Volume 37 — Mississippi Reports

P. T. Scruggs, judge. Both the plaintiffs and defendants prosecuted a writ of error to the judgment in this cause. Held: that “ the validity of the order of publication depends entirely upon the question, whether the evidence upon which it was made was sufficient to authorize it; and as that evidence is not stated, and is not required to be stated, the presumption must prevail that the court acted correctly, and upon proper evidence.” 31 Miss.

Hon. E. G. Henry, judge. On the 21st of June, 1858, the defendant in error (plaintiff below) appeared before a justice of the peace of Leake county, and made oath that she was delivered of a bastard child on the 11th of April of that year, and that plaintiff in error was the father of said child.

Hon. Reuben Bullock, judge. In May, 1836, William B. Lintot died, leaving a last will and testament, which was duly probated, in that year, in the court below. After making several small bequests, the testator provided as follows: “ My personal property to remain with my dear mother, during her natural lifetime.

Hon. J. M. Ellis, judge. Jeremiah Terry died intestate in January, 1857. He left surviving him Ann Scott, a sister of the half blood, and several nephews and nieces (among whom were Jesse Terry and Evan S. Jeffries), being the children of his deceased brothers and sisters of the whole blood; but he left no brother or sister of the whole blood surviving him.

Hon. E. M. Wells, judge. Mrs. Sidney Brooke, widow and administratrix of Jonathan Brooke, deceased, who died intestate, applied to the Probate Court of Attala county for allowance of the personal property of her deceased husband, exempt by law from execution. Commissioners were appointed by the court, who set apart to the widow all the personal property exempt by law from execution.

<p>Error to the Circuit Court of Lawrence county. Hon. John E. McNair, judge.</p> <p>The verdict and judgment in the court below were for the defendant in the action of ejectment.</p> <p>Cited How. & Hutch. Dig. p. 407, § 98; 4 Conn. R. 495; 6 lb. 373; 7 Mass. 488; 3 Stew. & Port. 355.</p> <p>Cited Lee v. Qardner, 26 Miss. R. 543; Cfelstrop v. Moore, lb. 210.</p>

Hon. John N. Robb, judge. It appears from the return that Littleton Kelly died in Hinds county, in May, 1849, leaving a paper purporting to be his last will and testament, which was presented by Hiram Kelly, the executor therein named, to the Probate Co.urt of Hinds county for probate, and admitted to probate, on due proof by the subscribing witnesses, and letters testamentary granted thereon to said Hiram Kelly, at the July term of the Probate Court, 1849.

Hon. F. M. Rogers, judge. In addition to the facts set out in the opinion of the court, it is only necessary to state more fully the second plea filed by the defendant, under leave granted.

Hon. Francis Gildart, judge. In October, 1857, Peter S. Moore filed his original petition in the court below, seeking distribution of the estate of his mother, Ellen C. Moore. To this petition West and wife demurred, and their demurrer was sustained, and leave given to petitioner to file an amendment.

<p>1. Adverse possession: statute of limitations. — A mere claim of title, unaccompanied by possession, gives no right of action to the party against whom it is asserted; it is the occupation with the intent to claim against the true owner which renders the entry and occupation adverse; and hence the principle on which the Statute of Limitations proceeds, is not that the party in whose favor it is invoked has set up an adverse claim for the period prescribed, but that such adverse claim is accompanied by such an invasion of the rights of the opposite party as to give him a cause of action, which having failed to prosecute within the time limited by law, he is supposed to have extinguished or surrendered.</p> <p>2. Same. — A disseizin and adverse* holding is an actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right,— either under an openly avowed claim, or under a constructive claim arising from the acts and circumstances attending the appropriation to hold the land against the true owner. — Angel on Lim. 410.</p> <p>3. Same. — What constitutes an adverse possession is a question ,of law; but the intention of the possessor, which is always material in determining questions of adverse possession, is a fact which alone can be ascertained by a jury.</p> <p>4. Same : case in judgment.. — When the Statute of Limitations is interposed in bar of an action for the recovery of land by the true owner, every presumption should be made in his favor; but the jury are nevertheless entitled to draw every natural presumption arising from the facts and circumstances established by the evidence. Hence, where it appeared that the ancestor of the defendant had held the undisturbed possession of the land in controversy for twenty-five years, and on his death the heirs had 'continued the possession for seven years before suit brought, — that he had made permanent and valuable improvements on the premises and cultivated the soil, it was held, that these were circumstances, which, in the absence of all proof that the plaintiff had ever asserted title, fully justified the jury in holding the possession adverse.</p> <p>5. Same. — The open, and notorious, and exclusive possession of land for a period of twenty-five years, commencing under a parol agreement for the purchase of it, and a payment of the purchase-money, and the erection of permanent and valuable improvements, greatly exceeding in amount the unimproved value of the lands, clearly constitute an adverse holding, and vests in the occupant the absolute title.</p>

