Volume 36 — Mississippi Reports

<p>1. Principal and agent : subsequent ratification equivalent to precedent authority. — The payment of the amount required by the charter of a railroad company to be made at the time of subscription, may be made for the subscriber by a third person, and such payment, though made -without his knowledge or consent, will render the contract of subscription binding, if the' subscriber afterwards ratify the act of his assumed agent.</p> <p>2. Same: what amounts to a ratification: case in judgment. — Where a subscriber for stock in a railroad company was informed by one of its officers, that the percentage on his subscription required by the charter to be paid, in order to render the contract binding, had been paid for him by another, and the subscriber made no objection, but promised, then, and on several subsequent occasions, to pay the instalments due on his stock, it was held, that his conduct was a ratification of the act of payment made by such third person, and that the subscription was binding on him.</p>

Hon. William L. Harris, chancellor. Defendants demur to the whole bill, and assign some ten causes of demurrer.

<p>1. Partnership : when land held in partnership is real estate. — If the scope and object of a partnership be the acquisition only of land, and not its subsequent disposition, or use as partnership stock, the land acquired by the firm will be considered real estate, which, upon the death of one of the partners, will go to his heirs and not to his administrator.</p> <p>2. Chancery : parties : partnership. — Both the administrator and the heirs of a deceased member of a partnership, formed for the acquisition of lands, and not for a subsequent sale or disposition of them as stock in trade, are necessary parties defendant to a bill filed by the survivoi', seeking an account of the partnership, and to enforce his lien on the lands for the amount due him, and to charge the personal estate of the deceased partner for any balance that might remain after exhausting the partnership lands.</p> <p>3. Partnership : lien of a partner on firm assets. — Each partner has a specific lien on all the partnership property, both real and personal, for any balance that may be due him on a settlement of the partnership accounts.</p> <p>4. High court: decree not reversed forerror not prejudicial to appellant. This court will not reverse a decree of the chancellor for an error therein not prejudicial to the appellant.</p>

<p>1. Attachment against steamboats; acts of 1840 and 1822. — The Statute of 1840, in relation to attachments against steamboats and other water craft, is in pari materia with the general attachment law of 1822, and the two acts will be construed together.</p> <p>2. Same: same: mat be executed by a constable. — Steamboats are essentially transitory in their nature ; they have no abiding place, and are capable of being removed, at all times, out of the State, so as to defeat the collection of debts due by their owners; and they seem to come fully within the definition of an absconding debtor, given in the Act of 1854, viz.: a debtor who is “ about to remove out of the State, or removing his effects, so that the claim of plaintiff cannot be madeand for these reasons, the remedy by attachment was given against them; and hence, steamboats are within the reason of the law allowing attachments against absconding debtors to be executed by constables; and such attachments may therefore be lawfully executed and returned by them.</p> <p>3. Pleading : plea amounting to general issue bar. — After the general issue has been pleaded, a further plea, which in effect amounts to the same thing, is bad on demmier.</p> <p>4. Bailment : hirer op slate : responsibility. — The hirer of a slave, who, in violation of his contract with the owner, removes him to a locality where he is subject and liable to contract a mortal disease, will be responsible for his value, in case the slave contracts such disease and dies.</p>

<p>1. Chancery ; what amounts to waiter by dependant, op objections to the premature piling op the bill. — Where a bill in equity has been filed in pursuance of an agreement between the complainant and one of the defendants, that they would co-operate in procuring the relief prayed for, the latter cannot afterwards object that the defendants were in no default in complying with their engagement, and that therefore the bill was prematurely filed.</p> <p>2. Same: jurisdiction: chancery court will not render a decree in perso-nam, por unsatisfied BALANCE due MORTGAGOR. — It is a well-settled rule that upon a bill to foreclose a mortgage, a court of chancery has no jurisdiction to render a decree in personam against the mortgagor, for an unsatisfied balance, after the mortgaged property has been exhausted. And the rule is the same where a vendor who has executed a bond to convey title, upon the condition that the purchase-money is paid, files his bill to subject tbe equitable interest of the vendee in tbe land, to the payment of the purchase-money. (See Starke v. Mercer, 3 How. 377; Turner v. Micks, 4 S. & M. 294; Dollahite v. Orne, 2 lb. 590 ; Mosby v. Wall, 23 Miss. 81.)</p> <p>3. Same : same : same : this rule not changed by reason op doubts and embarrassments as to the title. — That there are doubts and embarrassments in reference to the title of the land, is no sufficient reason why a court of equity, in foreclosing a mortgage on it, or in enforcing the vendor’s lien for the purchase-money, should render a decree in personam against the mortgagee or vendee for an unsatisfied balance, after the proceeds of the land have been exhausted.</p> <p>4. Promissory note: legal title to: when payable to bearer passes by delivery. — The legal title to a promissory note or bond, payable to bearer, passes to an assignee by delivery. (See Craig v. City of Vicksburg, 31 Miss. 216.)</p> <p>5. Same : nusBAND and wipe : joint assignment by : passes legal title to-note payable to THE wife. — The joint assignment of husband and wife, is sufficient to pass the legal title to a promissory note payable to the wife. (See Work v. Qlaskins, 33 Miss. R. 539.)</p> <p>C. Chancery : when notice op taking an account not necessary. — Where an account ordered by the chancellor, is to be taken upon the facts as they appear in the pleadings, it is unnecessary for the commissioner to give notice to the parties, of the time and place of stating it. (See Knox v. Bank of U. S. 26 Miss. 656 ; Felder v. Wall, lb. 595; Nebbelt v. Cunningham, 27 lb. 292.)</p>

<p>1. Witness: husband and wife : wipe competent witness for husband under ret. code, art. 190, p. 510. — The wife was excluded by the common law from being a witness for the husband, upon the ground that they were one person in laiv, and as the husband could not testify for himself, so the wife could not, her interest being identical with his; but by the Rev. Code, Art. 190, p. 510, the incompetency of any person as a witness, whether a party to the suit or</p> <p>. otherwise, by reason of interest in the result of it, is abrogated, and the wife is therefore a competent witness for the husband.</p> <p>2. Instructions : ought to be pull : case in judgment. — ’When the possession of a slave by the defendant, commenced under a loan from the plaintiff, it will be error for the court to instruct the jury “ that three years’ adverse possession confers title,” without explaining to the jury what is necessary to constitute an adverse possession.</p>

