Volume 33 — Mississippi Reports

<p>1. Statute of limitations : absence of debtor from the state. — The Statute of Limitations, Hutch. Code, {S 11, p. 831, will run without further deduction or intermission from'the time a debtor first returns, notoriously and openly, into the State, so that he may be sued, notwithstanding he may at intervals be absent from the State.</p> <p>2. Same. — When a debtor has been ‘absent from the State, on more occasions than one, after the accrual of a cause of action, these several periods of absence cannot be added together, and the aggregate time deducted from the running of the Statute of Limitations.</p>

<p>1. Bills or exchange : action By acceptor against drawer. — The foundation of a claim of an accommodation acceptor of a bill of exchange against the drawer is, that the bill has been paid according to order.</p> <p>2. Action: bill of particulars: bills op exchange. — In an action by an accommodation acceptor against the drawer, the bill must be so described in the account sued upon, as to identify it, and be produced upon the trial, or its absence satisfactorily accounted for, by its loss or otherwise.</p> <p>3. Bills of exchange : accommodation acceptor must show that the bill HAS BEEN IN CIRCULATION, AND THAT THE INDORSEMENTS ARE GENUINE.-The mere production of a bill of exchange by an accommodation acceptor, is not even prima facie evidence that it has been paid by him, unless it be shown that it has been in circulation after acceptance, and that the indorsements relied upon as evidence of circulation, are in the handwriting of parties authorized to make them, and there can be no presumption that the indorsement is the handwriting of such party. (2 Stark. Ev. 240; Chitty on Bills, 649.)</p> <p>4. Set-off: bill of particulars. — The statute entitles a plaintiff to notice of the nature and particulars of a set-off; and any evidence, the nature and particulars of which are not sufficiently indicated in the account filed, so as to give the plaintiff such notice as will enable him to prepare for his defence, would operate to his surprise, and is inadmissible.</p> <p>5. Evidence : declaration of copartners. — The declarations of one copartner, made after the dissolution of a firm, in relation to facts which took place during the existence of the copartnership, in the regular course of business of the firm, and not creating a new liability, are admissible against his associate. And especially is this the case where the declarations are made by a partner, who is also a party to the suit. (3 Kent’s Comm. 51; 1 Greenl. Ev. 2 112.)</p> <p>6. New trial : surprise. — Surprise which results from a mistake as to what is legal evidence, is no cause for granting a new trial.</p>

Hon.' Henry Dickinson, vice-chancellor. The plaintiffs in error filed their bill in the Northern District Chancery Court, at Carrollton, against the defendants, Thomas T. Lund, John 0. Mobbley, and Adeleni Mobbley, all whom were not residents, and were served with notice by publication in a newspaper. The object of the bill was to set aside a sale of certain lands situated in Holmes county in this State.

<p>The facts of the case appear in the opinion of the court.</p>

<p>Appeal from the Probate Court of Marshall county. Hon. C. H. Mott, judge.</p>

In error from the Circuit Court of Chickasaw county. Hon. William L. Harris, judge. The proof was clearly insufficient to establish a promise or acknowledgment to take this case out of the operation of the Statute of Limitations. See Smith v. Westmoreland, 12 S. & M. 668 ; MeQullough v. Pender son, 24 Miss. R. 92; Robinson v. Anderson, Vo. 381. Cited Hutch.

<p>Appeal from the Probate Court of Adams county. Hon. Reuben Bullock, judge.</p>

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

Hon. James Bogan, judge. Booker and wife filed their petition in the court below against Nancy J. Carpenter, the executrix of the last will and testament of William Carpenter, deceased, asking for an issue devisavit vel non to test the validity of the said will; and alleging that the said William Carpenter was not of sound and disposing mind and memory when he executed the same, and that its execution was procured by undue influence.

<p>Ejectment : title of plaintiff. — In an action to recover possession of land, under the New Pleading Act of 1850, the plaintiff must either show a complete legal title to the premises, or that the defendant had acknowledged his title, or else he will not be entitled to recover.</p>

In error from the Circuit Court of Attala county. Hon. E. G-. Henry, judge. This was 'an action by Donaldson against Presly to recover $220, which the former alleged he had paid as surety for the latter. The defendant pleaded the general issue, and the cause was submitted to a jury. On the trial, the plaintiff proved that he and one Wilson had signed a note as surety for defendant to one Chestnut.

<p>Bankruptcy : may be waited. — A discharge in bankruptcy, is a defence which the bankrupt may set up or waive at pleasure; and hence it is no answer to an action by the second indorser of a note against the first, that the former had negligently omitted to plead the discharge, whereby a judgment was recovered against him, and he was compelled to pay the amount of the note.</p>

Hon. I. M. Simmons, judge. The appellants, Billingslea and wife, filed their petition in the court below, against Elijah Young, executor of the last will and testament .of Madison G. Nash, deceased, in which it is alleged that Wilson Nash, father of said Madison, died in 1852, and by his will devised and bequeathed certain lands and slaves and other property to said Madison, and also to his brother, Edwin E. Nash, now deceased ; that said Elijah was nominated executor of…

Hon. Richmond J. Brown, judge. The appellees, who are the children, and the issue of deceased children, of Mrs. Ailsey Olive, by her first marriage, filed their petition in the court below against James Olive, the surviving husband and administrator of said Ailsey, and also against Mrs. West, who was the issue of the marriage, between decedent and James Olive. The petitioners sought distribution of the personal estate belonging to Mrs. Olive at the time of her death.

Hon. John Watts, judge. Granberry, the defendant in error, sued Cooper in the court below, on the first day of March, A.H. 1853, for the possession of the north half of the west half of the southwest quarter of section 14, in township 4, range 2 west, as the land was described in the original complaint. To this the defendant below answered, denying that the plaintiff was owner, or entitled to the possession of, the land mentioned in his complaint.

In error from the Circuit Court of Hinds county. Hon. John Watts, judge.

<p>Appeal from the Probate Court of Madison county. Hon. I. M. Simmons, judge.</p> <p>Cited 2 Maddox Chancery, p. 78 et seq., and authorities there cited. Toller, on Ex. Tit. Legacies, Interest; 3 Yes. Jr. 12; 8 Yes. & Beames, 183; 9 Yes. Jr. 483; 1 Yes. 42; 2 P. Wms. 25 ; 16 Yes. Jr. 333 ; 6 lb. 345; 4 lb. 175.</p> <p>Cited Soughton v. Sarrison, 2 Atlc. 336; Battle v. Freeman, 3 lb. 101; Qrielcet v. Dolly, 3 Ves. Jr. 10; 4 Brown Ch. 149, note; 1 Yes. 211; Bealcford v. Tolin, 1 Yes. 310; Lowndes v. Lowndes, 15 Yes. Jr. 301; 2 Johns. Ca. 200; 14 Mass. ,429; 12 N. Ilamp. 37; 1 Tuck. Com. 444; Miles v. Bowden, 3 Pick. 213; 2 Dali. 183.</p>

<p>1. Probate court : jurisdiction of, to probate -will, &c. — A Court of Probate in this State has no jurisdiction to grant probate of a will of a person, domiciled at the time of his death in a sister or foreign State; and if it improvidently do so, it may revoke and annul the decree.</p> <p>2. Same. — A Court of Probate in this State, in which the will of a person domiciled in a foreign or sister State has been admitted to probate, cannot entertain a proceeding to annul the will, on account of the insanity of the testator, or because it was obtained by fraud.</p> <p>3. Will: limitations in respect to contestation of. — The lapse of the period of five years, in which the heir is allowed to contest a will which has been pi'obated in common form is no bar. When the Court of Probates in which the will was admitted to probate, had no jurisdiction over the subject, on account of the alleged -testator being domiciled at the time of his death in another State.</p>

In error from the Chancery Court of Madison county. Hon. E. Gr. Henry, chancellor. W. F. Bass died in Madison county, and the appellant, Caroline F. Bass, was appointed his administratrix, in November, A.D. 1855. In April, 1856, each of the three appellees recovered a judgment against the administratrix, upon which executions were issued, and were levied by the sheriff, on a slave belonging to the decedent, on the 21st of June, 1856.

<p>Appear from the Court of Probates of Noxubee county. Hon. Reuben Ruff, judge.</p>

In error from the District Chancery Court at Macon. Hon. Henry Dickinson, vice-chancellor. On the 11th day of February, A.D. 1851, Wm.

Hon. Charles Scott, chancellor. The demurrer should have been sustained, 1. Because this suit is virtually for the benefit of the same parties who were complainants in and lost the former suit. It is a mere artifice to evade the decree in that case, and perpetuate litigation.

<p>1. Chancery : partition will not be granted upon doubtful title. — A court of equity will not decree partition of land, unless the complainant’s title be clear and undisputed; if it be denied oris suspicious, the court will not grant relief, until the title has been established at law. See 4 Kent’s Com. 364; Wilkin v. Wilkin, 1 J. C. R. 111.</p> <p>2. Landlord and tenant: partition: tenant in common not estopped by payment of rent. — The fact that the defendant, who was in possession, and a half owner of the premises, paid rent for the other moiety to the complainant, supposing he had title to it, will not estop him, when sued in equity for rent and for partition, from disputing the complainant’s title.</p> <p>3. Statute of limitations : ten years necessary to confer legal title.— Adverse possession for a period of ten years is necessary, under the Statute of Limitations, to vest the legal title to laud in the possessor, so as to enable him to maintain an action thereon. See Ellis v. Murry, 28 Miss. R. 129.</p>

<p>Appeal from the Chancery Court of Warren county. Hon. J. S. Yerger, chancellor.</p> <p>The facts appear in the opinion of the court.</p> <p>As to the jurisdiction of the court after final decree, cited Hill y. Richards, 11 S. & M. 194. Upon the regularity of granting writ of assistance, Wilson y. Pollc, 13 S. & M. 131; Ragsdale y. Commonwealth, 2 Hen. & Mum. 8.</p> <p>(No brief or argument came to the hands of the reporter.)</p>

Hon. Charles Scott, chancellor. ■ On the 14th of June, A.D. 1855, Thomas Whaley and Girard Stiles, filed their bill, in the Superior Court of Chancery, against Elon G. Marble.

Hon. George W. Dougherty, vice-chancellor. Held: claimed, sold, and conveyed as his own. None of the authorities referred to in the text of Story’s Equity, which were referred to by complainant’s counsel, disclose a case of this kind. It is always a case of receipt of money by one, professedly for another, or where it is paid by accident or mistake.

Hon. William L. Harris, chancellor. Carter, Welsh, & Bevill filed their bill in the court below, to obtain a new trial at law, in a certain cause, wherein Lyman, Sears & Co. had obtained a judgment against them, in the Circuit Court of Kemper County, for about $700.

Hon. Charles Scott, chancellor. The substance of the hill and the proceedings in the court below are sufficiently set out-in the opinion of the court; it is… Held: he was properly remitted to the bond for redress. (Opinion Book G. 165.) So long as the remedy on the injunction bond is unimpaired, there is no pretence for equitable relief. That bond was exacted for this very contingency, and the remedy upon it, at law, is the only relief to which complainants are entitled. 6.

In error from the Circuit Court of Attala county. Hon. E. Gr. Handy, judge. The defendants in error, Seaman, Peck & Co., recovered a judgment in the Circuit Court of Attala county against Archibald Hyman and R. S. Cooke, upon which judgment an execution was issued and levied upon the property of Archibald Hyman. A bond was given for the forthcoming of the property, according to the statute, by Archibald Hyman, and N. S. Hyman as security.