Hon. William M. Hancock, judge. On the 31st of March, 1855, the defendant in error, Isaac Anderson, commenced this action of ejectment against the plaintiff in error, Joel E. Welborn, to recover possession of the northwest quarter of northeast quarter of section 3, township 7 north, of range 12 east, lying in Jones county. the defendant pleaded: 1st. The general issue. 2d. That he, and those under whom he claimed, had been in the actual uninterrupted adverse possession of…

<p>1. Statute or limitations : remainderman. — The Statute of Limitations will not commence running against a person entitled to property in remainder, until the determination of the particular estate.</p> <p>2. Same : remainderman not affected by laches of tenant in possession.— No laches will be imputed to a remainderman, nor will he be affected by the laches of the tenant of the particular estate.</p> <p>3. Same : presumption of death from seven years’ absence : when statute commences running. — When the Statute of Limitations commences to run against the complainant upon the death of a third person, and the presumption of seven years’ absence, without being heard-from, is relied upon to establish the death of such person, the period at which the statute will commence running will be at the expiration of seven years from the time the party was last known to be alive. .</p> <p>4. Statute of frauds : registration of deeds making limitation in re- • mainder : sale by tenant in possession : notioe. — The right of a remain-■derrnan entitled to a chattel under a deed which has never been recorded, will . not' be defeated by a sale thereof made - by thé ténant of the particular estate in possession, unless such possession has continued,for the space of three years before the sale ; nor even then, if the purchaser had notice of the true condition of the title. See Hutch. Dig. 638, § 2. Rev. Code, 358, Art. 2.</p> <p>5. Chancery : bills qtjia timet. — A court of equity will interpose and grant relief upon a bill guia iimel to a person having the right of future enjoyment of personal property, when there is any danger of loss or deterioration, or injury to it in the hands of the party entitled to the present possession, or when there is just ground to believe that it will be removed, and placed beyond the reach of the complainant before his right of possession shall accrue. See 2 Story Eq, § 848.</p> <p>6. Statute op limitations: joint complainants. — The tenant for life and the remainderman of personal estate, who join in a bill for its recovery, have not such a joint interest in the property, as will make the Statute of Limitations commence running against both, if at the time the cause of action accrues to one, he be under no disability to sue.</p> <p>7. Chancery : practice : demurrer. — When there are several complainants, and the bill is demurred to, a ground of demurrer assigned as to all will be overruled, if it be bad as to any of the complainants.</p>

<p>1. Vendor and vendee: executory contract: rescission of. — A vendor who has executed a title bond, conditioned to make a title “ upon the prompt payment” by the vendor of his notes, given for the purchase-money, has the right, upon the failure of the vendee to pay at maturity the note given for the first instalment, to rescind the contract; and his offer to rescind and to return the vendee’s notes is sufficient, without making a formal demand of the money, or tendering a deed.</p> <p>2. Same ; same : de minimis non curat lex. — Before a vendor can rescind bis executory agreement for tbe sale of land, on account of the failure of tbe vendee to comply with bis part of tbe contract, be must offer to place tbe vendee in statu quo, by a tender of whatever sum tbe latter may have advanced on account of the land: but a substantial compliance with tbe rule is all that is required; and hence his failure to tender tbe interest for less than a year, on an inconsiderable sum paid by tbe vendee for taxes on tbe land, will not affect bis right to rescind.</p>