<p>1. Guardias and ward : conflict of laws : guardian’s powers. — A guardian, has no power over the property of his ward beyond the jurisdiction in which he received his appointment. See Story’s Conflict of Laws, $ 504, a.</p> <p>2. Same : right of administrator and guardian to sue in foreign jurisdiction. — The reduction into his possession by an administrator of the movable property of his intestate, in the jurisdiction in which he received his appointment, vests in him the legal title, and he becomes, to all intents and purposes, the legal owner of it, though as trustee within that jurisdiction; and his title and ownership thus accrued will be respected in every other country. But the rule is different in relation to a guardian, for the legal title to the property of his ward does not vest in him, but remains in the ward, and he is simply an agent or trustee for its management; and hence he cannot sue for the recovery of his ward’s movable property in another jurisdiction, although he may have reduced it into his possession in the jurisdiction in which he received his appointment.</p> <p>3. Same: aot op 1854, oh. 2, seo. 14, page 69: qualification op foreign guardian. — By the Act of 1854, ch. 2, sec. 14, p. 69, a foreign guardian or administrator is authorized to maintain suits in the courts of this State, upon his filing in the Court of Probates of the proper county in this State, a certified copy of his letters and of his official bond, and upon his entering into bond here, to account to the court, from which he received his appointment, for all moneys he may receive in this Slate.</p> <p>4. Same: compliance with act of 1854 after bill filed : now made known to court : chancery : amendment. — Where a foreign guardian has instituted a suit in equity in this State to recover property belonging to his ward, without complying with the Act of 1854, ch. 2, sec. 14, he may afterwards perfect his right to sue by complying with the act. But in such a case he must show his title to sue by an amendment of his bill, the mere filing with the record the evidence of his compliance, will not do. See 1 Danl. Oh. Pr. 367.</p>

Hon. Joel M. Acker, chancellor. 1. The plea in abatement was insufficient. 1 Bac. Ab. tit. Abatement, N. §§ 2-6-8; 0. § 8, note A; 2 Haywood R. 32; 1 Johnson’s Cases, 397; 16 J. R. 307; 2 Dali. 184; 3 Caines R. 99; Rev. Code, 493, Art. 94. . . 2. On the second point, as to the right of the complainant to file his bill, Mr. Houston commented on the statute, Hutch.

ERROR, to the Circuit Court of Tippab county. Hon. P. T. Scruggs, judge. Held: that where, in consequence of an inadmissible confession, property stolen was found at the lodgings of the accused between the sackings of her bed, the fact of finding the goods only could be proved. 2 Russell' on Crimes, 861; see also 1 Leach Cr. C. 298, Wariclcshall’s case.

<p>1. ChanceRY: presumption in fayor OF judgment.' — -An order of the Chancery Court, allowing new parties to be made to a suit therein pending, will be presumed correct, unless the record show affirmatively to the contrary.</p> <p>2. Same: amendment: when order allowing amendment reviewed in this court. — This court will not review the judgment of the Chancery Court allowing amendment to the pleadings, unless it appear by the record that objection was made thereto at the time.</p> <p>3. High court: opinion to be construed by the facts in the case. — The opinions of appellate courts are to be considered in connection with, and as explained by and limited to the state of facts appearing in the record.</p> <p>4. Assignment of chose in action may be by parol. — An open account may, whilst in suit, be assigned by an oral agreement, upon a sufficient consideration, so as to pass an equitable title to the assignee.</p> <p>5. Same: intention of parties is the test as to whether a transaction is an assignment or not. — Whenever it appears that it was the intention and understanding of the parties to an agreement, in reference to choses in action, that the transaction shall be an assignment, it will have that effect, and the interest of the assignee will be protected. See Lee v. Gardner, 4 Cushm. 521; 2 S. & M. 250; 6 lb. 440 ; 1 How. 216 ; 13 S. & M. 566 ; 28 Miss. B. 66 ; 2 Story Eq. 305; 1 Wheat. 233 ; 5 Ib. 277 ; 5 John. B. 193; 1 Wash. C. C. B. 434; 5 Stew. & Port. 60; 15 Mass. 484; 19 John. B. 344; 3 Stew. 247; Baily B. 15.</p> <p>6. Same : debtor cannot defeat rights of assignee after notice. — A judgment debtor cannot, after notice of the assignment of the judgment, defeat or impair the rights of the assignee, by purchasing claim against the assignor.</p> <p>7. Case reviewed. — The case of Parker v. Bacon et al. 26 Miss. B. 425, reviewed and explained, and declared not to decide that an assignment of a judgment cannot be made, except in writing.</p>

Hon. William L. Harris, judge. The case is very fully stated in the opinion of the court. Filed an elaborate printed brief, in which he made the following points: — 1. Held: that like legislation, in Virginia, has restricted the common law powers of executors. They must qualify before they can act. Munroe v. James, 4 Munf. 194. So in Ohio the will must be probated — be judicially established— before the executor can act. Bailey v. Bailey, 8 Ohio, 245.

<p>Error to the Circuit Court of Marshall county. Hon. P. T. Scruggs, judge.</p>

Ekrob, to the Circuit Court of Jefferson county. Hon. Stan-hope Posey, judge. Contended, that the court erred in refusing to grant a new trial, for the following reasons. 1. That the court below erred in ruling out the record of the deed of gift, from A. B. Sims to Martha Jane Sims. Hutch. Code, 606, 607, §§ 8, 9; lb. 869, art. 11; 871, art. 16. 2.

<p>EhhoR, to the Court of Probates of Rankin county. Hon. James Einlay, judge.</p> <p>The heirs and distributees of Daniel Williams, deceased, filed their petition in the court below, for distribution of his estate. The plaintiffs in error also filed their petition, asking to be made parties to said proceeding; and alleging that they had purchased the interest of one of said distributees, and praying that his share in the estate might descend to them. The validity of this assignment was denied by the representatives of the alleged assignor, who was dead.</p> <p>Upon a final hearing, the court dismissed the petition of the alleged assignees, and they appealed.</p>

<p>Attachment : judgment by default erroneous before declaration filed. —The same mode or form of pleading which is observed in all other suits conducted in the Circuit Courts, should be observed in suits commenced by attachment, so far as they may be applicable ; and hence the plaintiff in attachment must file his declaration, or complaint, setting out the nature of his cause of action, before he can be entitled to his judgment by default.</p>

Hon. 0. Harrison, judge. The cause was submitted in this court upon the following abstract, agreed to by the counsel of both parties. David McKinnie died in 1837, leaving a widow and two minor daughters, — Mary, who was born August the 27th, 1834, and Louisa R., November 7th, 1836. In 1840 their uncle, Michael McKinnie, qualified as the guardian of these minors. On the 7th of July, 1848, Mary, against the wishes of her guardian, intermarried with the appellee, B. R. Perry.

Hon. J. S. Yerger, judge. The proceedings in the court below, necessary to be stated, are fully set out in the opinion of the court. Held: that the appointment of the plaintiff was not void. Surely, no stronger authority is wanting for us, on this point.