<p>Injunction : contract. — An instrument of writing having both the form and substance of an injunction bond, with the exception of the seals of the obligors, will be valid as a simple contract against the makers, if the party entitled to the bond waive it, by accepting the instrument in controversy.</p>

In error from the Circuit Court of Warren county. Hon. J. S. Yerger, judge. Peter Mackell, the intestate of the plaintiff in error, procured an attachment to be issued and levied on the flatboat Blacksmith. The owner of the boat gave a replevy bond, and afterwards moved the court to quash the writ of attachment, which motion the court sustained.

Hon. J. S. Yerger, judge. In 1846, George W. Farr,' the plaintiff, instituted his action in the Circuit Court of Hinds county, for the recovery of the possession of certain lands situated in that county. Moody, the appellant, appeared and made affidavit, that he was landlord of the tenant in possession, and was admitted to defend, on his entering into the usual consent rule.

In error from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge. Morton sued Phipps, in detinue, for the recovery of a certain slave, alleged to be the child of a slave named Apierica, which belonged to the plaintiff. The plaintiff had verdict and judgment.

<p>In error from the Circuit Court of Attala county. Hon. E. G. Henry, judge.</p> <p>This was an action of assumpsit, instituted in the Circuit Court of Attala county, by the defendant in error against the plaintiff in error, to recover the amount of two promissory notes, signed by the plaintiff in error, and payable to the defendant in error; one for the sum of $1140, bearing eight per cent, interest per annum from its date, and the other for $300, both dated on the same day, and having the same length of time to run to maturity.</p> <p>The defendant below pleaded the general issue, and upon that issue a trial was had.</p> <p>On the trial the plaintiff read in evidence the notes, and the defendant, Hammond, then offered to prove by a witness, “ that the notes sued on Avere signed by John W. Goss, as principal, and by defendant, Hammond, as surety, in blank; that their names AA'ere signed on blank pieces of paper, and that Hammond instructed Goss (to whom the notes were delivered), not to fill them up Avith an amount exceeding one thousand dollars in all. And that John W. Goss went with the blank notes so signed to the plaintiff, and purchased from him sundry articles and hired negroes; and before purchasing or hiring, that Goss informed plaintiff that Hammond had limited him in filling up the notes to the sum of one thousand dollars; when plaintiff replied that he Avas willing to sell to Goss in his own name, and that it would be all right even if the amount exceeded’the sum authorized by Hammond to be inserted; and thereupon, the purchase was made, and the notes filled up as they now appear.”</p> <p>To the introduction of this evidence, the plaintiff objected, upon the ground that it was inadmissible under the pleadings, the execution of the note not being denied under oath.</p> <p>The court sustained the objection, and the defendant, Hammond, excepted. The plaintiff had verdict and judgment for the full amount of the two notes and interest, and the defendant sued out this writ of error.</p> <p>Contended, that the defendant, Hammond, by the evidence, which he offered to introduce, did not propose to deny the execution of the notes sued on. The notes were at all events good, and valued at the amount of $1000, the sum authorized by Hammond to be inserted in them; and he only proposed to show that notwithstanding their execution by him, they Avere not binding on him, for the excess over this sum improperly inserted in them. That this case is neither Avithin the letter or spirit of the Act of 1824, which requires a denial of the execution of a note to be made under oath, the letter only applying to the execution of notes, &c., and the spirit and policy of the act being only to dispense Avith the formal proof of the signatures, AA’here they are not thus denied. See 1 S. & M. 17 ; 2 lb. 187; 12 lb. 586., They insisted that the opinion in the case of Hemphill v. The Banh of Alabama, 6 S. & M. 44, relied on by the opposing counsel, so far as it relates to the question in this case, was obiter dictum, and not authority.</p> <p>Contended, that the court Avas right, in excluding the testimony offered by Hammond, is plain, from the consideration, that the proof offered tended to show that the note sued on was not his, and that he never" executed it. As the plea filed in the cause was not verified, no such proof was admissible.- Q-reen v. Robinson, 3 How. Miss. 120-1; Hemphill v. The Banh of Alabama, 6 S. & M. 44; Thigpen v. The Mississippi Central Railroad Company, decided at the last term of this court. This court, it is believed, will affirm the judgment of the court beloAv, Avith damages.</p>

<p>1. Trustee: purchaser by: prom oestui que trust. — A trustee may purchase from the cestui que trust, the trust estate; but such a transaction will be regarded with suspicion, and criticised with the utmost rigor ; and, if attacked by the cestui que trust, it is incumbent on the trustee to show that it was fair and just in all respects, and consummated on his part with the most abundant good faitb, and that the cestui qne trust had all the information in relation to the trust estate, possessed by the trustee. See 1 Lead. Cas. in Eq. 125.</p> <p>2. Same : cestui que trust must object in a reasonable time. — Where the trustee has been guilty of no positive act of fraud in a purchase made by him from the cestui que trust of the trust estate, the latter will lose Ms right to annul the agreement, for want of the uberrima Jides required of trustees in such transactions, if he fail to take steps to set aside the contract in a reasonable time after its consummation. In such a case, the unreasonable delay, will be held to be a ratification of the sale by the cestui que trust. Scott v. Free-land, 1 S. & M. 419.</p> <p>3. Same. — The failure of the cestui que trust to take steps to set aside a sale made by him to the trustee of his trust estate, for three years and eight months, is unreasonable, where the trustee has not been guilty of any positive act of fraud or concealment.</p> <p>4. Contract : rescission. — A rescission of a contract will not be decreed at the instance of a party guilty of negligence and unreasonable delay in asserting his rights, and when from a change of circumstances the parties cannot be restored to the same situation they occupied before the contract was made. See Johnson v. Jones, 13 S. & M. 583.</p>

<p>1. Statute of frauds : deed of trust : consideration. — A debtor executed a deed of trust, attempting to convey, for the purpose of securing his indebted^ ness, certain lands owned by his creditor. The trust deed recited’, that upon payment of the debt thus secured, the creditor had agreed to convey the land to the debtor. Held, that the deed not having been signed by the creditor, imposed no obligations on him to convey the land upon the payment of the debt, and that the trust deed was therefore void, for want of consideration.</p> <p>2. A parol agreement for the sale of land, although in part performed by the vendee taking possession thereunder, is within the operation of the Statute of Frauds; and such a contract being null and void, cannot be made the subject of an agreement between the vendee and a third person, so as to vest rights in the vendor. And, therefore, when the grantor, in a deed of trust, made in consideration of a parol agreement, partly performed, of the creditor, to convey certain land embraced in the deed, to the grantor, upon his payment of the debt thus secured, afterwards conveyed the land to another, in consideration of his promise to pay the debt; it was held, that such promise of a third party •was void, for want of consideration, and could not be enforced.</p> <p>3. Chancery: parties. — The assignee of a creditor, whose debt was secured by a deed of trust, which bound the creditor to convey certain land, embraced in the deed, to the debtor, cannot maintainhisbillin equity to foreclose the deed of trust, and enforce the collection of the debt, without procuring the title to the land to be conveyed, as required in the trust deed; and in such a case, it will be essential to make the person holding the legal title, a party to the bill.</p>

Hon. B. 0. Buckley, vice-chancellor. In November, A.D. 1854, the appellant filed his bill in the court below, against the appellees, the object of which was to cause the removal of certain… Held: that the liability of the public to keep, or not to keep, a road in repair, furnishes a safe and certain rule to determine whether it is a public or private road, and that the only exception is when the public have a right of way by prescription.

<p>In error from the Circuit Court of Washington county. Hon. John I. Gruion, judge.</p> <p>The defendants in error sued the plaintiff in error, to recover the possession of a certain tract of land in his possession, and which they claimed, as heirs of one William W. Blanton, deceased. The jury returned a verdict for the plaintiff below. Whereupon, the defendant moved for a new trial; which being refused, he took a bill of exceptions, and sued out this writ of error.</p> <p>It appears, from the bill of exceptions, that the plaintiffs were the heirs of said William W. Blanton, and that the defendant was in possession of the premises sued for. The bill of exceptions then recites “ that the said plaintiff proved that William W. Blanton entered, and received a patent for the land in controversy in this suit. Said patent is dated in 1840. ITe entered the land in 1830. That said patentee, William W. Blanton, died in 1838.” This was all the proof to sustain the plaintiff’s title.</p>

<p>Appeal from the Superior Court of Chancery. Hon. Charles Scott, chancellor.</p>

Hon. Charles Scott, chancellor. The administrators of one E. C. Mielke filed their hill in the Superior Court of Chancery, against F. Norcum and… Held: that where the contract was on a deed of trust, and the debtor was compelled to resort to equity for relief, he might do so upon the payment of the principal alone.. One of the reasons given by the court for its decision, arose out of the difference between the provisions of the common law and our statute, in regard to usury.

In error from the Circuit Court of Holmes county. Hon. E. G-. Henry, Judge. Contended, that the contract was usurious, and to sustain this view, they cited 6 Munf. R. 495; 1 Tucker’s Com. 408; 2 II. S. Dig. 616, § 209. Cited, Satterwhite v. MeKie, Harper’s R. 397; Hoggett v. Pratt, 15 Mass. R. 177; G-ulley v. Renney, 1 Blackf. R. 69; Hardin’s R. 175.

