson Millsops, judge. The appellants filed their petition in the Probate Court of Copiah county, against the appellee, the executor named in the will of John Edwards, and also against the legatees under the will, seeking for an issue devisavit vel non, to try the validity of the will, which had been admitted to probate in that court.

<p>Ik error from the Probate Court of Adams county. Hon. íteuben Bullock, judge.</p>

<p>1. Executor and administratob : power of, to execute refunding bond. — The administrator of a deceased distributee may execute a refunding bond, so as to entitle him to receive the distributive share of his intestate, before final settlement.</p> <p>2. Same : distribution : when proper to a deceased distributee’s heir. — If a distributee die before receiving his distributive share, leaving the same heirs as the intestate, and owing no debts, and owning no property but his distributive share in the intestate’s estate, distribution of his estate ought to be made directly to the heir, and not to his administrator.</p>

IN error from tbe Circuit Court of Adams county. Hon. Stan-hope Posey, judge.

IN error from tbe Circuit Court of La Fayette county. lion. P. T. Scruggs, judge. Richardson, the defendant in error, recovered a judgment against one John Stewart, in his lifetime, and issued an execution thereon, which was returned “no property found.” John Stewart died, and Richardson sued out a scire facias against Thomas Stewart, as his administrator, and thereupon the judgment was revived against said Thomas, as administrator of John Stewart.

' Inr error from the Circuit Court of Yalobusha county. Hon. W. L. Harris, judge. Cited Washburn v. Dorsey, 8 S. & M. 214; Green v. Twnstal,. 5 How. 638.

In error from the Circuit Court of Clarke county. Hon. John Watts, judge. The plaintiff in error sued the defendant in error in the court below, upon a promissory note made payable to him, “ as administrator of William Watt, deceased.” The defendant pleaded that the plaintiff had no title to the note, by reason of his final discharge from the administration of' that estate, before the commencement of the suit.

Hon. Reuben Bullock, judge. The appellant, as administratrix de lonis non of Adam Bower, deceased, filed her petition in the court below against the heirs of her intestate, praying for an order of sale of certain real estate, which it was alleged belonged to the decedent in his lifetime, and had upon his death descended to the heirs. She alleged a deficiency of personal assets to pay the debts. Some of the heirs having failed to answer, a pro eonfesso was taken as to them.

IN error from the District Chancery Court at Natchez. Hon. B. C. Buckley, vice-chancellor. A full statement of the case will be found in the opinion of the court. made the following points, and cited the following authorities:— I. Bowen’s interest in his wife’s estate ceased upon the granting of the divorce a vinculo. Bishop on Marriage and Divorce, §§ 660, 666, 667; 2 Black. Com. 433; 10 Paige, 420 ; 5 Dana, 254; 10 Mass.

<p>Executor and administrator : commissions : liabihtt op administrator de bonis non to pat. — An administrator de bonis non is not bound to pay the commissions allpwed to the administrator in chief, on his final settlement, unless there be an order of court directing him to do so, or unless a demand of payment, with notice that they remain unpaid, be made of him, by the administrator in chief: and if without any such order, demand, or notice, he make a final settlement and be discharged, an action cannot be maintained against him to recover the claim.</p>

Hon. J. M. Jones, judge. The appellee was appointed by the Probate Court of Franklin county, administrator of the estate of one Kinnisson. Adams afterwards removed with the property to Claiborne county, and took out letters of administration on the estate from the Probate Court of that county. He thereupon applied to the Probate Court of Franklin county, to make a final settlement of his accounts in that court.

Hon. Reuben Bullock, judge. Nathaniel Hoggatt died in October, 1853, after having first made and published his last will and testament, which was regularly admitted to probate in December of that year. The testator, after making several specific legacies, devised the whole of the residue of his estate to be divided equally among his three children, Agnes Williams, wife of R. S. Williams, Charlotte Brandon, wife of Gerard C. Brandon, and Anthony Hoggatt.