Hon. J. S. Yerger, chancellor. On the 19th day of May, 1856, Shaw and Zuntz filed their bill in the Chancery Court of Warren county, alleging that on the 20th day of May, 1855, C. A. Brown and J. C. Brown, being the owners of the steamer “John Strader,” were indebted to complainants in the sum of $6206, for supplies furnished the said boat, which was evidenced by a due-bill of that date, signed by C. A. Brown, as master of said vessel, and made an exhibit to the bill.

<p>I. Constitutional law : jury : trial by : as secured by tiie constitution.— The provision of the 28th section of the Declaration of Rights, “ that the right of trial by jury shall remain inviolate,” secures the right of a jury trial, in all cases, in the trial of which a jury was necessary, according to the principles of the common law. See Smith v. Smith, 1 How. 102; Lewis v. Garrett, 5 How. 434; Peck v. Critchlow, I lb. 243 ; Scott v. Nichols, 27 Miss. R. 94; Smith on Const. L. I 383.</p> <p>2. Same: same: case US' judgment. — Upon an appeal to the Circuit Court by the owner, from the inquest of a jury assessing the damages accruing from the use and occupation of his land by a railroad company, either party has the right to demand that the issues of fact arising in the cause, shall be submitted to and tried by a jury.</p> <p>3. Same : appropriation of private property to public use : compensation. The 13th section of the Bill of Rights, which declares that no “person’s property shall be taken for public use, without the consent of the legislature, and without just compensation being first made therefor,” secures to the owner an equivalent in money for the injury and deprivation of right thus inflicted, tobe paid before the appropriation of his property is made; and hence, it is incompetent for the legislature to direct that the owner shall be paid otherwise than in gold or silver, or that the tribunal authorized to ascertain the amount of injury sustained, shall allow as a set-off against his claim for damages, any benefit he may receive from the construction of the public improvement to which his property is proposed to be applied.</p> <p>4. Same : same. — The value of the property at the time it is appropriated to public use, and the injury then known to result to the owner, as the necessary and immediate consequence of such appropriation of his property, without reference to the unascertained and remote benefits or disadvantages that may or may not accrue in future, is the loss sustained by the owner by the appropriation of his property to the use of the public, and for which he is entitled to compensation.</p> <p>5. Same: same: legislature has no right to exercise judicial power.— By the 2d article of the Constitution of this State, the powers of government are divided into three distinct departments — legislative, executive, and judicial — and each of them confided to a separate body of magistracy, and every person or collection of persons, being of one of these departments, is prohibited from exercising any power belonging to another. The ascertainment of the amonnt of damages sustained by the owner, on account of the appropriation of his property to the public use, is a judicial and not a legislative act; and henee, a direction or instruction by the legislature to the tribunal charged with the exercise of this duty, “ that in estimating the damages accruing to the owner of land by the appropriation of it to the construction of a railroad, they shall allow in extinguishment of the claim for damages, the benefits which will result to the owner from the construction of the road through his land,” is an invasion of the powers of the judicial department, and for that reason is void.</p>

. Appeal from the Chancery Court of Jasper county. Hon. John Watts, chancellor. The appellee filed his bill in the court below, in which he alleged that on the 23d day of January, 1856, one Elias Newell instituted an action of replevin against him and one I).

Hon. Wm. Cothran, chancellor. The record discloses the following state of facts: — A bill was filed in the Superior Court of Chancery, in May, 1844, by James Dick et al. v. Peter Pisher, as administrator of George Fisher, deceased, and others. Afterwards, Cushing and Murdock became parties to it, and filed their cross-bill against Peter Fisher, as administrator, and others.

<p>Attachment for rent : replevin by a stranger. — If a stranger replevy property distrained for rent, under the provisions of the Act of 1822 (Hutchinson’s Digest, 811, § 16), the landlord must allege in his avowry, and establish by proof on the trial, that the rent distrained for is due and in arrear. See Southall v. Garner, 11 Leigh. R. 312.</p>

<p>Probate court : jurisdiction : assignment op distributive share. — The Court of Probates has no jurisdiction to 'determine, upon an assignment made by a distributee of his interest in an estate; and hence, cannot refuse distribution to him, upon the ground that he has made such assignment.</p>

Hon. John N. McKee, judge. 1. We suppose there can be no doubt that an appeal will lie from the decree in the Probate Court, ordering appellant to be committed to custody until he perform the former decree of the court. This very point was raised in the case of Vertner v. Martin, 10 Smedes & Marshall, 103, 105, 107, but the court, nevertheless, exercised jurisdiction over the case.

<p>Probate court: widow’s application por year’s support ex parte. — A proceeding by the widow, to have set apart to her, and her. minor children, a year’s allowance, out of her deceased husband’s estate, is ex 'parte, and the’ administrator is not entitled to take notice of it, nor authorized to contest or litigate her claims.</p>

<p>/'Appeal from the Court of Probates of Lawrence county. lion. Joseph Neylans, judge.</p> <p>Cited 2 Lomax Ex’ors, 328 (new edit.); lb. 826; Qlerlce v. Qlerke, 1 Ld. Raymond, 585; Smith v. Surd, 8 S. & M. 682; Noland v. Qalvit, 12 lb. 273; 2 Munf. 321; 4 Grattan, 258; 11 lb. 17.</p> <p>Cited Sillv. Robeson, 2 S. & M. 54; Berry y. Parlees, 3 lb. 625.</p> <p>Cited Rev. Code, p. 426, art. 12.</p> <p>Cited 2 Story Eq. § 1283; Qlarhe v. Qlarlce, 8 Paige, 152; Ed-monds v. Qrenshaw, 14 Pet. 166; Sutherland v. Brush, 7 John. Ch. R. 22; Shipbrooh v. Sinchinbroolc, 16 Yes. Jr. 478; 2 Wms. Exors. 1293, 1294; Lees v. Sanderson, 4 Simmons, 17; Noland v. Qalvit, 12 S. & M. 273; Qrinstead v. Fonte, 32 Miss. 121; Lyles v. Sutton, 6 Gill. & John. 122; Berry v. Parlees, 3 S. & M. 625; ■ Qason v. Qason, 31 Miss. 597; Hill on Trustees (marg. page), 374, and notes.</p>