<p>Appeal from the District Chancery Court at Holly Springs. Hon. James F. Trotter, vice-chancellor.</p> <p>Daniel Bridgeforth, in the year 1840, died in the State of Tennessee, where he was then domiciled, leaving a last will and testament, which after his death, was duly proven and recorded in the proper court of that State.</p> <p>By the first item of his will he directed certain property to be sold for the payment of his debts, and that the remainder of his estate (except that specifically bequeathed), should be kept together during the life of his widow, for her support, and for the education of his small children. The second, third, and fifth items of the will are as follows:</p> <p>Item 2. It is my will that my executrix and executor, give out of my estate to those of my children herein named, to wit, Robert S. Bridgeforth, Thomas 0. Bridgeforth, Henry 0. Bridgeforth, Martha M. Bridgeforth, Minerva D. Bridgeforth, Elizabeth M. Bridgeforth, and Maria H. Bridgeforth, each and every one, when they become of age or marry, one horse, bridle and saddle, one bed and furniture, and fifteen hundred dollars in money or property, so as to make them equal to James W. Bridgeforth, Mary A. Gr. Phillips, and John B. Bridgeforth.</p> <p>Item 3. It is my will, that all the property I loaned to my daughter Mary A. E. Philips in her lifetime, now deceased, a part of which is now in my possession, consisting of a negro girl named Abba with her child, and all their future increase, to be given to my grandson Thomas D. Phillips, if he should live to become of age, or the heirs of his body; but if he should die before he becomes of age and without heirs, then said property is to be equally divided among the balance of my children, or the heirs of their bodies that may then be living.</p> <p>Item 4......</p> <p>Item 5. It is my will, if any of my children named in the second item of this, my last will and testament, shall die without heirs, then the property hereby devised to them, is to be equally divided among the balance of my children named in said second item, or the heirs of their bodies.</p> <p>By the sixth item he directed, that at the death of his wife, “ the balance of my (his) property shall be equally divided between all my (his) children or their heirs.”</p> <p>The specific legacies mentioned in the second item were paid'in 1847, and in 1848 the widow died, and the balance of the estate was divided among all the children of the testator, as provided for in the will. Afterwards, Minerva D. Bridgeforth removed to this State, and in the year 1851, intermarried with W. B. Gray, the appellant, and in the year 1854, she died, without ever having had issue, leaving her husband surviving.</p> <p>Several of the testator’s children mentioned in the second item, died before the demise of said Minerva, leaving issue, and this bill was filed by the surviving children mentioned in the second item, and the children of those who had previously died, to recover from Gray the slaves and money received by his wife under the will. Gray demurred, and his demurrer being overruled by the vice-chancellor, he appealed. The opinion of the vice-chancellor is as follows.</p> <p>The bill in this case was filed by complainants, to recover certain slaves and other personal property in the possession of William B. Gray, which, as they allege, belong to them, and are improperly withheld. They claim title to the property by virtue of the provisions of the last will and testament of David Bridgeforth, who died in the State of Tennessee, where his will was made, and properly recorded.</p> <p>After bequeathing certain legacies to such of his children as had received no previous advances, the testator directed the balance of his property to be kept together by his widow, during her life or widowhood. She died in 1848, when a division was made, in pursuance of the terms of the will. Minerva D. Bridgeforth, one of testator’s children, received as her share of the estate, the property in controversy, and afterwards removed with it to De Soto county, in this State. Here she was married to defendant Gray, who took possession of the property, and kept it until her death, which happened in 1854. She never had any children, and Gray claims the property, by virtue of his marital rights under the law.</p> <p>Complainants insist, that by the terms of the will of David Bridgeforth, their ancestor, the property was limited over to them in remainder, upon the death of Minerva, without issue. The clause in the will under which they claim is in the following words: “ Item 5th. It is my will, if any of my children named in the second item of this, my last will and testament, shall die without heirs, then the property hereby devised to them is to be equally divided amongst the balance of my children named in the said .second item, or the heirs of their bodies.” “ Minerva” was one of the children referred to in the second item of the will.</p> <p>Her husband, Gray, insists, that the devise to complainants was limited to take effect upon a contingency too remote, and that under the rules of law it is void, and that the absolute fee in the property rested in Minerva, the first taker. -This will having been made in Tennessee, where the common law is in full force, the rights of the parties must be decided according to the laws of that State. This opens up a very broad field of inquiry and discussion. It challenges an investigation of all the renowned discussions which have been had of the rule in Shelley’s case, for a period of nearly five hundred years, and which, according to Chancellor Kent, have erected a pile of learning, admirable for the specimens it furnishes, of profound logic, skilful criticism, and refined distinction. It is not to be expected that I shall attempt, in this opinion, to explore this vast field of learning, or to analyze the law which it unfolds, much less that I should seek to clear up all its seeming mazes and perplexities, since we are informed by one of the greatest judges that ever lived, that such is the number and character of the decisions on this “ rule, and its kindred topics alone, that the mind is overwhelmed by their multitude and the subtlety of the distinctions between them.” The rule was engrafted by the courts in England, upon the doctrine of contingent remainders, and its history serves to illustrate the long struggle that was carried on in that country, between the large landed proprietors on the one hand, and their creditors on the other, and also between an overgrown and formidable “nobility,” and the “crown.” Now we have a statute “D& Donis,” to render the estate inalienable, and thus to strengthen the landed aristocracy. Now a Taltarum’s case, to throw the law again into the track of commerce, by means of a common recovery. Then we see contingent remainders pulling the one way, and executory devises jerking the other. And this perplexity and contradiction in the system of the common law is quite as striking in many other important particulars. “A fee cannot be limited upon a fee,” says contingent remainder. “Yes, it can,” says executory devise. “A freehold cannot be made to commence in future,” says the former. “ Oh, but it can,” says the latter. “ An estate to A. B. for life, with remainder to his heirs, means,” one would say, “ that the first taker shall only have a life estate.” “ Not at all,” answers the rule in Shelley’s case; “it means, he shall have the fee, and cuts off his heirs with a shilling.” “ So a remainder to C. D., on A. B.’s dying without issue, means,” say grammar, language, and common sense, “issue living at the death of A. B.” “Not a bit of it,” says common law ; “ it means dying without issue at any time, a hundred, a thousand years hence; and thus, though A. B. has actually died without any issue at all, poor C. D.’s estate is void, because it depends on the indefinite failure of issue.” This is the language used by a very sensible writer, to characterize the incongruities and inconsistencies of the common law on this subject. And, however we may venerate this mighty fabric as “ the gathered wisdom of a thousand years,” yet it must be confessed, that in many of its compartments, we recognize many crudities that mar its beauties and harmony. And I must confess, that I can find no cause to sigh over those acts of amelioration, which many of the States have introduced, or to lament with Chancellor Kent over the learning which has thereby been devoted to destruction.</p> <p>Nevertheless, originating as this case did, in the State of Tennessee, it becomes tbe duty of the court to inquire whether the will presents a proper case for the application of the rule ; and if so, to make it, irrespective of any considerations connected with its policy.</p> <p>It is a maxim of universal application, in the construction of wills, to give effect to the intention of the testator, unless that intention is defeated by some inexorable rule of public policy. The intention of this will, can admit, in my opinion, of no doubt. It was, that if any one of the children of the testator, named in the second clause of his will, should die without issue, or children living at his or her death, the share of that one should go over to his surviving children, or to the children of such as might previously have died. Is there anything in the language of the fifth clause of this will, which, according to the settled canons of construction, will defeat this intention ? The rule is fully and clearly stated by Mr. Fearne, in his treatise on “Remainders and Executory Devises.” It is as follows: “ Although in the limitation of a personal estate, after a ‘ dying without issue,’ those words shall not, ex vi termini, and without the concurrence of any other circumstance of intention, signify a dying without issue then living; yet, on the other hand, they shall not, ex vi termini, when there is any other circumstance of intention, import an indefinite failure of issue; but that, in either case, the signification of these words may be confined to a dying without issue then living, by any clause or circumstance in the will, which can indicate or imply such intention.” Fearne, 485. And he cites many cases in illustration of this doctrine, p. 472; amongst others, the following: Hughes v. Sager, 1 Peere Wms. 534; Nichols v. Skinner, Chañe. Prec.; Atkinson v. Hutchinson, 3 Peere Wms. 258; Forth v. Chapman, 1 lb. 663. And the rule thus laid down is recognized by Chancellor Kent, in his Commentaries, and by the judges in every decision which has come under my observation, either in England or this country. Hence, it is clear that if the limitation is made to depend upon a “ dying without issue,” and there are no superadded words to qualify their meaning, the limitation is void. Rut it is equally clear, that if there be any such superadded or restrictive clauses, courts of chancery will seize upon them with avidity, and sustain the devise. And very slight expressions, especially in wills of personalty, have been held to take the case out of the operation of the rule. Thus, in Hughes v. Sager, the devise was to the testator’s two nephews, and if either of them should die without children, then over to the survivor. This devise was sustained, because it went to the surviving devisee. The ultimate period of limitation, was the death of the surviving devisee. This clearly demonstrated, that a definite failure of issue was in the full contemplation of the devisor. In Nichols v. Skinner, the same decision was made; In Atkinson v. Hutchinson, the court seized upon so slight an expression as that of “leaving any issue, to restrict the meaning, to a dying without issue living at the death of the first taker.” In New York, the courts have followed these cases. In Anderson v. Jackson, 16 John. It. 382, the whole doctrine was elaborately discussed, and notwithstanding Chancellor Kent dissented, the court adhered to the former decisions in that State, and held the limitation in that case good. It was simply a devise of real estate to two brothers, sons of the testator, and if either should die “ without lawful issue,” his share should go over to the survivor. The principle of this case was afterwards confirmed in the case of 0utter v. Doughty, 23 Wendell, 513. In the great case of Anderson v. Jackson, which was decided against the opinion of Chancellor Kent, it is not going too far to say, that if the devise had been of personalty, he would have yielded to the prevailing opinions. For he says, in his Commentaries, that in bequests of personal property, the rule will more readily yield to other expressions or slight circumstances in the will, indicating an intention to confine the limitation to the event of the first taker dying without issue living at his death. 4 Kent, 295.</p> <p>The case of Self’s Admr. v. Tune, 6 Munford, 470, was decided in accordance with this doctrine. In that case the limitation over was made to depend upon the death of Mary Bailey, the first taker, without “ heirs of her body,” in which event the negroes bequeathed were to be equally divided between the testator’s son and daughter and their heirs and assigns forever. Judge Roane says, “ If the words ‘ heirs of her body’ had stood alone in the limitation after the death of Mary Bailey, &c., we are of opinion that her title would have been absolute, but the addition of the words ‘ equally to be divided between them,’ compels us to construe them as words of purchase. Mary Bailey therefore had only a life estate.” In the case of Brook v. Oroxten, 2 Grattan’s Rep. 506, the language of the will was, “It is my will and desire that if any of my children should die before they attain to legal age, or without a lawful heir, in either case that all such property as they may receive in the division of my property, return to my surviving children or their lawful 'heirs.” No doubt was expressed as to the validity of the limitation in this case, and it was discussed and decided upon grounds, which assumed that it was valid. These authorities are in strict accordance with the English and New York decisions already quoted, and are decisive of this case, unless the decisions in Tennessee overturn their authority. Do they ? In my opinion they sustain and fortify them, if we except the single case of Polk v. Paris, in 9 Yerger. The case of Lewis v. Qlaiborne, 5 Yerger, 370, was decided by Judge Haywood, who has bequeathed to his country a fame as a jurist of which Tennesseans are justly proud. That case is scarcely distinguishable from the present. The limitation was in these words : “ It is my will that shall either of my daughters be dead or die without issue, that the before-mentioned lands shall be divided between the surviving ónes.” This was held to be a good executory devise. First, by the words, “to be divided amongst the survivors;” for here is plainly contemplated an act to be done in the lifetime of .the survivors, which shows the meaning of the devisor to be, that the failure of issue shall be in the lifetime of the survivors. And the rule laid down by Eearne is referred to and adopted by the judge, and the cases in 3,10,11, and 16 Johnson’s Reports particularly commended, are worthy of adoption in this country. Surely it cannot be said that the case of Duncan v. Martin, 7 Yerger, 524, establishes any rule inconsistent with this decision. The devise in the latter case was to “A. Perkins, to her and the heirs of her body, lawfully begotten.” There were no super-added or restrictive words, and the court decided that A. Perkins took the absolute property in the slaves. The case of Loring v. Hunter, 8 Yerger, 30, is in strict accordance with the general principles before stated. Judge Green says the rule is purely technical and arbitrary, in affixing a meaning to certain expressions, which must however govern, unless other words are used which explain the ■ intention which then shall prevail. The words used in the will were, “ I lend unto my three daughters, A., B., and 0., to them during their natural lives, and then given to the lawfully begotten heirs of their bodies.” The word lend was held to control the meaning of the testator, and to take the bequest out of the operation of the rule. And with the single exception of the word “ lend,” the case was identical with that of Duncan v. Martin.</p> <p>The case of Pollc v. Paris, 9 Yerger, would seem to be in conflict with the foregoing; and if so, I can only observe, that amidst all the Tennessee decisions upon this vexed and perplexing question, it stands alone.</p> <p>For, in the case of Williams v. Turner, 10 Yerger, 289, the limitation was sustained, where the words were as follows: “It is my wish and desire that, should any of my children die without increase, that my executors shall take back the property, and divide it amongst the rest of my children.” And it is remarkable that Judge Reese, who delivered the opinion in Polk v. Paris, says, when delivering his opinion in Bowman’s Pxrs. v. Tucker, 3 Humph. 650, that Williams v. Turner was correctly decided, because, as he remarks: “Here was the word increase, not issue; and the executors, who were expected ‘to be then alive, were to take back the property and divide it.” Hence, it is very evident, that however the case of Polk v. Paris was decided, the general doctrines established in the other cases, are fully recognized by the very judge who decided it. The case of Bowman’s Pxrs. v. Tucker was greatly relied on by the counsel for the defendants. It was decided upon the peculiar phraseology used. There were no restrictive or explanatory words. The limitation was to the Lord’s treasury, upon the death of Elmira, the first taker, “without issue.” There is no difference in principle between this case and that of Booker v. Booker, 5 Humph. 505. In the latter case, the limitation was to the testator’s surviving children, to be equally divided between them. And the latter words were held to be restrictive of the meaning of the words “ dying without issue,” and to show that a definite failure was contemplated. There is therefore nothing in the Tennessee decisions inconsistent with the principles of the cases from the other States, or with the rule established by Mr. Fearne, in view of the English authorities.</p> <p>I conclude, therefore, that whilst, in order to prevent perpetuities, the courts will not permit property to be tied up, or rendered inalienable, beyond a moderate or reasonable period, and that an executory devise will not be allowed where the contingency may not happen within a life or lives in being, and twenty-one years and a fraction of a year over; yet they are not at liberty to give this interpretation to such devises, unless the terms used are such, as ex vi termini, to demand it; and that they will seize upon any expressions of the devisor which impart a different meaning. The result is plain and inevitable. The limitation, in the present case, is valid, depending upon a definite failure of issue. The language of the will can admit of no doubt, unless we discard the salutary rules of interpretation, adopted by the courts, in order to carry out the intention of the testator, wTho is presumed to be ignorant of technical and artificial language. The ultimate period of limitation contemplated by the testator was the death of his own last surviving child.</p> <p>The demurrer must therefore be overruled.</p> <p>The first clause of this will disposes of certain property to testator’s wife, during her life. The second disposes of most of the balance to his children absolutely. The sixth clause provides that, at the death of his wife, the property given his wife for life, shall go to his surviving children, or the heirs of their body. This limitation is good, because there is a fee devised after the termination of a life estate. The fifth clause of the will is an executory devise, as it attempts to limit the fee disposed of in the second item. The court will remember that there is an absolute fee disposed of in the second clause of the will, and that the fifth clause limits or engrafts another fee on the first. Is the limitation in the fifth clause too remote ? We insist that it is. There is no possibility of misunderstanding the rule on this point. It is “that the limitation must be to a life or lives in being, and twenty-one years and a fraction thereafter.” This rule is too well settled even to require the citation of authorities to support it. It stands out in bold relief amid the confusion attending the rule in Shelley’s case.</p> <p>Test this case by this rule. In the second clause there is an absolute devise of certain property to the children of testator. The fifth clause provides, that if any of these children “ shall die without heirs, then the property hereby devised to them is to be equally divided amongst the balance of any children named in the second item, or the heirs of their bodies.” Did the testator intend limiting this property to a life in being and twenty-one years after ? Certainly not; for he has made a good executory devise to both his wife and grandchild, by limiting property to them for a definite period, at once ascertainable; but, when he comes to devising to his children, he makes that devise depend on the indefinite failure of heirs. The testator shows throughout his whole will, that he knows the force of the language emjfloyed by him. He creates good executory devises as to his wife and grandchild, but as to his children he employs other language, that creates too remote a limitation. Suppose we put the testator on the stand, and ask him a few questions. Question 1st. Should your daughter Minerva marry, have children and die ; who is to have the property given to her? Ans. Her children. Question 2d. Suppose these children die, who then is to have it ? Ans. My surviving children. Question 3d. But suppose your children should all die before the death of Maria’s children, what then is to become of the property ? Ans. It shall then go to the heirs of the body of my surviving children. I have employed this language in my will, that should Maria die without heirs, then the property shall go to my surviving children or the heirs of their bodies; that is, that if all my children are dead, at the time of failure of Maria’s heirs, the property devised to her shall go to the heirs of the body of my surviving children. This you may discover also by looking at the other clauses of my will, for in the disposition of property to my wife and grandchild, I have given them an estate to be determined at their death, but I give to my children an estate to be determined on failure of their heirs.