Hon. James F. Trotter, vice-chancellor. The. pleading and evidence are very fully set out in the opinion of the court. Cited Anderson v. Baker, 1 Kelly, 595; 2 Kelly, 297; Gordon v. Green, 10 Ga. R. 543; Wyche v. Green, 11 Ga. 177. Cited Grangiae v. Arden, 10 J. R. 293; Carradine v. Gollins, 7 S. & M. 428; Young v. Young, 25 Miss. 38; Caldwell v. Wilson, 2 Spears, R. 75; Killebrant v. Brewer, 6 Texas, R. 45. Cited 2 Hills, (S. C.) R. 547.

IN error from the Circuit Court of Madison county. Hon. E. Gr. Henry, judge. There is a very full statement of the facts in the opinion of the court.

IN error from tbe Circuit Court of Panola county. Hon. P. T. Scruggs, judge. Held: however, that the complaint is sufficient, then our demurrer to the replication should have been sustained upon both” the grounds assigned. These grounds, are:— 1.

IN error from tbe Circuit Court of Madison county. Hon. E. Gr. Henry, judge. The defendant in error, brought an action in the court below, against the plaintiff in error to recover certain instalments which they alleged that the plaintiff in error owed on his subscription for stock in that company. The defendant below resisted the recovery, upon the ground that he had never made any valid subscription for the stock of plaintiff’s company.

Is error from the Circuit Court of Itawamba county. Hon. P. T. Scruggs, judge.

<p>In error from tbe Circuit Court of Tisbomiugo county. Hon. P. T. Scruggs, judge.</p>

Hon. Reuben Bullock, judge. A very full statement of the case will be found in the opinion of the court. The appellants assign for error. 1st. That the pretended will was not written by the testator himself. 2nd. It was not signed by the testator himself. 3rd. It was not signed by any other person in his presence, by his express directions. 4th. It was not attested by three or more credible witnesses, in the presence of the testator. 5th.

