Volume 34 — Mississippi Reports

<p>Appeal from the Chancery Court of Clarke county. Hon. W. M. Hancock, judge.</p>

In error from the Circuit Court of Jackson county. Hon. Wm. M. Hancock, judge. The plaintiffs in error, as administrators of Margaret, Fairley, brought an action of detinue against the defendant, to recover the possession of two slaves, which, it was alleged, belonged to their intestate in her lifetime.

IN error from the Chancery Court of Hancock county. Hon. William M. Hancock, Chancellor. There is no common right to erect a toll bridge, or wharf, or ferry, on a public navigable stream, or on the sea-shore: 3 Paige, 313; 3 Kent, 427; or even a free bridge or wharf in the limits of an exclusive grant. 1 Johns. Oh. R. 611; 4 lb. 173 ; 5 lb. 100.

IN error from the Circuit Court of Simpson county. Hon. John E. McNair, judge. Cited Brown v. Leister, 13 S. & M. 392; White v. Johnson, 23 Miss. R. 68; Hutch. Dig. p. 892, § 5; lb. p. 894, § 1, 2, and 3. In reply, insisted that the statute (Hutch. Dig. § 5, p. 892) only .gave the penalty against the clerk, and that his sureties were not bound.

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

<p>Appeal from the Superior Court of Chancery. Hon. Charles Scott, chancellor.</p> <p>In the year 1845, Emanuel & Barnett, the appellants, filed their bill in the Superior Court of Chancery, against the appellee, Miles White, in which they alleged, in substance, that, on the 10th day of October, A.D. 1839, they executed three promissory notes, payable to P. S. Chappell & Co., of Baltimore, to order, for about the sum of $1500 each, and due respectively in three, four, and five months after date; that on the 15th day of February, A.D. 1841, they paid the said notes to the agent of Chappell & Co., in Yieksburg, in this State; that at the time of said payment, said agent delivered up one of said notes, and agreed to deliver up the others, as soon as complainants should make a deed to certain lands, which, by the terms of the settlement, they were bound to do, in part payment of said indebtedness; that they soon afterwards executed and delivered the deed, as they agreed, but that Chappell & Co. had failed to deliver the remaining two notes to them. The complainants further stated, that, at the time of said payment, and the execution and delivery of the deed, they had no notice or suspicion that any other person had or claimed any title or interest in them, but believed that they belonged to said P. S. Chappell & Co.</p> <p>The bill further alleged that, after said payment, they learned that the defendant, Miles White, claimed, and that he now claims, to be the owner of said notes; that said White is a citizen of Baltimore, but is now within this State, and has said notes in his possession ; that said notes have been in possession of the agent of White, in Yieksburg, for several years, but that said White refuses to institute suit on the same, intending, as complainants believe, to sue one of them (Emanuel) in some other State; the business of said Emanuel frequently requiring him to visit the northern and eastern cities. The bill prayed for an injunction against White, and for a decree requiring him to deliver the notes up to complainants, and that they be cancelled.</p> <p>White answered, admitting the settlement and payment of the notes, as alleged in.the bill, but insisting that he was a bond, fide holder for value, and that he was not affected by the settlement. On this point, the answer stated that, before the maturity of the two notes in controversy, the same were indorsed and delivered to bim by said P. S. Chappell & Co., in payment of a debt for about the same amount, which he held against said P. S. Chappell & Co., and for which two other persons were bound; all of whom were thereby released; that, at the time he took the notes, he believed that Chappell & Co. had, as they did in fact have, the lawful right and title to them; that said notes were made payable in New Orleans, and were negotiable in the Union Bank of that city; that he owned them at the time they fell due, and had them protested for nonpayment. The respondent filed, as exhibits to his answer, the two notes in controversy, also the instrument of protest, from which it appeared that the notes had been indorsed by P. S. Chappell & Co. before their maturity.</p> <p>The deposition of a witness for the respondent was also taken, which established that the indorsement by Chappell & Co. to White was made before the notes became due.</p> <p>White afterwards obtained leave to amend his answer by making it a cross-bill, in which he sought a decree in his favor for the amount of the notes. No answer was required to this cross-bill, and it was agreed by counsel, that if the complainants were not entitled to relief on their'Original bill, that a decree should be rendered for respondent, as prayed for in his cross-bill.</p> <p>Upon final hearing, the chancellor dismissed complainants’ bill, and decreed for White, according to the prayer of his cross-bill; and from this decree the complainants appealed.</p> <p>1st. The defendant, in his answer, alleges, as a matter of avoidance, that the two notes were given for a valuable consideration, viz., that they were given in discharge of a debt owing to the defendants, and two other persons bound with him.</p> <p>Upon general principles, where a maker has paid a note, and has had no notice of a transfer, the holder must prove the consideration he gave for the note.</p> <p>The mere indorsement would be as against the maker grima facie evidence in the first instance. „</p> <p>But when he proves a payment to the original payee, it then devolves on the holder to prove that he was a purchaser for value. If be does not, he fails to make out his case. So a purchaser for valuable consideration, without notice, must prove what he gave for the land as against a prior equity. The mere exhibition of the deed will not do.</p> <p>Here the answer sets up in avoidance of the plaintiff’s claim of payment (which the answer admits), the defence that he bought the notes before due, and paid value for them. This he must PROVE. The answer is not EVIDENCE for him on this point. Hart v. Ten LSyck, 2 John. Ch. Rep. 62; McNemara v. Irwin, 2 Dev. & Batt. Equity Rep. 19.</p> <p>There can be no doubt that the payment of a note without its delivery is a good payment, and will prevail in our State against any assignee; and where a note is transferred, and paid without notice of its transfer, it is a good payment at common law, except as against a purchaser before due, and for a valuable consideration. Allen v. Agricultural Bank, 3 Sm. & Mar. 48.</p> <p>Where there is no consideration for a note, or fraud in obtaining it, or payment of it after a transfer, the actual consideration of the transfer must be proved.</p> <p>The indorsement is prima facie sufficient until the fraud ox the payment is proved; then the other party must prove the actual consideration. Mann v. Lent, 1 Moody & Malk. 240; Gfreen v. Beaker, 2 Starkie, 347; Heath v. Lawson, 2 B. & Ad. 291, 4 Adol. & Ell. 871; Story on Bills, sect. 193; Bayley on Bills, ch. 12, p. 529, 531 (5th ed.); Chitty on Bills, ch. 6, sect. 3, p. 277, 284 (ed. 1833).</p> <p>This is the general rule of law, but it is settled conclusively to be so in Louisiana, where the notes were made payable.</p> <p>There the plaintiff, an indorsee, must prove the consideration he gave for the notes, where the defendant sets up a good defence against the payee. Bowen v. Viel, 6 Martin La. R., New Series, 566; Morgan v. Yarborough, 13 Louisiana, 74.</p> <p>The note being made payable in Louisiana, js subject to the law of that State. 9 Sm. & Mar. 220.</p> <p>But, 2d. The rule of law, as now settled by the best authority, is, that the want of consideration as to the notes affects White, a third party, without notice, to whom the notes had been indorsed, because, as he shows in his answer, the consideration which he gave for the notes was an existing debt due to him by Chappell & Co. and two others.</p> <p>In the present relations of the parties this is not deemed a valuable consideration.</p> <p>For the confirmation of this view, see the case of Stalker v. McDonald, in 6 Hill’s Rep. 93, wherein Chancellor Walworth reviews elaborately the decision in 16 Peters, 1, for the purpose of showing it fails to sustain the conclusion therein arrived at.</p> <p>The following authorities are also in point: 20 Johnson R. 637; 16 Penn. State R. 123; 8 Alabama, 920; 2 Humphrey, 192; 6 Mees. & Welsby, 242; 10 Wendell, 85; 9 lb. 170; 12 lb. 593; 13 lb. 606.</p> <p>The same rules prevail in Kentucky and New Hampshire.</p> <p>The reason of the rule thus laid down is, that the innocent holder, having given no new equivalent, or incurred no loss, is not éntitled to protection, but must be governed by the general rule of law, that no one has a right to hold against the true owner.</p> <p>To permit such a state of facts to resist the rights of the true owner would be manifest injustice, and is not required by any rule of commercial policy. As Lord Mansfield says (in Cowper R. 568), “ Shall a man, though innocent, gain by a mistake, or be in a better situation than if the mistake had not happened?” It is sufficient for the holder if he be made secure when he advances his funds, or makes himself liable on the paper he receives.</p> <p>The real gravamen of the above principle, then, is, that the holder, White, is put in no worse situation than before; and the conclusion irresistibly follows that it makes no difference as to him whether he became holder before or after the maturity of the notes, as his situation is the same in either event.</p> <p>On this proof, a decree was entered dismissing the bill, and ordering an account of amount due defendant; and complainants appeal.</p> <p>The title of White is not questioned, either by bill or proof. It is not preteri’ded that he did not acquire the notes for value before maturity, and before complainants paid Chappell & Co. The mere charge is, that they paid Chappell & Co., who agreed to deliver up the notes, and that defendant claims to be the bolder of them by indorsement.</p> <p>The decree is clearly correct. The notes are payable in Louisiana, and the laws of the State govern the case. Story Prom. Notes, § 163-4-5.</p> <p>Where a contract is to be performed abroad, it is to be governed, “ as to its validity, nature, obligation, and interpretation, by the law of the place of performance.” Story Confl. Laws, 253, § 280; 2 Kent, 574.</p> <p>In other words, the case depends on the general law of commercial paper: our statute does not apply. Complainants’ counsel admits this, but insists that White must prove he is a bond fide holder; because, forsooth, they paid to one who was not owner or possessor of the notes. In chancery, at least, a defendant need not vindicate his title until it is assailed. They admit White’s title, since they do not assail it; but say he ought not to be paid, because they paid Chappell. Which conclusion does not follow at all. If they had alleged payment before the transfer to White, there might have been ground to assail his title. But the facts are, that White was owner and holder before the notes matured, and complainants paid Chappell about a year after they were due. Complainants had no equity against the notes at the time of transfer, and Chappell had full right to indorse them to White; and the pretence is that White’s title, which was unquestionable in the beginning, has become suspicious because of the subsequent transaction between complainants and Chappell. White stands unaffected by an equity created after he acquired title. Furniss v. GHlchrist, 1 Sandf. Sup. Ct. R. 57.</p> <p>Mere possession of the notes is prima facie proof that White is a bond fide holder for value, “ and to meet this inference so raised, fraud, felony, or some such matter must be shown.” Story Prom. Notes, § 196; Story on Bills, § 415, 416.</p> <p>Before the onus is cast on the holder, defendant must show the paper “got into circulation by force or fraud.” 3 Kent’s Com. 92.</p> <p>Such proof must show that the note was void in its inception, or was lost, stolen, or fraudulently obtained, or wrongfully transferred by some prior holder. The evident purpose of such proof is to show that the holder, by reason of such precedent matters, acquired no title, or took under suck circumstances that he ought to explain and show he acquired in good faith and for value. All such proof, necessarily, points to the inception of the holder’s title, and it is clear that proof of subsequent matter would be wholly irrelevant.</p> <p>A bare denial of the holder’s title to negotiable paper does not authorize defendant to question it, unless the paper has been lost or stolen. 14 La. R. 256.</p> <p>A holder who takes before maturity is not affected by equities. 5 La. Annual R. 38.</p> <p>When White acquired these notes his title was indisputable, and complainants, if sued at the maturity of the paper, would not have been permitted to show he paid no consideration, as they had no defence when he acquired it. 3 S. & M. 425. What pretence is there to say that the subsequent acts of others have rendered proof of a consideration, necessary to his rights as holder ?</p> <p>Complainants chose to pay, knowing that Chappell & Co. were not then prepared to deliver the notes, and they trusted to their promise to deliver at a future day. At the same time they knew the notes, being negotiable, might then belong to a third party; and it happens that it was so. A loss has happened by their laches, and they have no equity to urge against White, or make him bear the consequences of their negligence.</p>

<p>Bills and notes: bona fide holder op note payable to bearer, not affected BY EQUITIES BETWEEN THE ORIGINAL PARTIES.-Tile 501TÁ fide holder, for value, and without notice, of a promissory note payable to bearer, is not affected by any equities between the original parties thereto. See Craig v. The City of Viclcsburg, 31 Miss. R. 243 yStokes v. Winslow, lb. 518.</p>

Hon. John Watts, chancellor. The appellant, Clark, filed his bill in the court below against John Slaughter and his wife Martha, to recover the possession of a certain slave, which he had purchased from one Alexander, and which, soon after the purchase, escaped, and, by fraudulent means, came into the possession of defendants and one Smith.

<p>1. Circuit court : jurisdiction over the person can only be acquired by SERVICE OF PROCESS, BY PLEA, OR CONFESSION IN OPEN COURT. — Tile Circuit Court lias no jurisdiction over the person of the defendant unless he he served with legal process, or enter his appearance by plea, or unless he appear in open court in proper person, and consent that judgment shall be entered against him: service, or acknowledgment of service, of the petition or complaint will not do.</p> <p>2. Same. — Upon the filing of the plaintiff’s complaint in the Circuit Court, the defendant signed the following agreement indorsed thereon: “I acknowledge service of the within petition or complaint, waive summons, and consent that the same may be docketed, and judgment rendered at the present term of the court now in sessionthereupon the court rendered a judgment against the defendant for the amount sued for, the judgment reciting that “proof of the acknowledgment of service was made.” Held, that the judgment so rendered was void for want of jurisdiction over the person of the defendant.</p> <p>3. Husband and wife : when the husband cannot waive invalidity of a JUDGMENT AGAINST HIM TO THE INJUEY OF THE WIFE. — The husband will not be permitted to waive the invalidity of a judgment rendered against him, and which is sought to be collected out of property claimed by the wife, if it appear that he and the judgment creditor have combined together to subject the property so claimed to the payment of the judgment for the husband’s benefit.</p> <p>4. Fraudulent assignment : husband and wife. — A fraudulent assignment of property by the husband to his wife will not be set aside in favor of a judgment creditor who seeks to annul it in combination with the husband, and at his instance and for his benefit.</p>

<p>Appeal from the Chancery Court of Leake county. Hon. E. Gr. Henry, judge.</p> <p>It appears from the bill that negroes were given by will to W. R. Thomas, in trust for Mrs. Newsom, and that the trustee delivered the property to the cestui que trust, who, with her husband, had possession of the property in this State for several years; and while Mrs. Newsom had-possession and control of this property, she, jointly with her husband, sold it to complainants in the manner prescribed by statute for the sale of the separate property of married women. The bill avers that complainants were purchasers in good faith, and supposed that they acquired a perfect legal title to said property by the purchase, but that a suit was brought by Wm. R. Thomas for the recovery at law of said negroes, and that in the action at law the said Thomas had recovered a verdict and judgment for said negroes. The bill avers that only the naked legal title of said property was in said W. R. Thomas, by virtue of said will, and that only the legal title was put in issue in said suit at law, and that said recovery will inure to the benefit of Mrs. New-som as cestui que trust. The bill shows that complainants, by their purchase from Mrs. Newsom and husband, acquired her rights in the property, and prays injunction of the judgment at law, and subrogation to the rights of Mrs. Newsom in the property, and also for permission to pay the value assessed instead of surrendering the slaves.</p> <p>The clause of the will under which W. R. Thomas, the trustee, claimed title, is as follows: “ I request that the whole of the property be kept together. As my children settle to themselves, or marry, the whole shall be valued, and they shall receive their equal part, except Elizabeth Newsom, whose part shall be left in the hands of her brother, William R. Thomas, to be appropriated to the use of her and heirs of her body. If she should die, and all the heirs of her natural body before they arrive at the age of twenty-one years, then her part to return to my other children.”</p> <p>The bill was filed against Newsom and wife, and Thomas, the trustee. Thomas demurred to the bill, and his demurrer was sustained, and complainants appealed.</p> <p>There can be no question but that the Jordans, by their purchase from Mrs. Newsom and husband, acquired whatever right she had to the property. Trusts are alienable by proper conveyance of the cestui que trust. They may even be disposed of in invitum by operation of law. 2 Story Eq. § 974 a.</p> <p>It will not be denied that Mrs. Newsom could apply to a court of equity to compel Thomas to execute the trust for her benefit. The Jordans, having purchased her rights, stand in her place, and are substituted to her remedies.</p> <p>It is contended bj counsel for appellee that the matters in the bill were res adjudicata in the suit at law.</p> <p>Such is not true. The suit at law merely put in issue the legal title as between Thomas and the Jordans. It did not, could not, embrace the matters contained in the bill. It determined simply that the legal title was in Thomas. Opinion Book G, 286. 1</p> <p>The bill admits the legal title to be in Thomas in his character of trustee, and shows him to hold it subject to the equitable ownership of Mrs. Newsom, which complainants have acquired. In other words, the bill shows Thomas to hold the legal title, subject to the equitable ownership of complainants. The cause of action is not the same in this suit as in the action at law. The issue is not the same. The same evidence is not applicable. The rights which the bill seeks to establish, could not be taken cognizance of by the court of law. Crates v. Gloreham, 5 Yerm. 317; 4 Gill. & Johns. 345 ; 17 Mass. 237.</p> <p>It is unquestionably true, that courts of equity recognize rights and administer remedies unknown to courts of law; that the legal estate may be in one, and the equitable in another; and that it is through courts of equity alone, that the latter can be enforced.</p> <p>It is true that, by the former suit, the title of the property was found to be in Thomas, but it is equally true, that by the showing of the bill, Thomas must hold subject to the rights of Mrs. Newsom, which complainants have acquired. It cannot be pretended that this question arose, or could arise, in the suit at law.</p> <p>Thomas was a necessary party to the bill. It was through him that complainants were entitled to enforce their rights. The effect of sustaining the demurrer, was to debar complainants from an enforcement of their rights as against Mrs. Newsom and her husband, as against whom the rights of complainants are incontrovertibly clear. The bill shows that Mrs. Newsom and husband are insolvent, and that Thomas is a non-resident. The answer of Newsom and wife, which appears in the record, is not properly there, and, of course, cannot be considered on demurrer. This is a proceeding against Newsom and wife, through Thomas, who is a necessary party. The judgment should be reversed.</p> <p>From an examination of the bill, it seems that the causes of complaint are, 1st. That Wm. R. Thomas, who is alleged to hold only a naked legal estate in the slaves for Elizabeth Newsom, should have sued for, and recovered the slaves; and 2d. After the judgment, he refused to take the alternate value from complainants.</p> <p>1st. Let the statements of the bill be true, that Wm. R. Thomas held only the naked legal estate, of the assets allotted to the said Elizabeth, in her father’s estate, then the demurrer should have been sustained, because complainants had a full and complete remedy or defence at law. Because they failed to make the de-fence, or because it was unsuccessfully made, in the suit at law, that does not authorize a court of chancery to take jurisdiction, and grant relief against a judgment, which, if the suit had been properly attended to, would never have been rendered.</p> <p>The bill shows complainants to be in possession of the slaves. They say that Thomas has nothing but the naked legal title to the slaves, Newsom’s wife beifig the cestui que trust, that Newsom and wife sold the slaves to them. Upon this showing, they had a good defence at law. The trustee of a naked title cannot enforce it, against the cestui que trust, and recover possession from him. Brown v. Doe, on demise of Weast, 7 Howard, 184; Goulter v. Robertson, 24 Miss. R. 841; 6 Peters, 441, 2, 3.</p> <p>2d. Again, the bill shows that the identical rights, now set up, were the matters in issue between the parties in the suit at law. Wm. R. Thomas’s title, under the will of Jesse Thomas, complainants say, was the foundation of his judgment.</p> <p>Their defence was, they had purchased the slaves of Newsom and wife. The only distinction, if any, is this: in the present controversy they say Thomas had only the naked legal title, which succeeded at law, but ought not to be permitted to stand against their equity. But if this statement of the bill be true, their equity constituted a full defence at law, according to the foregoing decisions. They do not even ask to be substituted to the rights of Newsom and wife against the trustee; do not state that the negroes ever belonged to Jesse Thomas, the testator; and, in short, state no equity whatever as against Wm. R. Thomas.</p> <p>As to the right of complainants to pay the alternate value of the slaves, we think no such right exists. They cannot elect; they do not,, in the bill, offer to pay.</p> <p>The ownership of property, when sued for, is not changed, by judgment, until actual satisfaction. 2 Kent’s Com. last edition, 388, 9, note.</p> <p>The suit at law was an adjudication of the right to the possession of, as well as title to the slaves. If a bill be filed to foreclose a mortgage, and is dismissed upon its merits, it bars a suit at law to recover the legal title. Mitchel v. Hodge, 27 Miss. R. 566.</p>

<p>Husband and wife. — M. and Ms wife agreed upon articles of separation. The wife relinquished her right to dower in his estate, and her father executed a bond to indemnify M. against any debts or liabilities the wife might thereafter contract; and M., in consideration thereof released and conveyed to his wife directly all the property he had acquired by virtue of his marriage with her; among which was a promissory note on a third person, which he indorsed and delivered to her father. This note, after the death of M.’s wife, was collected by her father. M., afterwards, as administrator of his wife, brought an action against the executor of his wife’s father, to recover the sum so received: Held, that the conveyance of M., even if upon a consideration favored in law, was void at common law; and that, upon the collection of the note by the testator, if a right of action accrued to any one, it was not to the representative of M.’s wife, but to M. himself; and that, therefore, he could not recover in this action.</p>

Hon. Wm. Peterson, judge. Contended that the construction, securing the husband’s life estate in the wife’s slaves, placed upon the Act of 1889, Hutch.