</p> <p>This is the language which the testator would employ in answer to our queries; it is the language he has employed in his will. There is no possibility of mistaking his intention here. It is a limitation, to take effect on an indefinite failure of issue, and this defeats complainant.</p> <p>It matters little what maybe the conflict in Tennessee decisions. Mr. Watson has drawn from them a rule, under which the appellees must fail. We have stated the same rule, and are willing it shall govern the case.</p> <p>There may be, in fact there is conflict in the decisions in Tennessee, but not one of them shakes or even pretends to disturb this rule.</p> <p>The first leading case in Tennessee, Pollc v. Parish, 9 Yerg. 208, following intimations thrown out by the court in the cases of Duncan v. Martin, 7 Yerg. 519, and of Doring et al. v. Hunter, 8 Yerg. 4, claims the full benefit of the rule in Shelley’s case, as the law of that State, and abates not a jot or tittle of that rule. It proclaims it, in all its pristine force and vigor. Not a single decision has ever been made in that State which overrules or even shakes that case as an authority. We know that some loose unguarded language has been used in subsequent cases, but the court will see that the cases, as presented by the records, were correctly decided, though in some instances, language not required by the cases have been employed. Let us see w'hat the Supreme Court of Tennessee has said about a case, almost precisely similar to the one at bar. In Bowman v. Tucker, 3 Humph. 648, a will was construed which uses the following language, viz. Testator, after devising four negroes to his daughter Mrs. Tucker, provides, “ that in case my daughter Elmira should die without issue, then in that case all the property that I have given, to be given to the Lord’s treasury, to religious societies, such as the Presbyterian Church may direct.”</p> <p>The court, after deciding that this limitation is too remote, uses this language: “ Again; dying without children. The latter word has sometimes been held by those struggling against the general rule, as meaning something different from ‘issue,’ and as more favorable to the limitation in remainder. But here the word issue is used. There can be but little doubt, that the actual intention of the testator, in the use of these words, was in conformity with this well-fixed legal meaning. If he had been asked, whether, if his daughter should leave a child, and that child should live thereafter a month or a year and then die, his wish was that Tucker, the father, should receive this property, or the Presbyterian Church, none would doubt he would have said the latter.” In this view of the case, the court decided the limitation was too remote. In the case now before your court, suppose Bridgeforth had been asked, “ Should your daughter marry, have a child that should live a year or a month, and it should die, do you wish the property'to go to her husband or your children?” None could doubt his reply, “To the children.” In fact, in this state of the case, he actually provides that, should his children die, the property shall go to the '“heirs of their bodies.” We specially refer the court to this decision in 3 Humph. See, also, 5 lb. 32. In Booker v. Booker, 5 Humph. 505, the court say, that “ to constitute a good executory devise, the contingency upon which it must take effect must occur within a life or lives in being, and twenty-one years and a fraction thereafter. The failure must be definite, and certain to happen within this period.” We refer also to the case of Kay v. Conner, 8 Humph. 624, in support of our views.</p> <p>The case of Bramlet v. Bates, 1 Sneed, 554, is much relied on by both Messrs. Clayton and Watson. We are willing that thp case now before your honor may be decided on that case, not on the loose dicta, however, of Judge Caruthers. The case is correctly decided. It is only with the loose language of the judge that we quarrel. The court lay down the general rules of law correctly/ They say that no authority need be referred to, to support the rule. “ That if the contingency, on which the estate is limited, must happen during the life or lives in being at the time of the devise and twenty-one years, and the ordinary time of gestation thereafter, then the limitation is good; but if it may not happen till after the time, it is bad.” Now, we ask the court, if the limitation in the case before you must happen within the period above indicated, and if it may not happen after that period ? If it may happen after it, then it is bad.</p> <p>The court further say in this very case, that “ a limitation of an estate, upon the contingency of the first taker ‘ dying without issue’ or ‘ heirs,’ has been uniformly held to be bad as too remote, because these words have an artificial legal meaning, and per se are taken to indicate an indefinite failure of issue.” We want no better rule than this. If heirs or issue, in the very case on which our adversaries rely, are per se taken to indicate an indefinite failure of issue, then the word heirs, and heirs of the body, in Bridgeforth’s will, must give the property in controversy to appellant.</p> <p>Again; in Kay v. Conner, 8 Humph. 624, it is held, that the word heirs, or heirs of the body, are words of limitation, whilst the word children is a word of purchase. The same construction is held of these words in the case on this point in 2 Eq. Leading Cas.</p> <p>This case does not require the labor bestowed on it. All that we ask is an examination of the cases decided by the courts of Tennessee. There is more apparent than real conflict in them. The apparent conflict grows out of the loose and unguarded language of the court. We have no quarrel with a single case decided in Tennessee. A close examination will reconcile all the cases, though not the language of different judges. The very first case cited by our opponents, of Boring v. Hunter, 8 Yer., was the case of an executory, not an executed trust. A close examination of all the cases to the last one cited, shows that appellees cannot rely on them. The last case, that of Bramlet v. Bates, 1 Sneed, shows that the devise was to Joseph Bates and his heirs; but if he should die before Thomas without issue, then the estate was to go to Thomas. Here was a limitation that must happen in the life of Thomas Bates, then in being. This case does not favor complainants. It is only the loose language of the court to which they look. The same may be said of every case to which they refer in Tennessee.</p> <p>The case, with these remarks, is submitted.</p> <p>This controversy grows out of the will of David Bridgeforth, deceased, who died in the State of Tennessee, where he resided, and whose will was probated in said State. The clause of the will in question is in these words : “ If any of my said children shall die without heirs, then the property hereby devised to them, is to be equally divided among the balance of my children or the heirs of their bodies.”</p> <p>Minerva, a daughter of the testator, married the appellant Gray, and died without having had any child. Gray claims the property which she received under the will; and this bill was filed to recover it from him. He filed a demurrer, which was overruled by the vice-chancellor Trotter. The correctness of his decision, holding the-limitation over to be valid, is thus involved. Some other parts of the will may be referred to, but the one above set forth is that upon which the rights of the parties mainly depend.</p> <p>As this is the will of a person who had his domicile in Tennessee at the time of his death, it will be construed according to the laws of that State. In other words, this court will ascertain what the law of that State is on this subject, and then let that law determine the controversy.</p> <p>In the construction of wills, especially of personal property, the first and great rule is, that the intention of the testator shall prevail, if it be not inconsistent with the rules of law. Smith v. Bell, 6 Pet. 68. No one can doubt from the reading of this will, that the intention of the testator was first a bequest to his children, and if any of them should die without children living at his or her death, then to the surviving children of the testator, or if they be dead, then to their children. At the death of his own last surviving child, the ultimate disposition of his property was to take effect, and to vest absolutely. It thus falls clearly within the allotted period of limitation, — a life or lives in being, and twenty-one years thereafter.</p> <p>Is there anything in the decisions of the courts of Tennessee to make this limitation too remote ? In a very recent case, the Supreme Court of that State said : “ The subject had been exhausted in their own cases, and nothing remained to be said upon it.” Bramlet v. Bates, 1 Sneed, 572. It there lays down the rule, “that a limitation of an estate upon the contingency of the first taker ‘dying without issue’ or ‘heirs,’ has been uniformly held to be bad as too remote, because these words have an artificial legal meaning, and per se, are taken to indicate an indefinite failure of issue.” “But any supperadded words, indicative of the intention of the testator to confine the meaning of the words ‘ dying without issue,’ to the time prescribed by the rule for a good limitation, will be sufficient to control the legal sense affixed to them, and save the limitation from destruction.” And they say, in the language of Mr. Fearne, “ that the courts will lay hold with avidity of any circumstance, however slight, to support the limitations over of personal estates.” Fearne, 470, 483.</p> <p>The property in controversy here is personal; and it is necessary to inquire whether there 'are any superadded words, or any clause or circumstance -which will restrict the words of this will to a definite failure of issue. We think there is abundant reason for such a result.</p> <p>It is to be observed that the word “ heirs” is not a technical term when applied to personal estate. In Ware v. Sharp, 1 Swan, 497, Judge Green for the court says: “ It is plain the word heirs is not used in this deed technically, as it is a conveyance of personal estate; and the defendants must insist that it must have another than a technical signification, in order to give effect to the rule in Shelley’s case. As, therefore, another than a technical meaning must be given, we think the word as here used is to be understood in its common signification.”</p> <p>In Smith v. Thompson, 2 Swan, 386, there was a limitation by deed of personalty, slaves, to the daughter, and after her death, to be equally divided between all her children. The court said, in a will, the intention would of course take effect; but is it so expressed, that it may take effect in a deed, in which, by the rules of law, a more strict construction is required? We are of opinion that it is. The technical terms applicable to real property, have no special meaning, as here applied.</p> <p>It may be observed, that there is some verbal inaccuracy in the language of the court, in the above, and in various other cases in that State, in speaking of the rule in Shelley’s case, as applicable to personalty. Yet a rule very similar to it prevails, in regard to personal estate, and the inaccuracy is scarcely more than verbal.</p> <p>The very fact that the property is personal, is a circumstance in favor of a restricted construction. The leaning in gifts of personal property is against the indefinite construction, and courts are astute and anxious to catch at any circumstance which will confine the words to a definite failure of issue. Keyes on Chattels, 138 ; Campbell v. Harding, 2 Russ. & Mylne, 390; Booker v. Booker, 5 Humph. 508.</p> <p>Another circumstance of controlling efficacy, in fixing a restricted construction upon the bequest in this case, is the fact that the ultimate limitation over, is to take effect, upon the death of the last surviving child of the testator. The whole provision ends at that point. Its office is performed. Whoever is entitled, then, takes an absolute interest. If each child of the testator had one or more children at death, the estate became absolute in them at that period; if none, it was to go over to the surviving brothers and sisters, or to the children of such of them as had previously died. Beyond this point of time, the testator has manifested no intention of controlling his property, and it then became Avholly unfettered. As that period falls much within the bounds of the rule directed against perpetuities, the bequest over is not too remote. In all cases, in which the dying without issue is confined to the death of the first taker expressly, by implication, or by statute, the limitation over is not too remote. Keyes on Chat., 198.</p> <p>The next ground for a restricted construction, grows out of the words “ equally to be divided among the balance of my children.” The rule is thus laid down, in a recent work of great ability. “By prescribing for the heirs, general or special, a distributive mode of taking, and also superadding words of limitation,” the words are cut down so as to create but a life-estate in the first taker. Or, as the rule is laid down in Horne v. Lyeth, 4 Harr. & John., “ the word heirs is changed into a word of purchase, vrhenever they are not able to take as heirs, by reason of a distributive direction, incompatible with the course of descent.” Keyes on Chat., 201. This rule was acted on in the case of Lewis v. Claiborn,f Yerger, 368, and effect given to the words, “equally to be divided.” The court says, “By these words, the limitation over to the survivors is a good executory devise.” See also, Ferry v. Calhoun, 8 Humph., 551, where the gift was of moieties to two; and Selfs Admr. v. Tune, 6 Munf. 470, in point. Sisson v. Seabury, 1 Sumner R. 243. I would suppose the rule to be founded on this reason. Where legacies are given in divided shares, as where given to two or more persons, “ to be equally divided amongst them,” such words will create a tenancy in common, unless a contrary intent appears in the will. 2 Blacks. 320, notes; Bridgewater v. Cordon, 2 Sneed, 5. The court said, “ Under this will, the children take as tenants in common ; they take a several'interest in the estate in remainder. The rule only applies where there is a class of persons described as a class, who are to take a joint interest in the fund, and who take an aggregate fund as a unit.” Hence, as it is only where property is given to heirs as a class, to go to them as a class, from generation to generation, that the rule in Shelley’s case applies, it cannot apply to cases of tenancies in common, because they are at variance with a .class of heirs. At common law, the - inheritance is single, and the term heirs constitutes but one heir. Keyes on Chat. 76.</p> <p>It is hardly disputed by the opposing counsel, that if the words at the close of the sentence, “ or the heirs of their bodies had been omitted,” this would be a valid limitation over. Let us see if they vary the result.</p> <p>In his essay upon chattels Keyes says, 44 The natural construction of these words seems to be children, or if there be no children, then grandchildren.” Page 76. Several cases in Tennessee accord with the rule here laid down. Hickman v. Quinn, 6 Yerg. 96; Loring v. Hunter, 8 Yerg. 29; Evans v. Wells, 7 Humph. 559. In the last case, the court said, 4 £ It is obvious that when he uses the words 4 heirs of her body,’ he meant children, using the words in their common and ordinary meaning, as representing individuals, and not in its legal sense as representing a class.” If these words receive the same construction here, the limitation over must be supported. Haywood’s heirs v. Moore, 2 Humph. 586. The cases of Hickman v. Quinn, 6 Yerg., and of Brooke v. Croxton, 2 Grattan, 507, are almost identical in their terms with this. The words in Hickman v. Quinn are, 44 I lend to my daughter certain slaves during her natural life, and after her death to the lawful heirs of her body, if there be any; if not, to be equally divided among my other children, or their heirs.” The limitation over was held not to be too remote.</p> <p>The cases on the subject of limitation of estates are very numerous in Tennessee, and in the language of one of their judges exhaust the subject. Those which hold the ulterior limitations to be good, are, Lewis v. Claiborne, 5 Yerg.; Booker v. Booker, 5 Humph.; Hickmanv. Quinn, 6 Yerg.; EvansY. Wells, 7 Humph.; Loring v. Hunter, 8 Yerg.; Perry v. Calhoun, 8 Humph.; Williams v. Turner, 10 Yerg.; Bramlet v. Bates, 1 Sneed; Hughes Y. Cannon, 2 Humph.; Ward v. Saunders, 2 Swan; Bridgewater y. Gf-ordon, 3 Sneed; HciysY. Collins, 2 Sneed. Those which hold the limitation over too remote, are, Polk v. Paris, 9 Yerg.; Kay y. Connor, 8 Humph.; Bowman v. Tucker, 8 Humph.; Kilpatrick v. Woodrum, 2 Swan.-</p> <p>Of these, the two first were upon deeds, and the case of Polk v. Paris, upon a South Carolina deed. It may not be out of place to say, that this court, in the case of Newell v. Newell, 9 S. & M. 70, held a very similar provision in a will from South Carolina, to create a valid limitation over, but this by the way.</p> <p>According to all the cases, even Polk v. Paris, which is the most strenuous in its advocacy of the rule in Shelley’s case, much less indulgence is shown to the intention in deeds, than in wills. Pane v. Grupton, 11 Humph. 404. Indeed, Mr. Fearne says, “ It is a mockery, a denial of the import of the word will, not to give effect to the intention, where it does not contravene some rule of law.” Page 186. In Polk v. Paris, Judge Reese complains of this rule, though he was not bold enough to attempt to controvert it. 9 Yerg. 237. In Bowman v. Tucker, 3 Humph. 650, he admitted the effect of intention in restraining the import of technical words, but said there was nothing in that will “ which tended to fix the meaning of the words to a definite failure of issue.” He does not question the rule laid down in other cases, that the court will explore the will for some word or idea to relieve the phrase, “ dying without heirs, &c.,” of its technical sense. Boring v. Hunter, 8 Yerg.; Bramlet v. Bates, 1 Sneed. The case of Woodrum v. Kilpatrick, 2 Swan, 218, followed Polk v. Paris, in its application of the strict rule. I shall not remark upon this application, further than to say it does not question the principle for which I contend. It does seem to me however, that it would be difficult to distinguish the case from that of Ward v. Saunders, in the same book, page 175, in which the limitation over was held to be valid. I can see no difference in principle between the cases. No doubt, however, the court did, though none is pointed out.</p> <p>I shall not attempt in this brief to go through all the cases in Tennessee, though they are all here referred to. I would, however, invite the attention of the court' to Beivis v. Claiborne, 5 Yerg.; Boring v. Hunter, 8 Yerg.; Hickman v. Quinn, 6 Yerg.; Booker v. Booker, 5 Humph.; and Bramlet v. Bates, 1 Sneed.' If these decisions are followed, they fix the bequest over in this case to be good. ‘ Stare decisis is a maxim which applies with as much force to construction as to principle. The construction which courts have once given, will in like cases be given again.</p> <p>Much less shall I attempt to go over all the cases in the books. A great master of legal learning has said, “ They are so numerous that the mind is overpowered by their multitude, and the subtlety of the distinctions between them.” Lord Eldon in Jesson v. Wright, 2 Bligh.</p> <p>A few additional words only. By the cases in Tennessee, it is unquestionably settled, that the word surviving is always restrictive of the technical sense. Lewis v. Claiborne, 5 Yerg.; Booher v. BooJcer, 5 Humph.</p> <p>Now, although the word surviving is not used in this will, other words are, which have precisely the same import. “ The balance of my children,” in their connection, can have no other meaning. Notwithstanding the addition of the words, “ or the heirs of their bodies,” it is manifest, that the ultimate period, in the contemplation of the testator for the vesting of the estate, was the death of' his own last surviving child. ’ Upon the occurrence of that event, the office of his will was performed, and the whole scheme of the disposition of his estate perfected. No future or further charge was in his mind, and at the moment of the death of his last surviving child, the estate was finally to vest. This is clearly within .the allowed limit, and in our view fully sustains the decision of the court below.</p> <p>Filed an elaborate brief, in which they contended, in addition to the points made by Judge Clayton, that the testator, by the use of the adverb “then,” had clearly manifested his intention that the limitation over should take effect upon the death of his own immediate offspring, as they might respectively and successively die without issue living at the time of the death.</p>