<p>IN error from tbe Circuit Court of Carroll county. Hon. E. M. Rogers, judge.</p> <p>H. S. Eoote, as Governor of tbe State, and successor in office to Joseph W. Matthews, sued Samuel Moore, John C.M£Carty, Richard J. Johnson, J. Durdin, O. L. Kimbrough, James Z. George, P. H. Browne, J. M. Blount, and James Young, sureties of W. P. Bole, sheriff of said county, on his official bond as tax-collector, for the non-payment of the county special and poor taxes, for the year 1850, to the amount of $2180, which, it was alleged and admitted, had been collected by said Bole, and that he had failed to pay over. The defendants demurred to the complaint, and the demurrer, by agreement, was extended to the following agreed state of facts: “ The assessor’s list, or assessment roll for said year, did not contain a separate column, in which was set dowm the amount of county taxes due from such tax payers; nor was there any mention, either in figures or words, on such assessment roll in relation to any of the county taxes, contained in the declaration, nor any county tax whatever, either as to the total amount levied, or the separate share of each tax payer, or in any other respect whatever; nor any statement that any county tax had been levied by the Board of Police of Carroll county, for the year 1850. That the assessment roll, so far as the State tax is concerned, is in all respects legal and regular. It is further agreed, that the Board of Police did legally levy a county special and poor tax for said year, and of the sum so levied, the sum of $2180.84 was not paid into the county treasury, which amount, it is agreed, was collected by said Bole, sheriff and tax-collector, as aforesaid, and that he failed to pay over the same.” Bole had died previous to the institution of the suit, and his administrator-wTas not joined in this action.</p> <p>The Circuit Court overruled the demurrer, and judgment final was, by the agreement of the parties, thereupon entered against the defendants, and'they su,ed out this writ of error.</p> <p>The question presented by the record is, '-whether the sheriff, without any assessment for county taxes could, upon the action of the Board of Police, proceed to collect a certain per cent, on the amount of the State tax, for the county special and poor taxes.</p> <p>In the first place, nothing is clearer, than that there must be a legal assessment, before the collector can proceed, and if he does proceed without such assessment, he is a trespasser, and the State or county acquires no right whatever to the sums collected by him; but the tax payer can recover the same from him, by an action for that purpose. Thuston v. Little, 3 Mass. R. 429; Doughty v. Hope, 1 Comstock, R. 79; Blossom v. Qannon, 14 Mass. R. 177 ; Q-rainger v. Parsons, 2 Pick. 392.</p> <p>The casein 1 Grill’s Reports, referred to by the defendant in error, has no application. In that case, the question was not, whether a legal assessment had been made, but whether the law under which the collector acted, was a constitutional law. But all the authorities concur, that unless an assessment is made according to law, the tax is not due, and the collector has no power or right to collect. Hence, it follows, if there be no assessment or an illegal assessment, the State or county as the case may be, has no right to the tax levied.</p> <p>The question then is, was an assessment for county purposes, necessary in addition to the action of the Board of Police levying the tax ? The distinction between the levy of a tax, and the assessment of a tax, or the assessment of the amount which each tax payer is to pay, is manifest; the levy of a tax is the legislative act, by which a tax is raised or proposed to be raised. The assessment is the act of the officer appointed by law to ascertain the amount due from each tax payer, which the collector is clothed with power by the law to collect. It might as well be contended that the act of the legislature, authorizing or requiring a certain amount of taxes to be raised in a certain way, is an assessment of the taxes, as that the act of the Board of Police, which in this respect exercises a legislative power, is an assessment of the tax levied by said Act.</p> <p>The Act of 1846, prescribes the mode of assessment: it is therein provided, that “ the number of acres of taxable and untaxable and vacant lands, as the case may be, shall be added up in their respective columns, also the value of the lands, and the sum of each shall be placed at the bottom of each, under their respective columns, then the amount of taxes at the right hand of each page shall be added up, and the said assessors shall then enter the amount of taxes that are due on the aggregate value of the taxable lands at the bottom of the page, which must agree with the aggregate amount of taxes on the right hand, or tax column of said lists,” &c. Hutch. Code, 188, § 16.</p> <p>The Act of 1850, prescribes the same mode of assessment as to personal property. Acts of 1850, p. 45, § 4.</p> <p>From these Acts, it is evident that the assessor, in making out his assessment, must ascertain the amount due from each tax payer. This will be more evident by reference to the 5th section of the Act of 1846. Hutch. Code, 185, § 5.</p> <p>The payment of taxes, is not merely a liability of the property of the tax payer, but a personal duty due from him to the tax-raising-power, and before you can proceed to collect by distress or levy, or even demand on him to pay, it is essential that the amount due by him shall be ascertained by the assessment, and for that reason it is that the law has required that the amount of the tax which he is to pay shall be stated, and set down by the assessor in a separate column on his tax list.</p> <p>This duty is not fulfilled by the statement of the amount due to the State; on the contrary, the assessment roll should ascertain the whole amount due to the county and State, for this reason. The tax payer had the right to appeal to the Board of Police to correct the tax list if too much was assessed against himself. But in this case he could not do that, as far as the county tax was concerned, because the assessment roll, to which only he could look, gave him no information on the subject. Upon the examination of that, he would find that he was assessed with a certain amount, which might not, and probably would not be more than he believed to be due, but when the collector came to collect the taxes, he would find, not only that the amount assessed to him was demanded, but in addition, fifty or one hundred per cent, on that amount.