Hon. William M. Hancock, chancellor. The grounds taken hy the demurrer may he reduced to three heads:— 1st. Multifariousness. 2d. Jurisdiction. 3d.… Held: not to apply when the parties have one common interest touching the matter of the bill, although they claim under distinct titles, and have independent interests. Story, Equity PI. p. 285. So, when the several matters are of the same nature as to the defendants, and in the same general right in the complainant. Mitf.

Hon. William M. Hancock, chancellor. The appellant, John Fairly, filed his bill in the court below, against John Thompson and Daniel Thompson, heirs of their mother, Margaret Thompson (formerly Fairly), who was one of the heirs of John Fairly, Senior, deceased, and also against two others, who were the solicitors of said Thompson in procuring the decree sought to be enjoined.

<p>IN error from the Circuit Court of Monroe county. Hon. J. M. Acker, judge.</p> <p>cited 2 How. Miss. 851; 6 S. & M. 259; 10 S. & M. 60T; 2 Cushm. 168; 1 Barn. & Cress. 150; 2 How. Miss. 608; Miller v. Boiomcm, 13 S. & M. 100;, Bean v. George, 30 Miss. R. 150 ; Joslin v. Qaughlin, 27 Miss. R. 85; S. O. 30 lb. 502.</p>

<p>Guardian and ward : guardian’s right to sub after iiis discharge, on a BILL SINGLE, PAYABLE TO HIM IN HIS TRUST CAPACITY. — Prima facie, tie legal title to a bill single, payable to the obligee as guardian of a minor, remains in the obligee, notwithstanding his final discharge as guardian ; and hence, such discharge is no obstacle to his maintaining an action thereon, unless it be also shown that he has parted with his title, or that a payment to him would be no discharge to the obligor.</p>

IN error from the Circuit Court of Carroll county. Hon. E. Gr. Henry, judge. The plaintiff in error sued the defendant, in the court below, upon a promissory note, of which the following is a -copy:— $385t808¡j. New Yoke, 15 March, 1854. Twelve months after date we, or either of us, promise to pay to the order of C. W. & J. Read, three hundred and eighty-five ,8^ dollars, for value received, payable,” &c. (Signed) JNO.

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

<p>1. Deed : coiístkuctioií op. — Where an estate is purchased by a guardian for his ward, under an order of the Court of Probates, if the deed be ambiguous as to the quantity of the estate conveyed, the order of the court, under which the purchase was made, if incorporated in the deed, may be resorted to for the purpose of arriving at the true intention of the parties.</p> <p>2. Same. — A deed, conveying land and personal estate, was executed by C. to L., a minor; the deed recited in the premises, that it was executed in pursuance of a purchase made by L.’s guardian, under an order of the Court of Probates, authorizing him to purchase for his ward all the interest, or supposed interest, of C. in the estate of his deceased wife; in the granting part, the deed conveyed all the interest of C. in the estate of his wife which he acquired by virtue of his marriage with her, and the deed then concluded as follows: “ To have and to hold all the above described and granted estate unto L., his heirs, &c., to all intents and purposes in law as fully and effectually as I am capable of selling and conveying away all my interest in the said real and personal estate.” Meld, that the deed conveyed not only the interest acquired by C., by virtue of his marriage, but all his interest, of whatever character, in the estate of his wife, including a legacy left him by her will.</p>

IN error from the Circuit Court of Yallabusha county. Hon. W. Cothran, judge. A correct statement of the case will be found in the opinion of the court and the brief of the counsel for plaintiff in error. This was' an action of ejectment to recover lands reserved to Betsey, under the supplement to the Treaty of Dancing Babbit Creek. The reservation and possession of defendant were duly proven.

<p>Vendor and vendee: time when essence of contract may be waived by paroTj : right of vendor to rescind. — If the vendor decline the offer of the vendee to surrender possession of the land, in accordance with a right secured to the former by the provisions of the title bond, it will be a waiver on his part of the previous default of the vendee in making payment of the purchase-money; and he cannot afterwards insist upon this right without having first demanded payment.</p>

<p>CERTIORARI: TO REVIEW JUDGMENT OP JUSTICE OP THE PEACE, NOT ALLOWABLE APTER A FORMER ONE HAS BEEN DISMISSED.-The dismissal of a Writ of CUT-tiorari, granted for the purpose of reviewing in the Circuit Court, a judgment of a justice of the peace, is a bar to the granting of a new writ of the same character to the same party.</p>

<p>IN error from the Circuit Court of Yazoo county. Hon. E. C. Henry, judge.</p> <p>Cited Bussell v. MoBougald, 3 S. & M. 234; Miss, and Ala. JR. B. Co. y. Ballard, 5 S. & M. 606; 1 Virg. Cases, 123; Ooole y. Beasly, 1 Texas R. 523; Bent v. Coleman, 10 S. & M. 88; Harper v. Montgomery, 11 lb. 611; Whitfield v. Wooldridge, 23 Miss. R. 184.</p> <p>Cited 27 Miss. R. 433.</p>

<p>IN error from the Circuit Court of Rankin county. Hon. John Watts, judge.</p> <p>On the 19th of May, 1856, Ware sued out an attachment against the estate of Calhoun, Bull & Co., who were non-residents; and, on tbe next clay, the same was levied on certain real estate belonging to them. This attachment was returnable on the fourth Monday of that month, being the twenty-sixth day. On the first day of the return term, an order was made, requiring publication of notice of the pendency of the suit to be made in the “ Brandon Republican” for one month. The notice was inserted four times in that paper, commencing on the 31st July, 1856, and ending on the 21st August. Judgment final was entered, by default, against the defendants on the 21st of October, 1856; and, on the 12th of November, a venditioni exponas was issued, directing the sale of the land levied on; and, on the 15th of December, the land was sold. Afterwards the defendants sued out this writ of error.</p> <p>Cited Hutch. Dig., p. 823; lb. p. 804, § 15.</p> <p>Cited Iiiclly v. Bidly, 24 Miss. R. 654.</p>

<p>1. Parties: iit a suit to enforce mechanic’s lien, the debtors, administrator, and heirs, are necessart parties. — Both, administrator and the heirs are necessary parties to a proceeding by a mechanic, to enforce his lien on the realty of the decedent.</p> <p>2. Venue : of a suit to enforce mechanic’s lien in the county where the land is situated. — A suit by a mechanic to enforce his lien is a proceeding in ran, and may be prosecuted in the county where the land is situated, without reference to the residence of the defendants.</p>

<p>In error from the Circuit Court of De Soto county. Hon. P. T. Scruggs, judge.</p>

IN error from the Circuit Court of Madison county. Hon. E. G. Henry, judge. Held: that the husband could not, by his own hill of sale, sell his interest in his wife’s slave, so as to prevent her from recovering the possession, by suit in equity, from the husband’s vendee. Wells v. Treadwell, 28 Miss. R. 717.

<p>Contract : consideration. — A surety agreed with Ms co-surety that, if the latter would procure the principal, who was insolvent, to pay a stipulated sum on the debt, that he would release him from any obligation to contribute to the payment of the balance. The promisee performed his part of the undertaking by procuring the principal to make the payment. Held, that this was a sufficient consideration to support the promise to release, and that he was not liable to contribution.</p>

In error from tbe Circuit Court of Adams county. Hon. Stan-hope Posey, judge. Marsh & Pendleton sued Maurice Lisle, in assumpsit, upon a promissory note executed by tbe defendant, in the following words: “Natchez, 20tb February, 1852. “ Twelve months after date of this, I promise to pay Marsh & ■ Pendleton, or order, the sum of four hundred dollars, being in payment for all machinery bought of Swann & Abbott. $400.

<p>1. Contract: voidable: ratified by suit. — An action by the obligee upon a bond which is voidable at his election, is a ratification of the contract.</p> <p>2. Same : bond of administrator to sell realty under act of 1830. — A bond given by an administrator, and payable to the State for the use of the heirs, and conditioned to apply the proceeds of a sale of land, made on his suggestion, for the benefit of the heirs, under the provision of the Statute of 1830 (Hutch. Dig. p. 667), although it may be voidable at the election of the heirs, is binding on the obligors, if the heirs elect to sue upon it.</p> <p>3. Practice: where verdict exceeds renaltv oe bond. — If the verdict exceed the penalty of a bond, the court may enter judgment for the proper amount.</p>

<p>1. Conflict of laws : lex loci governs as to validity of contract. — A contract, as to its nature, construction, and validity, is governed by the law of the place where it is entered into.</p> <p>2. Same: lex solutionis governs, when: presumption on this subject.— ' Where a contract is made in one country, to be performed in another, the law presumes, in the absence of any other circumstance, that the parties contracted with reference to the law of the place where it is to be performed; and, in that ease, the contract, as to its nature, construction, and validity, will be governed by the lex loci solutionis. But this is a mere presumption of law, and is not inflexible; and it will not control, if the attendant circumstances show that the parties contracted with reference to the law of the place where the contract was entered into.</p> <p>3. Same : lex loci governs where the contract violates the lex soluti-onis. — Where a contract, made in one country, to be performed in another, stipulates for the payment of a rate of interest allowable by the lex loci contrac-tus, but prohibited by the lex loci solutionis, it will be governed by the law of the place where it was entered into. For, as it was competent for the parties to contract with reference to the law of either place, it will be presumed that they contracted with reference to that law which their contract did not violate. A presumption will never be indulged that a contract is in violation of law, when it is capable of any other reasonable construction. See Depau v.</p> <p>Humphreys, 8 Mart. (La.) R. 1.</p>