<p>In error from the Circuit Court of Tippah county. Hon. P. T. Scruggs, judge.</p> <p>Cited, pamphlet Acts of 1854, p. 468 ; Hutch. Dig. p. 887, § 5; Me Quillen v. The State, 8 S. & M. 587; liawle v. The State, lb. 599 ; Stokes v. The State, 24 Miss. R. 621.</p> <p>Cited, Weeks v. The State, 31 Miss. R. 490.</p>

In error from tbe Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge. Tbe plaintiffs in error were indicted in tbe court below for tbe murder of Ely, a slave. Upon tbe trial, W. M. Pickett, for tbe State, testified that he was the owner of the defendants, Ned and Taylor, and also of Ely, the deceased.

<p>Judgment: sheriff cannot be fined without notice. — A judgment nisi, imposing a fine upon a sheriff for a failure to return a bench warrant, is void, if entered without notice first given to him.</p>

In error from the Circuit Court of Yallobusha county. Hon. William L. Harris, judge. Thomas Kirkman sued Thomas N. Ward, executor of Samuel Hurd, deceased, for the sum of $33,000, due upon an account stated between plaintiff and Hurd, on the 6th of March, 1843. The account was various items of indebtment, due by Mrs. Hurd, to plaintiff, prior to her intermarriage with Hurd. The defendant pleaded non-assumpsit by his testator.

In error from tbe Circuit Court of Claiborne county. Hon. Stanhope Posey, judge. Held: that an irrevocable power of attorney must, prima facie, be construed as an assignment, though admitting of explanation by extrinsic evidence of a different intention. And this case is recognized and approved in the subsequent case of Weed v. Jewett, 2 Metcalf, 608.