</p> <p>The- case referred to in 21 Pick., by defendant in error, has no application in that case; it was decided that what was called the reduced value of the assessed property need not be stated in a separate column, because that provision of the statute was only directory. In that case it is sufficiently clear, that the amount of tax actually due was assessed, and the only objection made to the assessment was, that the reduced value of the assessed property was not stated in the tax list, which reduced value was by law to be a certain per cent, less than the value found by the assessor. The court decided that the Act itself did not require such reduced value to be stated, and if it did, it was only directory, as it was not essential to inform the tax payer how much he was liable to pay. But the principle recognized in the case, that whatever was essential to inform the tax payer as to his liability, was not merely directory, but was a condition precedent to the validity of the tax, is all that we demand, and applied in our favor, must reverse the judgment.</p> <p>In addition to the foregoing views, the court will find in Hutch. Code, 450, the statutory provision, which requires that the liability of the sheriff, shall be first fixed, when a surety is sued on his bond, and the sheriff himself is not a party. There was a demurrer to the declaration, and besides in the agreed facts, it will be seen that it is understood that the case as thus made out, shall be considered as demurred to, which fully presents the point last made.</p> <p>The point relied on by plaintiffs in error, in this case, arises out of the assessment roll which they say is illegal, because of the failure of the assessor to compute and set down in a separate column in his assessment list, the amount of county tax due from each tax payer. They urge that] this failure of the assessor, releases the sureties of the collector from all liability to pay over the county tax which, as they themselves admit, was collected by him. I am of opinion that the statute makes no such requirement of the assessor. It does make it 'his duty to assess the polls, personal and real property, in his county; and it further requires him, in so doing, “ to set down in a book or roll, in separate columns, in full, the names of all the taxable inhabitants of the county, and each item of taxation, whether taxed ad valorem or otherwise.” Hutch. Code, 185, art. 17, § 4.</p> <p>Directions are also given, as to the form and manner of making his land book, and how the lands shall be assessed. All of which requirements, it will be admitted, were complied with. I can find no statute directly requiring the assessor to keep a separate column for the county tax. It is true, that law authorizes the auditor to prescribe forms for the government and direction of assessors; but these forms are entirely directing, and are given with the view only to facilitate business, and to insure correctness, and to enable tbe tax payer to see readily if bis tax is correct, by thus laying down rules and forms to govern these officers in tbe mecbanical part of their duty. They cannot be regarded as conditions precedent to tbe validity of tbe tax; if so, its validity might be made to depend entirely upon tbe auditor. These measures only which are intended for tbe security of tbe citizens for answering equality of taxation, and to enable every one to know for what polls, and for what property, real and personal, be is taxed, are conditions precedent. If these are observed, be is legally taxed. 21 Pick. 67.</p> <p>Even admit that tbe statement of tbe county tax due from each tax payer, in a separate column, was a positive requirement of law, advantage of tbe assessor’s non-compliance therewith could not, I humbly conceive, be taken by tbe collector. It is a point which might with force be urged by tbe tax payer in resisting tbe payment of tbe tax, but never by the officer who has collected and refuses to pay it over.</p> <p>Now it has been decided that tbe tax payer himself cannot plead an omission of this kind, on tbe part of tbe assessor, as a ground for not paying bis tax; and that too, when tbe statute expressly required tbe county tax to be set down in a separate column. Torrey v. Millburg, 21 Pick. 64; Blachburn v. Walpole, 9 lb. 27; Dillingham v. Snow, 5 Mass. 558.</p> <p>Now if tbe tax payer, who has tbe right before bis property can be taken for public use, to demand tbe strictest and most exact compliance with all of tbe requirements of the laws — for be alone is, and can be injured by a failure so to do — will not be heard to urge an objection of this kind in resisting tbe payment of bis tax, with bow much less show of reason and justice could it be then beard from tbe officer who has collected it from him, and refuses to pay it over.</p> <p>Tbe collector will not be allowed to plead tbe unconstitutionality of tbe law under which be collected. This question might, say tbe court, properly arise between tbe State and tax payer, but cannot be urged by tbe collector. Waters et al. v. The State, 1 Grill, 802.</p> <p>It is not the assessor’s business to assess the taxes, it is bis duty to assess tbe value of tbe property, and number of polls in tbe county, and thereupon, the law assesses the taxes to be collected. The tax may be, and generally is fixed before the assessment is made. In this case, the Board of Police had fixed the county tax at 100 per cent, on the State tax. The assessor had reckoned and set down, in separate columns, the State tax. Now, the main failure on his part, to set down the county tax, — the failure to make a simple calculation, — cannot surely render the county tax " invalid. The omission to do an act which the collector could do, and did do, cannot surely vitiate all of the proceedings as far as the county is concerned. The collector does not derive his authority to collect from the assessment roll; that is intended only as a guide to designate to him the persons and property from whom, and upon which, taxes are to be collected. The collector can collect taxes from persons who have never been assessed. It is admitted that the taxes were collected and never paid over. It is not denied that the proper amount was collected; but it is gravely urged as a reason why the collector and his sureties should not be forced to pay the amount collected, that the collector computed the amount of county tax instead of the assessor.</p> <p>It could be argued, with as much force and justice, that a sheriff and sureties were not liable for money collected upon an execution technically defective.</p> <p>If the collector knew how much, or what per cent, upon the State tax had been ordered by the Board of Police to be collected, he could compute the amount and collect it, and his act would be valid; no one would have a right to object, save the tax payer, and he only on the ground that there was error in the amount taxed.</p> <p>1. We contend that the assessment was right; that the taxes collected were the legal taxes.</p> <p>2. That if there is any error in the assessment, it is merely formal, and does not invalidate the assessment roll; an error which might lay the assessor liable to reprimand, but not such as will screen a defaulting officer and his sureties from paying the amount collected.</p>