<p>1. OoKSTITVTIONAL LAW : CONDEMNATION OP PRIVATE PROPERTY TO PUBLIC USE : ^public protection. — In cases of public emergencies, such as the calamities of'fire, flood, war, pestilence, and famine, private property may be taken and • -applied to public use without just compensation being first made therefor, upon the^jorinciple of imperative necessity for the public protection; but in order to justify such appropriation, the necessity must be apparently present, and the apprehended danger must be so imminent and impending, as not to admit of the delay incident to. legal proceedings for the. condemnation of the property.</p> <p>2. Same : same : rule in relation to compensation. — The rule recognized by this court in Brown v. Beatty, 34 Miss. R. 22Y, and Isom v. Miss. Gent. B. B'. Go., 36 Miss. 300, that the compensation to be paid to the owner of property taken for the public use, is not to be diminished by any advantages which may accrue to him by the construction of the public work to which it is applied, is approved and confirmed.</p> <p>3. Same: same: remedy of owner by injunction — The owner is entitled to an injunction against persons charged with the construction of a public improvement, restraining them from using his property for that purpose, until compensation has been duly made therefor.</p> <p>4. Chancery : appeal : injunction. — An appeal from an order dissolving an injunction, if allowed, necessarily suspends its operation, and it will be error, therefore, for the chancellor, pending the appeal, to make an order allowing the defendant to do the thing restrained by the injunction.</p> <p>5. High court : will not notice objections not made in the court below.— When both parties are present at the hearing of a motion to dissolve an injunction, and no objection is made as to the sufficiency of the notice of the motion, this court will not notice the objection when made here, on appeal from the order of the chancellor dissolving the injunction.</p> <p>Note. — Judge Yerger delivered an»elaborate written opinion on dissolving tbe injunction, in which he held the reverse of the rule laid down in Beatty v. Brown, and Isom v. Miss. Cent. R. R. Co., and in support of this view he cited the following- cases: Penn. R. R. Co. v. Heister, 8 Barr, 445; McMasters v. Commonwealth, 3 Watts, 229-295; Symonds v. City of Cincinnati, 11 Ohio R. 174; People v. Mayor, die., of Brooklyn, 4 Comstock, 419; Freeman Street (matter of), 17 Wend. 649 ; lynch v. Mallony, 4 Denio R. 356 ; Roxford v. Knight, 15 Barb. It. 627; Commonwealth v. Coombs, 2 Mass. 492; Commonwealth v. Sessions of Middlesex, 9 lb. 31; Meacham v. Fitehburg R. R. Co., 4 Cushing, 291; Upton v. South Reading R. R. Co., 8 lb. 600; Luther v. Winnisimmit, 9 lb. 171; Sat-terlee v. Maithewson, 16 Serg. & B,. 179; James River & Kanaivha Co. v. Turner, 9 Leigh. 413; Angelí on Highways, H 115, 116, and notes.</p>

Hon. Stanhope Posey, chancellor. The plaintiff in error filed his bill in the court below, in which he alleged that, in 1843, he purchased with his own means a certain slave Louisa, and took a title to her in his own name. That said slave from that time continued and remained in his possession, and the possession and control of his family, until January, A. I). 1855, and during that period she had issue four children, whose names and ages are set out in the bill.

Hon. E. G. Henry, judge. The defendants in error brought this action against the plaintiff in error to recover $1610, which they alleged that he had collected and received for their use. The plaintiff in error (defendant below) relied, at the trial, upon a plea of payment.

George Holly, judge. The appeliees, E. Bridault and Angelique, his wife, filed their petition in the court below against the appellant, as executor of the will of .Francis Hall, deceased, seeking to set aside the will of said Hall, and to recover the property thereby devised for Mrs. Bridault as his heir at law.

<p>1. SLAVERY : AFRICAN RACE, STATUS OF, IN UNITED STATES.-At the time of the Declaration of Ameritan Independence, and at the date of the adoption of the Constitution of the United States, the African race was regarded by all the States as an inferior and subordinate class, unfit for self-government, or political or social fellowship with the white race, and possessed of no rights except such as the dominant race might choose to grant them; and they are not embraced in the general terms of either the Declaration or the Constitution.</p> <p>2. Same: Africans not citizens of united states. — Citizenship in the United States, in the sense of the Federal Constitution, can be conferred on, or acquired by, the white race only; and hence, though each State of the confederacy, in virtue of its sovereignty, may, within its own limits, confer citizenship on the African race, yet such persons so admitted to citizenship by one of the States, are not thereby vested with the rights of citizens of the United States.</p> <p>3. Same : power of one state to confer citizenship on Africans. — The same rights of sovereignty which enables one of the States of the confederacy to confer citizenship on persons of the African race, within its own limits, authorizes the co-States to regulate and determine, in their discretion, what effect such admission to citizenship shall have within their respective limits.</p> <p>4. Public law : policy of a state : how ascertained. — The constitution and laws of a State are the most usual, direct, and positive, but not the sole evidence of its policy. Courts, in determining the policy of a State, may consider not only her constitution and laws, but her whole condition, circumstances, and history. Handy, J., dissented.</p> <p>5. Same : slavery : policy of Mississippi in relation to. — It is the policy of this State to preserve and perpetuate the institution of African slavery, as it exists in the United States, and, to this end, to prevent the emancipation, here or elsewhere, of slaves once domiciled in this State. Handy, J., dissented.</p> <p>6. International law: comity of nations. — The comity of nations is simply the obligation which sound morality, enlightened justice, and natural reason suggest as promotive of mutual happiness and goodwill in the intercourse of nations with each other, and is, from its nature, incapable of ever being defined and fixed by any certain and inflexible rules.</p> <p>7. Same : same. — The laws of a State have not, ex proprio vigore, any extraterritorial operation; and their force and effect, in another State, depend entirely upon the comity of nations, of which each State, when an act done, or a right acquired under the laws of a foreign State, is sought to be enforced within its limits, is the exclusive judge.</p> <p>8. Same : same : contracts against policy of a state not enforced. — No State is bound, by the comity of nations, to enforce, or hold valid, in its courts of justice, any contract made, or act done in another State, which is injurious to its rights, or violates its laws, or contravenes its policy, or offends the morals of its people.</p> <p>9. Same : same : status of a slave in' this state : how affected by foreign manumission. — The status of a slave in this State is fixed by its laws, and it cannot be changed elsewhere so as to confer rights or privileges on such slave • in this State, inconsistent with its laws and policy.</p> <p>■10. Same: bights of Mississippi slave manumitted in foreign state. — The policy of Mississippi being against the emancipation, either here or elsewhere, of slaves once domiciled within her limits, her courts will not give any effect to the emancipation of a Mississippi slave in another State; and a slave so manumitted cannot, therefore, take or hold any property in this State, or maintain any suit in her courts. Handy, J., dissented.</p> <p>11. Same: effect of change of policy of state pending a suit on its continuance. — A person seeking to enforce, in the courts of one State, a right acquired under the laws of another, is a mere suppliant for the bounty of the former. He has no vested interest to demand the enforcement of the rights so acquired under the laws of a foreign State; and hence, if, pending a suit by him to enforce such right, it becomes against the laws and policy of the State in which he has brought the suit, to enforce it, his suit can no longer be maintained.</p> <p>•12. Same : same : case in judgment. — If there could be any doubt that the policy of Mississippi was against the emancipation, either here or elsewhere, of slaves once domiciled here, prior to the Act of 1857, Rev. Code, p. 236, Art. IX, it is clear that such policy was then plainly declared ; and therefore, if it be conceded that a slave once domiciled here, might theretofore be carried to another State and there manumitted, so as to acquire the right to hold property here, a suit pending to enforce such a right at the passage of the act would be dismissed.</p>