<p>In error from the Circuit Court of Rankin county. Hon. John Watts, judge.</p> <p>This was an action by B. M. Lowe, W. H. Pattison, and Alexander Pattison, formerly partners under the firm, name, and style of Lowe, Pattison & Co., against J. B. Kirkland & Co., to recover the amount of an open account for goods and merchandise sold, and money lent by the plaintiffs to the defendants. The defendants pleaded, 1st. A general denial of the allegations of the complaint; and 2d. That the plaintiffs fit the commencement of the suit had no interest in the cause of action, and had no right to sue for and collect the same, or prosecute the suit. Issue being joined on these pleas, the plaintiffs proved the items of the account sued on; and the defendants then offered in evidence a record from the Fourth District Court of New Orleans, Louisiana. From this record it appeared that, in A. D. 1853, and before the commencement of this suit, William H. Pattison, one of the plaintiffs, filed his petition in said court against his creditors, seeking to become a voluntary bankrupt under the Insolvent Laws of Louisiana; that his insolvency arose both from his individual debts and his liabilities as a member of the firm of Lowe, Pattison & Co.; that with his petition he returned an inventory of his individual property, and also an inventory of the assets of the firm of Lowe, Pattison & Co., in which he claimed an undivided interest; and that among the assets of Lowe, Pattison & Co., so returned, was the identical claim here sued on. It further appeared from the record, that such proceedings were had upon the petition, that afterward, and before this suit was commenced, the said W. H. Pattison was duly declared a bankrupt, and one Thomas N. Waul was appointed by the said court, syndic of his estate.</p> <p>The defendants also offered in evidence the deposition of said Waul, from which it appeared that he had not authorized the institution and prosecution of this suit. Upon objection by the plaintiff, both the record and the deposition were excluded from the consideration of the jury, and the defendants excepted.</p> <p>The plaintiffs had verdict and judgment, and the defendants sued out this writ of error.</p> <p>The States, in the absence of a general bankrupt law passed by Congress, have a right to provide for cases of bankruptcy or insolvency, by passing “ State” bankrupt or “ State” insolvent laws, and these have been declared constitutional. 3 Story on Constitution, 14, 15, 252-256; Ogden v. Saunders, 12 Wheaton, 213, and Sturges v. Qrowninshield, 4 Wheaton, 122; 2 Kent Com.- 390. And an assignment of such bankrupt or insolvent, passes all his legal and equitable interest in all his property and choses in action. 2 Kent, 399, et seq. Story Confl. Laws, 336 to 357, as-to the effect of such assignment extra-territorially; in which it is laid down that, at least as to personal property and choses in action, the entire legal right or ownership being surrendered, passes by operation of law to the assignee or syndic for the benefit of creditors. The Civil Code of Louisiana, adopted long anterior to this surrender, provides fully that the surrender, or “ cessio bonorum,” shall operate as a relinquishment of all right of the debtor, and vest the same in his syndic or assignee. Civil Code, p. 338, Art. 2166; Bullard & Curry, Digest, 487 to 495. And the syndic must sue in his own name. Bullard & Curry, p. 493, sect. 30. And if a debtor be a merchant he must surrender his books. Sect. 6.</p> <p>W. II. Pattison had not, at the institution of the suit, or at the trial, any interest in the cause of action; and the testimony of Thomas N. Waul, his syndic, which was excluded by the Circuit Court, proves that he, as syndic, never authorized its institution or prosecution. (See deposition of Waul, in latter part of Circuit Court record.) This proposition, that the plaintiffs on the record must have the legal title or ownership of the cause of action, does not admit of argument or .controversy. It is too plain to admit of argument, even if it had never been decided. But the very point involved here, to wit, that the suit must be in the names of the assignee of the bankrupt, and the remaining parties of the firm, has been expressly decided by this court. See Sims v. Ross, Strong Qo., 8 S. & M. 557; Wilson v. McElroy, 2 Id. 241. And so the law is stated in Story on Partnership, p. 484 ; and it will be noticed that the surrender in the present case, as shown by the record marked Exhibit A, by W. H. Pattison, purports to be an assignment or surrender of the entire assets of Lowe, Pattison & Co., for the separate interest of the creditors of Lowe, Pattison & Co., and that the first item under the head of “ Open Accounts,” on p. 7, is the very debt sued on in this cause. It is respectfully submitted that the judgment should be reversed.</p> <p>The only question in this case is, whether, after the insolvent proceedings of W. H. Pattison, this action could be sustained as brought, or whether it was necessary that Waul, the syndic, should have been made a plaintiff in the action.</p> <p>We are assured by counsel for the plaintiffs in error, that in the State of Louisiana, he would have been a necessary party plaintiff. I shall not here controvert that doctrine. I shall do so hereafter.</p> <p>My position is, that whatever would be the rule in Louisiana, he could not have been made a plaintiff to this action at law, on an open account in Mississippi.</p> <p>It is not a question about his right of property. It is not a question about his interest in the demand sued on, or the proceeds thereof when collected: these, our courts, when called on by him, will certainly protect; but they will protect them according to the modes of proceeding in our own courts, and not according to the modes of proceeding recognized in Louisiana. Unless, therefore, there is vested in the syndic such a legal title to the account sued on as would enable him, jointly with the surviving partners, to maintain an action at law according to our modes of proceeding, he could not have been a party plaintiff in this action, whatever might be the rule under the modes of proceeding in Louisiana. Now this suit is brought upon an open account. By the laws of Mississippi, the assignee of an open account cannot maintain an action at law in his own name. It is impossible for a foreign legislature to pass a law that will change this rule of proceeding here. Suppose, for example, that the legislature of Louisiana were to pass a law making accounts assignable by indorsement, and declaring that the assignee took a legal title to the money, and might sue in his own name, such assignee in Louisiana could not maintain an action in this State against one of our citizens in a court of law, because such a law, so far as it affects the form of the remedy, would not be extra-territorial in its operation.</p> <p>Suppose that the laws of Louisiana declared that an equitable title to slaves should be a legal title, and the equitable owner might sue at law and recover the same. Surely no action at law could be sustained in the State of Mississippi upon such equitable title, though it did originate in Louisiana. The plaintiff would have to seek his recovery according to the forms of proceeding in the courts of Mississippi. I might illustrate the argument by many other such instances. In all such cases, our courts would undoubtedly protect the rights of the parties, but that protection would be given according to the forms of proceeding in our own courts, without reference to the remedies that would be given for the same rights in Louisiana.</p> <p>To apply these principles. Suppose it to be true, that by the law of Louisiana, the syndic had such legal title as enabled him to sue at law in the courts of that State, on the account sued on, jointly with the other partners. Still, so far as it affects the mode of proceeding, that law is confined to the courts of Louisiana. It does not change the mode of proceeding in the courts of Mississippi. And since, under our modes of proceeding, an assignee of an open account cannot maintain an action in his own name, the action here must be brought in the name of the original creditors.</p> <p>I need not cite authorities to show that the forms of the remedies, and the order of judicial proceedings are to be according to the law of the place where the action is instituted; that is a familiar principle. But I will cite some authorities illustrating the application of that rule, and pertinent to the question of its application to the present case.</p> <p>Story, in his Conflict of Laws, § 564, in considering this question, divides his subject into different heads, one of which is, “ In regard to persons who may sue.” Discussing that question in § 565, he says : “ Questions may arise where the party suing is not the original party to the debt or claim, but he takes a derivative title” by assignment. “ Debts and ehoses in action are not, with the exception of negotiable promissory notes and bills of exchange, assignable. Hence, if any other debt or chose in action ... is assigned, no action can be maintained thereon in a common law court by the assignee in his own name. The same rule has been applied to assignments of debts or ehoses in action made in foreign countries, although the assignee might be entitled to found an action thereon in such foreign country in his own name, in virtue of such assignment. For (it has been said) the inquiry in whose name a suit is to be brought, belongs not so much to the right and merit of the claim as to the form of the remedy. No distinction seems to have been made in England as to the right to sue, between the case of an assignee by the private voluntary act of the assignor, and an assignee by operation of law by an assignment in invitum under the Bankrupt Laws. Thus it has been held that a Scotch assignee of a bankrupt could not maintain a suit in his own name in England for a chose in action of the bankrupt, which was admitted to pass under the assignment.”</p> <p>Wolff v. Oxholm, 6 Maulé & Selwyn, 92, was assumpsit on account for money lent, &c., brought by citizens of Denmark against a citizen of England, after the Denmark citizens had assigned the account to a trustee, and that assignee had, in Denmark, and under its laws, sued in his own name. Lord Ellenborough says, “ The assignee could not sue in the courts of this country, in his own ñame ; the action must have been brought here in the names of the original creditors, even if they had assigned the debt for a valuable consideration; and although the assignment gave the assignee a right to sue in his own name, in Denmark.” p. 99.</p> <p>Bird v. Savage,. 1 John. R. 118, was an action of assumpsit on an account, by a firm consisting of three members, two of them citizens of England, one a citizen of New York. Before suit brought, the English members became bankrupts in England. A question was raised, whether, after the assignment in bankruptcy, the action could be maintained in the name of the partners; and it was decided that the action was properly brought in their names. Kent, Justice, dissented; but in his dissenting opinion he does not examine the question now under review, but discusses only the question whether, by the assignment in bankruptcy in England, the English assignees acquired a right to the effects of the bankrupt in the United States, and very properly holds that they do.</p> <p>But in Bird and others v. Qarital, 2 Johns. R. 342, the very question now under discussion came before the Supreme Court of New York, and was decided by Kent, Justice. That action was brought upon an account in the name of Bird and Savage, the English bankrupts, and Aspinwall, assignee of the New York member of the firm, who had become a bankrupt in New York. The defendants pleaded the bankruptcy and assignment in England, and insisted that the English assignees should have been made plaintiffs; and that the suit was improperly brought in the name of the English bankrupts. That plea was demurred to. Upon the demurrer, Kent, Justice, says, “ This is more a question concerning form than substance, for there can be no doubt of the right of the assignees to collect the debts due the bankrupt, either by a suit directly in their own names, or as trustees using the name of the bankrupt.” “But the mode of recovering the debts of the bankrupt will depend upon the forms of proceeding in the country, and in. the forum in which the assignee institutes his suit.” “At common law a chose in action is not assignable. It was not, therefore, in the power of the bankrupt to assign the premises stated in the declaration so as to enable the assignee to sue upon them in his own name; yet his assignment would have transferred as valid a title as that under the foreign commission. No instance has been shown in which the English courts of law have allowed the foreign • assignee to prosecute in his own name.....The plea is therefore clearly bad. The suit was properly brought in the names of the English bankrupts.” pp. 344-5.</p> <p>The two cases last cited, clearly define Justice Kent’s opinion to be, that the foreign assignee takes the rights of the foreign bankrupt that may exist in this country, but that he must enforce those rights according to our modes of proceeding; that if, therefore, the suit is brought upon a chose in action, which, by our laws, is not assignable, the suit must be brought in the name of the bankrupt, and not of the assignee.</p> <p>Orr and others v. Amory, 11 Mass. R. 25, was an action by assignees of a Pennsylvania bankrupt, against a citizen of Massachusetts, upon a chose in action, which was not assignable by the laws of Massachusetts. The court say: “ It has been heretofore settled, that the assignees of bankrupts, duly appointed, under the laws of a foreign country, cannot maintain actions in their own names, in our courts, for demands due to such bankrupts. A chose in action, such as is the subject of the present action, is not assignable at the common law, nor by any statute provision recognized in this commonwealth, where the remedy is sought to be maintained.” “ The action is not maintained.”</p> <p>In Raymond v. Johnson, 11 Johns. R. 490, it was held, that a New Jersey assignee could not maintain the action in his own name upon an account, but that it was properly brought in the name of the New Jersey bankrupt.</p> <p>Read the following case in the report; Blane v. Drummond, 1 Brockenbrough’s R. 62. This case is precisely to the point, covers the whole ground, and is ably argued by Chief Justice Marshall. It was an action in the name of an English bankrupt, brought on a bond against a citizen of Virginia. By the laws of Virginia, bonds were not assignable. Judge Marshall decides but two points : 1. That the foreign assignees, could not have maintained the action. 2. That the action was properly brought by the foreign bankrupt. The leading principle of his decision is, that a debt which, by the laws of Virginia, is not assignable, cannot be assigned by the laws of another country, so as to enable the assignee to sue on it in the courts of Virginia. Every word in the able opinion is directly to the point under argument; and I hope the court will, before deciding this case, read the whole opinion. See also Story’s Confl. of Laws, §§ 358, 359; 6 Maulé & Selwyn, 92.</p> <p>The foregoing authorities are decisive of the question involved in this cause. But I am told that the case of Simms v. Ross, Strong Go., 8 S. & M. 557, is adverse to the foregoing view of this case. I think not: The whole ground of my argument is, that the laws of Louisiana cannot control the remedy in Mississippi. The principle of the foregoing decisions is, that one nation or State cannot by its laws change the forms of proceeding in another nation or State. Now, in the case of Simms v. Ross, Strong Go., the bankruptcy which was in Alabama, was under the United States Bankrupt Law, and not under a State insolvent law; but the United States Bankrupt Law was the paramount law, not only -of Alabama, but of Mississippi also. It conferred not only the rights of the parties, but it also controlled the remedy. When that law said, that the assignee should have a right of action for the recovery of all the effects of the bankrupt, it was paramount to our laws, and therefore gave the remedy. Not so, however with the insolvent laws of a sister State. These can confer rights, but they cannot control the remedies.</p>

Hon. Charles Scott, chancellor. The facts necessary to be stated are set out in the opinion of the court. Cited, Civil Code of Louisiana, Arts. 2231, 2255, 2415, 3257; 1 Story’s Eq. §§ 202, 203; 3 Phil. Ev. (C. & H. notes), p. 1467, note 984. Cited, 19 La. R. 482; Strawhridge v. Warfield, 4 La. R. 22 ; Hopkins v. Lacouture, Id. 64; 1 Mart. Rep. N. S. 456; Ilanna v. Renfro, 32 Miss. R. 125.