<p>1. Will: legact: suit at law fob, without executor's assent. — A legatee, whether general or special, after the lapse of twelve months from the grant of letters testamentary, and where it appears, that there are no debts or demands existing against the testator, for which his legacy is liable, may maintain an action at law, to recover his legacy without the executor’s assent to it. See Worten v. Howard, 2 S. & M. 530; Magee v. Gregg, 11 lb. 70.</p> <p>2. Estate: power: power of sale will not enlarge express life estate.— A power of sale attached to an express life estate, will not have the effect to enlarge it into a fee. See Sugd. on Pow. 65; 14 S. & M. 184; 32 Miss. R. 115.</p> <p>3. Will : construction op. — In the construction of a will every part and provision must be made, if possible, to harmonize and be consistent with the other; a construction will not, therefore, be put upon a clause of doubtful import, which would make it irreconcilably inconsistent with another plain and clear provision of the will.</p> <p>4. Same : case in judgment. — The testator declared it to be his desire, that his widow should have his entire estate, “ to have and to hold, and to sell any part thereof, she might think best for her interest, and the interest of his children, during her natural life or widowhoodthat his entire estate should be kept together during the life or widowhood of his widow, and if she should survive until his two youngest children should marry or attain the age of majority, that she should give them such property, as in her judgment should seem best, and that these two children should be educated out of his estate, and upon the death of his widow, he directed a division of his property among his children, and finally he directed that D. and N. “ should take his entire business in hand, and act as executors of his will.” Held 1st, that the widow took a legal freehold in the property, during her life or widowhood; and 2d, that his executors were not entitled to retain possession of and manage the estate, after the payment of his debts, and the lapse of twelve months from the date of their qualification.</p>

<p>1. Will: utjle as to effect of void direction, etc., on those otherwise valid. — The invalidity of any particular trust, limitation, or interest, created by a last will and testament, will not destroy the trusts and limitations, which are otherwise valid, unless the latter are so connected with those that are illegal and void, that it is impossible to sustain the one without giving effect to the other. See Hawley v. James, 5 Paige Ch. R. 4-58-59-60; Kane v. Gott, 24 Wend. 666.</p> <p>2. Same : when power given to executor, survives. — When the testator directs his executors, as such, and -not nominatim, to do a certain act at all events, giving them no discretion in the matter, the power survives; and, on the death of all the executors, it may be exercised by the administrator de bonis non with the will annexed. See Bartlett v. Sutherland, 2 Cushman, 395.</p> <p>3. Same : case in judgment. — The testator by the first clause of his will directed, that his property should be kept together, and that the expenses of his family and of the education of his children should be paid out of his effects. By the third clause he directed, that his farm should be continued, and for this purpose, he directed his executors to sell the farm and land, then owned by him, and purchase another in a more suitable location. By the fourth clause he directed, that the surplus proceeds of his farm should be invested in property, or in such other manner as his executors should deem best for the interest of his family. By the fifth clause he provided that his property should be equally divided among his children upon the marriage of his widow; and by the last clause he appointed R. and H. his executors. The will was not executed so as to pass real estate. After the death of both of the executors, and whilst the widow remained unmarried, one of the testator’s children applied for a division of the estate. Held, 1st. That the invalidity of the direction to sell the farm, did not affect the directions to keep the property together and continue the plantation; that the executors, under the power vested in them by the fourth clause, to invest the proceeds of the farm in other property, might purchase another plantation. 2d. That the duties imposed to keep the property together and continue the farm, and to purchase another in a more suitable location, were to be discharged at all events by the executors as such, and not nominatim, and upon their death survived to administrator de bonis non.</p>

<p>1. Maintenance : champerty. — The officious intermeddling by a person, in a suit which does not belong to him, by maintaining or assisting a party with money, to prosecute or defend it, tends to keep alive strife and contention, and perverts the remedial process of the law into an engine of oppression; and is, therefore, against public policy, and will not be tolerated.</p> <p>2. Same: chancery. — Equity will not entertain a bill tainted with champerty. A court of equity regards the substance and not the forms of things, and will not, therefore, entertain a suit which, though brought in the name of a party who has a right to sue, has been instituted and is being prosecuted in violation of the rules of law prohibiting maintenance and champerty.</p> <p>3. Same. — Sale of personal property adversely held, champertous. An assignment or sale of personal property in the adverse possession of a third party, where the assignee knows that he cannot acquire or enjoy the fruits of his purchase except by litigation, is champertous, and confers no right to the property or authority to sue for it, as against the adverse possessor.</p> <p>4. Same: chancery: champerty by administrator for his own benefit: case in judgment. — S. R. died in 1837, in possession of the slaves in controversy. In 1839, the slaves went into the possession of the defendant, who claimed them as his own, under a bill of sale executed by S. R. in her lifetime. In 1843, a portion of the distributees of S. R. brought an unsuccessful action at law against the defendant for the recovery of the slaves. Afterwards, three of the four distributees assigned their interest in the slaves to W. A. R., the remaining distributee, and the complainant, jointly; and soon thereafter, in 1848, the complainant obtained letters ad colligendum on S. R.’s estate; and, in that capacity, brought this suit for the recovery of the slaves. After the institution of the suit, in order to get the benefit of W. A. R.’s testimony, he procured an assignment from him of his interest in the slaves. Both before and after the institution of the suit, the complainant stated he was deeply interested in it. Held, that the presumption was, that S. R. owed no debts requiring an administration on her estate; and that it appeared that the complainant had procured letters ad colligendum, and was prosecuting this suit in his trust capacity, for his individual benefit, and to enable him to reap the fruits of his champertous assignments from the heirs, and that the bill would therefore be dismissed.</p>

<p>Writ or ERROR: lies against administrator without revivor. — Where the plaintiff in the court below dies after the rendition of a judgment in his favor, a writ of error will lie against his administrator, to revise the judgment, without its having been revived in his name. See Hutch. Dig. 855, art. 12; Rev. Code, 456, art. 646.</p>

<p>1. Writ op error : privity between administrator de bonis non and administrator in chief. — Under the statutes of this State, the administrator de bonis non is in full privity with the previous administrator, and he may prosecute or defend a writ of error to a judgment rendered in favor of or against the previous administrator without revivor.</p> <p>2. Same : same : process to notify administrator de bonis non of pendency of writ of error. — Where a writ of error is sued out after the death of the first administrator, and after the appointment of an administrator de bonis non, a scire facias ad audiendum errores may properly issue from this court, to notify the administrator de bonis non of the pendency of the writ here.</p> <p>3. Instructions : new trial : exceptions. — Instructions which appear by the record to have been given or refused, are always open for consideration upon a motion for a new trial, without any special exceptions thereto having been taken, or reserved on the trial. See Phillips v. Lane, 4 How. (Miss.) 122 ; MeRaven v. McGuire, 9 S. & M. 34.</p> <p>4. Infancy : defence of : not waived by promise to a stranger. — A mere casual declaration of a person, made, after his arrival at majority, to a mere stranger, to the effect that he will pay, or intends to pay, a debt created by him during his infancy, will not bind the declarant; a promise by an adult to pay such a debt, in order to bind him, must be made to a person then authorized to receive payment, and to give a discharge to the promisor.</p> <p>5. Principal and agent : sub-agent : ratification. — The principal is liable to third persons in a civil suit for the frauds, misfeasances, or neglect of duty ~f his agent, and of those whom the agent employs about his business, though without his knowledge or consent; third persons, therefore, who treat with a sub-agent, as with one having authority, have no right, as against the principal, to set up that the agent is without authority to act for the benefit of the principal; and moreover the principal may ratify the act of such sub-agent, and thus secure the benefit of an act done by him.</p> <p>6. Same : same : infancy. — The plaintiff left a note with Ms agent for collection; the agent directed his clerk to present the note to the debtor for payment; the clerk did present the note, and the debtor recognized his liability and promised payment. Held, that the clerk was not a mere stranger in the transaction, but was authorized to receive payment, and the promise made to him was as effectual to waive the defence of infancy, as if it had been made to the owner of the note.</p>