Hon. Joel M. Acker, judge. This was an action in the name of Ivy for the use of Hiller; and the declaration avers that on the 4th of May, 1854, the plaintiff deposited with the defendant $350, which sum the defendant promised to return to plaintiff with interest, when requested; and that though often requested, he has failed, &c. To this, defendant pleaded, 1st. The general issue; and, 2d. And for further answer, the defendant says, “ that he was clerk of the Circuit Court…

Hon. E. G. Henry, judge. This was a motion by defendant in error, to reinstate a judgment on a forthcoming bond, against D. 0. Jones, principal, and the other defendants, sureties, under the provisions of the 5th section of the Act, passed 3d December, 1858, to remedy the evils arising from the burning of the court-house in Attala county, with the public records therein contained.

<p>1. CIRCUIT COURT : ORIGINAL ÍROCESS : RETURN OR SERVICE. — Under the provisions of the Rev. Code (See Arts. 63-64, p. 489), a general return of “executed,” on original process from the Circuit Court, is insufficient: the sheriff must state in his return all that he did in the execution of the process, so that the court may determine whether it was legally and properly executed, or not.</p> <p>2. Same : practice : declaration must be riled when suit commenced. — To enable the plaintiff to obtain a judgment by default in the Circuit Court, at the return term, it is necessary that the declaration should be filed when the suit is commenced.</p> <p>Note. — Process from the Chancery Court, must he executed in the same manner as like process from the Circuit Court. Rev. Code, 544, Art. 27. The rule in relation to the return of service of process in Court of Probates, seems to be different. See Rev. Code, 428, 429, Arts. 20, 21.</p>

<p>1. Amendment: Pleading. — An amendment to the declaration, by which the holder of the legal title to the debt sued on, is made the nominal plantiff, is authorized by the provisions of the Revised Code, 508, Art. 180.</p> <p>2. Same : same. — If the plaintiff after the commencement of the suit, strike out the indorsement of the payee on the note sued upon, this will not debar him of the right afterwards to amend his declaration by introducing the payee as a nominal plaintiff.</p> <p>3. Bills and notes : meaning op “ transfer.” — The term “ transfer,” when applied to negotiable paper, is a general term, implying the passing of the beneficial interest in the instrument to another, but not indicating the particular mode of passing such interest: and hence the averment in a declaration, in the name of the payee of a note, as nominal plaintiff for the use of another, that the note has been transferred from the nominal to the real plaintiff, does not show that the nominal plaintiff has been divested of the legal title to the note.</p>

E. G. Henry, judge. Cited Moody v. Harper, 25 Miss. R. 484; S. C. 28 lb. 615; and insisted that these two cases settled the doctrine, that a judgment was a lien on property acquired by the defendant subsequently to the judgment. They also cited the following authorities, to show that this was the rule under the English Statutes of West. 2 Oh. 18, and 18 Ed. 1, St. 1, Ch. 18; Cross on Lien, 101; 24 Law.