<p>1. Payment : appropriation op. — Where a partial payment is mad%Riejlebtor has the right to apply it to any one of the several items of his indebtediesá-y but if he fail to make the application, the creditor may then make it.</p> <p>2. Same : statute op limitations. — Where the only evidence that a partial payment has been made is, a statement in the account of the creditor showing its reception and appropriation by him, to an item in the account barred by the Statute of Limitations, the debtor will not be entitled to reject the item thus barred, and have the payment appropriated to the balance of the account, but if the item barred by the statute be rejected, so must the credit.</p>

Hon. E. Gr. Henry, chancellor. The bill was filed by the appellant for an injunction against a threatened sale of his property, under a deed of trust executed by him to secure the appellees, in their acceptance of three bills of exchange, drawn by appellant on them, and falling due on the 8th day of April, 1856.

<p>1. Payments, appropriation op. — Where a creditor owns two accounts against his debtor, the one due, and the other not due, a payment generally must be appropriated to the account due at the time of payment.</p> <p>2. Statute op limitations. — The statute, Hutch. Code, 831, ? 10, which declares that in actions upon accounts, the limitation shall begin to run from the date of the last items in the account, does not apply to accounts for articles sold on a credit, but to accounts due and payable on the day of sale.</p> <p>3. Evidence: custom. — It is competent to show by custom of merchants, that when cash is not paid for merchandise at the time of the sale, that the sale is upon credit.</p>

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

<p>Appeal from the Chancery Court of Newton county. Hon. John Watts, judge. '</p>

<p>1. Vendor and vendee: right of vendor to make defence for the benefit of His vendee. — A vendor with covenants of warranty of title may avail himself of any remedy, in defence of an action of ejectment to recover the land, which his vendee may; and hence if it be proper that the vendee should go into equity to make his defence, the vendor may also maintain a bill for that purpose.</p> <p>2. Same : assignee of certificate of entry: rights of purchaser at sheriff’s sale, as against HIM. — The interest of the original enterer of land from the Federal Government, is subject to sale under an execution against him, before the issuance of a patent, and if the lien of the judgment attach before the assignment of the certificate of entry, or if the sale be made before the assignment, or before the assignee has put on record in the Land Office, at which the original entry was made, the evidence of the assignment, the purchaser acquires a good title. See Martin v. Nash, 31 Miss. R. 324.</p> <p>3. Same : purchaser at sheriff’s sale, entitled to discovery in reference to assignment. — The purchaser at sheriff’s sale, of land under a judgment against the original enterer from the General Government, has a right to a discovery from the assignee to whom the land has been patented, as to the date of the assignment, and the manner in which it was made.</p>

In error from the Circuit Court of Madison county. Hon. E. G. Henry, judge. In October, A. D. 1854, the plaintiff in error commenced an action of ejectment, in the court below, against the defendant, for the recovery of the possession of the southwest quarter of section twenty-two, in township seventeen, range four east, situated in Madison county, in this State.

<p>1. Execution : lands. — The term lands as used in the statute, Hutch. Dig. 917, which provides that every head of a family shall be entitled to hold, own, and possess, free from sale under execution, one hundred and sixty acres, not within any city, town, or village; or if within any city, town, or village, lands to the value of fifteen hundred dollars; includes an interest in lands for years, for life, or any greater estate of freehold.</p> <p>2. Execution : land. — The interest or estate of a tenant for years of land, being . the head of a family, is exempt by statute, Hutch. Dig'. 917, from sale under execution.</p>

<p>In error from the Circuit Court of Hinds county. Hon. John Watts, judge.</p> <p>Cited, Wilson v. Qlark, 27 Miss. R. 270 ; 1 Graham and Waterman, on New Trials, 216; 28 Miss. R. 394; 7 Wend. 62.</p>

Hon. Charles Scott, chancellor. In the year 1889, C. S. Tarpley purchased from one Davenport a tract of land, situated in Hinds county, in this State, and containing about five hundred and sixty acres. The price agreed to be paid was $25 per acre, one-half of which was paid, and for the other, Tarpley executed his note to Davenport, falling due in 1840, and took a deed with general covenants of warranty, and went into possession.

Hon. E. Gr. Henry, judge. This was an information in the nature of a writ of quo warranto, prosecuted in the Circuit Court of Yazoo county, by… Held: enjoyed, and exercised. To this plea the district attorney demurred, and the demurrer was overruled, and this judgment of the court is the first error assigned. 1st. The plea of the defendant does not set forth the charter, nor any portion of the same; nor does it aver a compliance, on the part of defendants, with any of the…

<p>QUO WARRANTO : DEFENCE MUST SHOW THAT CORPORATION IS DULY ORGANIZED.A corporation cannot exercise or use the liberties and franchises granted by the charter, except in the mode, and on the terms, and by the means prescribed therein; nor can individual members of the corporation use its franchises and liberties, or do any act to bind it, except as aforesaid; and hence, in a proceeding, in the nature of a writ of quo warranto against individuals, charging them with a usurpation of the privileges and franchises of a corporation, it is not sufficient for the defendants merely to show an Act establishing a corporation, and that they are members thereof, in virtue of which, they use the franchises mentioned in the information; but they must also show, that the corporation is in such a state of organization, as to authorize the use of the franchises and privileges which they are charged to have usurped, and that they are empowered by the corporation to do the acts complained of.</p>

Hon. John I. Guión, judge. At the March Term, A. D. 1854, of the Circuit Court of Hinds county, and on the 18th day of said month, David C. Glenn, Attorney-General of this State, on the relation of David N. Barrows, filed in said Court a petition in the following words and figures : Tiie State oe Mississippi, Hinds County. Circuit Court, March Term, 1854.

In error from the Circuit Court of Adams county. Hon. Stan-hope Posey, judge. The plaintiff in error, on the 19th day of February, A. D. 1857, sued out an attachment against the defendant in error, upon the ground that the latter was about to remove from the State. An issue, on the application of the defendant, was made, and submitted to a jury, to try whether the attachment had been wrongfully sued out.

In error from the Circuit Court of Copiah county. Hon. John E. McNair, judge. Curran Davidson, who sued for the use of William P. Holloway, procured an attachment, to be issued against the estate of James W. Martin, for the sum of $29 97, which was made returnable before a justice of the peace of Copiah county.

<p>1. Chancery: attachment: notice to non-resident defendant. — In proceedings against non-resident debtors by attachment in chancery, under the Act of June 7, 1822, Hutch. Dig. 764, it is necessary that the notice should be posted on the court-house door, as well as published in a newspaper.</p> <p>2. Same : garnishee may object to want of notice to non-resident defendant. — The garnishee in an attachment bill in chancery, has the right, for his own protection, to insist that legal notice of the proceeding shall be given to the non-resident defendant; and a decree rendered without such notice will be reversed at the instance of the garnishee.</p>

Hon. John Watts, judge. Clingan and wife, having recovered a judgment against one Dudley, procured a garnishee process to be issued against E. P. Russell, who answered, “that upon said Dudley’s complying with his contract with respondent, that he will be indebted to said Dudley in the sum of ninety-five dollars, and no more.” The plaintiff objected to the answer as insufficient, and then moved the court for a judgment against Russell for ninety-five ■ dollars, which motion…

<p>Appeal from the Chancery Court of Pike county. Hon. John E. McNair, chancellor.</p> <p>The substance of the bill is stated in the opinion of the court.</p>

Hon. Jacob S. Yerger, judge. 1. The wife cannot transfer, by indorsement, a promissory note in which she has an interest; and the taking of the note in their joint names, is an assent on the part of the husband that she shall receive some peculiar benefit from it. Draper v. Jackson, 16 Mass. 486. The first section of the Act of 1839, enables a married woman to become possessed of any description of property, and to hold it as her separate property.

<p>In error from the Circuit Court of Hinds county. Hon. John Watts, judge.</p> <p>Joshua Green, who was surviving executor of Dr; Wilson, sued Seletha Stamps in assumpsit, upon an open account for medical services rendered by said Wilson, in the years 1847 and 1848, to the defendant and her family, and slaves. The defendant pleaded her coverture at the time of the. rendition of the services. Upon the trial, it was shown that the services were rendered as charged; that the defendant was a feme covert at the time, and owned slaves as a separate estate, under the provisions of the Act of 1839.</p> <p>The plaintiff had verdict and judgment for the amount sued for, and the defendant moved for a new trial, which being refused, she tendered a bill of exceptions, and sued out this writ of error.</p>

<p>Appeal from the Superior Court of Chancery. Scott, chancellor. Hon. Charles</p>

<p>1. Husband and wife : judgment against, when not binding on her estate, held under aot of 1839. — A judgment rendered against husband and wife upon a contract entered into during coverture, will not bind her separate estate, held under the Act of 1839.</p> <p>2. High court : presumption in favor of judgment, under revision. — The judgment of the court below is presumed to be correct, unless the contrary appears from the record; and hence, where the Circuit Court held that a judgment against husband and wife was invalid as to the latter, and it does not appear from the record upon what ground the decision was based, it will be presumed to be correct.</p> <p>3. Same : husband entitled to possession of slaves, held by wife under act of 1839. — The husband’s right to the possession, during his life, of slaves held by his deceased wife, under the Act of 1-839, cannot be disturbed by her administrator, unless it be shown that the slaves are necessary to pay her debts.</p>

In error from the Probate Court of Washington county. Hon. R. L. Dixon, judge. John C. Miller died in the State of Kentucky, in the year 1840, leaving a widow, Jane Miller, and two children, viz., Agnes Miller, who, in the year 1846, intermarried with one John F. Warren, and Laura, who, in 1854, intermarried with Thomas F. Johnson.