<p>Error to tbe Circuit Court of Harrison county. Hon. William M. Hancock, judge.</p> <p>On tbe 31st of July, 1855, Carpenter sued Tegarden in tbe court below, to recover possession of a quarter section of land. The complaint (which was under the Pleading Act of 1850) alleged that Carpenter was the owner, and entitled to the possession of the land; and that Tegarden was in possession, and wrongfully withheld the same. The defendant pleaded, 1st. A general denial. 2d. That the suit was commenced more than seven years after plaintiffs right of action accrued. 3d. That the defendant, and those under whom he claimed, had been in the adverse possession of the land for more than ten years before the commencement of the suit. Upon these pleas the defendant took issue, and the cause was submitted to a jury, who found for the defendant. On the trial, the plaintiff read in evidence a patent from the United States for the land in controversy, dated in 1841, and proved that defendant was in possession, and the value of the rents.</p> <p>The defendant then offered in evidence certain deeds: 1st, one from B. Lambert, the deputy sheriff of Harrison county, dated August 6th, 1838, which purported to have been made in pursuance of a sale made by, or an execution emanating from, a judgment in the Circuit Court of Hancock county, in favor of one Lee against the plaintiff. This deed was made to one Hally, the purchaser at the sale. The defendant, in support of said deed, introduced R. Seal, who testified that the records of the Circuit Court of Hancock county had been destroyed by fire; and that he had been deputy clerk in said court; and that, previous to the destruction of said records, he had examined the record in the case of Lee v. Oar-pewter, and that there was no entry of judgment on the minutes of the court in said case, except “judgment by default against the defendant.”</p> <p>Because the defendant failed to show a valid judgment in said cause against Carpenter, the court excluded the said deed from the jury. The court also excluded a deed offered in evidence by defendant from said Hally, conveying the land in controversy to one L. Endt, dated in 1843; and a deed for the same land from Endt to defendant, dated in 1850. The defendant then introduced W. H. Tegarden, who testified as follows : “ That Lewis Endt went into possession of the premises under purchase from Plally in 1843,— continued in possession until 1850, when he sold to defendant, with the exception of a short interval, — that the defendant went into possession in 1850; and that defendant had remained in possession up to this time. That Endt and defendant together, had been in possession from 1843, with the exception of a short interval; that the plaintiff had never been in possession.”</p> <p>William A. Champlin, for defendant, testified that “ he (witness) was clerk of the Court of Probates of Harris on county; that Endt brought the deed from Hally to him for record, and that witness recorded it; and that Endt took possession under the deed, and remained in possession until he sold to the defendant.”</p> <p>This was all the evidence.</p> <p>The plaintiff moved for a new trial, which was granted, and the defendant excepted.</p> <p>At the next term, the defendant, under leave granted, filed the following amended answer:—</p> <p>“ Now comes the defendant and says, that this defendant, and those under whom he claims title, held adverse possession of the premises sued for, under claim and color of title, for the space of seven years, from and after the 24th day of February, 1844 (the date of the Limitation Act); and before the commencement of this suit, and before the 1st day of March, 1854 (the date of the amendment to the Limitation Act); and this he is ready to verify,” &c.</p> <p>The plaintiff moved to strike out this plea, which was refused; he then demurred, and his demurrer was sustained.</p> <p>On the second trial, a verdict was rendered for plaintiff, who moved for a new trial, which was refused, and he again excepted, and sued out this writ of error.</p> <p>Cited Angelí on Lim. 478 — 9, 503-6; Adams v. Quice, 30 Miss. R. 397 ; Jachsony.Newton, 18 Johns.R.<360; Jachsony. Le Trom-hois, 8 Cow. 589; Recias v. Dooley, 7 B. Monroe, 256 ; Northrop v. Wright, 7 Hill. 476.</p> <p>Cited Angelí on Lim. 446, § 34; lb. 447-8, § 35; Fanning v. v. Wilcox, 3 Day’s R. 259.</p>

<p>1. Principal and agent: estoppel: agent estopped by his acts as such.— A deed, executed by an agent, in the name of his principal, which conveys land belonging to the agent, is a valid conveyance of the agent’s title; for he, and those claiming under him, will be estopped to deny validity of the title of the principal.</p> <p>2. Ejectment : bill to remove clouds : outstanding title in a stranger cannot be set up, unless it be then valid. — The defendant, in an action of ejectment, cannot set up an outstanding legal title in a stranger to defeat the plaintiff’s recovery, unless such title be valid and subsisting at the time; and hence, if the outstanding title be barred by the Statute of Limitations, it constitutes no bar to the plaintiff’s recovery. The rule is the same in a proceeding in equity, under the statute to remove clouds on the title of the complainant. See Jackson v. Hudson, 3 Johns. R. 375 ; Jackson v. Todd, 6 lb. 257 ; Qreen-leaf’s Lessee v. Birth, 6 Peters R. 302; Foster’s Lessee v. Joice, 3 Peters C. C. R. 498.</p> <p>3. Chancery : dependant bound by depence set up in his answer. — The defendant, in a suit in chancery, cannot rely upon a defence inconsistent with the title which he sets up in himself by his answer.</p>

<p>ERROR to tbe Circuit Court of Clarke county. Hon. William M. Hancock, judge.</p> <p>Tbe proceedings in the court below, and tbe evidence on tbe trial of tbe motion, are fully set out in tbe opinion of tbe court, except tbe proof made of the solvency of Box, who was tbe surety of Shotts, on the judgment in favor of tbe plaintiffs in error.</p> <p>The Circuit Court awarded tbe money in controversy to Trotter, the plaintiff in the junior execution.</p> <p>Cited Rev. Code, 524-5, Art. 261; 6 How. 530, 536, 543, 554; 7 lb. 397.</p>