Hon. Joel M. Acker, chancellor. The only ground for vacating the judgments of the Circuit Court, as stated in the bill, is that the plaintiffs in error, Henderson, Terry & Co., sued out their attachment before the bill was due, and that when the bill fell due, Henderson, Terry & Co. were under suspension. The hill does not state that Henderson, Terry & Co. had not paid the bill, and were not the holders thereof at the time they sued out their attachment.

<p>1. Attachment : if cases where the debtor has removed, or about tq remove his property. — The object of the statute allowing an attachment where the debtor has removed, or is about to remove his property from this State, is to secure to the creditor the collection of his debt in this State, and to provide against the danger of its loss by the removal of the debtor’s property to another jurisdiction : and hence, where-a debtor, resident in this State, has in his open possession, property of a permanent character and subject to execution, and of value sufficient to pay all his liabilities in this State, and which he does not intend to remove, he is not subject to attachment, because he has removed, or is about to remove, the greater part of his property to another State.</p> <p>2. Same : replevin of attached property by defendant : effect of. — The replevin, by the defendant, of property seized under an attachment, does not destroy the lien created by the levy: and hence, after such replevin, the attachment still retains its character as a proceeding in rem.</p> <p>3. Same : same : plea in abatement. — If the issue, on a plea in abatement, traversing the grounds upon which an attachment was sued out, be decided for the defendant, the attachment will be quashed, notwithstanding a previous re-plevin of the property attached, by the defendant.</p>

<p>1. Evidence: witness: competency op party to testify in his own behalf against A decedent. — A party cannot be a witness in his own,behalf, in a suit instituted by or against himself in the Circuit Court, to establish his own claim against a deceased person to any amount. The proviso to Art. 190, p. 510, of the Revised Code, which allows a party, to establish by his own oath his claim against. a deceased person, to an amount not exceeding fifty dollars, applies alone to suits before justices of the peace.</p> <p>2. Same: same. — The proviso to Art. 190, p. 510, of the Revised Code, which prohibits a party from establishing by his own oath, his. claim against a deceased person, to an amount exceeding fifty dollars, excludes him as a witness to defeat a claim in favor of a decedent, by’proving payment, failure of consideration, usury, &c.</p> <p>3. CIRCUIT COTTET: JURISDICTION: WHEN PLAINTIFF NONSUITED WHERE LESS SUM THAN FIFTY DOLLARS IS SHOWN TO BE due. — When a'suit is brought in the Circuit Court for a greater sum than fifty dollars, but a less sum is shown to be due, the plaintiff will not be nonsuited, unless it also appear that suit was brought for a greater sum, on purpose to evade the act requiring suits for sums under fifty dollars to be brought before a justice of the peace.</p>

Hon. John E. Cushman, judge. The only question for determination is, the admissibility of the testimony of A. Brown. The court erred in admitting bis testimony as to the genuineness of the bank-bill in dispute ; because, first, the rule of law is, that the best evidence of which.the case, in its nature, is susceptible, must be produced. 1 Greenleaf, 82.

Hon. Joel M. Acker, judge. The defendant in error brought replevin against the plaintiffs in error, to recover possession of a negro girl named Nancy. The plea was not guilty.

Hon. John Watts, judge. Relied upon 9 S. & M. 214; 7 lb. 846 ; lb. 622 ; 8 lb. 234; lb. 473, to show that the parol evidence to contradict the memorandum given by Wilson to Horne, was inadmissible. Cited, to show the admissibility of the parol evidence, the following: 2 Phil. Ev. (C. and PI.’s notes), 214, 215, et seq.; 1 Greenl. Ev. § 279.

Hon. E. G. Henry, judge. This was an action of ejectment in the court below, by plaintiff’s lessee, to recover of the defendant an undivided moiety of two lots in Yazoo City. The plaintiff in error appeared and was admitted as a defendant, and entered into the usual consent rule, as appears by a.n entry in the minutes of the court, and pleaded not guilty.

Hon. J. S. Yerger, judge. John Henderson brought this action, under the Pleading Act of 1850, against the plaintiff in error, for the recovery of section 4, township 19, range 9 west, in Washington county; and claimed rent for the occupation of it for three years by the defendant, at the rate of $500 per annum.

Hon. J. W. Thompson, judge. This was an action of ejectment to recover a tract of land in De Soto county. The defendant relied upon a deed purporting on its face to be executed by Thos. Hunt, by his attorney in fact John H. Morgan, to William Parks and-Graham. When the defendant offered the deed in evidence, it was objected to, because the power of attorney to Morgan was not shown.