<p>In error to the Circuit Court of Warren county. Hon. Jacob S. Yerger, judge.</p> <p>Cited, Kavanaugh v. Thompson, 16 Ala. R. 817; Toller on Exors. 359; 2 Lomax on Exors. 415; Anderson v. Walker, MS. (not yet reported).</p>

<p>In error from the Probate Court of Rankin county. Hon. James Finlay, judge.</p> <p>The facts in this cause are sufficiently stated in the opinion of the court.</p>

<p>1. Executor and administrator : sales by : purchaser repusing to complete his purchase liable por loss on resale. — If the vendee at an administrator’s sale refuse to complete the purchase by giving bond and security, as required by the terms of the sale, the administrator may resell and hold the purchaser responsible for the loss sustained by the diminution in price brought by the property on the second sale ; and this is the general rule applicable to all sales at auction. See 2 Kent’s Com. 504; 6 John. B. 395; 5 Serg. & B. 32; 2 Watts & Serg. 21 tí ; 7 Ala. B. (N. S.) 153.</p> <p>2. Same: action por damages may be brought bepore expiration op the credit. — Where a purchaser at an administrator’s sale, which was made on a ' credit, refuses to complete his purchase, and thereby becomes liable for the loss sustained on a resale of the property, the administrator is not bound to delay bringing his suit for the recovery of such .loss until the expiration of the credit; in such a case the action is not on the contract of purchase, but for damages’ occasioned by the failure of the vendee to complete his purchase.</p>

<p>Appeal from the Probate Court of Adams county. Hon. P. Bullock, judge.</p> <p>In 1845, the appellants, who were legatees under the last will and testament of A. Gaultney deceased, filed their petition in the court below, against Pearce Nolan, the surviving executor of said Gaultney, praying that he be required to render a final account. Nolan answered, denying that he had any assets of said testator in his hands, and also denying, that he had ever acted as executor, or received any of the assets of the estate, except his wife’s distributive share therein, and alleging, that one Joseph Gaultney, now deceased, had received and managed the assets of said estate, and had made distribution of them. He further answered, that he did not know whether said Joseph had made a final settlement or not.</p> <p>The Probate Court, upon the coming in of the answer, decreed, that Nolan should render a final account of his acts as executor. From this order, Nolan appealed to this court, where the decree of the court below was affirmed, and the cause remanded to be proceeded with in this court. See Noland v. Qalvit, 12 S. & M. 273.</p> <p>When the cause was remanded to the Probate Court, Nolan filed his final account, in which he debited himself with the original inventory returned into court, and credited himself with the property therein embraced, as having been distributed among the legatees. The account recites, that the property in the inventory had been received and managed, solely by Joseph Gaultney, and also distributed by him.</p> <p>Nolan, at the same time, filed a petition, making all the legatees parties, asking for citation against them, and that his final account be allowed, and for a discharge.</p> <p>Several of the legatees filed exceptions to this account, some of which had reference to transactions in the administration of the estate, which took place subsequent to the rendition and allowance of the annual account of 1827, and some had reference to matters embraced in that account.</p> <p>It appeared in evidence, that A. Gaultney died in 3824, and appointed the appellee, who was his son-in-law, and the said Joseph (his son), executors of his will, by the provisions of which, the property was to be kept together for a certain period of time, for the support of the testator’s widow and children; that an appraised list of the property was returned into court; and that, in 1827, an annual account, in the names of Joseph Gaultney and Pearce Nolan, executors, &c., was also returned into court, and allowed, and recorded. This account was sworn to by Joseph Gaultney; the appellee signed a written statement on this account, to the effect that he had examined the account, and believed it to be correct, and that he, “as one of the heirs in right of his wife, was satisfied” with it.</p> <p>It also appeared that a notice of the intention of the executors to present the account, and to which both of their names were subscribed, had been published in a newspaper printed in the county. The order of the Probate Court allowing the account, recited that it was “ the first account of Joseph Gaultney, acting executor of the last will and testament of Abram Gaultney, deceased.”</p> <p>It was further shown, that the farm belonging to the testator was carried on under the supervision and control of the said Joseph, and the vouchers, which were excepted to, showed that the matters to which they related were transacted by said Joseph. No testimony was offered, independent of the above, to show that appellee took any part in the administration of the estate. It did not appear from the record whether the executors had executed a joint bond, or whether they executed several bonds for their administration.</p> <p>In 1839, Joseph Gaultney rendered another annual account, and died about the year 1840.</p> <p>The probate judge sustained some of the exceptions which related to the account of 1827, and overruled all which had reference to •matters which had transpired since that time, upon the ground, “ that Noland was not liable as executor after and beyond the account of 1827.”</p> <p>From this decree the exceptors appealed.</p>

In error from the Circuit Court of Rankin county. Hon. John E. McNair, judge. This was an action of replevin, instituted by J. M. Brooks, administrator of C. J. Carraway, against William H. Hatto and wife, in the Circuit Court of Rankin county, for the recovery of five slaves, to the possession of which he alleged, in his affidavit, he was entitled as administrator as aforesaid.

<p>Appeal from the Probate Court of Kemper county. Hon. Thomas P. Bell, judge.</p>

<p>In error from the Circuit Court of Pike county. Hon. John E. McNair, judge.</p> <p>This was an action by McAnulty and Prestridge, administrators of Samuel Prestridge, against Amos Hodges, to recover the sum of $250, which they alleged the defendant owed for the purchase of a gin-head, press, &c., at a Sale made by them of their intestate’s effects. The defendant pleaded the general issue, and the cause was submitted to a jury, upon the following agreed state of facts. “ That the gin-head, running-gear, &c., sued for, were sold by the plaintiffs as administrators of S. Prestridge, deceased, at a public sale made by them of his personal property; that they were bid off by one J. E. J. Hart at the sum of $500, in pursuance of a private understanding, between said Hart, the defendant Hodges, and Prestridge, one of the administrators, and for the benefit of said Hodges and said Prestridge. That the price bid was a very high price for the property sold; and that after the sale Hodges and Prestridge each agreed with McAnulty, the other administrator, that one-half of said sum, viz., $250 should be charged to Hodges and the other half to Prestridge, and the said bid was thereupon set down by McAnulty, to Hodges and Prestridge, and so reported by him to the Probate Court; and the property was delivered accordingly.” “Upon this state of facts, the jury, under the instructions of the court, returned a verdict for the defendant, as in a case of nonsuit.”</p> <p>The plaintiff moved for a new trial, which being refused, they sued out this writ of error.</p>

<p>Appeal from the Probate Court of Claiborne county. Hon. L. 0. Bridewell, judge.</p>

<p>1. Executor and administrator: what notice requisite, upon application, to sell land. — Under the Act of 1854, eh. 2, $ 1, the time prescribed for the publication of notice to a non-resident heir, of the application of the administrator to sell land, for the payment of the debts of the intestate, is four consecutive weeks.</p> <p>2. Same. — If publication of notice of an application by an administrator to sell land, be made for the time prescribed by law, it will be sufficient, although the interlocutory order of the Probate Court, directed that the publication should be made for a longer period.</p>

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

Hon. J. Millsaps, judge. A full statement of the case will be found in the opinion of the court. I. It is proper, at the outset, to notice what are some- of the consequences to follow, if this paper will be declared a will. The writing gives James Lawrence, the person now demanding probate, “ a certain negro girl named Harriet.” It is a fact admitted, that Thomas H. 0.

Hon. E. M. Wells, judge. The facts are very fully stated in the opinion of the court. Application was made to the Probate Court of Attala county, to probate what was alleged to be the nuncupative will of Garland Goff, which, being refused, a bill of exceptions was signed and sealed, embodying the evidence adduced in support of the application, and a writ of error prosecuted to this court.

Hon. E. Gr. Henry, chancellor. The court manifestly erred in sustaining the demurrer to the bill in this ease. The will of W. W. Whitehead, deceased, directed his real estate to be sold when his youngest child became of age, which amounts to a prohibition to its being sold prior to that time. True, no one would undertake the execution of the will; but this did not invest the Probate Court with power to set it aside and disregard it entirely.

In error from the Circuit Court of Warren county. Hon. John I. Guión, judge.

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

In error from the Circuit Court of Madison county. Hon. E. G-. Henry, presiding. The facts are sufficiently detailed in the opinion of the court.

Hon. B. C. Buckley, vice-chancellor. On the 22d day of December, A. D., 1855, Daniel Magee, E. W. Magee, and D. C. Dickson, filed this hill in the… Held: that as the debt was extinguished, and no new one created, the contract could not be regarded as a mortgage. In Bobinson v. Crosby, 2 Edw. Oh. Rep. 128, the court said: “ The only question here is, whether the relation of debtor and creditor exists;” citing 7 Oranch, 216, and Coodman v. Crierson, 2 Ball and Beattie, 274.

<p>In error from the Circuit Court of Hinds county. Hon. John Watts, judge.</p> <p>The plaintiff, as administrator of one Moran, sued the defendant, in the court below, on the following instrument: “We, T. M. Ellis and John C. Chrisman, agree and obligate ourselves to pay to John Moran one thousand dollars, clear of all demands that are now against him on our books, the same to be paid him when the debts of the firm of T. M. Ellis & Co. are paid off, or earlier, if found convenient to us, the same being in full compromise of the entire interest he the said Moran had in the concern of T. M. Ellis & Co. The said John Moran hereby relinquishes all further claims in said concern to the said Ellis & Chrisman.” This instrument was signed and sealed by T. M. Ellis, John C. Chrisman, and one Joseph W. Eite.</p> <p>The defendant among other things pleaded, that the debts of said firm had not been paid, except by payments made by said Ellis out of his private and individual means ; and that said firm was insolvent, and was indebted to said Ellis for the advances so made; that these advances were made in the year 1840, and if it were considered, that they amounted in law to a payment of the debts of said T. M. Ellis & Co., within the meaning of said contract, the defendant then relied upon the Statute of Limitations.</p> <p>On the trial, George M. Barnes, a witness for the plaintiff, testified, that in the year 1852, he presented the bond sued on to the defendant, who then acknowledged that it was unpaid, and he further stated that the debts of said T. M. Ellis & Co. had been paid. Upon cross-examination the witness stated, that the defendant told him, in the conversation above alluded to, that he had sacrificed property to pay the debts of T. M. Ellis & Co., in order to sustain his individual credit; but witness could not recollect, whether the defendant spoke of sacrificing his individual property or not; but the witness recollected that the defendant said, that T. M. Ellis & Co. had lost a large sum of money, by collecting uncurrent bank notes. The witness could not recollect all the conversation that occurred between them.</p> <p>The jury returned a verdict for the plaintiff for $1260.</p> <p>The defendant moved for a new trial, and in support of his motion read his own affidavit, in which he stated, that he was surprised at the testimony of witness Barnes, in this: that the said Barnes had forgotten material parts of the conversation about which he testified; that he expected said witness to be introduced for the plaintiff, to prove said conversation, but relied on the belief that the witness would recollect and state the said conversation as it occurred ; that in said conversation, he, defendant, only admitted that $500, part of said bond, was unpaid; that he stated to witness, that one-half of said bond had been paid by said Eite; he also stated to witness, that some $2000 of the debts of T. M. Ellis & Co. were paid in the year 1840, by his individual means, and that the assets of said firm were insufficient to refund the sum so advanced, and that he was a creditor of the firm to that extent. The defendant further stated, that since the trial, he has discovered a material witness for his defence, viz., one S. P. Bailey; that said Bailey was a citizen of the State, and he expected to procure his attendance at the next term of the court; that he could prove by said Bailey, that he was one of the arbitrators, who settled the matters in dispute between T. M. Ellis & Co. and said Moran, and on which settlement the bond sued on was executed; that it was the understanding and agreement between the parties thereto, that the said $1000 was only to be paid out of the assets of T. M. Ellis & Co,, and not otherwise, and that said Bailey was the draftsman of the said bond.</p> <p>Bailey’s affidavit was also read, and it confirmed the statement of Ellis, as to what could be proven by the witness.</p> <p>The court overruled the motion for a new trial, and the defendant tendered his bill of exceptions thereto, and sued out this writ of error.</p>

Hon. E. G. Henry, chancellor. This bill was filed by appellee, James S. Carradine, against Mary C. Carradine and her children, and W. S. Grayson, to recover certain slaves and their heirs. Held: that the language which will create an estate tail in a deed or grant of real estate, will create an absolute interest in personal property. 1 Peere Wms. 290; 24 Miss. R. 343; Hampton v. Rattinor, No. 7125, in this court, not reported.