<p>1. VENDOR AND VENDEE: VENDOR’S LIEN, WHEN IT PASSES TO HIS ASSIGNEE.— It is the settled rule in this State, that the lien of a vendor, who has made no deed, but has only executed a bond to convey the title when the purchase-money is paid, passes to his assignee. See Tanner v. Hicks et al. 4 S. & M. 294; Parker v. Kelly et al. 10 lb. 184; Wilkins v. Humphreys et al. 23 Miss. 309; aliter, when the vendor has conveyed the title. See Skaggs v. Nelson, 25 Miss. R. 88; Williams v. Walker, 30 lb. 165.</p> <p>2. High court : stare decisis. — Rules of law, which relate principally to matters of expediency, when once settled by this court, will not be changed.</p> <p>3. Vendor and vendee: transfer op purchase-money by vendor without recourse, does not prevent lien prom passing. — The indorsement by the vendor of a note given for a portion, or for all the purchase-money, “without recourse in law or equity,” will not prevent the vendor’s Jien passing to the assignee, in cases where the lien is assignable.</p> <p>4. Same: distribution op proceeds op land, where only a part op the purchase-money has been assigned. — When the vendor assigns a portion of the purchase-money, to which his lien attaches, and retains the balance, the proceeds of the land, if insufficient to pay all, will be distributed pro rata between the vendor and his assignee.</p> <p>5. Oases cited and approved. — The eases of Tanner v. Hicks et al. 4 S. & M. 294; Parker v. Kelly et al. 10 lb. 184; Wilkins v. Humphreys et al. 23 Miss. R. 309, cited and approved.</p> <p>6. Case explained. — The case of Littlejohn v. Jordan, 32 Miss. R., explained.</p>

<p>1. GrIFT: VALID : WHERE USE OP A CHATTEL RESERVED TO DONOR POR LIFE, IP there be a deliverv. — A gift in writing of a slave to a trustee, “ to manage and control” tlie same for the use and benefit of the donor during his life, and afterwards for the use and benefit of the donee, is valid, if there be an actual delivery of tihe property to the trustee.</p> <p>2. Same : trustee cannot depeat title op cestui que trust by a re-delivery op the property. — The delivery of a slave, under a gift, to the trustee, vests the title in him, eo instanti, for the benefit of the cestui que trust; and no act of omission or commission on the part of the trustee will divest the title so vested; and hence an immediate redelivery of the property by the trustee to the donor, will not defeat the gift.</p> <p>3. Same : case in judgment. — The donor made an instrument in writing, but not under seal, by which he conveyed a slave to a trustee, to manage and control the same for the benefit of his grandchild during her minority, but reserving to himself the use of the slave during his own life. At the time of the delivery of the instrument to the trustee, he called the slave up and pointed him out to the trustee and two other persons present, and stated that he gave the slave to the trustee for the purposes mentioned in the writing, and called on the two persons present to witness the delivery of the instrument and of the slave, and told the slave to obey the trustee. The trustee then went out into the yard where the slave was, and ordered him to go about the donor’s business ; and the slave afterwards remained with donor during his life. Held, that the gift was good, there being a valid delivery of the slave.</p>

<p>1. GUARANTY: WHEN PRIOR REQUEST TO give credit a sufficient consideration. — As a general rule, a guaranty of a pre-existing debt of another, is not binding on tlie guarantor, without a new and independent consideration to support it; but when the guaranty, though executed after the debt was created, is connected with, and the inducement to the original credit, or the result of a previous promise by the guarantor, upon the faith of which the credit was obtained by the original debtors, it requires no new or independent consideration to render it valid, but it is a part of the original transaction, and the consideration upon which the credit was given. See Leonard v. Yredenburg, 8 John. R, 29 ; 3 Kent. Com. 123.</p> <p>2. Same: rule for construing. — Where the language of a guaranty is of doubtful import, the true intention must be obtained by reference to the facts and circumstances accompanying the execution of the instrument. See Drum-mond v. Prestman, 12 Wheat. 515; Bell v. Bruen, 1 How. U. S. 169-186; Lee v. Diclc, 10 Pet. 482-493.</p> <p>3. Same : case in judgment. — The defendant gave a verbal authority to C. & S. to promise for him that he would guaranty any debt they might contract; they informed the plaintiffs of this, and promised them that they would procure the guaranty of the defendant for the debt; thereupon, and in consideration of the promise, the defendant extended a credit to C. & S., to the amount of §3600. Soon afterwards the plaintiffs sent the following instrument to the defendant, for his signature : “ Messrs. M. & A., New Orleans, Gent.: I hereby agree to guaranty the payment of all drafts drawn on your house by Messrs. C. & S. of Sidon, Miss.” This instrument the defendant refused to sign, but executed the following, and sent the same to the plaintiffs : “ Messrs. M. & A., New Orleans, Gent.: Your form of a letter of credit that you wished me to give Messrs. C. & S. of Sidon, is before me. I am not disposed to give my name, only for some specified amount, say for three thousand dollars. The above amount I will underwrite for the house of C. & S. at Sidon.” Held, 1st. That the promise made by the defendant through C. & S. to plaintiffs, to guaranty the debt, was a sufficient consideration to support the guaranty afterwards executed. 2d. That in construing the guaranty, reference might be made to the form of a letter of credit sent by plaintiffs to defendant, for his signature. And 3d. That the guaranty was intended to secure the debt, which had already been created on the faith that the defendant would execute it.</p> <p>4. New trial : not granted when jury have acted on the credibility of a witness. — Where the credibility of a witness has been fully and fairly submitted to a jury, and determined by them, their verdict on that point will not be disturbed by this court.</p>

<p>1. Peivate writings : effect of alteration bt a stranger. — A material alteration in a deed or other instrument, made by a stranger without the knowledge or privity of the grantee, obligee, or holder, does not change or affect its legal operation; the ancient rule on that subject is not now recognized by the courts. See U. S. v. Spalding, 2 Mason’s R. 478; 1 Green. Ev. $ 566; 4 Kent Com. 9th ed. 526.</p> <p>2. Same : burden of proof where alteration appears in instrument. — A party seeking to recover upon an instrument, which appears on its face to have been altered in a material part, must show either that it was done by the consent of the maker, or that the alteration was made by a stranger, without his consent or privity. See Waring v. Smyth, 2 Barb. Chan. R. 119; Doe v. Palmer, 6 Eng. Law and Eq. R. 155.</p>