Hon. E. G-. Henry, judge. A full statement of the case will be found in the opinion of the court. Contended, that as it appeared from the patent that the land had been sold to Pearl, that it must be shown by proof aliundi, that the land had been divested out of him, and vested again in the United States, and that the patent was not evidence of the truth of its recitals.

Hon. E. Gr. Henry, judge. On the 2d day of October, A. D. 1854, Benjamin McCary was appointed “ commissioner of swamp lands,” for Attala county, in pursuance of the Act of 1822 (Session Laws, 33, et… Held: and their neglect to appoint seemed to be wilful, and unreasonable, and without excuse. The law evidently contemplated that the successor should be appointed in a reasonable time after the expiration of the two years.

<p>YeNDOR AND VENDEE: VENDOR IN TITLE-BOND CANNOT SUE "WITHOUT A TENDER or a deed. — A vendor who has executed a bond, to make title upon the payment of the purchase-money, cannot maintain against the vendee a bill in equity for a specific performance of the contract, or to procure a sale of the land for the payment of the purchase-money, until he has put the vendee in default by a tender of a deed and a demand of payment: an offer in the bill to make a deed and averment of readiness at all times to make it, will not do.</p>

Hon. P. T. Scruggs, chancellor. No memorandum of the argument of Messrs. White and Chal-mers has come into my possession. The petition exhibited by the plaintiffs in error in vacation, to set aside the pro confesso against them and open the decree, &c., forms no part of the record. The judge in vacation had no jurisdiction of the case made by said petition.

Hon. J. W. Thompson, judge. The Statute on which the plaintiff's suit was founded, is to be found in Rev. Code, 349, Art. 3. “ If any person shall enter, or shall have entered, into any lands or tenements in case where such entry is lawful, and after the expiration of his right shall continue to hold the same against the consent of the party entitled to the possession, the party so entitled, whether as tenant of the freehold, tenant for years or otherwise, shall be entitled…

<p>1. Vendor and vendee: right op assignee op purchase-money to subject the LAND TO HIS DEBT, WHERE A TITLE-BOND HAS BEEN EXECUTED-The assignee of notes given for the purchase-money of land, where no deed, but only a bond for title, has been executed, may proceed in equity to have the land sold for the payment of the debt. See Tanner v. Hicks, 4 S. & M. 294.</p> <p>2. Same: where vendor may collect a part op purchase-money without tendering a deed. — Where a bond has been executed by the vendor to mate a deed upon payment of the purchase-money, he is not bound to make a deed until all of the purchase-money is paid; and hence, if the purchase-money is payable in instalments, falling due at different times, he may proceed in law or equity to collect any of the instalments after they are due, except the last, without offering to make a deed.</p>

Hon. J. S. Hamm, chancellor. This was a bill in chancery, filed on the 6th day of May, 1859, in the names of C. J. Sullivan and John Erwin, as complainants. Afterwards, said Erwin appeared in open court, and stated that the bill had been filed without authority from him, and he, therefore, dismissed the bill so far as his rights were concerned.

Hon. John Watts, chancellor. The facts of this case appear to be in substance as follows : In December, 1852, Daniel Jones made a verbal agreement with E. H. Lombard, for the purchase of a quarter section of land situated in Rankin county, at the sum of $320, payable in four equal annual instalments, with six per cent, interest. Under the contract, Jones entered into possession and commenced making improvements on the same.

Hon. John Watts, judge. This was an action of trespass to recover damages sustained by plaintiff by reason of the defendants’ entry upon his land, and cutting and removing timber therefrom.

Hon. E. G. Henry, judge. The defendant in error, as administrator of James B. Slade, deceased, sued plaintiff in error in the Holmes Circuit Court, on an injunction bond executed by Billington Smally, principal, and the plaintiff in error, G. M. Weatherby, and A. J. Patterson, as his securities, to said Shackleford’s intestate, in the penal sum of five thousand dollars, dated 21st of October, 1844.

Hon. John Watts, chancellor. On the 15th day of March, A. D. 1854, the appellees, being the heirs of R. L. Woodson, filed their bill in the Superior Court of Chancery against the heirs of Hugh Mitchell, and against S. Tift, their agent and tenant, and Samuel Lemly, who was in possession as their tenant of a part of the premises in controversy.

Hon. John Watts, chancellor. It appears from the record, that on the 5th of August, 1837, Arch. Anderson and Richard Flowers, as administrators of Ban-bury Flowers, deceased, sold under the order of the Court of Probates a tract of land, belonging to said intestate, for the sum of $6051. At this sale, A. G. Wilkinson became the purchaser, and gave his three several notes, with Duncan Wilkinson and Allen Stewart as joint makers and sureties, for the purchase-money.