<p>IN error from the Circuit Court of Monroe county, liam Cothran, judge. I-Ion. Wil-</p> <p>Ingram & Laud brought an action in the court below against the Mississippi Mutual Insurance Company, to recover upon a policy of insurance executed by the company to them, to the amount of $5000. The complaint, which sets out the policy verbatim, is as follows:—</p> <p>The plaintiffs complain and represent, that on the 1.0th day of April, A. D. 1854, at, to wit, in the county aforesaid, the said Mississippi Mutual Insurance Company, for and in consideration of the sum of forty-five dollars, to them in hand paid by the said plaintiffs, insured the said plaintiffs one year against loss or damage by fire to the amount of five thousand dollars, on their stock of goods, wares, and merchandise, kept and to be kept in a two-story brick house, made and built of brick, &c., on part of lot No. 92 on Main Street, in the east ward of Grenada, Mississippi, as follows</p> <p>“ And the said company do hereby promise and agree to make good unto the said assured, or their executors, &c., all such loss or damage not exceeding in amount the sum insured, as shall happen by fire to tbe property as above specified, from the 10th day of April, A. D. 1854 (at 12 o’clock at noon), unto the410th day of April, A. D. 1855 (at 12 o’clock at noon); the loss or damage to be estimated according to the true actual value of the property at the time the same shall happen, and to be paid within sixty days after notice and proof thereof made by the assured in conformity to the conditions annexed to this policy.” ******</p> <p>“And in case of any other insurance upon the property hereby insured, whether prior or subsequent to the date of this policy, the assured shall not, in case of loss or damage, be entitled to demand and recover from this company, any greater portion of the loss or damage sustained, than the amount hereby insured shall bear to the whole amount insured upon said property.”</p> <p>The policy then continues by stipulations against loss occasioned by riots, &c.; and against the storing of goods deemed hazardous or extra-hazardous, &c. &c.</p> <p>The complaint concludes as follows: “And the complainants further aver, that on the night of the 4th day of February, 1855, a fire broke out in the town of Grenada aforesaid, which extended to the storehouse of plaintiffs mentioned above, and that they lost of their goods, wares, and merchandise thus insured the sum of $6326 53. They further aver they had no other insurance on said property,” &c.</p> <p>To this the defendants answered, “ that at the time of the fire in said complaint mentioned, the value of the plaintiffs’ stock of goods in the storehouse therein described (and upon which stock of goods the insurance of five thousand dollars was made as alleged), was the sum of $18,137 53 ; and that of this stock there was saved, at the time, from said fire, goods to the value of $11,811, leaving the entire loss by fire $6326 53.”</p> <p>Wherefore defendants say that they are liable to said plaintiffs for their proportion of said loss, which they state to be the sum of $1865 51, with interest, but for no more.</p> <p>The plaintiffs demurred to this answer, and it was adjudged insufficient. The defendants declining to plead further, a judgment by default was entered, with a writ of inquiry, and the jury assessed the plaintiffs’ damages at $5600, for which judgment final was entered. The defendants thereupon sued out this writ of error.</p> <p>This case presents a single question, and relates to the law of insurance, — a branch of the law, in reference to which, as our court has said, “ questions are, with, us, of rare occurrence, and the principles which govern them are not familiar to those whose minds are given to other branches of the law.” 2 S. & M. 874. The haste with which this brief must now be prepared, forbids that critical and consecutive examination or argument which the point demands.</p> <p>The insurance company executed their policy to the amount of $5000, upon Ingram & Laud’s “ stock of goods, wares, and merchandise, kept and to be kept in a two-story brick house,” &c.</p> <p>During the continuance of this policy, a fire occurred, which destroyed a certain portion of the stock of goods so kept, &c.</p> <p>At the time of the fire, the amount of the stock of goods, at risk, in said building, was $18,137T6(5so. Of this amount there was saved the amount of $11,811, leaving the entire loss at $6326f\¡3(j. Ingram & Laud insist that the company should pay the full amount of $5000. We say not so, and insist that they were their own insurers, for the value of the goods at risk not covered by our policy, and that they must share the loss, in the proportion which, the amount of their own insurance, bore to the amount at risk, and that we must do the same. The proportion of our insurance was, in round numbers, as $5000 was to $18,000. The proportion of their oivn insurance was as $13,000 was to $18,000, and' in this proportion must the loss of $6000 be borne by each. It is needless to be more accurate, as the principle involved is only important in this court.</p> <p>These facts and this principle were presented in the answer filed to the complaint. The answer was demurred to, the demurrer sustained, and the correctness of that decision is the single point involved in this record.</p> <p>1. Where property is only partially insured, the owner becomes his own insurer for the excess at risk, at the time of the loss; and, in case of partial loss, he bears his own portion, and the insurer his portion, in the proportion which the amounts, thus respectively insured, bear to all the insurable interest at risk, at the time of the loss.</p> <p>“If the value of his (the insured) interest exceeds the sum insured, the excess of interest is said to be uncovered by the policy, and the assured to be his own insurer to that extent.” 1 Arnould on Ins. 3, 333, 338; 7 Mass. 364; 14 Wendell, 399; 12 Wheat. 383, Rep. 550.</p> <p>The principle above stated is so fully established, that it could not be denied; but a distinction was sought to be drawn between goods in a ship, and goods in a house. The unreasonableness of any such distinction, to the mind of the court, must be too palpable to need refutation. The cases above referred to, were cases of marine insurance, and the work of Mr. Arnould is confined to marine insurance. But the same principle, as a general principle, is laid down by Mr. Phillips, which is a work on “The Law of Insurance" generally. Under the head of “The amount payable, salvage loss,” he says: — ></p> <p>“ The underwriter is liable for loss only on the amount or proportion insured by him on a ship, or other subject, whether the remainder, if any, is insured by other underwriters, or is at the rislc of the owner.” 2 Phil, on Ins. 227, § 1476.</p> <p>Again: “ The general principles applicable to policies against tire on land, coincide with those applicable to marine insurance.” Ib. 44, § 63.</p> <p>He then proceeds with a long catalogue of the general particulars and peculiarities incident to fire policies; and, although he alludes to the insurance of “goods,” he makes no such distinction as the one insisted on in this case. The distinction is a most palpable and all-important one, if it exists; and it is not reasonable or probable, that he would have omitted to mention it at all; but surely not when he had declared, upon the same page, that the “general principles” of fire and marine policies were the same. The principle for which we contend, in a marine policy, is plain and universal.</p> <p>Again, he says, in relation to this very principle</p> <p>“ If the sum insured is less than the value of the property (not ship or cargo), the assured stands underwriter for himself on the excess. If the sum of $800 is insured on property worth $1000, then, in any case of loss, whether partial or total, or particular or general, the underwriter pays four-fifths of it, and one-fifth falls upon the assured himself, unless he has effected other insurance on this excess.” 2 lb. 2, § 1176. And this principle he directly applies to “goods burnt.” Ib.</p> <p>These general principles, “though not inserted, expressly,-on the face of the instrument, are of exactly the same binding authority as though they were.” * * “ They are regarded as so much a matter of course, that it would be a needless ceremony to express them in form.” 1 Arnould, 41, § 36; 1 Phillips, 51, § 67.</p> <p>The only way in which the parties could avoid the application of this principle would be by an express provision to that effect. There is nothing in this policy repugnant to its application, but the reverse. It says, “the loss or damage is to be estimated according to the true and actual value of the property at the time the same shall happen.” What was this “property?” Was it such goods and wares as the assured might arbitrarily say were covered by the policy, as distinct from the general bulk? No; it was “the stock of goods” then “kept,” or “to be kept,” in that house. The assured were authorized to increase or diminish the value of that stock at their pleasure; but, in estimating our portion of loss, the amount on hand at the time of the fire, was made the standard. In other words, and the words of the books, with which it is synonymous, “ the value of the insurable interest, at risk, at the time of the loss.” If, at the time of the loss, the stock had been diminished to $5000, and all had been burnt, the company must pay the whole $5000. If it had been diminished to $6000, then it would have had to pay five-sixths of any loss less than total, and so on. The proportion of the risk of the owner keeping pace in proportion as he increased our risk, by increasing the stock of goods with which our risk was identified. In an inverse ratio could the owner diminish his risk as his own insurer, upon the excess above the amount of our policy, by diminishing the value of that stock, and consequently diminishing our risk. He increases our risk by having it identified with a large stock. He diminishes our risk by having it identified with a small stock; whilst, at the same time that he diminishes our mere risk, and his own proportion of loss, he thereby increases the amount of our payment, should a partial loss happen, notwithstanding our diminished risk. The principle is just and reasonable. If a person pays a premium upon a certain amount of goods, without specifying what goods, and reserves the right to keep any amount of goods, to each and every piece of which that policy applies, by what right, in case of partial loss, does he say that the goods, which were lost, were those to which the policy applied, but to those that were saved it does not apply ? In legal contemplation, as well as in equity and fact, that $5000 was divided out in proportions, by which an equal amount of it attached to every separate cent’s worth of the whole $18,000 worth. That proportioned amount cannot be separated from the value of each cent, whether the goods be lost or saved. The proportion, therefore, of five to eighteen, inevitably attached to each cent’s worth of that “stock of goods,” both lost and saved. f</p> <p>We have not seen the. brief of opposite counsel, and cannot examine any authorities to which he may refer. We remember that those read on the trial below were all cases from the Massachusetts Reports; not one of which we then regarded as in point. There was one, perhaps two, which decided that there was no distinction between partial and total losses in an insurance upon buildings where the amount of the loss equalled the amount insured. Also, that materials saved from a building 'consumed by fire could not be taken into the estimation in determining the amount of loss. This distinction between an insurance upon buildings and goods may very reasonably exist; for, in the case of loss by fire to houses, it would almost be impossible to apportion the loss between the amount for which it was insured and the value above the risk. The house is a unit, and it might well be held that, if the loss equal or exceed the amount for which it was insured, the insurer shall pay that amount, without reference to what was saved. It is almost impossible that what can be saved can be so estimated in its value to the owner as to be the subject of average between him and his insurer.</p> <p>Rut it is needless to argue whether this principle has been adopted in Massachusetts. The subject is there regulated by statutes and by-laws, under which its decisions are made, and which can determine nothing in this case. In one of the cases referred to by counsel below, we remember the counsel in that case referred to the “Revised Statutes, chap. 3T, § 28.” It is 9 Mass. 205, we find, and the strongest case read by counsel. This was the case of the total loss of a building. The materials of the building which were not destroyed were estimated at $500. The court below permitted the value of the materials to be placed as an offset to the amount insured. This being a total loss, it was a question of salvage, which is “ the part or remnant of the subject insured, which survives the fire in a total loss.” 2 Phillips, 234, § 1488. The court say, “ The law of marine insurance respecting salvage does not apply to the fire policies of mutual insurance companies.” The case at bar is not the case of a total loss of a house, and a question of salvage, but a partial loss of a stock of goods, and a question of average, which is “ a loss in which divers interests contribute a part of its value.” 2 Phillips, 64, § 1269. In 8 Metcalf, 119, the court say, “The contract of insurance against fire, as used and practised by the mutual insurance companies in this commonwealth, depending upon the operation and effect of the act of incorporation and the by-laws, and the policy and written representations in each particular case, is somewhat new and peculiar; and the rules applicable to it have not been fully and definitely settled by judicial decision.” See also 7 Mass. 369.</p> <p>The court will excuse the imperfection of this brief, from the very rapid manner in which it has been prepared, with the view of placing it on the file before the case should be called.</p> <p>The one point in the record for the consideration of this court is involved in the action of the court below in sustaining the demurrer. The examination and proper understanding of the legal effect of the language and terms of this contract, will leave no doubt in the mind of the court in regard to the correctness of the court in its decision. The defendants, in consideration of the sum of forty-five dollars, to them in hand paid by the plaintiffs, insured Ingram & Laud, of Grenada, Mississippi, against loss or damage by fire, “ to the amount of five thousand dollars,” &c. “ And the said company do hereby promise and agree to make good unto the said assured, all such loss or damage not exceeding in amount the sum of five thousand dollars.” Now, in observance of the rule asserted by Phillips on Insurance, page 470, vol. 1, that fire policies shall be reasonably construed, can the decision of the court below be questioned for its correctness ? In consideration of forty-fire dollars, tbe defendants insured tbe plaintiffs against all “loss or damage by fire,” to tbe extent of five thousand dollars. Does not tbis language show that defendants intended to insure the plaintiffs against any and all loss to the extent of five thousand dollars, and did not the plaintiffs understand that any and all loss to the extent of five thousand dollars was covered by this policy ? The consideration, forty-five dollars, is for the full sum of five thousand dollars of insurance, and is therefore conclusive upon the point of intent — of understanding.</p> <p>It will be observed that this policy is against “ all damage not to ‘exceed’ five thousand dollars.” Certainly, then, when the plaintiffs show their loss, as in this case, to have exceeded or equalled five thousand dollars, their right to a recovery for that sum cannot be denied.</p> <p>Now, an examination of this policy forces me to the conclusion ■ that it was intended and understood by the contracting parties to be and operate as an indemnity to the extent of the sum insured.</p> <p>I think the view taken by the defendants in the construction which they insist should be put upon this contract, arises out of mistaking it for an open policy, or assimilating it to a marine policy, which admits of average. This is a valued policy, and fixes the amount of insurable interest: 1 Arnould on Insurance, 309 ; and if it could be assimilated to marine policies, is not one of the class of cases in which average is allowed. The rule would, I admit, be otherwise in open policies. But I have said that fire policies differ materially from marine in this, that they are in the nature of indemnities. Having modern origin, the wisdom and prudence of the age, either in the charter or by-laws, prohibits them from taking risks equal to the full value of the property insured, and this prohibition is intended as a preventive of fraud and great evil, by withholding motive for burning the .property and ruining others.</p> <p>Fire policies not infrequently limit the proportion of the value of the subject that shall be insured, either by proviso in the body of the policy, or by the representations by the insured referred to in the policy or by statute; 1 Phillips on Insurance, 876; 10 Metcalf, 211; 5 Denio, 326; 12 Metcalf, 555; 8 Johns. Rep. 807; 8 Metcalf, 114; 9 lb. 205; 13 Wendell, 92; 16 lb. 481; 10 Pickering Rep. 40 ; 2 Phillips on Insurance (2d ed.), 229.</p> <p>Now apply this rule to this policy, and we see that the contracting parties did limit the proportion of the goods for which they would be liable to the sum of five thousand dollars, and to that extent the defendants agreed fully to indemnify.</p> <p>The facts of this case are simply that the plaintiffs in error, being an insurance company, insured certain goods, wares, &c., of defendants in error, to the amount of $5000.</p> <p>The whole value of the goods, &c., upon which an insurance to the amount of $5000 had been obtained, was estimated to be at the time of the loss by fire about $18,000.</p> <p>The actual loss sustained by the insured exceeded in amount the sum insured, to wit, $5000, as the record shows.</p> <p>The question then arises, whether the insured can recover from the insurers the entire sum of $5000, as agreed upon in the policy, or whether they can only recover a certain portion of this amount, ascertained upon the principle of particular average.</p> <p>The counsel for plaintiffs in error, contend that the principle of particular average consists in this: when a person insures property collectively of a greater value than the amount insured, he shall only recover in the proportion which the whole bears to the part insured. As for instance in this case, as $18,000 (collective value of goods at the time of loss) is to $5000 (the amount insured).</p> <p>According to this method of apportionment, the insured would only be entitled to recover about $2000, instead of $5000, as stipulated in their contract of insurance.</p> <p>It is contended, in support of this position, that this is the rule followed in adjusting marine losses of this nature, and that there is no difference between marine insurance and fire insurance.</p> <p>It is unimportant, in this instance, to inquire whether this is the law or not. The main matter to be ascertained is, what is the intention of the parties as evidenced by their written contract ?</p> <p>One clause in the policy reads as follows: “ And the said company do hereby promise and agree to make good unto the said assured, or'their executors, administrators, and assigns, all such loss and damage, not exceeding in amount the sum insured, as shall happen by fire to the property as above specified.”</p> <p>Here, as the court will observe, the insurance company bind themselves to pay any loss incurred upon the property, on which the policy attaches, not exceeding in amount the sum insured; and there is no other clause in the policy which negatives the binding force of this stipulation.</p> <p>In some fire policies it is agreed that the partial loss shall be adjusted according to the principles of marine insurance. 2 Phillips on Insurance, 229.</p> <p>But “ under the fire policies as usually made, the assured recovers the whole amount of a partial loss, if it does not exceed the amount insured, though the amount may be less than the property insured,” or, in other words, less than the policy covers. This authority directly decides the point. 2 Phillips on Insurance, 229.</p> <p>At one time it was necessary, as Mr. Ellis in his work on Insurance says, for the English insurance companies to insert an average clause in their policies, in consequence of the unusual number of fires prevailing in the agricultural and manufacturing districts. Ellis on Insurance, 16; 4 Law Library.</p> <p>And in the appendix to this work is given a specimen of the average clause they then were in the habit of inserting,- which provided, in direct terms, that a partial loss of this nature should he apportioned according to the principles of marine insurance. Ellis on Insurance (Appendix), p. 222.</p> <p>But in this case no average clause is inserted in the policy.</p> <p>• But the cases in Massachusetts settle the matter beyond dispute; and it might be well to say in this connection, that the counsel for plaintiffs in error are mistaken in supposing that the decisions on this subject, in this State, are based upon a statute peculiar to it. The statute they have reference to, provides that no property shall be insured to an amount exceeding in value three-fourths of the value of the property insured. See statute cited, 9 Metcalf, 210.</p> <p>In Trull v. The Roxbury Mutual Fire Insurance Company (3 Cushing, 267), the court say: “ The distinction between the contract of fire insurance and that of marine insurance, and the mode of adjustment and satisfaction, is marked and obvious. In fire policies, the insured recovers the whole loss if within the amount insured, without regard to the proportion between the amount insured, and the value of the property at risk; whereas, in marine policies, the insurer pays only such a proportion of the actual loss as the sum insured bears to the value of the property at risk. For instance, in fire policies, if the sum insured be $2000 on property worth $10,000, and the assured sustains an actual loss on the whole ($2000), he recovers the whole $2000. But in a like case in a marine policy, he would recover one-fifth only, or $400, being the proportion the sum insured bears to the value of the property at risk, the assured himself bearing the other four-fifths of the risk.”</p> <p>They further say that, “ It is the payment of the whole actual loss sustained on the whole property at risk, not exceeding in value the sum insured, without regard to any apportionment between the sum insured and the property at risk, or to any abandonment, or technical or constructive total loss, or salvage.”</p> <p>They cite several cases upon the point.</p> <p>In the case of Strong v. Manufacturers’ Ins. Oo., 10 Pickering, 40, the same point is decided.</p> <p>In the case above, cited from Cushing’s Reports, the court say that, in the absence of fraud, the valuation is conclusive upon both parties, and cited upon the point 4 Metcalf, 206; 10 lb. 111.</p> <p>Without any reference to the terms of the contract itself, it has been decided by the Supreme Court of Michigan, in the case of Rossiter v. Chester, 1 Douglass, 154, that the doctrine of average was peculiar to the maritime law; and that, therefore, its principles could not operate beyond the ebb and flow of the sea, nor apply in a court of common law.</p>

IN error from tbe Circuit Court of Yallabusha county. Hon. William L. Harris, judge. It is unnecessary to set out the pleadings, further than they are stated in the opinion of the court.

<p>In error from tbe Circuit Court of Tishemingo county. Hon. P. T. Scruggs, judge.</p> <p>The Mobile and Ohio Railroad Co. sued Porter Walker in the court below, to recover certain instalments, which were then past due, upon the subscription of said Walker, for capital stock in said company.</p> <p>Among other pleas, the defendant filed the following:—</p> <p>2d. That the stock, mentioned in said complaint, was purchased from, and the subscription thereof made to, one J. W. Wheeler, who represented himself to be the authorized agent of said company to sell said capital stock, and receive subscriptions therefor; whereas, in truth and in fact, said J. W. Wheeler was not then authorized to sell said stock, and receive subscriptions therefor.</p> <p>3d. And the said defendant, for a further answer in this behalf, says, that the said plaintiffs ought not to maintain their aforesaid action against him, because, he says, that said supposed contract for capital stock and subscription therefor, mentioned in said complaint, was made with one J. W. Wheeler, who, at the time the same was made, represented himself as being the authorized agent of the plaintiffs for the purpose of selling said stock, and obtaining subscriptions therefor, and who, before and at the time the same was so made, represented to said defendant that he was well acquainted with the assets, means and resources of said plaintiffs, and with the amount of funds which would be required to build and equip said road, for the transportation of passengers and freight, from the city of Mobile to the terminus of said road, on the Ohio river. Said defendant further says, that the said J. W. Wheeler, before and at the time said subscription was made, with the fraudulent design of inducing said defendant to contract and subscribe for said capital stock, falsely and fraudulently represented to the said defendant that the Congress of the United States had donated lands to the plaintiffs, from the proceeds of the sales of which, a large amount of money, to wit, $3,000,000, would'be realized; which sum, together with the other means then owned and held by the said plaintiffs, would enable them to complete said road, and have the same fully equipped with engines, cars, &c., necessary for the transportation of passengers and freight over said road, from the commencement to the terminus thereof, within two years from that time, and that the stockholders therein would receive large dividends and profits; and that, in no event, would said defendant be required to pay more than one-half of the stock so subscribed by him, and that even that portion would be received in provisions and labor at the highest prices. Whereas, in truth and in fact, said lands are of but little value, and can be sold only for a small sum of money; and whereas, in truth and in fact, the amount of assets and means belonging to said plaintiffs are greatly insufficient to complete and equip said road, for the transportation of passengers and freight over said road, within said term of two years, or any other time; but, upon the contrary thereof, the said plaintiffs have been compelled to borrow large sums of money to enable them to pay for the labor actually done on said road now; and that a very large portion of the labor and materials necessary to be done and furnished on said road, so as to enable said plaintiffs to transport passengers and freight over the same, now remains undone and unfurnished; and that the said plaintiffs have no means out of which to pay for the same.</p> <p>Said defendant further says, that at the time he so subscribed for said stock he was wholly unacquainted with the means and ability of said plaintiffs for the completion of said road, and that he relied upon the said statements of the said J. W. Wheeler, -which he then supposed to be true, and he would not then have contracted or subscribed for said stock, had he then known, or supposed, or believed said statements to be untrue and false; but which the said defendant avers were then known to be untrue and false by the said Wheeler. And the said defendant further avers, that the said J. W. Wheeler, with the design to induce him to contract and subscribe for said stock, and to make said fraud more complete and effectual, procured one J. H. Nelson, an influential man in the neighborhood, and who had formerly resided in the neighborhood of railroads in the State of South Carolina, and who was supposed and represented to be well informed as to the costs and profits of such improvements, ostensibly to subscribe for five shares of the capital stocb in said railroad, but at the same time executed to said Nelson his obligation in writing, thereby obligating himself, as the agent of said company, to release said Nelson from his said subscription when requested by said Nelson; and said defendant further avers, that said J. W. Wheeler, at and before said contract and subscription were so made, fraudulently represented the same as bond, fide, and that said Nelson was well acquainted with the costs and profits of railroads, and was willing to vest his money in said Mobile and Ohio Railroad Company; whereas, in truth and in fact, said subscription of said Nelson was not bond fide, but was only pretended and colorable, and was made with the fraudulent design of inducing said defendant and others to contract and subscribe for stock in said railroad ; and whereas, in truth and in fact, said Nelson was' not willing to invest his money in the said railroad. And so the said defendant says that the said contract and subscription for stock was procured by the said false and fraudulent representations of said Wheelei*, the agent of said plaintiffs, &c. And this he is ready to verify.</p> <p>The plaintiffs demurred to these two pleas, and the demurred was sustained. The defendant refusing to plead further, the cause was submitted to a jury upon the other plea of defendant, and'a verdict and judgment were rendered for plaintiffs, to reverse which, the defendant prosecutes this writ of error.</p> <p>We insist that the facts stated in said third answer constitute much stronger grounds for the avoidance of said contract and subscription for fraud and failure of consideration, than those stated in Barrenger et al. v. Wes bit et al., 1 S. & M. 22. In that case, the note sued on was given for capital stock in the projected town of Upper Colbert. The defence was, that the note was procured by fraud; that Storke, the projector, by himself and agents, made false representations of the character and value of the lands, its eligibility as a site for a town, &c.; ^hat he requested leading men to become subscribers, with the proinise to release them; that the subscriber for stock was ignorant of the condition of the land, and subscribed upon the faith of the representations made to him, which were false and untrue. In that case the court held the defence to be good, on the grounds of fraud and failure of consideration.</p> <p>In Bilis v. Morton, 2 S. & M. 187, the note sued on was given for a lot in the town of Emory. The defence was, that when the note was given, the payee falsely and fraudulently represented that the Methodist Conference had determined to build a college at said town; that said Conference had not determined to build said college, and did not build it; that the consideration had failed, &c.</p> <p>The court, in that case, held this defence good.</p> <p>In Brewer v. Harris et al., 2 S. & M. 84, the note sued on was given for a lot in the town of Emory. The defence set up was, that the trustees, in advertising the sale of the lots, with the design to enhance the price of the lots, stated that they would build a male and female academy in said town; which induced the defendant to give an extravagant price for 'the lot for which the note was given. That the trustees failed to build the academy.</p> <p>The court, in that case, held the defence good and available, upon the ground of failure of consideration. The above adjudications are all recognized and approved in Anderson et al. v. Hill, 12 S. & M. 679. In that case, the note sued on was given for a lot purchased from the commissioners of the town of Aberdeen. The defence set up was, that, at the time of the sale of said lot, grounds had been laid off for a railroad depot; that the lot for which the note sued on was given, fronted these grounds, and was considered valuable as a business lot; that the railroad was abandoned, and the depot grounds sold out by the commissioner, which made the lot a back instead of a front lot, and greatly impaired the value thereof. The defence was held to be good, upon the grounds of failure of consideration and fraud, and available in a court of law.</p> <p>The representations of Wheeler, the agent of the appellees, that he was acquainted with the means and resources of the company; that they were sufficient to complete' and equip the road, within two years, without calling on the stockholders for more than one-half of the capital stock subscribed, all of which is alleged to have been.false and untrue, and well known so to be by said Wheeler when he made them, were circumstances calculated to deceive and mislead the appellant, who alleges that he was entirely ignorant of the condition of the means of said company, and their ability to pay their liabilities, and complete and equip the road for the transportation of passengers and freight, are certainly stronger grounds for avoiding this contract for fraud and failure of consideration, than those in any of the above-mentioned cases.</p> <p>Again, the procurement of the pretended subscription of said Nelson, is a much stronger evidence of- fraud, than the advertisement of the lots in Emory, or the subscriptions for capital stock in the town of Upper Colbert.</p> <p>In the case of Oswald v. McGree, 5 Cushman, 351, this court held, that, if representations are macle upon a material point, either with or without a fraudulent intent by the seller, which misleads the purchaser and induces him to make the contract, relying upon the statements as true, the contract cannot stand.</p> <p>We therefore insist that the false statements made by Wheeler were material, did mislead the appellant, and induced him to. make the contract, and that they were untrue; and, that it is immaterial whether said Wheeler knew them to be untrue or not; “ the contract cannot stand,” as held in the last-mentioned case.</p> <p>We further insist for appellant, that said Wheeler was the agent of the appellees in procuring contracts and subscriptions for capital stock, which was within the scope of his agency, or if he was no t, at the time, the authorized agent for that purpose, they have ratified his acts as such, by seeking to enforce his contract, and are bound by bis fraudulent acts in making tbe contract. Story on Agency, sec. 127, 182, 137.</p> <p>No one can bold any interest procured through tbe fraud of another, more than if tbe fraud were committed by himself. 10 S. & M. 173; 1 Cushman, 105.</p> <p>Every one who engages in a fraudulent scheme forfeits any rights or protection under it, either in law or equity. 8 S. & M. 316; 4 Cushman, 273.</p> <p>Positive and express proof of fraud is not required, but circumstances affording strong presumptions will be sufficient. 2 Cushman, 134; 1 Story, 199.</p> <p>The rule of law that parol testimony cannot - be heard to vary written agreements, has never been carried so far as to defeat the right to prove failure of consideration. BucTcels v. Cunningham et at, 6 S. & M. 358.</p> <p>We insist that, although the contract was in writing, it was entirely competent to prove, by parol, the statements made in the third answer, alleging fraud and failure of consideration, as held in the last-mentioned case.</p> <p>Eor the above, and many other reasons which might be given, authorities referred to, and to which reference might be made, we insist for the appellant that the judgment of the Circuit Court should be reversed, and the cause remanded.</p> <p>The only error complained of, or relied upon by counsel for plaintiff in error is, that the court below erred in sustaining the demurrer to the second and third answers, found on pages 11, 12, et seq.</p> <p>The second answer, alleges that the subscription wa§ taken by one Wheeler, who represented himself as the agent of the railroad company, and avers that said Wheeler “ was not then authorized to sell said stock, and receive subscriptions therefor.”</p> <p>This answer does not aver that the contract was not obligatory on the plaintiffs below and the defendant, but simply avers that, at the time of taking the subscription, “then” said agent had no power to bind the railroad company.</p> <p>The answer may be true, and yet the contract be obligatory upon both parties. The contract is, by its terms, with the railroad company, and it is sued upon by the' company. A subsequent ratification is equivalent to an original authority. Story on Agency, §§ 239, 247, 259; 6 Man. & Gran. 236; 9 Cranch, 153.</p> <p>The plaintiffs, by accepting and receiving the subscription, and instituting suit to enforce it, ratified and confirmed the taking of it. Story on Ag., §§ 247, 259, and note 2; Dunlap’s Paley on Agency, 171, note o; Ang. & Ames on Corp. (new edition), § 304; 6 Man. & Gran. 241; 1 Adol. & Ellis, 526; Doe ex dem. v. Pierce, 2 Camp. R. 96; 'Cfoodtitle v. Woodward, 3 Barn. & Adol. 689.</p> <p>There could be no more unequivocal and conclusive evidence of ratification than the institution of a suit to enforce the contract. Planters’ Bank v. Sharp, 4 S. & M. 75.</p> <p>It is an admission of record, and forever estops the party suing. 17 Mass. R. 97.</p> <p>The ratification' relates back to the inception of the contract. Story on Agency, § 239, et seq.</p> <p>The demurrer was, therefore, properly sustained to this answer.</p> <p>But the error principally insisted upon by plaintiff in error, is the sustaining the demurrer to the third answer.</p> <p>In determining the sufficiency of this answer, it is important to remember that, in subscriptions for stock in incorporated companies, the charter is the law of the contract, and all its provisions are to be regarded as incorporated into the contract.</p> <p>That, in this case, the subscriber knew that the affairs of the company were to be managed and controlled by a board of directors, who had the sole power to call for payments of stock from time to time, as, in their opinion, the exigencies of the company might require; and that it was for them to determine whether the work should be expedited or retarded.</p> <p>The representations, designated as fraudulent in the answer, are wholly immaterial, and do not amount to fraud. Anderson v. Sill, 12 S. & M. 679.</p> <p>They were merely the expression of speculative opinions about matters, in relation to which each party had an equal opportunity to be correctly informed. Ib.</p> <p>That Congress had donated lands, was a matter evidenced by public law; and, whether much or little would be realized from their sale, was altogether problematical.</p> <p>Whether the means, of the company were sufficient to enable them to complete the road within any fixed period of time, or whether the stockholders would receive large or small dividends, was, of course, a mere matter of speculation, about which it was impossible for any one to have more than a mere opinion.</p> <p>The representation that Nelson had subscribed and was willing to invest his money in stock, is also immaterial. It amounts to nothing more than a statement that in Nelson’s opinion the investment was a good one.</p> <p>If the unfounded or mistaken opinion of Wheeler does not amount to fraud, his statement as to the opinion of Nelson cannot amount to it.</p> <p>The statement of the answer is, that Nelson had subscribed, but that the agent had given him an obligation to release him on request, and it is not pretended that he ever requested to be released.</p> <p>It is alleged that Wheeler was the agent of the company, to take subscriptions for stock, but it is not pretended that he had authority to release those who had subscribed.</p> <p>The power to take subscriptions, does not imply a power to release them.</p> <p>The obligation to release Nelson was, as stated in the answer, void.</p> <p>But what do these representations amount to ? Do they show any failure of consideration ? or how can any injury, in connection with the substance of the contract, result to the defendant from them? The defendant subscribed for five shares of stock, and thereby became entitled to the rights and privileges of a member of the corporation. This was the sole consideration of the contract. If the alleged representations were false, it was damnum absque injuria. Ang. & Ames, §§ 517, 518, 541 (edit. 1852); 2 Penn. R. 466.</p> <p>“ The fraud that will vitiate a Contract must be material to, it must relate distinctly and directly to this contract; and it must affect its very essence and substance.” 2 Pars, on Con. 266, 267.</p> <p>“ The fraud must work an actual injury. If it be only an intended fraud, which is never carried into effect, or if all be done that was intended, but the expected consequences do not result from it, the law cannot recognise it.” Ib. 268.</p> <p>“And if no damage be caused by the fraud, no action lies.” Ib.</p> <p>There can be no question that, under the subscription as stated in the answer, all the rights, privileges, and benefits accrued to the subscriber, which could by possibility have accrued to him, if the alleged representations had been true.</p> <p>The cases of Bilis v. Martin, 2 S. & M. 187, and Brewer v. Harris, 2 lb. 84, cited by counsel for plaintiff in error, are wholly unlike the case at bar. In the last case, Judge Thacher says: “ The testimony offered, was designed to impeach the legality of the whole contract on the score of fraud, and to show a total failure of the consideration of the note.”</p> <p>The facts stated in the answers in the case before the court do not tend to show either a total or partial failure of consideration.</p> <p>It would be absurd to hold, that representations which, if true, could not by possibility impair the consideration of the contract, or add to it, were material.</p> <p>No other question is presented by the counsel of appellants, or desired, by either party, to be considered by the court.</p>