<p>1. New trial : not graxted fob immaterial ebeob. — A new trial will not he granted for an error of the court, which could not have prejudiced the party asking it; and hence, the erroneous exclusion of competent evidence will he no ground for setting aside the verdict, if the fact which the evidence tended to prove was fully established by the other proof in the cause.</p> <p>2. New trial : instructions when not open for review on motion for new trial : high court : exceptions. — Instructions which were neither excepted to on the trial, nor marked by the clerk as “ given” or “ refused,” cannot be objected to for the first time on a motion for a new trial, and they will not be reviewed by this court in determining the propriety of the judgment of the court below, on the motion for a new trial. See Anderson v. Sill, 12 S. & M. 682; Meld v. Wear, 28 Miss. R. 61-68; Mayer & Co. v. McLwre, ante.</p> <p>3. New trial : rule as to granting : when there is no error in the rulings of the court. — This court will not award a new trial, when there is no error in the rulings of the court below, unless the evidence greatly preponderate against the verdict, or the verdict be without evidence, or appear to be manifestly wrong from the record before the court.</p> <p>4. Pleading: evidence: allegata and probata must agree. — When the plaintiff declares on a special agreement, he is bound to prove the contract as laid in his declaration, or else he cannot recover.</p> <p>5. Same : same : variance. — When the plaintiff declares on a special agreement, and also files the common counts, if at the trial he proves a special agreement, but materially different from that laid in his declaration, he cannot recover on any of the counts. He cannot recover on the special counts, because of the variance; nor can he recover on the common counts, because a special agreement has been proven. See 2 Tuck. Com. 148 ; 1 Str. 648 ; Bull. N. P. 139; 6 Term. R. 325.</p> <p>6. Same : same. — In actions upon contract, if any part of the contract proved should vary materially from that which is stated in the declaration, it will be fatal, — for a contract is an entire thing, and indivisible.</p> <p>7. Same : same : consideration must be proved as laid. — In a declaration upon a special agreement, the entire consideration must be stated, and the entire act to be done in virtue of such consideration, together with the time, manner, and circumstances; the consideration is descriptive and material, and must, with all the other parts of the agreement, be strictly proved as laid. See 1 Greenl. Ev. 58, 66, 67, 68. Handy, J., dissented.</p> <p>8. Same : same : case in judgment. — If in a declaration against a warehouseman, to recover the value of goods stored with him and destroyed by fire, it he averred that the defendant received the goods on storage, “ for a certain reasonable reward to be paid to him by the plaintiff,” and the proof shows that the defendant was to receive a stipulated price, the variance is fatal. Handy, J., dissented. So if the declaration aver that the goods were to remain in the custody of the defendant, until they were ordered to be shipped by the plaintiff, and the proof shows that there was no agreement as to the time during which they were to be in defendant’s custody, the variance would be fatal.</p> <p>9. Same: same. — In an action against a warehouseman to recover the value of goods stored with him and destroyed by fire, it is immaterial what amount of compensation he is entitled to receive, or whether it was stipulated between the parties. It is sufficient if he was entitled to receive compensation for the service; and hence, if the declaration aver that he was to receive a reasonable reward, and the proof shows that the price was agreed on by the parties, the variance will he immaterial. See 1 Chit. PI. (8 Am. edit.) 296; Handy, J., dissenting.</p> <p>10. -PRACTICE : OBJECTIONS TO EVIDENCE ON ACCOUNT OF VARIANCE.-After Verdict, it is too late to object, that the consideration of the agreement sued on, is. not.proven as laid in the declaration, if the evidence show a sufficient consideration.</p>

<p>1. Tax collector : sureties in general bond liable for special tax. — The sureties in a tax collector’s general bond, are liable for his failure to collect and pay into the county treasury, a special tax, levied by the board of police, under the Act of 1838 (Hutch. Dig. 713), where no special bond has been required, as authorized by that act.</p> <p>2. Same : suit on bond proper in the name of the state. — The State is the proper plaintiff in an action on a tax collector’s bond to recover taxes due to a county.</p>

Hon. Joel M. Acker, chancellor. This was a bill filed by the appellee, Land, against Mrs. Boggan, one of the cestuis que trust (and her husband), and Austin L. Preyrett, the trustee, in a certain deed, which will be hereinafter set out, to collect a demand against said parties, out of the trust property.

Hon. James E. Trotter, vice-chancellor. The pleadings and evidence are fully set out in the opinion of the court. Contended for the following propositions: 1st. If said deed was voluntary, as charged in this bill, it is void as to existing creditors. Read v. Livingston, 3 Johns. Chan. R. 481 — 500; Threewits v. Threewits, 4 Desaus. R. 560; Atherly on Marr.

Hon. E. Gr. Henry, chancellor. The pleadings and evidence are sufficiently stated in the opinion of the court. Cited Bishop on Marr. and Div. §§ 513, 514, 525, 526, 306, 309, 310. Cited Bishop on Marr. and Div. §§ 511, 515; 3 Richardson, 93; 31 Maine, 342; 8 Watts & Serg. 251; 12 Johnson, 293; 5 Ham. (Ohio R.) 318.

ERROR, to the Circuit Court of Monroe county. Hon. Joel M. Acker, judge. Mrs. Carter, wife of Davis G. Carter, became the owner of the slave in controversy, in January, A.D. 1841, and held the same as her separate estate, under the Act of 1839. In the year 1851, her husband (said D. G. Carter) conveyed the said slave, in trust, to the defendant in error, Williams, to secure certain debts due by the husband.

Hon. E. G. Henry, chancellor. The substance of the pleadings is fully set out in the opinion of the court; it will be necessary only to add more in detail the evidence in the cause.

Hon. Orville Harrisson, judge. Elisha Q. Yance died in August, 1854, after having made and published his last will and testament, which, after his death, was duly admitted to probate and record, and letters testamentary granted to Ms executrix, the appellee. By his will, he provided as follows:— “ First. I give and bequeath to my wife, Cypressa 0. Vance, the plantation on which I now reside . . . the same to have at her disposal forever.

Appeal» from tbe Chancery Court of Copiah county. Hon. John E. McNair, chancellor. The appellees, Lum and wife, filed their bill in the court below against the appellant, to enforce their lien on certain land, which, they alleged, they held as the vendors of the said land to one Cook, for balance of the purchase-money due by Cook to them.

Hon. William L. Harris, judge. Argued at length that, by the terms of the charter of the defendant in error, the directors had no power to take subscriptions for stock; that the right was vested in the commissioners named in the charter; and in this part of the case they cited and relied on the following authorities: Qoulter v. Richards, 24 Miss. E. 329; 2 Conn. R. 579; Middletown and Harrisburg Turnpike Co. v. Watson, 1 Rawle, 330; Bssex Turnpike Co. v. Collins, 8 Mass.

Hon. R. B. Mayes, judge. The estate of Henry Allen, Jr., was declared insolvent, and the commissioner of insolvency reported, among other claims allowed by him against the estate, a claim in favor of… Held: that by this reception of profits by the husband, by the wife’s consent, proved as matter of fact to his satisfaction, that the wife had given such profits to her husband.

Hon. Francis Gildart, judge.' Nathan Swayzie died previous to the year 1838, and Ms widow, Narcissa, was appointed and qualified as administratrix of his estate, and as such had in her possession all his slaves, including those in controversy in this suit.

Hon. E. Gr. Henry, judge. Cited Hutch. Dig. 677, § 3; Waterman v. Bigham Hudson, 2 Hill, Ch. R. 512; and insisted that the case of Mann v. Yazoo Gity, 31 Miss. R. 574, was clearly distinguishable from the case, inasmuch as the treasurer of that corporation held his office for a stated and determinate period, and in the present, the bond of the guardian was continuous. Cited and relied on Mann v. Yazoo City, 31 Miss. R. 574.