Hon. Joel M. Acker, judge. This is an action of debt against the surety upon a guardian’s bond, which was executed in the State of South Carolina, on the 10th day of September, 1836, and is in the penalty of $24,000, and payable to John L. Clark, commissioner in equity, and his successors in office.

Hon. Joel M. Acker, chancellor. This was a bill, filed in the county of Tishemingo, by the defendant, in a judgment rendered by the Circuit Court of Marshall county, against the ostensible plaintiff in the judgment, who is a non-resident of the State, and one Yowell, residing in Marshall county, and alleged to be interested in the same as owner, or asserting control in prosecuting execution thereon, and also against the sheriff of Tishemingo county, to whose hands the…

<p>Chancery: bill to bemoveclouds: will: interest of heirs in land devised to be sold fob tue payment oe debts. — Where lands are devised to be sold by the executors for the payment of debts, with directions that the surplus proceeds not needed for that purpose should be paid to the heirs, the heirs cannot maintain a bill in equity to remove clouds from the title, unless they show that the lands will not be needed for the payment of the debts of tire testator.</p>

Hon. Joel M. Acker, chancellor. The complainants, Moye and Adams and Bolin C. Burnett, filed this bill in the court below against William B. Hogan, George W. Hardy, Newton H. Dobbs, and James N. Walton, for the purpose of subjecting certain equitable assets alleged to belong to one B. S. Jones, to the payment of their judgments.

Hon. William Cothran, chancellor. 1. By the agreement, Kelly took the risk of losing the principal by the death of the negroes, and in such case there is no usury. Ord on Usury, 42-466 ; 1 Call. R. 73-82; 1 Tucker Com. 378. 2. A court of equity has no jurisdiction in this case; the complainant had an adequate remedy at law. 1 Tucker Com. 383; Jones v. WatJdns, 1 Stew. R. 81; Teague v. Bussell, 2 lb. 42; Royster v. Williams, 3 Porter R. 436; Trench v. Grarner, 7 Id. 549. 3.

Hon. E. G. Henry, judge. The plaintiff in error having recovered a judgment against Y. T. Meredith, sought to procure satisfaction of the same, by the levy of the execution on a lot of groceries and produce.

<p>1. Probate covet : practice : demurrer to answer. — A demurrer to an answer in the Court of Probates, is irregular in practice: objections to the sufficiency of the answer should be taken by exceptions filed thereto.</p> <p>2. Same : interlocutory order : appeal. — The decree of the Court of Probates, overruling exceptions to an answer, is interlocutory, and is not the subject of an appeal.</p> <p>3. Same : how appeal granted prom probate covet. — Appeals from the Court of Probates cannot be granted in open court: they can only be allowed on petition to the clerk. See Rev. Code, 431, Art. 28.</p>

Hon. B. G-. Lawrence, judge. A full statement of the case will be found in the opinion of the court. Held: that the decedent is wholly intestate. But this general language is to be construed in connection with the context; and from the different clauses of the statute, all taken together, the true intent and meaning of the legislature are to be ascertained.

Hon. William Cothran, judge. The substance of the pleadings and evidence is fully stated in the opinion of the court. The defendant objected to the introduction of the testimony of Harper and Thompson, in relation to the settlement, unless proof was made of the loss and destruction of the writing. This objection was overruled, and defendant excepted. This action of the court, and the overruling of the motion for a new trial, are assigned for error in this court.

<p>1. Contract: rescission: refusal of one party to comply: case in judgment. — The purchaser of a scholarship in an incorporated seminary of learning will be entitled to a rescission of the contract, if. the corporation refuse to comply with their part of the agreement, by charging him with tuition fees for one of the studies embraced in the scholarship.</p> <p>2. Same : same : where one party is unable to comply : case in judgment. —A party who has given his note for the price of a scholarship in an incorporated seminary of learning, cannot he compelled to pay it, after the corporation has become insolvent, and abandoned the beeping of the school contemplated in the charter, if it were understood between the parties, at the time of the purchase, that the price of the scholarship was to constitute a part of a permanent endowment fund, the interest on which alone was to be expended.</p> <p>3. Same : evidence : parol to show what is embraced in a scholarship. — i The statement of the agent of an incorporated seminary of learning, made to a purchaser of a scholarship therein, and as an inducement to the purchase, as to what studies were embraced in the scholarship, is competent evidence in favor of the purchaser to show what studies are so embraced: so also are the resolutions and action of the board of trustees of the incorporation.</p> <p>4. Corporation: seminary of learning: power to release subscriber for scholarship. — An incorporated seminary of learning has the power to release a party from the payment of a note executed by him for the price of a scholarship in the institution.</p> <p>5. New trial: when admission of illegal evidence, no cause for. — The admission of illegal evidence is no cause for granting a new trial, if the evidence were immaterial, and it appear that the verdict is well justified by the other evidence in the cause.</p> <p>6. Same: when refusal to give a legal instruction, no cause for. — The refusal to give a legal instruction is no ground for granting a new trial, if the principle of law embraced in it has already been given to the jury in another instruction.</p>