In error from tbe Circuit Court of Marshall county. Hon. P. T. Scruggs, judge. The only point in this case is presented on the demurrer to plaintiffs’ declaration. Oyer was craved of the bond sued, and also of its condition, and then a special demurrer filed; which see, on pages 7 and 8 of the record.

<p>In error from the Circuit Court of Monroe county. Hon. William Cothran, judge.</p>

<p>In error from the Circuit Court of Warren county. Hon. J. S. Yerger, judge.</p> <p>Cook brought an action against Ackerman to recover damages for the breach of his warranty of soundness of a horse, as contained in the following instrument:—</p> <p>“ Received of Pleasant H. Cook, one hundred and fifty dollars for a certain bay horse, aged eight years, with a blaze in his face, which horse I warrant sound and title good.</p> <p>(Signed) “FREDERICK Ackerman.</p> <p>“April 3, 1857.”</p> <p>The defendant pleaded the general issue, and the cause was submitted to a jury.</p> <p>Upon the trial, the plaintiff proved the warranty, as above, and also its breach as complained of.</p> <p>The defendant then proposed to prove, by a witness, that Cook had no beneficial interest in the horse, and that he purchased him as the agent and for the benefit of Mrs. Doss. The court, upon the objection of plaintiff, would not permit the evidence to go to the jury, and the defendant excepted.</p> <p>The plaintiff had verdict and judgment for $ 150, and the defendant sued out this writ of error.</p> <p>Cited Meld v. Weir, 28 Miss. R. 56.</p>

<p>Attachment : action on bond, under act of 1822: liability of principal must be first fixed. — A joint action against the principal and sureties, in an attachment bond, taken under the act of 1822 (Hutch. Dig. 804), cannot be maintained, until the liability of the principal has been first fixed by a separate suit against him.</p>

<p>ATTACHMENT 3?OR REST: ONLY ALLOWABLE TO LANDLORD OR ASSIGNEE ON THE leased premises. — The assignee of a note or other security, given for rent, is not entitled to an attachment against the goods of the lessee, to enforce its collection : the remedy by attachment for the non-payment of rent extends only to the landlord and to the assignee of the leased premises.</p>

<p>1. Attachment : against steamboats, etc. — It will be no ground for the quashal of an attachment against a steamboat, that the affidavit states that the indebtedness sued for is “ for and on account of the steamboat and owners.” The word “ owners” manifestly refers to a class of persons in their character arising from their connection with the vessel, and does not, therefore, extend the attachment to any private and individual indebtedness of such persons disconnected with the business of the boat.</p> <p>2. Same : statute in relation to, construed liberally. — The statute authorizing attachments against steamboats and other water craft, is a remedial one, and should be construed liberally to advance the remedy given by it.</p>

<p>1. Record: forcible entry and unlawful detainer : oath of jury. — It will be sufficient if tbe record, in a case of forcible entry, or unlawful detainer, state generally that tbe jury was “sworn according to law;” but, if the terms of tbe oatb be set out, and they do not conform to tbe statute, tbe verdict will be set aside.</p> <p>2. Same : same : case in judgment. — Tbe record, in a case of unlawful detainer, recited that tbe jury were “sworn well and truly to try tbe matter in controversy between tbe parties.” Held, that tbe oatb was not in conformity to tbe statute, and the verdict, therefore, bad.</p> <p>3. Evidence : admissions of ancestor, etc., evidence against those in pri-vity with him. — Where a party, by bis own admissions, has qualified bis own right, and another claims under him as heir, lessee, or tbe like, tbe latter succeeds only to the right thus qualified at tbe time bis title commenced; and hence, in such a case, the admissions are competent evidence against tbe heir or lessee, in the same manner that they would have been against tbe ancestor or lessor. See 1 Greenl. Ev. \ 189.</p>

In error from the Circuit Court of Carroll county. Hon. E. Gr. Henry, judge. Wm. M. Murdock, on the 27th of March, 1856, brought this action agajnst D. A. Holman and John W. Mallory, upon a bill single, made by Holman, for $1001, due on the 1st of that month, and payable to Mallory, or order, and indorsed by him to the plaintiff, on the 22d of the same month.

In error from the Court of Probates of Monroe county. Hon. W. A. Tucker, judge. Fooshee and others, who were distributees of the estate of Richard Dilworth, filed their petition against Stephen Dilworth, -the administrator, to compel distribution and final settlement of the estate.

Hon. W. A. Tucker, judge. ■ This was a petition filed in the court below, bj Hardy & Williams, against Thomas, the administrator, and against Elizabeth Hill, John Hill, and Thompson Hill, distributees of John Hill, deceased, in which it was alleged that the petitioners had purchased, for a valuable and full consideration, the interest of the said distributees, in two slaves belonging to said estate; that these two slaves had afterwards been sold by the administrator, and…

<p>In error from the Circuit Court of Jasper county. ' Hon. John Watts, judge.</p> <p>Cited 7 How. Miss. 386; 2 S. & M. 428; 4 lb. 118; 10 lb. 35.</p>

IN error from tbe Court of Probates of Noxubee county. Hon. Reuben Ruff, judge. Held: that when a general administration had been granted) and not with the will annexed (the will having been made in another State), the grant of administration was void. JEwing v. Sneed, 5 J. J. Marshall, 459. This case establishes the principle, that the strictest requirements of the law must be observed.

In error from the Circuit Court of Harrison county. Hon. William M. Hancock, judge. John J. McCaughan, as administrator of Randall Bingham, brought an action against Fairfax Washington et al. to recover the amount of a bond, executed by the defendants to the plaintiff.

<p>Error to the Circuit Court of Claiborne county.- Hon. Stan-hope Posey, judge.</p>

Hon. William H. Clark, judge. On the lOtb of November, A.D. 1852, James Roberts died, after making a will, which was duly probated on the 22d day of the same month, and letters testamentary were granted to James H. Roberts, the appellee. The will, after making several specific legacies of small amounts, devised the residue, which consisted of the larger portion thereof, to his executor.

<p>Appeal from the Probate Court of De Soto county. Hon. John W. Vance, judge.</p> <p>Cited Bulloch v. Sneed, 13 S. & M. 293; Jones v. Coon, 5 S. & M. 751; 23 Miss. Rep. 195.</p> <p>Cited Pendleton v. Prestridge, 12 S. & M. 302; Creen v. Creighton, 10 S. & M. 159; 2 Daniel Ch. Pr. 765; 1 Story Eq. § 525; Satterwhite v. Littlefield, 13 S. & M. 302 ; McLeod v. Johnson, 6 Cushm. 378.</p>

<p>Appeal from the Court of Probates of Claiborne county. Hon. L. 0. Bridewell, judge.</p> <p>In addition to the facts stated in the opinion of tbe court, it is necessary only to set out the following clauses of the decedent’s will:—</p> <p>“ Item 2d. I wish my estate, real and personal to be equally divided amongst my wife and my children in fee simple; but I wish all of my estate to be kept together, as it now is, and my plantation carried on by my executrix. Crops to be raised and sold,for cash, or shipped for sale, and the proceeds invested either in the purchase of slaves or loaned at interest, until my youngest child shall attain the age of twenty-one years, or shall marry.</p> <p>“ Item 3d. I wish my family supported, and my children educated, out of the proceeds of my estate, by my executrix, in her discretion.”</p> <p>Made the following points :—</p> <p>1. The commissions allowed are excessive, as the proof shows that the youngest child is only three years old; and hence, that the estate is to be administered for eighteen years. If Baldwin’s successor is allowed the same rate of commissions per annum as has been allowed him, the commissions for administering the estate must amount to thirty per cent. This is a manifest abuse of the discretion vested in the judge. See Qherry v. Jarratt, 3 Cushm. 225.</p> <p>2. No commissions can be allowed on the amount of property in the inventory, because that property, except the portion sold, is yet unadministered assets, which goes to the administrator de bonis non. See Morse v. Qlayton, 13 S. & M. 373; 5 S. & M. 130; 6 S. & M. 323.</p> <p>Cited Hutch. Dig. 672, § 120; lb. 673, Art. 4, § 3; lb. 488, § 1; Merrill v. Moore, 7 How. Miss. 293; Sattenohite v. Littlefield, 13 S. & M. 302.</p>

IN error from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge. On the 24th day of April, A.D. 1852, Robertson Johnson, the intestate of defendant in error, commenced his action, in the Circuit Court of Yazoo county, against the plaintiff, to recover the sum of $3201.

. Appeal from the Superior Court of Chancery. Hon. Charles Scott, chancellor. Held: the relief prayed for must be consistent with the bill: and a bill for one purpose cannot be made the ground of relief for another. And again, in 2 Bibb, 4, it is held that a fact, not alleged, though proved, cannot form the basis of a decree, but must be disregarded.

<p>In error from the Circuit Court of Yallabusha county. Hon. J. M. Acker, judge.</p> <p>The plaintiff in error sued Lewis Aldridge, John H. McRae, and Ralph Coffman, as partners under the firm name of McRae, Aldridge & Coffman, upon a note payable to his order, for the sum of $2726 74, dated at New Orleans, March 15th, 1855, and signed in the firm name. McRae and Coffman made no defence, and a judgment by default was rendered against them. Aldridge filed two pleas. 1. That the note sued on, was executed by John H. McRae, not for any indebtedness of McRae, Aldridge & Coff-man, but for the separate and private debt of said McRae and Coffman, as members of a dissolved mercantile firm composed of said McRae and Coffman and Lewis Graves and John H. Little, and which said firm was and is insolvent, and that this was done without the said Aldridge’s knowledge or consent. 2. The general issue, including a denial that the note was executed by him, or with his knowledge or consent. This plea was sworn to. Issue was taken upon both these pleas, and the cause submitted to a jury. Upon the trial the plaintiff read in evidence the note, and proved that the signature of McRae, Aldridge & Coffman was in the handwriting of John H. McRae, a member of that firm. The defendant then read in evidence the deposition of A. H. Ringold, who stated that the firm of McRae, Coffman & Co. failed in the. fall of 1854, and that soon thereafter the firm of McRae, Aldridge & Coffman was formed; that this latter firm was engaged in the commission business in New Orleans, La.; that he was bookkeeper for McRae, Aldridge & Coffman from February, A. D. 1855, to March, 1856, when the partnership was dissolved; that the note sued on was, to the best of his recollection, executed by McRae, and delivered to the plaintiff in part payment of a bill of exchange held by the plaintiff, and which was drawn by J. W. Thompson on McRae, Coffman & Co., and accepted by them; that there is a memorandum to this effect on the bill-book of the firm, which is in the witness’s handwriting; that he made the memorandum either from seeing the note when it was executed, or from a statement furnished by McRae, he does not recollect which; that he cannot state whether or not he was present when the transaction took place. Witness further stated, that Lewis Aldridge was not in the city of New Orleans, from the date of the formation of the partnership until February or March, 1856 ; when, upon a balance sheet of the books being shown him by witness, he published the dissolution of the partnership. Upon cross-examination, this witness stated that Joseph W. Thompson, the drawer of the bill, paid by the execution of the note in controversy, was a friend and patron of the house of McRae, Aldridge & Coffman; and that there were transfers of claims due to McRae, Coffman & Co. made by McRae to the firm of McRae, Aldridge & Coffman, but that witness could not say whether Lewis Aldridge was cognizant of such transfers or not. It was also shown that it was the custom of commission merchants in New Orleans to accept bills for the accommodation of their friends in the country.</p> <p>The court, at the instance of the plaintiff, instructed the jury as follows:—</p> <p>1st. Each partner has a right to bind the firm by any contract made on behalf of the firm in the ordinary trade and business thereof, and can do any acts which are incident and appropriate to such trade or business, according to its common course and usage.</p> <p>2d. A partner may bind the firm in transactions beyond the scope of the partnership business, if his associates assent thereto.</p> <p>3d. The assent of Aldridge to the use of his name by McRae may be proven by circumstances as well as by direct proof.</p> <p>4th. The mere fact that a note or security or fund of the firm, has been taken in discharge of the separate debt of one partner, is not alone decisive of collusion or fraud, or misapplication thereof.</p> <p>5th. If the jury believe that McRae applied the funds of McRae, -Coffman &'CJo. to the business of McRae, Aldridge & Coffman, and Upon the faith of such funds so applied gave the note of McRae, Aldridge &'(^offman to the plaintiff, in settlement of a* debt due to •plaintiff by McRae, Coffman & Co. and others, then such note is a valid debt against defendant.</p> <p>6th. One partner may bind another in matters out of their usual course of business, if these matters arise out of, and are connected with the regular transactions of the firm.</p> <p>7th. A note given by one partner in the name of the firm, for his private debt, binds the firm, if the other partners, on hearing the fact, do not dissent or give notice to the payee.</p> <p>8th. All debts contracted in the name of a firm are to be regarded as partnership debts, until the contrary shall appear.</p> <p>For the defendant, the court gave the following charges:—</p> <p>1. If two partners of a firm owe a debt before a third partner is taken into the firm, they cannot bind the third partner who comes in afterwards by executing a note in the name of the new firm, but such note is fraudulent and void as to the third partner, unless he assented to the arrangement.</p> <p>2. If McRae, Coffman & Co., owed a debt during the existence of their copartnership, and afterwards Lewis Aldridge formed a partnership with McRae & Coffman, and McRae executed a note for the debt of McRae, Coffman & Co., and others, in the name of McRae, Aldridge & Coffman, such act is a fraud upon Lewis Aldridge, and not binding on him, unless he assented to, or ratified it.</p> <p>3. When a note is given in the name of a firm by one of the partners, for his private debt, and known to be so by the person taking the note, the other partners are not bound by such note, unless they have assented to such transaction; and it is incumbent on the holder of the note to show such assent before he can recover.</p> <p>Other instructions were given on behalf of both parties; but, being on points not litigated in this court, they are not set out.</p> <p>The jury found for the defendant.</p> <p>The plaintiff then moved for a new trial, upon the ground that the court' erred in giving the instructions asked for by defendant, and that the verdict was not supported by the evidence. This motion the court overruled, and the plaintiff took a bill of exceptions, and sued out this writ of error.</p> <p>Cited Story on Partnership, §§ 101, 110, 132; Collyer on Partnership, § 426; Munroe v. Goofier, 5 Pick. 412; Doty v. Bates, 11 Johns. R. 344; Dobb v. Halsey, 16 lb. 34-38; Livingston v. Roosevelt, 4 lb. 251; Anderson v. Planters' BanJc, 7 S. & M. 192; Minor v. Gaw, 11 lb. 322; Langan v. Hewett, 13 Ib. 123; Rogers v. Batcheler, 12 Peters R. 232; 1 Am. Lead. Cas. p. 406, and authorities cited on page 451; 6 Wend. 615; 14 lb. 144; 3 Ala. R. 11.</p>

Hon. George W. Dougherty, vice-chancellor. Held: that no precise form of words is necessary to constitute a mortgage. If it sufficiently appears that the parties designed to contract, as a security for the repayment of money, it has been always held to be a mortgage. We think that, in this case, that intention sufficiently appears.