Hon. John E. McNair, judge. This action was commenced on the 11th of February, 1858, and the declaration alleges as follows: “ For that, whereas, heretofore, to wit, on the 2d day of January, A.D. 1858, the said defendants being common carriers, and engaged in the carrying of persons for pay, from the city of New Orleans, in the State of Louisiana, to the town of Brookhaven, in the State of Mississippi; and the said plaintiff, on the said 2d day of January, A.H. 1858, being…

<p>1. Three pee cent, fund : act of 18S2 construed. — The Act of the 16th of March, A.D. 1852 (Session Laws, p. 91), does not absolutely grant the three per cent, fund, then in the State'treasury, to the several counties in this State, but the appropriation therein- made is a mere delegation by the legislature of the power to the counties to expend the fund in execution of the trust imposed by the terms of the grant made by Congress to the State, and is therefore subject to be resumed at the pleasure of the State, at any time before the actual reception or appropriation of the money by the counties.</p> <p>2. Statutes: repeal by implication not formed. — The law does not favor a repeal by implication ; and hence, when two statutes are seemingly repugnant, they must be so construed, if possible, that the latter shall not be a repeal of the former by implication.</p> <p>3. Same : construction of general words nr. — General words in a statute should never be so construed as to divest a right clearly granted by a previous statute, if they be susceptible of a fair construction consistent with the right there granted.</p> <p>4. Three per cent, fund: acts of 1852 and 1857 construed. — The Act of the 16th of March, 1852, granted all the three per cent, fund then in the State treasury, to the several counties of the State; the Act of the 18th November, 1857, granted all of that fund then in the treasury to the five railroad companies therein named, without mailing an express reference to the former act. A large sum which was in the treasury at the date of the first act was never in fact distributed to the counties, but remained in the treasury at the date of the Act of 1857, together with a large sum which had been received as a part of the three per cent, fund, since the passage of the Act of 1852. Held, that as there was no express repeal of the Act of 1852 contained in the Act of 1857, the general words of the latter act did not divest the right of the counties secured by the first act, and that the two acts should be so construed as to give effect to both of them; and therefore, that the Act of 1857 did not-embrace any portion of the fund granted to the counties by the Act of 1852.</p> <p>5. Same : act of 1857 : right of southern railroad company to a part of the fund not on auditor’s nooKs. — The Act of the 18th November, A.D. 1857, which loaned the three per cent, fund then in the treasury in equal shares to five railroad companies therein named, upon their making application to the auditor within ninety days from its date, also provided, that if any of said companies should “ fail or refuse for ninety days to make application for their distributive share, then the share or shares so neglected or refused to be applied for,” should “be distributed by the auditor of public accounts to the other road or roads applying within the ninety days, share and share alike.” All the companies applied for and received their distributive shares of the sum shown by the auditor’s books, and recognized by that officer as belonging to the three per cent. fund. The defendant in error (being one of the companies), just before the expiration of the ninety days, applied for a further sum, which, upon subsequent investigation, was found to belong to that fund. Held, that the failure of the other companies to apply within the ninety days for the said sum not recognized by the auditor as belonging to the fund, was not, under the circumstances, a forfeiture of their right in it, as such failure was without fault on their part, and occasioned by mistake of fact over which they had no control.</p> <p>6. Same: same: how application for loan made under act of 1857. — The application required by the Act of the 18th November, 1857, to be made within ninety days after its passage by the several railroad companies therein named, for a loan of the three per cent, fund, must be made to the auditor of public accounts, a deposit of bond with the treasurer within that time, and an application afterwards to the auditor for his warrant will not do.</p>

<p>1. School lands : title to them tested in the state. — The right and title to the sixteenth sections, reserved from sale in Mississippi Territory by the Act of Congress of 1803, were not vested by that act, or any subsequent act of Congress, prior to the Act of the 19th May, 1852, either in the State or the inhabitants of the townships, but remained in the United States.</p> <p>2. Same : sales oe : ratification by act of congress. — By the Act of Congress of the 19th of May, 1852 (amended by the Act of 3d March, 1857), the sales of all sixteenth sections theretofore made in this State by authority of the legislature were ratified and confirmed, and authority given to the State to sell all those remaining unsold, with the consent of the inhabitants of the townships ; a sale, therefore, of a sixteenth section made prior to the passage of that act, though in violation of the State law, but subsequently ratified by an act of the legislature, is ratified and confirmed by the aforesaid act of Congress, and vests a good title in the purchaser.</p>

Hon. John E. McNair, chancellor. 1. A person, after his majority, has a clear and adequate remedy at law to avoid his deed made while an infant'. 2 Kent’s Com. 236; Tucker v. Morehead, 10 Pet. R. 71; Worcester v. Baton, 13 Mass. 374; Pool v. Mix, 17 Wend. 132 ; Badger v. Phinney, 15 Mass. 359; Boofv. Stafford, 7 Cow. 179; Roberts v. Wiggins, 1 N. H. 73; Samlet v. Samlet, 6 lb. 337. 2.

<p>1. Bills or exchange and promissory notes: assignment on illegal consideration void. — The assignment or transfer of a negotiable security made upon an illegal consideration is void, and confers no title to the instrument on the assignee ; and hence the maker of a note given upon a valid consideration, may defeat a recovery on it by an assignee who won it at a game of cards.</p> <p>2. Same. — Where 'a note or bond is payable to bearer, it is a contract by the maker or obligor to pay it to whomsoever may become the lawful holder, and the maker or obligor cannot in such a case set up as a defence to an action by a bona fide holder any defence which may exist as against the payee; but this principle does not prevent the maker or obligor from showing in bar of recovery on it, that the contract of assignment was illegal and void.</p>

Hon. John E. McNair, judge. This action was brought to recover one hundred and sixty acres, or two-eighths of land, in possession of defendant. The tax-collector’s deed, relied on by defendant to defeat plaintiff’s title, embraced this land in controversy, and other land, altogether amounting three thousand and sixteen acres, which it recites were sold as the property of plaintiff.

<p>1. Pleading and practice : amendment. — Under the Pleading Act of 1850, the defendant has the right, at any day of the return term, to plead any matter which was a proper defence to the action, although he may have, at a previous day, filed another plea; he also has the right, at that term, to amend his pleadings without leave of the court.</p> <p>2. Same : inconsistent pleas allowable. — A defendant may rely upon any matter which constitutes a valid defence to the action; and as a general rule, it is no objection to a plea that it contains matter inconsistent with the defence set up in any other plea; and hence, a defendant sued as a partner, may plead the general issue which admits the partnership, and may also plead a denial under oath that he is a, partner, as alleged.</p>