Hon. Charles Scott, chancellor. The bill in this case was filed by the children of Benjamin Roach, Sr., deceased, (one of whom was also… Held: after full and able discussion, that when a testator devises property (real and personal,) to his sons, W. and B., and their heirs, with a devise over to other heirs named in the will, upon W. and B. dying without child or children, the word “ heir,” in the antecedent limi tation, was synonymous with issue, or heirs of the body ; and…

In • error from tbe Circuit Court of Simpson county. lion. John E. M‘Nair, judge. The plaintiff in error entered a motion in the court below against the sheriff of Simpson county and his sureties, for a failure to return an execution in favor of the plaintiff in error. Among other pleas to the motion, the sureties pleaded as follows: — “ Third.

Richard Nelson, Esq., presiding as special judge. On the 3d day of June, 1856, Samuel Moore and seven others, who were the sureties of one William P. Bole on his official bond, as sheriff and tax-collector of Carroll county, filed their bill in the court below against John J. M‘Rae, Governor of this- State* and successor in office to H. S. Eoote, and also against John M. Hamilton and others, members of the Board of Police of said county.

Hon. E. G. Henry, judge. The facts will be found in the opinion of the court and briefs of counsel. Stephen D. Miller, the plaintiff in error, as administrator of his father, sold the property of his intestate, under an order of the Probate Court of Carroll county, on a credit of one, two, three and four years ; and at the sale, Greenwood Leflore, one of the defendants in error, became the purchaser of a considerable amount of property, for the sum of four thousand dollars.

Hon. Richard Barnet, judge. The facts necessary to be stated will be found in the opinion of the court. This cause was first argued and submitted in this court, at the April term, A. D. 1855, and was, at the same term, reversed. A petition for a re-argument was filed, and a re-argument granted. It was again argued and submitted at the April term, A. D. 1856.

Hon. Charles Scott, chancellor. The legislature of this State, in the year 1854, passed an act proposing to amend the Constitution by abolishing the Superior Court of Chancery and establishing “… Held: without a dissenting voice, that the courts may go behind the printed acts, and may examine the journals to ascertain whether a statute requiring a two-thirds vote has received it, and whether it be the law.