<p>1. Chancery : creditor’s bill to subject equitable assets of debtor. — The complainant in a bill to subject the equitable assets of the defendant to the payment of his debt, must not only show that his debt has been reduced to a judgment, but that an execution has been issued thereon, and returned nulla liona. Farrell v. Hams, 11 S. & M. 366 ; Brown et al. v. The Banlc of Mississippi, 31 Miss. 454.</p> <p>2. Chancers : pleading : creditor’s bill : demurrer. — A demurrer to a bill must be determined according to its allegations, and as it stood at the time the demurrer was filed ; and hence, where a creditor’s bill was filed, which neither showed that the debt of the complainant, nor that of any other creditor intended to be embraced in it, had been reduced to judgment, and after a demurrer had been filed thereto, upon their motion, other creditors, whose debts had been reduced to judgment, were admitted as parties complainant, and allowed to prove their debts, it was’ held that the demurrer should have been sustained.</p>

IN error from the Circuit Court of Tippah county. Hon. P. T. Scruggs, judge. The plaintiff, as administrator of Charles Walker, brought an action against the defendant upon a note for $200, made by defendant as surety, and one Moss as principal, and payable to Walker. The defendant filed several pleas,, setting up as a defence, payment, and a release by Walker of the defendant’s obligation to pay the debt.

In error from the Circuit Court of Monroe county. Hon. J. M. Acker, judge. W. R. Cunningham recovered a judgment in the Circuit Court of Monroe county against one R. S. Jones, for $443 68. An execution issued on this judgment, and was levied on personal property of Jones, and a forthcoming bond taken for its delivery, with the plaintiff in error, as surety. This bond was forfeited on the third Monday in August, 1862.

IN error from the Circuit Court of Monroe county. lion. William Cothran, judge.

In error from the Circuit Court of Jasper county. Hon. John Watts, judge. Held: and by this court, that registration of a deed of trust of personalty is equivalent to a delivery of the property; and it would seem that recording deeds of gift should have like effect. Where the gift is by deed, it is good against the donor, although the latter retains possession. MeOutchen v. MeOutchen, 9 Port. 650.

Hon. J. S. Yerger, judge. In addition to the facts stated in the opinion of the court, it is only necessary to set out the written agreement, signed by E. D, Downs, on the 28th October, 1851, being the same day on which the deed was executed by Williamson and wife to A. 0. & E. D. Downs.

<p>High court : practice : objections not made in court below will not be noticed. — It will be too late to object for tbe first time in this court, that the legal title to a bill of exchange sued on is not in the plaintiff, because his name appears to be indorsed on it: if the objection had been made on the trial, the plaintiff could have met it by striking out the indorsement.</p>

<p>IN error from the Circuit Court of Clarke county. Hon. Wm. M. Hancock, judge.</p>

IN error from the Circuit Court of Tippah county. Hon. P. T. Scruggs, judge. Cited JBurrus v. Fisher, 5 Cushm. 518. 1. The demand in the original complaint being against Miller & -Son, and they, if liable at all, being liable severally, if the proof sustains the demand against either, the plaintiff is entitled to recover; and it was, therefore, unnecessary to amend. Lyons v. Jackson, 1 How. Miss. 474; Fairchild v. Grand Gulf Bank, 5 How.

IN error from the Circuit Court of Hinds county. Hon. John Watts, judge. In addition to the very full statement of the case, found in the opinion of this court, it is only necessary to state that the judgment in the court below was for the plaintiff for $860; being the amount of the purchase-money which he had paid and interest, and also the amount of expenses which he had incurred by reason of the sickness of the slave. Cited 2 Esp.

In error from the Circuit Court, of Simpson county. Hon. John E. McNair, judge. This was an action brought by Kirkland against Patterson, to recover damages for a breach of warranty of soundness of two slaves, sold by Patterson to Kirkland.

Hon. William Cothran, judge. The plaintiff in error sued the defendant for damages for an alleged breach of the defendant’s covenant of warranty of soundness of a slave, made in writing, and… Held: that an administrator may bind himself personally by warranty, though not the estate. His contract of warranty, then, stands on the same -footing with any other, and the burden of proof is thrown on him, and he is bound to negative all the presumptions in favor of its validity.

Hon. James F. Trotter, vice-chancellor. Complainants have established beyond controversy their title to the slave Dave. Held: that where a portion of the slaves were sold in Virginia, a bill would be sustained in Tennessee for specific delivery of those in possession, and for compensation for those sold in Virginia. It is a maxim in equity, that its decrees wfill be adjusted to meet every exigency of the case. 1 Story Equity, 28.

<p>Bailment : loan : when statute or limitations commences to bun against bailor. — A sale by tbe bailee of a chattel loaned, is an assertion of title adverse to the bailor, and from that time the Statute of Limitations will commence running against the bailor’s claim. See Sail v. Dicleey, 32 Miss. R. 208.</p>

In error from the Chancery Court of Choctaw county. Hon. William L. Harris, chancellor. The case is one of equity cognizance, and no Statute of Limitations bars such equitable demands. Courts of equity, in the adoption of the rules of statutes, do so with just and equitable modifications.

Hon. Henry Dickinson, vice-chancellor. The bill of sale given to appellee is absolute, and it is submitted whether it is competent to explain, add to, and contradict it by parol. The purchase-money was all paid, and the slave delivered to the purchaser. The slave remained in the possession of the purchaser, Walker, more than three years before his death, and was bequeathed by him to his son, the ward of appellant, and came immediately into the possession of appellant.

<p>Slaves : when damages for fraudulent removal, given under tiie act of 1822, ARE RECOVERABLE AGAINST TRUSTEE BY THE GRANTOR.-The Statute (Hutch. Dig. 520, $ 49), which gives double damages to the owner against a person who shall fraudulently, and without his consent, remove a slave from the county or State, applies to all cases where a slave is thus wrongfully and fraudulently taken and removed from the possession of a person having at the time the right to the immediate possession, although the party taking may own the legal title; and hence, an action under the statute may be maintained by the grantor in a deed in trust against the trustee who shall remove from the State a slave therein conveyed, at a time when, by the provisions of the deed, the right of possession was in the plaintiff.</p>

IN error from tbe Circuit Court of De Soto county. Held: in Dickinson v. Brown, 9 S. & M. 180, that this statute makes the certificate but a substitute for a better title, and is not on an equal footing with a patent, and the patent is a superior title to the certificate. The appellee introduced this very patent, showing a superior title in another.

Hon. Charles Scott, chancellor. This was a bill filed by Harper against the appellees to recover the possession, and a conveyance of the legal… Held: that a quasi legal title passed to a purchaser under execution, though no patent had issued; and that he might maintain ejectment. Lindsey v. Henderson, 5 Cushm. 502. Upon this construction, a quasi legal title was in Shields, bound by our lien, which we acquired by our purchase; and there is an end of debate about equities.

In error from the Circuit Court of Monroe county. Hon. William Cothran, judge. This was an action by the plaintiff in error, against the defendant, as administrator of D. W. Ragsdale, deceased, to recover damages for a breach of the condition of a bond executed by Rags-dale, by which he obligated himself to make a warranty deed in fee simple to plaintiff, to a certain lot of land, upon the payment of the purchase-money.

<p>In error from the Circuit Court of Monroe county. Hon. J. M. Acker, judge.</p> <p>McAllister sued Moore upon two bonds for $250 each, and due respectively on the 1st of March, 1850 and 1851. These bonds were given for the purchase-money of land, and there was a clause in each of them that they were to be void, unless on or before the time they became due McAllister made a good title to the land to Moore.</p> <p>The declaration states that McAllister did not make to Moore a title to the land before the first bond fell due, but that after that time, and before the second bond became due, he did, at the special instance and request of said Moore, cause R. S. Gladney and wife to make a good title to the said lot to one John Carlisle.</p> <p>The defendant demurred to the declaration, and his demurrer was overruled. He then pleaded the general issue, and the cause was submitted to a jury, who found a verdict for the plaintiff for the amount of the two bonds and interest.</p> <p>Upon the trial, the plaintiff proved, that between the dates when the bonds respectively fell due, he caused a deed to be made .by Gladney and wife, and tendered to Moore, which he refused. It was also proven that McAllister purchased the land sold to Moore from said Gladney, and held Gladney’s title bond for the same, which he assigned to Moore when he sold to him; that Moore after-wards sold to Carlisle, who went into possession ; and that before the second bond fell due, Gladney and wife, at the request both of plaintiff and defendant, executed a deed to the land to Carlisle, and that Moore delivered the deed to Carlisle, and received from him the purchase-money due to him.</p> <p>All this evidence was objected to by the defendant, but the court overruled the objection, and permitted the same to go to the jury. Moore prosecutes this writ of error.</p> <p>The defendant in error (McAllister) sued plaintiff in error (Moore) upon two sealed notes. The defence of Moore was the Statute of Frauds. An amended complaint alleged that the notes sued on were given for certain land, as appears by the notes. A stipulation of said contract, and embodied in the face of the note, was that the “note was to be void, unless on the day it fell due, or before, McAllister made (Moore) a good title to the said lot.”</p> <p>The complaint admitted that no such title had been made, as by tbe written contract was required, and for failure of wbicb tbe contract, by its own terms, became “ voidbut in lieu thereof, alleged a parol agreement made after said written contract bad become void..</p> <p>In England, where many exceptions under a lax construction of the Statute of Frauds have been engrafted on this statute, the allegation of the complaint, in this case, would not be allowed. The allegation is, that although the writing required a deed to be made to Moore on a fixed day, or the contract was to be “ void,” yet, by a subsequent parol agreement, the day fixed was waived ; Moore abandoned and gave up the interest which the written contract had given him in the land, and by another contract a deed was to be made to one Carlisle. To allow this would be, at once, to abandon the statute, and to go far beyond even the loose English decisions, now so much regretted by the English bench and bar.</p> <p>We need refer but to a few of the English cases on the point.</p> <p>“ When the day for completing the purchase of an interest in land is inserted in a written contract, it cannot be waived by oral agreement, and another day be substituted in its place.” 3 Bing. 928; 5 Scott, 196 ; 5 Ad. & E. 61.</p> <p>“ Such a substitution would virtually and substantially allow an action on an agreement, relating to the sale of land, partly in writing, signed by the parties, and partly not in writing, but by parol only, and would amount to a contravention of the Statute of Frauds.” Stowell v. Robinson, 3 Bing. 937; Chitty on Con. Ill, “ Parol evidence to contradict written contract.”</p> <p>“ Strong authorities may certainly be urged, to show that such agreement, in writing, cannot be so waived by parol.” Ib. 111.</p> <p>Lord Hardwick says: “ It is certain that an interest in land cannot be parted with, or waived, by parol, without writing.” Bell v. Howard, 9 Mod. 302.</p> <p>“ As to contracts, to the validity of which wrriting is rendered essential by statute, it has never been decided that they may be waived without writing.” Chitty on Con. Ill; 5 Barn. & Ad. 58.</p> <p>“ Where there is an entire agreement in writing, consisting of divers particulars, partly requisite to be in writing by the Statute of Frauds, and partly not within the statute, it is not competent to prove an agreed variation, even of the latter part, by oral evidence, although that part might, of itself, have been good without writing.” 1 Green. Ev. § 302.</p> <p>The policy adopted and declared, in reference to the construction of that statute, by our court, has been to hold fast to its strictest letter; and, in so doing, has stretched the utmost reach, in holding that, even where the reduction of the contract to writing was evaded “by the fraud” of the party sought to be charged, it will furnish no exception. 18 S. & M. 93.</p> <p>These authorities, cited without careful search, are full to the point, and estop the plaintiff below from setting up the subsequent parol agreement, alleged in his complaint.</p> <p>The demurrer to the complaint, therefore, should have been sustained.</p> <p>The defendant below objected severally to the instruments of writing introduced by the plaintiff, because no one of them was signed by the said defendant. They were admitted. This was error.</p> <p>The defendant also objected to the parol evidence, by which the subsequent parol agreement was sought to be established, in connection with said writings. The objection was overruled. This was error.</p> <p>The charges asked by the defendant below, should have been given, and the refusal so to do was error.</p> <p>Insisted that the rule was well settled, that, when there is a covenant to perform a thing on a certain day, if performance of another thing, or performance at another time be accepted in lieu thereof, it is sufficient. Warren v. Mains, 7 Johns. R. 476; Porter v. Stewart, 2 Aiken, 427.</p> <p>Cited Scott v. Peebles, 2 S. & M. 546.</p>

In error from tbe Circuit Court of Madison county. Hon. E. Gr. Henry, judge. Tbe plaintiffs in error brought an action, under tbe Pleading Act of 1850, for tbe recovery of certain land, and also for tbe rents accruing during tbe possession of tbe defendant.

<p>Appeal from the Chancery Court of Madison county. Hon. E. Gr. Henry, chancellor.</p> <p>Patrick & Willis entered into an agreement with the Board of Police of Madison county, by which they agreed to erect a courthouse for said county, in the town of Canton, at the sum of $26,428, which was to be paid to the contractors by instalments as the work progressed. The first instalment of $5000 was to be paid when the building should be ready for plastering.</p> <p>On the 19th day of January, A.D. 1855, Edwin Moody (who was one of the sureties for Patrick & Willis, on their bond to the Board of Police to secure the performance of their contract) and one Charles R. Trigg, contracted with Patrick & Willis to do the brickwork necessary for said building, for the sum of $12,850. The work was to be done according to the terms of the contract of Patrick & Willis with the Board of Police, who were “ authorized to pay the said sum of $12,350 to Moody & Trigg, as the work was done, in fro rata amount to the whole contract made by Patrick & Willis with the Board of Police.”</p> <p>Patrick & Willis became indebted to John Kyle, the appellee, in the sum of $263 25, for work done by him in hauling materials to be used in the construction of the court-house; and in consideration thereof, they drew an order in favor of Kyle on the Board of Police, by which they directed the board to pay Kyle that sum out of the fifth instalment, when it should become due. This order was dated the 21st of January, A.D. 1856, and was soon thereafter presented to the board and filed with the other orders of like character which were drawn by the contractors; but it was not paid or accepted, for the reason that the work on the building had not then progressed so far as to entitle the contractors to demand payment of the fifth instalment. Of the drawing and filing of this order, it appeared from the proof that Moody had notice before the assignment of the contract of Patrick & Willis to him.</p> <p>On the 23d day of October, A.D. 1856, Patrick, who had previously purchased the interest of Willis, transferred and assigned all his interest and rights in the contract with the Board of Police to Moody, who thereupon agreed to finish the building according to the terms of the contract of Patrick & Willis. Moody, in pursuance of this assignment, completed the building so far as, by the terms of the contract, it was necessary to entitle the contractors to the fifth instalment, which sum Moody then claimed the exclusive right to receive, in virtue of the sub-contract of the 19th of January, A.D. 1855, and of the assignment by Patrick.</p> <p>Kyle filed this bill for the purpose of enforcing the payment of the order to him. The chancellor decreed in his favor, and Moody appealed.</p> <p>Filed no brief.</p> <p>1. The order in favor of Kyle is pro tanto an assignment of the fund out of which it was directed to be paid to Kyle. 2 Lead. Cases in Equity, 281, 232; Demarest v. Willard, 8 Cowen, 206; 3 Johns. R. 71.</p> <p>2. The equitable assignment in favor of Kyle could not be defeated by the subsequent assignment to Moody. Niagara Bank v. Roosevelt, 9 Cow. 409; Chamberlain v. Day, 3 Cow. 353; 20 Johns. R. 144; Bank of Niagaras. McCracken, 18 lb. 493; 3 lb. 425; 4 lb. 403; 12 lb. 343 ; 16 lb. 51; 19 lb. 95.</p> <p>3. The sub-contract of Moody & Trigg was not an assignment of any sum due by the Board of Police to Patrick & Willis.</p>

<p>1. Will : specific legatee of slaves, etc., entitled to hire ok interest fkom testator’s death, although payment or delivery postponed by will. — In cases of specific legacies of stock, or a specific money security, or slaves, the interest or hire belongs to the legatee from the testator’s death, although, by the terms of the will, the principal is not to be paid or delivered until a future day. See Bczrrington v. Tristram, 6 Ves. 245 ; 2 Roper. Leg. (3d edit.) 227; 2 Wms. Ex. 1021 (2 Am. Ed.).</p> <p>2. Same : bequest by implication not favored. — The courts will not raise a bequest by implication, unless such construction be necessary to effectuate the clear and plain intention of the testator.</p> <p>3. Same: case in judgment. — The testator by his will provided as follows: I give and bequeath to my two grandsons, J. W. and Q-. W., two slaves, E. and J., but they are to remain in possession of W. (one of the executors) for the term of fifteen years, and at the expiration of that term, to be divided between my two grandchildren, as the said W. shall think reasonable and just. The legatees were at the time orphans of tender age. By the residuary clause of his will, the testator directed “ that all the rest and residue of his estate, not thereinbefore disposed of,” should be sold for a division among the legatees therein named. Held, 1st, that by the terms of the will an absolute gift of the two slaves was made to his grandsons ; 2d, that there was nothing in the circumstances which indicated an intention that W. should have any beneficial interest in the slaves during the time which they were to remain in his possession, or that the profits thereof for that period should go into the residuum of the estate; and 3d, that; therefore, the legatees were entitled to the hire of the slaves from the death of the testator.</p>

<p>Widow : leasehold property exempt prom execution descends to widow.— A leasehold interest, or a term for years in land, is personal property, and upon the death of the tenant goes to his widow (if it do not exceed in value $1500), exempt from the debts of the husband. See Hutch. Dig. 680.</p>

Chancery. Hon. Charles Scott, chancellor. . The appellant' filed his bill in the Chancery Court against Alexander, and the trustee in a deed of trust executed by the complainant to secure his indebtedness to Alexander, for the purpose of obtaining an injunction against a sale by the trustee, and for a Settlement of the accounts between Alexander and himself.