<p>Error to the Chancery Court of Carroll county. Hon. William Cothran, chancellor.</p>

Hon. John Watts, judge. This was an action by defendant in error against plaintiff in error, in the Circuit Court of Hinds county, to recover an open account for $250, for four days’ services at Cooper’s Well, commencing on the 17th September, 1855. The defendant below pleaded the general issue. The plaintiff below had verdict and judgment for the amount of the account.

<p>1. Bills and notes : conflict of laws : governed by lex looi. — A promissory note is, as to the rights acquired by an indorsee, governed by the law of the place where it is executed and made payable.</p> <p>2. Same: bona fide indorsee not affected by antecedent equities. — By the rules of the common law, the bona fide indorsee of a promissory note for value takes it exempt from all equities existing between any of the antecedent parties.</p> <p>3. Same: meaning of “due course of trade.”. — The term “due course of trade,” when applied to the indorsement of a promissory note, means, that the indorsement was for value.</p> <p>4. High court : error : when it will cause reversal. — The improper overruling of a demurrer to a pleading is error, for which a final judgment, rendered against the demurrant upon the verdict of a jury, will be reversed, unless the record show clearly and positively that the verdict and final judgment are correct.</p>

<p>1. Bailment : common carriers : ferrymen : liability of. — The keeper of a public ferry is a common carrier, and is liable as an insurer of the property committed to his charge for transportation, against all loss or damage, except such as may result from the act of God or the public enemy, or from the act of the owner, or his agent or servant.</p> <p>2. Same : same. — After property has been received into a ferry boat for transportation, it is prima facie in charge of the ferryman as a common carrier, and the responsibility of the ferryman is not'diminished by the fact that the property is accompanied by the owner, unless it affirmatively appear that the owner did not trust the care of the property to the ferryman, but retained the exclusive management and control of it himself.</p> <p>3. Same : same. — A ferryman is bound to make such provision for the safe transportation of property received by him on his boat, as from the nature of the property is requisite and necessary, and he cannot devolve any portion of this duty on the owner without his consent.</p> <p>4. Same : same: case in judgment. — The defendant ivas the keeper of a public ferry, and had agreed with the plaintiff for hire, to transport his stage-coach and horses across the river, without making any change in his common law liability as a common carrier. The plaintiff’s coach and horses were driven into the ferry-boat by their driver, who thereupon vacated his seat, hitched the lines, and went to the front of the horses, and commenced giving them water dipped from the river in a bucket. Whilst thus engaged, one of the horses became restive, and soon afterwards, and before the boat reached the landing, the team ran out of the boat into the river, the driver being carried with them in his efforts to stop them. Held, That the coach and horses were in the possession and custody of the ferryman, and not of the driver; and that the defendants were responsible for the damages thus sustained by plaintiffs.</p> <p>5. Same : same: liability whey goods abb ixherentlysubject to decay,etc. —A common carrier is not responsible for damages resulting to the goods in consequence of a natural and inherent infirmity in them, and without fault on his part; but this principle is applicable alone to cases where the property damaged is from its nature liable, without fault on the part of the carrier, to rapid decay, as fruits and vegetables, or subject to diminution or destruction, as by evaporation, leakage, or spontaneous combustion, or where goods are damaged in consequence of being improperly packed by the owner.</p> <p>6. Instructions : error to give irrelevant. — It is error to give an instruction of the jury, which though correct as an abstract proposition of law, is inapplicable to the evidence.</p> <p>Note. — See Gilmore v. Carman, 1 S.& M. 279; Neal v. Saunderson, 2 Id. 572 ; Whitesides v. Thurlkill, 12 S. & M. 599 ; Richards v. Fuqua, 28 Miss. R. 792; Powell v. Mills, 30 Miss. R. 231; Heirn v. McCaughan, 32 Id. 17; N. O. J. & G. N. R. R. Co. v. Hurst, 36 Id. 660.</p>

Hon. Joel M. Acker, judge. This was an action by defendant in error against the plaintiffs in error, to recover damages occasioned by the cutting of trees, excavation of earth, and the erection of a railroad on his land. Plaintiff below also filed an amended count, to recover the amount assessed by a jury under the provisions of the charter of the railroad company; but this count was withdrawn, and a trial had on the original declaration in trespass.