Hon. James F. Trotter, vice-chancellor. On the 12th of April, 1853, Benjamin Exum and others, who were the children of the deceased brothers and sisters of John Williams, deceased, and his… Held: which is the shadow. Tomlinson v. Tighton, 1 Peere Wms. 163; Shep. Touchstone, 86. And if a deed cannot operate in the precise way in which it is intended to take effect, it shall be construed in another, if in this other it can be made effectual. 2 Parsons Contracts, 15.

<p>Appeal from the District Chancery Court, at Yazoo city. Hon. George W. Dougherty, vice-chancellor.</p> <p>1. The complainants’ judgment has no lien. 1st. It is barred by the Statute of Limitations. 2d. Abbey only had an equity of redemption, which cannot be sold under execution, nor is it the subject of the lien of a judgment. Thornhill v. Grilmer, 4 S. & M. 153; Wolfe v. Donnell, IB Ib. 103; Boarman v.' Qatlett, lb. 149; Henry v. Fullerton, lb. 731; Baldwin v. Jenkins, 1 Oushm. 206; Oantzon v. Dorr, 5 lb. 245; Marlow <f* Hoskins v. Johnson, 2 George, 128.</p> <p>2. Conceding the conveyance and arrangement to be fraudulent, which is denied, yet it divested all the right of Abbey to the property ; and not being made in contemplation of bankruptcy, hut before the act was passed, the assignee succeeded to no rights in it, and it was therefore not Abbey’s duty to return it in his schedule, as was expressly decreed in Porter v. Douglass, 5 Cushm. 439.</p> <p>filed an elaborate brief.</p> <p>filed elaborate briefs.</p>

<p>1. Fraud: and fraudulent conveyance: case in judgment. — Gr., a debtor in failing circumstances, on the 12th day of March, 1841, and just before a term, of the Circuit Court, at which judgments for a large amount were rendered against him, sold to one F., for $30,000, payable in six small annual instal-ments, but without interest, — all his property, consisting of a plantation and a large number of slaves, stock, &c., worth in cash $43,000, and reserving to himself the right of possession until the 1st day of March, 1842, when the final payment fell due. F., the purchaser, resided in another State, and owned but little property, and was of doubtful solvency; he had been the overseer of Gr., and was very friendly with him. On the 21st of April, 1841, F. conveyed the property to W., the mother-in-law of Gr., — she giving him a bond to pay the notes he had executed to Gr. for the purchase-money. On the 26th of April, 1841, W. conveyed the property to a trustee, who was also a relation of Gr.’s wife, in trust, out of its proceeds, and by a sale if necessary, to pay the six notes of Gr. to F., and to convey the residue to Gr.’s wife and children. W. was at this time an elderly lady, owning a small plantation and a few slaves, was delinquent in the payment of .her debts,'and frequently sued. The trustee never took actual possession of the property, but permitted G. to have the possession, and manage and use it substantially as his own. The property was assessed in the name of G., who paid the taxes on it; G. also made a sale of part of the land, to a certain creditor, for $17,000, and he and his wife joined the trustee in making a deed to the same. In 1848, this bill was filed by judgment creditors of G., attacking the conveyances as fraudulent and void as to them. G., in his answer, stated that .he made the sale to F. for the purpose of preferring some of his creditors, and that the reservation of the right of possession to him until 1st March, 1842, was made because at the date of sale (12th March, 1841) both he and F. had commenced their planting operations for 1841. F. answered that he sold to W. because he became alarmed at the magnitude of his purchase, and feared that he would be unable to make the payments promptly. W. averred that she was ignorant of the sale by G. to F., until a short time after it took place, when hearing that F. was dissatisfied, she determined to purchase from him. G. and the trustee both answered that G.’s possession was as agent for the trustee. All the defendants denied any fraudulent intention, and insisted on the bond fides of the transaction. There was no proof that G. had ever applied any of the proce.eds of the notes of F. to his debts. Held, that the several conveyances were merely colorable, and devised to secure the property to G. or his family, and were therefore fraudulent and void as to his creditors.</p> <p>2. Same: debtor mat prefer creditors bona pide. — A person in failing circumstances may prefer a part of his creditors, if he do so bond fide, and without the design of securing a benefit to himself, from the property so conveyed.</p> <p>3. Same: same: but debtor must show the bona pides. — Where a debtor, in failing circumstances, and just before judgments for large amounts were rendered against him, makes a sale of his property for the purpose, as alleged by him, of preferring certain of his creditors, it is incumbent on him to show, by proof, that the sale was made bond fide for such purpose.</p> <p>4. Chancery practice : rule where complainant examines defendant as a witness. — It is a rule of chancery practice, that if the complainant examines as a witness, a material defendant in the cause, no decree can be rendered against that defendant, nor against-his co-defendants, whose interests are so involved with his that a decree against them would affect his rights, unless the complainant’s case is admitted by the answer, or the bill be taken for confessed, for the reason “ that there cannot be a decree for or against a man on his own evidence,” “ and the complainant cannot compel the defendant to assist, and in the same cause act adversely to him.” But this rule, though well settled, is extremely technical, and not to be extended beyond the strict reason upon which it is founded; and hence, where the deposition of such a defendant has been taken, if the complainant is entitled to relief upon the pleading and other evidence in the cause, the deposition will be suppressed, and a decree rendered’in favor of the complainant. See 2 Daniel Ck. Pr. 1041; Hulton v. Sandys, 1 Younge, 602; Thompson v. Harrison, 1 Cox, 346; Massey v. Massey, 1 Beatty, 353; Bradley v. Boot, 5 Paige, 637 ; Carter v. Haw-ley, 2 Amb. 583, note 3; lb. 584; Weymouth v. Boyer, 1 Ves. Jr. 420.</p> <p>5. Same : fraudulent vendee a material dependant, and cannot be examined as a witness. — A fraudulent conveyance to defeat or hinder creditors, though void as to them, is good as between the parties, and the fraudulent vendee is, therefore, liable for the purchase-money, even if the conveyance ■ should be set aside al the instance of a creditor; hence, he is a material defendant, whose rights would be affected by a decree annulling the sale, and if examined by the complainant in relation to the fraud, a decree cannot be rendered for the complainant, unless his answer confess the complainant’s case, or the bill be taken for confessed, or there be other proof in-the record, sufficient to entitle the complainant to relief, without reading the deposition of such . defendant.</p> <p>6. Same : purchaser relying on want oe notice : must deny it. — To entitle a party to protection as purchaser without notice, he must deny notice fully and particularly, whether the defence be set up by plea or answer. See 2 Lead. Cas. Eq. pt. 1, 85, 86 ; Gallatin v. Cunningham, 8 Cow. 361, 394; see also Servís v. Beatty, 32 Miss. R. 52.</p>

<p>Appeal from the District Chancery Court at Macon. Hon. James E. Trotter, vice-chancellor.</p> <p>James Jones, John Hand, and John Huddleston filed their bill in the court below against Wm. M. Cozart, Silas Bronson, and Pryor M. Grant, for the purpose of procuring a perpetual injunction against the collection of a judgment rendered against Hand and Huddleston in favor of said Grant.</p> <p>It appears that three judgments were rendered in the Circuit Court of Lowndes county, in the year 1839, as follows : one in favor of James Sims v. James Jones, for $207 50; another in favor of' Gozart v. James Jones, for $1302 33 ; and the third in favor of Silas Bronson v. James Jones, J. BrieTcell, and Henry A. Fox. On this last judgment an execution issued, which was levied on personal property of Jones, and the defendants therein gave a forthcoming bond, with John Huddleston as surety, which was returned forfeited on the 17th of June, 1839.</p> <p>It is admitted that the judgment in favor of Sims is satisfied, and that sundry payments have been made on the one in favor of Cozart. The opinion of the court, however, is confined exclusively to the questions raised in reference to the one in favor of Bronson, rendered on the forthcoming bond.</p> <p>It appears from the record that executions emanating from all these judgments were levied on lots 4 and 5, in the town of Columbus, on which the Eagle Hotel is situated, as the property of defendant Jones, and that on the 16th of March, 1840, the same was sold by the sheriff to complainants, Pland and Huddleston, for $3005. Hand and Huddleston refused to pay their bid, and the sheriff, Pryor M. Grant, instituted an action in the Circuit Court of Lowndes county to recover the same, and in April, 1843, recovered; a judgment for about $3700, which is the judgment sought to be-enjoined by this bill, upon the ground that all the executions under which the sale was made have been satisfied.</p> <p>The facts in relation to the judgment in favor of Bronson are as follows: After tbe levy on tbe lots purchased by Hand and Hud-dleston, the sheriff levied that execution upon a stock of goods which belonged to Brickell, a defendant therein, at the date of the judgment, and which had been subsequently sold by him to one Smith. The sheriff left these goods, which were of value sufficient to satisfy the judgment, in possession of one Smith, as his agent, and Smith, in violation of his agreement with the sheriff, clandestinely removed them, so that they were never applied to the satisfaction of the execution. An alias fieri facias was issued on this judgment, and the complainant, Huddleston, who was a defendant therein, being a surety for Jones and Brickell on the forthcoming bond, filed his bill in the Superior Court of Chancery against Bronson, charging 'that the judgment was satisfied by the levy on the stock of goods. The chancellor, on final hearing of that cause, decreed, “ that the said, forthcoming bond and judgment thereon have been fully paid off and discharged, so far as the complainant, Huddleston, is concerned, by the levy on the goods and merchandise of said Brickell,” and that said Bronson should be perpetually enjoined from collecting the same from him.</p> <p>It is now insisted by the complainants in this bill (Jones, the principal debtor in the three original executions, and Hand and Huddleston, the defendants in the judgment recovered by the sheriff for their bid at the sale of the lots) that all the original executions are satisfied, the two first by actual payment, and the one in favor of Bronson by the levy on the stock of goods and the decree of the chancellor, and that, therefore, the sheriff has no right or authority to collect the judgment against Hand and Huddleston.</p> <p>It also appeared that no executions had been issued on the three original judgments for seven years, and on that ground it is insisted that the judgment against Hand and Huddleston should be enjoined.</p> <p>The vice-chancellor dismissed the bill, and the complainants appealed. .</p>

Hon. John Watts, chancellor. The bill in this case was filed by the appellee in August, A.D. 1855, against the appellant, seeking a divorce a vinculo, upon the ground that the defendant had been guilty of adultery, and also asking for a decree for certain property alleged to belong to complainant.

<p>Appeal from the District Chancery Court at Carrollton. Hon. Henry Dickinson, vice-chancellor.</p> <p>On the 16th of April, 1851, the appellant, William A. Coppage, filed his bill in the Vice-Chancery Court at Carrollton, against Lawson C. Barnett and Margaret E. Barnett (formerly Coppage), his wife, to recover certain slaves and other property as hereinafter set out.</p> <p>The bill alleges that the complainant was born in the State of South Carolina, in the year 1806, and that soon thereafter his mother died, leaving himself her only issue, and his father, William Coppage, surviving.</p> <p>That said William Coppage Was soon afterwards appointed his guardian, and, as such, received for Mm from his mother’s estate a slave named Violet, who after his mother’s death had issue: Lucy, Davy, Seymour, and Laura.</p> <p>That William Coppage, as guardian for complainant, about the year 1812, received his distributive share in his grandmother’s estate, viz.: slaves Bob, Ned, and Flora.</p> <p>That about 1817, his said guardian received for him, from his uncle John Borden’s estate, slaves Gritta and child, Louisa and child. Levy, and Jenny; and that the said William A. Coppage held in his possession all of the above-named slaves, from the time they' were received by him, until complainant’s majority in 1827.</p> <p>That in 1831 or 1832, complainant and his said guardian had a settlement in the State of Tennessee, when the said William Cop-page was found to be largely in his debt for property of complainant which he had sold, and for the use of the balance, after being allowed f2000 or $2500 for his education and support. That in part payment of said indebtedness, said William Coppage conveyed and delivered to the defendant the following slaves (Their names are not set out in the bill, but their names and ages appear from the bill of sale executed by William Coppage to complainant to be as follows, viz.): Merriman, aged 45 ; Robin, aged 30; Jim, aged 25; Bob, aged 21; Elvey, aged 50; Flora, aged 25; Ned, aged 6; Bearer, aged 19; Rose, aged 16; Dave, aged 12; Leyman, aged 10; Laura, aged 17; Ben, aged 5. After said sale there still remained a balance due of $4000 or $4500, for which, said William Coppage gave his note to complainant. A statement of said settlement was filed for record in Henderson county (Tenn.), but is lost.</p> <p>That in 1834, complainant and William Coppage settled the said slaves on a plantation in Yallabusha county, in this Sate; the complainant owning the said slaves and land, and William Coppage putting on the plantation only two or three slaves; but the complainant, as a mere gratuity to his father, William Coppage, permitted him to have an equal share in the profits of said planting partnership. In 1844, complainant and William Coppage entered into a partnership or contract with Ford, which is filed as an exhibit, and is in substance a lease of the plantation and slaves, stock, &c., in this State, to Ford, for ten years, expiring on the 25th December, 1854, for which Ford paid $4000. Ford was to have one-half the profits, and the other half was to be paid to complainant and William Cop-page, after deducting a support for defendant, Margaret E. After the expiration of the lease, Ford was to redeliver possession, and to receive back the $4000 advanced, but without interest. This contract was signed by Ford, and complainant, and William Cop-page.</p> <p>That in 1847 Ford died, and his executor being anxious to be relieved from the contract, by consent of all parties the contract was, in September, 1848, assigned to defendant, Barnett, who had in the meantime intermarried with Margaret E. Coppage, the complainant’s half sister.</p> <p>That on the 8th of Febuary, 1848, the complainant conveyed the said land to William Coppage, for no purpose but to enable him to sell it and pay the $4000 to Ford’s estate and cancel the lease, which Ford’s executor desired to do; and that afterwards William Coppage sold the land to Barnett for $4000, greatly below its value, and Barnett received the same in full of his claim, under the Ford transfer. That Barnett also at the same time, by stratagem and fraud, procured from said William Coppage a bill of sale for the greater part of the negroes on the plantation. That Barnett had married his half sister, Margaret E. Coppage, daughter of William Coppage, and the latter was old and infirm, and Barnett took advantage of his mental weakness, and procured said bill of sale fraudulently when the complainant was the owner of the property.</p> <p>That Mrs. Barnett pretends to some claim to the negroes under some deed of gift. The consideration for the sale of the land and the negroes appears, by a memorandum furnished by Barnett and made an exhibit to the bill, to have been the $4000 advanced by him to Ford’s executor; $3182 paid by him on a judgment in favor of the Union Bank of Tennessee against the Coppages, and which two items the bill admits to be just and correct; also, $1636 paid by Barnett on account of sundry claims against the property, and $3800 for certain slaves which Barnett and wife claimed to belong to them under a deed of trust, and which had been sold and the proceeds applied, as alleged, to the use of William Coppage and complainant. The correctness of these two last items is denied by the bill, and the sale of the slaves by William Coppage is alleged to be without authority, and that Barnett had notice of it.</p> <p>The bill charges that the defendants have in possession the following slaves, viz.: Ailsey, and Jim and Bob, her children, purchased by complainant from William Coppage in 1831 or 1832:—</p> <p>Lucy, the child of Yiolet, and Lucy’s children, Ailsey, Jr., Mary, Aaron, John, Excy, and Nancy; that Yiolet was received from his grandmother’s and grandfather’s estate, in 1812; also the following children of Yiolet, viz.: Davy, Seymour, and Laura; and Sarah and Malvina, the two last children of Laura:</p> <p>Also the following, received from John Borden’s estate, viz.: Lucy, and Jinny and her children, Washington, Calvin, Martha, Ritta, Harriet, Jake, Emanuel:</p> <p>Also the following, purchased from complainant Ann Barnett, in 1838 : Eliza, Stephen, Yisa (or Device), and Joe:</p> <p>Also Charles, purchased from Samuel Temple in 1835 or 1836:</p> <p>Also Ned, child of Flora, who Avas received from his grandmother, as part of his mother’s estate; and mules, stock, cotton, &c.</p> <p>The answer of L. C. Barnett and wife denies all the titles set up by complainant under the division of estates in South Carolina; denies all knowledge of the settlement and bill of sale of negroes in 1831 or 1832; but alleges that William Coppage informed defendant, Barnett, that to defraud his creditors he made a transfer of some slaves to complainant, but when he got free of his debts it Avas cancelled, and that William A. Coppage had no title whatever.</p> <p>The ansAver states that Barnett married Margaret E. Coppage in 1847; that he then had a capital of f>8000 or $9000, and that he was induced by William Coppage to come to Mississippi and employ it in paying the debts of the firm of William Coppage and William A. Coppage, with the understanding that he should be reimbursed out of the property, and that complainant knew of the inducements so held out, and promises so made to him; that William Coppage managed everything in relation to the Mississippi property, and was in possession of it, and claimed to be the owner and proprietor of it; admits the lease to Ford, and its transfer to himself by solicitation of all parties, and files as an exhibit the assent of William and William A. Coppage to the transfer; that he took possession under the lease, and held it until April, 1849, and accounted with William A. Coppage for one-half the proceeds.</p> <p>That he paid debts of the firm in Tennessee and Mississippi to the amount of $8000 or $10,000; that when respondent went to Tennessee to get the money to pay the Union Bank judgment, he informed complainant that he would not pay it without reimbursement, and complainant, manifesting a total indifference to the matter, assented; that before paying said judgment for $3182, he made the purchase and obtained the bill of sale for the slaves mentioned in the bill, from said William Coppage, in order to reimburse him for the money advanced for the parties, and that he delivered to said William Coppage all the notes and vouchers paid off by him, both against said William Coppage and the complainant. Denies that he used any fraud, or took any advantage of said William Coppage in said purchase, and alleges that he gave a full and fair price, according to a valuation made in 1848 or 1849, by said William Coppage, with the view of setting apart a sufficiency of the property to pay all the debts, and of dividing the remainder between himself, complainant, and Mrs. Barnett.</p> <p>The answer claims title to slaves Ailsey, Dave, Seymour, Bob, Laura, and Sarah (which are not included in the bill of sale by William Coppage to Barnett), by virtue of a deed in trust executed by said William Coppage in Kentucky, in 1829, conveying said slaves and others to a trustee for the benefit of Mrs. Barnett, then Margaret Coppage; that this deed of trust was recorded in Kentucky soon after it was made, and was delivered to Barnett, in 1847, by William Coppage, and the slaves last above mentioned were delivered to said Barnett by said William Coppage in 1849, at the time he made the purchase aforesaid.</p> <p>That three of the negroes and their offspring, conveyed in the deed of 1829, had been sold by William Coppage, and the proceeds applied to the payment of the debts of complainant and said William Coppage; that in 1847, when William Coppage delivered said deed of trust, he promised to reimburse Mr. Barnett for the negroes so sold, and the charge of $3800 being an item in the payment for the negroes purchased and in controversy, is founded on that deficit and promise.</p> <p>The answer further states, that whilst it may be true that the negroes Eliza, Stephen, Yisa, Joe, and Malinda, were purchased by complainant from Ann Barnett, yet at the time respondent made the purchase, the said William Coppage exhibited a bill of sale of these negroes from complainant to him, made in 1842.</p> <p>That for many years previous to respondent’s purchase, complainant took no control over the property, and exhibited no interest in it, even when it was levied on, and under the hammer; that Ford and respondent both accounted with William Coppage alone, under the lease, and that respondent made the purchase under the firm belief and under the most solemn assurance of William Cop-page that his title was good; that complainant was advised of the purchase soon after it was completed, and made no objection until 1850, when the property had risen very much in value, and then his only objection was that William Coppage had sold it too low.</p> <p>The answer further states, that soon after the purchase, respondent visited Tennessee, and sought opportunities frequently to explain the transaction to complainant, but that he was so habitually intoxicated that he was unfit for business. Respondent proposed to complainant, in 1850, that if he would show a title and pay back the money, respondent would give up the property.</p> <p>Respondent knows nothing of the want of consideration for the deed for the land, but denies that it was made for the purpose of paying Ford’s estate, as the deed is dated in February, 1847, and Ford did not die until the succeeding August: and the respondent denies that he took the land in full discharge of the $4000 advanced to Ford, and of his interest under the lease.</p> <p>The complainant showed title to the following slaves:—</p> <p>1. Ned, by descent from his grandfather, — he was also embraced in the conveyance made by William Coppage to him in 1833.</p> <p>2. Lucy and Isaac, received on division of his mother’s estate, in 1812, after which Lucy had issue, Ailsey, Jr., Mary Ann, Excy, Aaron, and John.</p> <p>3. Topp, Grirtta and child, Louisa and phild, Levy, and Jinny, received from John Borden’s estate, in 1817. Jinny had issue after he received her, as follows: Martha, Washington, Calvin, Edmund, Ritta, Harriet, and Jacob.</p> <p>All of the above slaves, and such as were born before 1827, were in the possession and use of William Coppage, his father and guardian.</p> <p>4. Charles, purchased by complainant of S.- Temple, in 1836.</p> <p>5. Eliza, Stephen, and Visa, purchased of Ann Barnett, in 1838. Eliza had issue, Malvina and Laura. ,</p> <p>6. Merriman, Robin, Jim, Bob, Ailsey, Sr., Flora, Ned, Bina, Rose, Dave, Seymour, Laura, and Ben, he purchased from William Coppage, on settlement, on the 20th June, 1833.</p> <p>- The following twenty-three slaves were embraced in the bill of sale, made by William Coppage to Barnett, in 1849 :—</p> <p>1. Ned, child of Flora, and received from complainant’s grandfather’s estate, and also included in the bill of sale made by William Coppage to William A. Coppage, in 1883.</p> <p>2. Visa, received from his uncle John Borden’s estate.</p> <p>Levi, “ “ . «</p> <p>Jinny, “ “ “</p> <p>And her children, Washington, Martha, Calvin, Edmund, Ritta, Harriet, Jacob.</p> <p>8. Lucy, received in 1844, from his mother’s estate, and her children, Ailsey, Jr., Mary Ann, Aaron, Excy, and John.</p> <p>4. Stephen, bought by complainant of Ann Barnett, in 1838.</p> <p>Joe, “ “ “</p> <p>Eliza, “ “ “</p> <p>And her children, Louisa and Malvina.</p> <p>5. Charles, bought by complainant of S. Temple.</p> <p>The following slaves were in the possession of the defendant, and claimed by William Barnett, under a deed in trust made by William Coppage, for her benefit, in 1829, viz.: Ailsey, Sr., Dave, Seymour, Bob, Laura, and Sarah, and they were also claimed by com-' plainant in virtue of the sale made to him, in 1833, by William Coppage.</p> <p>Records from the State of South Carolina were introduced by complainant, which established his title to the above slaves, so far as they are stated to have been received by him from his uncle, John Borden, and from his mother’s estate, and he had bills of sale from Ann Borden, S. Temple, and William Coppage, for the slaves claimed through them.</p> <p>He also introduced a record from the Orphans’ Court of South Carolina, from which it appears that in 1825 William Coppage, as his guardian, filed a petition in that State for an allowance for his support and education, alleging that he, the said William Coppage, was unable to support him in the style to which h'e was entitled, and setting out also that complainant was the owner of fourteen slaves, of which seven were working hands, and also of a plantation, and that his net annual income amounted to about $300. Upon this petition the Court made an allowance to William Coppage, for the support and education of complainant.</p> <p>A paper is also found in the record purporting to be ^ransdrijitv,, of the record of the Orphans’ Court, in South Carolina, in illation6 to the guardianship of William Coppage for complainant, whicN was relied on by defendant to show that the indebtedness of William Coppage to complainant was not as much as was found upon settlement, in 1833, made by the witness, C. Temple. But' this paper does not appear to have been filed, nor to have been certified by the proper officers.</p> <p>The points in issue by the proof and pleadings, and litigated in this Court, were as follows :—</p> <p>1. The sale made, in 1833, by William Coppage to complainant, was alleged to be fraudulent and without consideration, by the defendant.</p> <p>2. The deed of gift made, in 1829, by William Coppage to Mrs. Barnett, was alleged to be void as to complainant, because it was voluntary, and there was no delivery of the deed and slaves, and complainant was a purchaser of the slaves, so given, for value, by the settlement of 1833.</p> <p>3. The respondent alleges that the complainant never had any title to the property in Mississippi, being that in controversy, and if he had, it was divested out of him and vested in William Cop-page, by an arrangement made about the time of the lease to Ford, in 1844, by which complainant was to have the property in Tennessee, and William Coppage the property in Mississippi, and that the land was conveyed to William Coppage in pursuance of this arrangement, and that William Coppage had a bill of sale from complainant for certain slaves.</p> <p>4. That if any title stillremained in complainant to the Mississippi property, William Coppage was the general agent of complainant and was authorized to sell it; and that complainant afterwards ratified and assented to it.</p> <p>5. It was alleged by respondent that the charge for $3800 for the slaves of defendant Margaret, conveyed to her in 1829 and sold by William Coppage, was proper, inasmuch as the proceeds of said sale had been applied to the payment of the debts of complainant and William Coppage.</p> <p>6. Barnett alleged that he purchased without notice of complainant’s title.</p> <p>7. Complainant alleged that the sale to Barnett was for an inadequate price and fraudulent.</p> <p>The testimony is quite voluminous, but the material points will be set out, as it relates to the above property and in the order there stated.</p> <p>I. As to fraud in settlement of 1833, Charles Temple was examined by complainant twice. In his first deposition he states that in the year 1833, in Henderson county, Tennessee, William Coppage was security for Samuel Wilson & Co.; that suit was threatened, and William Coppage called on witness for advice and assistance. Witness ashed him if complainant had ever called for a settlement of his guardian accounts. William Ceppage said he had not. Witness then directed him to go home and tell complainant to call for a'settlement. In a few days William Coppage and complainant came to witness’s house and brought all the papers and vouchers in relation to the guardianship. Witness made the settlement as correctly as he could, and the old man was found to be largely indebted. The deposition then read as follows, “ He (William Coppage) then sells out all his negroes, that the right was in him, which negroes were Merriman and Robin, purchased with the ■ proceeds of the sale of two or three negroes cost f1500; the balance of the negroes which were in the old man’s right, I sold at the full market price, and William A. Coppage bought them as such. He bought all the horses, and after the sale the old man was indebted to him in about $4000 or $4500, Afterwards I turned round and asked the old man if he aeknowdeged the delivery of the property to William A. Coppage, and he replied he did. I then asked William A. Coppage if he acknowledged the receipt of the property delivered by the old man, and he replied he did.” Witness then drew a promissory note for the balance, of about $4500, and the old man signed it and handed it to complainant. -Witness then took the settlement and filed it with the register for record. The witness’s second deposition -was in substance the same as the above, so far as it relates to the question of fraud in the sale.</p> <p>first deposition :—</p> <p>Witness acted as guardian for complainant and held his property from about the year 1806 until he arrived at full age; and after-wards witness and complainant held it jointly. His property consisted of negroes, stock, farming utensils, &e. “We bought land both in Tennessee and Mississippi with the proceeds.” Witness used the property for the support of his family and raising negroes. They had a settlement in 1832, with the assistance of Charles Temple, which resulted in a balance against witness of $2000 or $3000. There were then from twenty to thirty-five negroes in their possession, and witness conveyed to William A. Coppage all his interest “in all the negroes except eight.” “The names of them I remember are Merriman and Robin; these two I bought and conveyed to him in payment of claims against me by William A. Coppage.”</p> <p>Witness, on cross-examination, in answer to. a question as to whether the conveyance in 1832 was not made to defeat creditors, said “ that the settlement was made to give William A. Coppage his portion of the property. Witness did not know but that debts might come against him; but none ever did. Witness did not consider it .a sham transaction, as William A. Coppage only got his rights anyhow; they both used it after the transfer just as before; both managed the property.” Neither Yiolet nor any of her children were included in the transfer or sale made in 1832.</p> <p>In his second-deposition this witness states, that he conveyed all the negroes to William A. Coppage in 1832, and is unable to state how the mistake occurred in his first deposition, wherein he states he conveyed all but eight. He also states that all Violet’s children were included in said bill of sale, and he is unable to explain why his first deposition states differently. He also stated that he never paid up thevnote for $4500, given by him to William A. Coppage on that settlement, but the same was afterwards delivered up to him by his son. He further stated, that Eliza and her children, purchased from Ann Barnett in 1838, were purchased with the proceeds of cotton raised on the plantation in Tennessee, in which he and complainant were jointly interested.</p> <p>Hartwell Temple, for defendant, states, that he resided within one-half of a mile of William Coppage and William A. Coppage, in 1828, and for five years thereafter, and then two and a half miles from them for five years, and then six miles from them till 1840. Willialn Coppage was concerned with Wilson in merchandising. Witness never knew him to be out of debt. It was said that Wilson was broken up, and that William Coppage was liable for his debts, and had transferred all his property to his son, William Coppage had control of everything from beginning to end. Witness knew no difference in the management of the property after the transfer.</p> <p>M. Bradford, for complainant, states that before settlement, in 1833, William Coppage had entire control of the property; after-wards William A. Coppage took control. The old man remained on the place, but who managed witness is unable to say.</p> <p>See also John D. Davis’s deposition, under No. III.</p> <p>It was also shown that William Coppage had received a considerable sum of money as guardian for complainant, and that he had sold two of complainant’s slaves, and had bought a tact of land in Tennessee with his means.</p> <p>II. As to the deed of trust of 1829. The deed of trust was dated August 17th, 1849, and the trustees on that day accepted the trust by a written memorandum indorsed on the deed; and it was also proven by one of the subscribing witnesses, and recorded in the County Court of Scott county, State of Kentucky.</p> <p>The answer of Barnett states that it was delivered to him in 1847, by William Coppage, and the slaves claimed under it were delivered to him in 1849, when he bought the other slaves in controversy.</p> <p>Mrs. Ballard, for the defendants, states she is the sister of the mother of Margaret Coppage (now Barnett); that Mrs. Coppage was in bad health, and witness took Margaret when she was about five months old, and kept her thirteen months, and afterwards, when Margaret was two years old, she took her again and kept her until she was about seven years old. William Coppage placed two or three negroes with witness, which he said belonged to Margaret under a deed of trust which he had made. At first he put Binah and Laura with witness. Binah went back, and he sent Rose. These two stayed with witness until Margaret left. William Cop-page always “ spoke of them as her negroes, and so did she and the other members of the family. There was no dispute during that time about the right to the negroes, as far as witness heard.”</p> <p>Mrs. Ford, for the defendants, states that when the lease was made by her husband (Ford) in 1844, she was present, and it was understood that Margaret had a claim on some of the negroes in Mississippi, and she was provided for in the lease. William A. Coppage was present and made no objection to her claim. The particular.nature of her title was not mentioned, but it was well understood in the family that John Coppage was trustee in the deed made for her benefit in Kentucky. William A. Coppage was at witness’s house in 1844. ■ Margaret was then living with witness. William A. Cop-page was speaking of the sickness among the negroes at home in Tennessee, and said to Margaret that she ought to go home and attend to them, for she was as much interested as he was. Witness is a sister of Margaret’s mother.</p> <p>William Coppage, in his second deposition, on cross-examination by defendants stated, that he always wished Margaret to have the negroes conveyed in the deed of trust of 1829; confirms Mrs. Ballard as to the sending of Binah, Rose, and Laura. Rose was taken by an officer and sold, and W'itness afterwards bought her back. That he would not have conveyed these negroes to William A." Cop-page if he'had not been told that they were subject to his debts. Three of them (those mentioned in-the deed of 1829) had already been sold, and he thought the balance were liable, and the deed for the benefit of his daughter not valid.</p> <p>III. As to the title of the property in Mississippi, &e., Mrs. Ford, for defendants, stated that she was present, in 1844, when the lease to her husband was made; that it was then talked of and understood between the Coppages and her husband, that complainant was to have the Tennessee property, and that William Coppage and his daughter (Margaret) was to haye the Mississippi property. William Coppage was to pay the debts that were then pressing them. It was understood that the lease was to disencumber the Tennessee property on William A. Coppage’s account.</p> <p>After the lease was executed, witness and her husband spent the winters in Mississippi, on the plantation. William Coppage came about once a year to settle and receive his share of the proceeds. He claimed the negroes and farm as his own, except those claimed by Margaret. She claimed --and her children, by will from her grandfather, and the others under the deed in trust of 1829. William Coppage offered to sell the plantation and the negro Eliza to Mr. Ford. He showed a deed for the land, and a bill of sale for Eliza and her children. William Coppage afterwards gave these papers to witness, and she kept them until he was about to leave, when sbe gave them up to him, he saying that those papers were his title to the property.</p> <p>After her husband’s death, she went to Tennessee to see "William Coppage about their business, in relation to the lease. He was not at home; he was gone to the plantation in Mississippi. William A. Coppage was at home, and witness tried to get him to make some arrangement about the business. He declined to do so, saying that his father was from home, and that he would have nothing to do with it. Witness applied to him several times, and finally told him that Mr. Barnett was willing to take the lease. He said he did not care what the old man and Mr. Barnett did; they might do as they pleased. Witness then got him to give Ms written consent to the transfer of the lease to Barnett.</p> <p>This witness proves the reception of a letter from William Cop-page," dated 29th September, 1847. In this letter William Coppage, after expressing his regret at the death of Mr. Ford, of which he had recently heard, and stating his determination to do all in his power to settle their business matters satisfactorily, stated that Ford had offered, in his lifetime, to Barnett and his wife, to transfer the lease to them, if they would repay him the $4000 advanced, and that he advised William Coppage to sell the Mississippi plantation ; which he intended to do, if he could only get enough to pay Ford, and that he had already conditionally sold it. That he had offered to give up all the business of that place to Barnett, but that he and Margaret did not want to go there, and to have anything to do with it.</p> <p>James Cook, for defendant, proved various declarations of William Coppage to the effect that he was the owner of the plantation and slaves in Mississippi, except some slaves belonging to Margaret E., and further, that William Coppage stated that Barnett was to come down and take control of the plantation. That Barnett was to pay Ford, and all the other debts due by the plantation, and that he then was to make him a title.</p> <p>This witness also proved that after Ford leased the plantation, \yilliam A. Coppage never came to Mississippi until the year 1850; that before the lease he frequently came.</p> <p>George Loudon, for defendant. Witness was overseer on the plantation in 1847. William Coppage came down and made arrangements to supply the plantation with provisions, &c.</p> <p>John D. Davis, for defendant. Witness lived with William Cop-page and William A. Coppage as overseer on the Mississippi plantation. William Coppage employed him and paid.him. William A. Coppage told witness that he had nothing to do with managing the business, and that his father had the entire management. He. also told witness that his father and some other man had gone into business, and had borrowed money to buy goods, and that William Coppage made over his negroes to him, to avoid said debt, and that he held the -negroes under a sham title. He never spoke of any other title he had to the property than the sham title.</p> <p>Ransom Turner, for defendant. William A. Coppage employed the overseer in 1844. Witness was administrator of this overseer in 1845, and went to Tennessee for the purpose of collecting his wages, and also a note on William A. Coppage for $410. Witness presented them to William A. Coppage, and he told witness to go to his father, who had the settling of that business, and the payment of the debts. The old man settled these debts, and was frequently in Mississippi, from time to time, until the spring of 1849, and settled all the debts. When in Tennessee, in 1845, William Coppage said he was going to take charge of the Mississippi place, and that William A. Coppage would take charge of tile Tennessee place; that William A. Coppage had got in debt, and he was going down to take charge, and pay the debts. William A. Coppage said he was going to live in Tennessee; that he was going to build a fine house (pointed out the location), and was going to try to marry a wife.</p> <p>John Baker, for defendant. Witness is a justice of the peace. On the 24th of April, 1848, William Coppage made an affidavit before him, which is set out in his deposition, and appears to be in substance as follows: that the slaves, Seymour, Dave, Bob, Ned, Stephen, and Washington, levied oh as the property of William A. Coppage, in the case of The Union Bank of Tennessee v. William A. Goppage, and others, are not the property of William A. Cop-page, or liable to said execution, but they are the property of affiant.</p> <p>A. Herron, for defendant, proved that in 1848 William Coppage denied that the property in Mississippi was William A. Coppage’s, and stated that William A. Coppage had a plantation in Tennessee, which was enough for him.</p> <p>William Ooppage, on cross-examination by defendants, did not recollect of the declaration made to Cook, Mrs. Ford, Davis, and other witnesses, as stated by them, and says, if he made any such, they were without the knowledge or authority of William A. Cop-page ; he acknowledged that he made the affidavit as proven by Baker, and states that he claimed those negroes then. In his examination in chief he states that he has owned no slaves since the settlement with William A. Coppage.</p> <p>He denied ever offering to sell to Ford, Eliza and children, and stated he never showed a bill of sale for them to Mrs. Ford; he never had any such paper. In his first deposition he states there might have been such a paper, but he does not recollect it.</p> <p>Middleton Bradford for complainant states, that he and William A. Coppage, in 1836, purchased the Mississippi plantation, in partnership. Witness afterwards sold out to William A. Ooppage. Complainant had ten working hands on the place, among whom he recollects the names of Ben, Lucy, Dave, and Seymour. Witness was surety in the Union Bank debt for William A. Coppage, and made two attempts to have the slaves on the place sold to pay it. William Coppage filed an affidavit claiming the property, and gave bond to try the right. “ We afterwards settled it by William Coppage giving me a mortgage on the property, to satisfy the debt.” Whilst complainant and witness were in partnership, which lasted for six years, witness never heard of any claimant to the property but him. William Coppage was on the place sometimes, and gave orders, but witness never recognized him as a partner. The property brought into the partnership was furnished by William A. Coppage. After witness sold out, William A. Coppage controlled the property so far as witness knows; William Coppage, however, came on the place sometimes, but witness does not know that he ever gave any directions, or took any control. When the property was levied on and about to be sold, William Coppage alone came from Tennessee and made, all the arrangements that were made to save it.</p> <p>Charles Temple, for complainant. Witness made the deed conveying the land in Mississippi from William A. Coppage to William Coppage. The conveyance was made to discharge all the debts which were due and owing by William A. Coppage in Mississippi, and also those contracted by William Coppage, for the plantation there. William Coppage requested witness to induce William A. Coppage to make a power of attorney, but witness advised a deed. Witness also advised William Coppage to advertise the farm, stock, horses, mules, &c., for sale, to discharge the debts, and if these wer-e not sufficient, to advertise a portion of the negroes, to draw a crowd. The intention was not to sell any of the negroes until it was absolutely necessary.</p> <p>The witness in his second deposition states, that there was no allowance made, in the settlement of 1833, to William Coppage, for the support and maintenance of William A. Coppage. It also appeared from his cross-examination that William A. Coppage had made a will and left it with witness, by which he devised all his property to witness during his life, the witness to support William Coppage. Witness acknowledged that he had taken a very active part in this cause for complainant; had consulted with his counsel, &c. He also acknowledged that he advised William A. Coppage to come to Mississippi, and take the property in controversy by force, and if anybody molested him in his attempt to do so, “ to blow him through.”</p> <p>IY. As to the agency of William Coppage. H. Temple, for defendant. William Coppage was principal in managing and in purchasing supplies and necessaries, and in making debts for their mutual support and benefit, and in disposing of property of every description, of either of them, and in the settlement and arrangement of such debts as were contracted. William Coppage and complainant lived together ever since he knew them, and the latter had every opportunity of knowing his father’s transactions in disposing of property. William A. Coppage always looked up to his father in the management of his business, who acted as principal agent in transacting the business of the family. William A. Coppage was not a business man; he was dissipated, and when drinking was very imaginary.</p> <p>John D. Davis, for defendant. William Coppage managed all the business in Mississippi, of which William A. Coppage was cognizant, and the latter abided by all the old man did. William A. Coppage told witness he had nothing to do with the managing the business; that his father had the entire management. 0. Temple, cross-examined by defendant. William Coppage was in the habit of selling property to pay debts, with the consent of his son. He contracted debts, bought supplies, for himself and son. They managed their business and paid debts jointly. The old man had authority to sell household property when necessary. He also sold negroes, but William A. Coppage confirmed the title.</p> <p>William Coppage, cross-examined by defendant. William A. Coppage and witness always lived together, and kept their property together. “I was the principal in managing business; William A. Coppage knew nothing about managing.” Witness had the direct control, and was in the habit of selling property to pay debts. Witness purchased supplies and contracted debts for the farm. William A. Coppage did not always look to witness for the management of his business, selling property, &c., for witness could not control him. When witness had money he paid the debts; he did not act as general agent, for he could not control his son.</p> <p>W. Clark, for defendant, heard William A. Coppage say, in February, 1849, that Barnett was paying their debts, and was to be reimbursed in the property. That a good many of the debts were his father’s, “but that his (William A. Coppage’s) property would have to go to pay them.” On cross-examination he stated, that in the conversation above alluded to, William A. Coppage did not say that his property was “bound for his father’s debts,” but in the latter part of 1850, he said “ his property should go to pay the debts; that his father had contracted the greater part of them, and as well as witness remembers, his property should go to pay the debts, and no further.”</p> <p>William Coppage, for complainant, stated he had no authority to sell the negroes conveyed to Barnett. It also appeared that complainant was advised of the sale to Barnett soon after it was made, and it does not appear that he made any objection thereto until the year 1850.</p> <p>Y. As to the item of $3800, William Coppage, on cross-examination, stated, that he sold two of the negroes and their children, conveyed by him in the deed of 1829, and that the proceeds were applied to his and William A. Coppage’s debts; but he does not state how much was applied for the benefit of complainant.</p> <p>YI. As to Barnett’s notice of complainant’s title. William Cop-page, for complainant, stated that at the time he made the sale he informed Barnett that he had no authority to sell, and that the sale was invalid without William A. Ooppage’s consent. It also appears as before stated, that William A. Coppage was a party to the transfer of Ford’s lease, and Barnett acknowledged in his answer, that soon after the sale he went to Tennessee for the purpose of explaining this transaction to complainant.</p> <p>YII. As to the inadequacy of price. W. Clark, for complainant, proved that in 1849 negroes were low; men were worth from $650 to $700; women from $600 to $650; ploughboys about $525 to $550.</p> <p>John D. Davis, for complainant, proves that the plantation in 1849 was worth $3000; negro men from $700 to $800, and negro women from $600 to $650.</p> <p>R. Turner states, that men were worth from $700 to $800, and women from/$600 to $650.</p> <p>M. Bradford stated, that men were worth from $700 to $800, and women from $500 to $600.</p> <p>A. Herron, proved the plantation to be worth $3000.</p> <p>The proof showed that there were embraced in the sale to Barnett, four men, aged respectively, 20 years, 45 years, 35 years,, and 50 years; and two women aged 30 years each; the balance were boys and girls, ranging from nine to fifteen years of age; there were, however, one seven years of age, one five years, and one three years.</p> <p>Upon final hearing the Yice-Ohancellor dismissed the bill, and the complainant appealed.</p> <p>After stating the facts, said: First. This statement of facts makes it perfectly clear, that the land and the stock, or at least much the most of it, and the twenty-three slaves included in the bill of sale • to Barnett by the old man Coppage, belonged to complainant, and the sale of them is without authority and void.</p> <p>Second. Even if he had authority to sell, the sale made to Barnett would be set aside, as Barnett took an unconscientious advantage of his situation to coerce a sale. He had got into possession of the property as agent, with an understanding that he would discharge the debts so as to save the property. In cases of this kind the utmost good faith must be observed, and no undue advantage taken.</p> <p>Third. In relation to the slaves: Ailsey, the elder, Dave, Si-meon, Bob, Laura, and Sarah, complainant is entitled to them by the sale made in 1832. It it said that sale was fraudulent. In my oral argument I have endeavored to show that this was a mistake; that William Coppage owed his son, and wras bound in good faith to pay him. But if it was a sale made to avoid the payment of his debts, still it was on a valuable consideration. William Coppage owed William A. Coppage the money, and owing it to him the sale is valid, unless conditions should attach it.</p> <p>On this subject the rule of law is, that a sale made voluntarily or on good consideration, although made to defraud creditors, is good between the parties, and cannot be set aside by the grantor if he should become dissatisfied. They are not only valid as to the grantor, but to his heirs,and all others claiming under him in privity of estate with notice of the fraud. 1 Story’s Eq. 371, sec. 345 ; 3 Mason’s R. 378 ; 4 Mass. R. 354; 16 John’s R. 189; 5 Binney, 109.</p> <p>But the defendant claims the slaves Ailsey, Jr., Dave, Simeon, Bob, Laura, and Sarah, by virtue of a deed of gift, made in 1829, in Kentucky, by William Coppage.</p> <p>On this point it is sufficient to say, that possession never accompanied that deed; it was merely voluntary, and could not be enforced, and is- subject to the imputation of having been made to defraud creditors, and was subject to the claims of creditors. The pretext of a sale by William A. Coppage to William Coppage, of the Mississippi property for the Tennessee property, based on the evidence of old Mrs. Ford, that it “was talked of and understood” that such an arrangement was made, is simply ridiculous, contradicted by all the facts and all the evidence, and by the conduct and averments of the defendant himself. The idea of proving such an arrangement by the testimony of this old woman, who knows nothing more definite than that it “was talked of and understood,” probably was never before attempted in a court of justice.</p> <p>As stated in my oral argument, the defendant says he took the conveyance of the slaves before he would pay the money, on the Union Bank judgment; the old man Coppage says the conveyance was made to Barnett “to save property,” and Barnett told William A. Coppage he would not pay the debts of the firm of William Coppage & William A. Coppage unless he was secured. So that the whole transaction shows that the conveyance of the slaves was only made and intended as a security for the money he had paid or might pay, and not an absolute sale.</p> <p>Made the following points: 1st. The defendant, Barnett, purchased the land and slaves from William Coppage. He paid a full and fair consideration to William Coppage for both, as appears amply from the testimony.</p> <p>The bill admits the sale, and the sale is proved by the old man Coppage and other witnesses.</p> <p>The consideration given was the full value of both land and slaves at the time of the purchase. The bill of sale is for twenty-three negroes named, which we claim. We claim also Ailsey, Dave, Seymour, Bob, and Laura, under the deed of gift of 1829, and Sarah, Laura’s child, born after said deed was made.</p> <p>Barnett in his answer states he believed that the property, when he bought it, was William Coppage’s. He denies that the old man told him William A. Coppage had any interest or that it required his assent. He denies all fraud, and avers he purchased bona fide from William Coppage for a full and fair consideration.</p> <p>We insist upon the following points for Barnett:</p> <p>First, That he is a bona fide purchaser, without notice of William A. Coppage’s title, if he had any, of both the land and. negroes.</p> <p>Second, That all the property was, in fact, the property of William Coppage, by virtue of an agreement between them, that William A. Coppage should take the Tennessee property, and William Coppage, for himself and daughter, should take the Mississippi property, and pay all debts due by it.</p> <p>Third, That some of the negroes mentioned in the sale to Barnett, were originally the property of William Coppage, and if William A. Coppage had any title, it was fraudulent as to the creditors of William Coppage or purchasers from Mm; and that as to the land, the title was in William' Coppage, by deed from William A. Coppage.</p> <p>Fourth, That be the above matters as they may, William Cop-page had a deed as to the land, and could sell; and as to negroes and personal property, he had a general power to sell; and even if the property was that of William A. Coppage, still the sale made by the old man to Barnett was good.</p> <p>Filed an elaborate brief, reviewing all the evidence and commenting on the law of the case.</p>

<p>1. Principal and surety: contract or forbearance. — In order to discharge the surety on account of an agreement for forbearance of suit, there must be a new contract between the creditor and the principal, founded on a new and distinct consideration, extending the time of payment without the consent of the surety; whereby the creditor is bound in law not to proceed against the principal, according to the original contract, and in consequence of which the surety is debarred of his right to satisfy the original obligation, and to be sub-rogated to the rights of the creditor therein against the principal, as they stood when the contract was made. See Newell et al. v. Homer, 4 How. Miss, 684; Wade et al. v. Stanton, 5 lb. 631; Payne v. Com. Bank, 6 S. & M. 24; Union Bank of Tennessee v. Qowan, 10 lb. 344; Roberts v. Stewart, 31 Miss. R. 664.</p> <p>2. Same : part payment op a debt past due not a sufficient consideration for contract of forbearance. — The part payment of a debt, then past due, and the promise by the debtor to pay the balance in instalments, being but the pai-tial discharge of an obligation already existing, and a mere promise to perform what the debtor was then legally bound to do, is not a sufficient consideration to support a promise of forbearance of suit by the creditor; and hence, an agreement of forbearance founded on such consideration is no discharge of the surety.</p> <p>3. Same : promise to confess a judgment not a sufficient consideration.— An unexecuted promise by the debtor to confess a judgment as collateral security for the debt, is not a sufficient consideration to support an agreement for forbearance of suit. Fisher, J., dissented.</p> <p>4. Same : effect of stipulation in contract of forbearance that creditor’s securities shall remain unimpaired. — Where an agreement for forbearance ■of suit between the creditor and the principal debtor stipulated that all the rights of the creditor against all the parties to the securities he then held should remain unimpaired, it was held, that the agreement could not haye the effect of discharging the surety, for it imposed on the principal the duty of procuring the surety’s assent, and if he failed to do so, the creditor might elect to treat the contract as at an end. Fisher, J., dissented.</p> <p>5. Chancery : jurisdiction : will decree a sale of property fraudulently conveyed. — A court of equity having taken jurisdiction, at the instance of a judgment creditor, to annul a fraudulent conveyance of his property, made by his debtor, will grant full relief to the complainant, by decreeing a sale of the property for the payment of the debt; and hence, when the complainant’s judgment was valid and operative at the time of the filing of the bill, his right to relief will not be affected by reason of the Statute of Limitations, subsequently and pending the litigation, barring the issuance of a new execution on the judgment. See Hadden v. Shader, 20 John. R. 554; Edneston v. Lyle, 1 Paige, OS'?; Thurmond v. Reese, 1 Kelly, 449 ; Trippe v. Lowe, 2 lb. 306 ; Planters' and Mechanics' Bank v. Walker, 7 Ala. R. 946. Fisher, J., dissented.</p> <p>6. Same: fraudulent assignment : when debtor may prefer creditors. — A person in failing and embarrassed circumstances may prefer a creditor; but if he attempt to do so he must act bond fide, and not reserve a benefit to himself from the transaction.</p> <p>7. Same: case in judgment. — A debtor in embarrassed circumstances executed a deed in trust on all his property, to secure a debt due to his brother-in-law, providing that the trustee should apply the proceeds to the payment of the debt secured, and should pay the surplus, if any, to the grantor. Afterwards he executed another deed in trust, conveying the same property, besides land not embraced in the first deed, for the purpose of securing the same debt, but reserving a support for himself and family out of the rents and profits. The .trustee, by virtue of the power vested in him by the deeds, sold the property at an unusual season of the year, and for a very inadequate price, to the creditor whose debt was secured. The grantor, during the whole of the time from the execution of the first deed to the trial of the case, remained in the use and possession of the property, causing it to be assessed in his name, and paying the taxes on it. Held, that the conveyances were, fraudulent, as to creditors.</p>

Hon. E. Gr. Henry, judge. This was a proceeding by information, in the nature of a writ of quo warranto, under the second section of the Act of 1848 (Hutch. Dig.), against the defendants, charging them with exercising, using, and enjoying the franchise of being a banking corporation, &e., without legal warrant or authority.

<p>1. Evidence : ancient document : pboot? or execution. — The law presumekthai^ the subscribing witnesses to a deed shown to be thirty years old, are eitherN dead or beyond the jurisdiction of the court, or that they have forgotten the transaction, and therefore dispenses with their production to prove the due execution of the deed; in such a case proof of the genuineness of the signature of one of the subscribing witnesses is sufficient.</p> <p>2. Same: ancient document. — Where the grantee, shortly after the date of a deed which is thirty years anterior to the trial, took possession of the land ■which is believed to be the same conveyed in the deed, and retained the possession, though for a very short time, and the grantor, twenty years afterwards, acknowledged that he executed it on the day of its date, this is sufficient to show that the deed is an ancient document, so as to dispense with the production of the subscribing witnesses to prove its execution.</p> <p>3. Deed : not void because boundaries cannot be identified. — A deed is not void for uncertainty because from the lapse of time it may be impossible to ascertain the boundaries or identify the land conveyed in it.</p> <p>4. Evidence : private boundary proven by reputation. — Private boundaries may be proven by common reputation, as well as by direct evidence, but in either case the proof must show the boundary with reasonable certainty.</p> <p>5. Same : when deed made under a decree may be read without production of the record. — The plaintiff in an action of ejectment may introduce in evidence a deed to the defendant which purports to be executed under a decree in chancery, without producing an exemplification of the whole record in the chancery suit, where the object of the proof is to show that the defendant claims title under the deed. The rule is different where a party proposes to introduce such a deed to show an interest or title in himself; in that case, it is necessary to show the authority under which the deed was executed.</p> <p>6. Same : state papers admissible as evidence. — A volume of state papers published under the authority of Congress is a public record, and as such admissible in evidence.</p>

<p>1. Fraud and fraudulent conveyance: voluntary settlement by trader.— A person engaged in trade may, for the purpose of protecting his family from the casualties and accidents of his business, and saving his property from the payment of debts thereafter to be contracted, make a-voluntary settlement of his estate for the benefit of his wife and children; and such a settlement will be upheld against subsequent creditors, unless it shall appear, that the property thus conveyed, remained so situated that the public was likely to be misled as to the true state of the title, and credit given to the grantor on the faith that the property belonged to him.</p> <p>2. Same : registration of voluntary conveyance notice to creditors and purchasers. — The due registration of a voluntary conveyance of property, is notice to the world not to trust the grantor in the faith that the property is his ; and hence the allegation in a bill filed to set aside such conveyance, that it was secretly made and recorded, is inconsistent and contradictory. Handy, J., dissented.</p> <p>3. Same : possession by grantor in registered deed, where not fraudulent. —The possession by the father and husband, of personal property which he has given to his wife and children by a deed duly recorded, is not fraudulent as to creditors.</p> <p>4. Same : insolvent partner has no right to complain of a voluntary conveyance made by his associate. — A voluntary conveyance of his property by a solvent partner, without the knowledge or consent of his insolvent associate, is valid and binding as against the latter; nor does such want of knowledge and consent of the insolvent partner, furnish any grounds to the creditors of the firm to attack the conveyance.</p> <p>5. Same: statute op frauds embraces only existing creditors. — The doctrine, that a conveyance of property made with the intent to defraud existing creditors, is also fraudulent as to subsequent creditors, is founded on the principle, that fraud vitiates every transaction into which it enters, and the conveyance being thus affected by fraud, does not operate to divest the grantor’s title, or change the ownership of the property, which still being in the grantor, is subject to his debts; but this doctrine is modified by the Statute of Frauds of this State, which expressly declares that such conveyances shall be deemed void “only” as to those creditors whose rights are thereby defrauded; and hence it does not follow, that because a conveyance is fraudulent as to existing creditors, it is also fraudulent as to subsequent creditors or purchasers. Handy, J., dissented.</p> <p>6. Same : when deed fraudulent as to subsequent creditors.' — Although, as a general rule, a voluntary conveyance of his property, by a debtor, duly recorded, is valid as to subsequent creditors, yet where a debtor being a trader, makes an arrangement with another for future advances to be made by such person, and also for recommendations to be given by him to other traders, for the purpose of procuring credit from them, such a conveyance afterwards made and recorded without any apparent change in the possession and ownership of the property, will be void as against those who became creditors in pursuance of such arrangement, and who were in fact ignorant of the conveyance; for in such a case, the credit relates back to the original agreement, and it is presumed that the person who was to furnish the credit and give the recommendations, investigated, at the time the agreement was made, the pecuniary condition of the debtor, and thereby ascertained what property he owned, and upon the faith of it gave the credit and recommendations; and having made such investigation, he will not be required to renew it, whenever a new item of credit is given, or a new recommendation furnished.-</p> <p>7. Deed : registration only prima faoie evidence of delivery. — The due acknowledgment and registration of a deed is presumptive evidence that it has been delivered, but it is not conclusive.</p> <p>8. Same : registered deed not valid unless ^delivered and accepted. — A voluntary deed, duly acknowledged and recorded, is not valid, unless delivered to, and accepted by the grantee.</p> <p>9. Chancery : fraudulent conveyance set aside at the instance of a creditor WHOSE JUDGMENT WAS RENDERED IN FEDERAL COURT. — A COUl't of equity of this State will entertain a hill to annul a fraudulent conveyance of his property made by a debtor, where the creditor’s debt has been reduced to judgment in a Federal Court held in the State.</p> <p>10. Fraudulent Conveyance : when voluntary conveyance fraudulent as to subsequent oreditors. — A voluntary conveyance as to existing creditors is fraudulent per se, and as to subsequent creditors it is also fraudulent if made with the intent to hinder, delay, or defraud them. Per Handy, J., dissenting.</p>