Volume 38 — Mississippi Reports

Hon. Joel M. Acker, judge. This was an action by Byram & Co. against Bennett, the master of the steamboat Eliza, No. 2, to recover damages from him as a common carrier between the ports of Mobile, Alabama, and Aberdeen, in. this State, for his failure to deliver, at the last named port, certain goods shippedjcy the plaintiff on the said steamboat, in June, 1855. The defence relied on was that the defendant was prevented from complying with his contract by low water.

Hon. John F. Cushman, judge. This was an action of debt by the Yazoo and Big Black Plank Road Company, against John A. Sims, to recover an open account of $122 40, for the passage of defendant’s stage-coaches over plaintiff s road. The defendant pleaded the general issue, and relied on failure of consideration.

<p>Error to the Circuit Court of Madison county. Hon. E. G. Henry, judge.</p> <p>The jury summoned to assess damages accruing to McBride, by reason of the location of the railroad of plaintiffs in error through his land, assessed such damages at $1500.</p> <p>The plaintiffs in error objected to the confirmation of this verdict by the Circuit Court, alleging that the damages were excessive, and that the jury in making the assessment had proceeded on erroneous principles.</p> <p>On the trial, which was before the judge, the plaintiffs in error, against the objection of the defendant, introduced several of the jury, and proved by them that they thought the assessment too high; and that, in making the assessment, they had taken into consideration the damages accruing by reason of an apprehended overflow of certain land of McBride, which they supposed would be caused by the embankment to be built for the road-bed, in case proper ditches were not made; they also took into consideration the annoyance McBride would be subjected to by having the laborers engaged in building the road encamped on his land; the probability of petty trespasses being committed by them, and their improper influence on and connection with the slaves of McBride; they also considered the danger of McBride’s having his stock killed by the cars running on the road, -and the probability that the constructors of the road would be careless, and leave down McBride’s fences, whilst engaged at work on his land. Other witnesses thought the assessment too high. McBride proved by several of the jury, and also by some other witnesses, that the assessment was reasonable.</p> <p>The circuit judge confirmed the inquest, and the Railroad Company sued out this writ of error.</p> <p>Cited Commonwealth v. Fisher, 1 Penn. R. 462; Somerville and Eastern Railroad Company v. Doughty, 2 N. J. R. 495; Pennsylvania Railroad Company v. Heister, 8 Barr, 445; Isom v. Mississippi Central Railroad Company, 36 Miss. R. 300; Troy and Boston Railroad Company v. Lee, 13 Barb. 169; Same v. Northern Turnpike Company, 16 lb. 10.</p> <p>The juror Divine should not have been received to attack the report of the jury of which he was a member. 26 Miss. R. 51, 78 ; 25 lb. 114; 27 lb. 436.</p> <p>The verdict of the jury will not be set aside in consequence of any valuation being made too high or too low, but only when the jury mistake the principle on which they find their verdict. 19 Wendell R. 651, 671, 678 ; 13 Barbour, 169; 16 lb. 103.</p> <p>The verdict is more than an ordinary one. The jurors are to view the premises, and their verdict will not be set aside on as slight grounds as ordinary verdicts. An ordinary verdict will not be set aside unless manifestly wrong. This verdict, if only an ordinary one, would not be set aside, as it is not manifestly wrong. See 1 American Railroad Cases, 164 ; 2 lb. 158,181, 253, 325, 341, 342. See Hernando Railroad Ch., Laws of Mississippi, 1824-1838, p. 730.</p>

Hon. Joel M. Acker, chancellor. This was a bill filed by Martha A. Boone, whilst the widow of James C. Boone, for the recovery of a slave named Charles, and his hire. The bill alleges that in March, A. D. 1854, the complainant intermarried with the said James C. Boone while sh'e was a minor of the age of sixteen years.

Eeror .to the Circuit Court of Monroe county. Hon. Joel M. Acker, judge. The case is very fully stated in the opinion, of the court. This is an action of replevin to recover the possession of certain slaves. The plaintiffs claim under a deed made by one Carter and his wife.

ERROR, to the Circuit Court of Monroe county. Hon. Joel M. Acker,, judge. The declaration is in the name of Emanuel Levy and Jeannette, his wife, as plaintiffs, and avers that the defendant, on the 1st July, 1858, was indebted to said Jeannette in the sum of $79 25, orders for goods before that time sold and delivered by said Jeannette to defendant, and that defendant afterwards promised to pay said sum to said Jeannette.

<p>1. Chancery : jurisdiction : divorce. — The Chancery Court has jurisdiction over suits for divorce.</p> <p>2. Husband and wipe : divorce : effect op, on separate estate op wipe.— The right to the exclusive use and possession of slaves held by the wife, under the Act of 1839, is vested in her by a decree for a divorce a vinculo, without any special provision in the'decree for that purpose.</p>

<p>Error to the Chancery Court of Carroll county. Hon. William Cothran, chancellor.</p> <p>A very full and detailed statement of the pleadings and evidence, will be found in the opinion of the court, and in the brief of counsel for defendants in error.</p> <p>The Statute of Limitations is no bar to the complainants’ right to relief.</p> <p>Where personal property is illegally disposed of, or permitted to pass into the hands of a third person not entitled thereto, the Statute of Limitations will not run against a cestui que trust under disability, till the disability is removed; and a cestui que trust may sue and recover where the trustee could not. Bacon v. Gray, 1 Cushm. 140.</p> <p>The defendants cannot claim as bona fide purchasers without notice, because they are not purchasers of the legal title.</p> <p>The legal title was in the trustee; the equitable is in the wife. The husband had no title, and a purchaser from him acquired neither legal or equitable title. "</p> <p>The fact that the deed of trust was not recorded, is not material, because trust deeds are only to be recorded as between the grantor and his creditors and purchasers; and 2dly, because, in this State, there is no statute requiring deeds of trust executed in other States to be recorded.</p> <p>I refer the court to Wyse v. Dandridge, Opinion Book H., page 367, 368, and also Story’s Equity, to show that a party claiming to be a purchaser for valuable consideration without notice, must be a purchaser acquiring the legal estate. But that where it is a contest between equities, that which is in point of time is first in right.</p> <p>But these defendants cannot invoke this rule of being Iona fide purchasers, for they are neither purchasers of the legal or equitable title. They claim by purchase under Andrew Woods, who never had any title; and Chancellor Kent says: “ The general principle applicable to the law of personal property throughout civilized Europe, is, that no one can transfer to another a greater right than he has himself;” and “A sale, ex vi termini, imports nothing more than that the Iona fide purchaser succeeds to the rights of the vendor.” 2 Kent’s Comm. 8th edit. 380, 381.</p> <p>As Andrew Woods had no title, he could transfer none; and these defendants, claiming under him, have acquired nothing. This rule is universal. The case of Wyse v. Dandridge, was upon the ground that the purchaser obtained the legal title from the trustee, without notice of the equity outstanding; and having thus acquired the legal title without notice, and having an .equal equity, the legal title prevailed.</p> <p>To entitle a party to claim as a Iona fide purchaser, he must be a purchaser without notice, and for a valuable consideration, and must have paid the purchase-money. So he must have purchased the legal title, and not be a mere purchaser without a semblance of, title, for even the purchaser of an equity, is bound to take notice of and is bound by, a prior equity; and between equities, the established rule is, that he who has the prior equity, in point of time, is entitled to like priority in poixrt of right. See Story’s Equity, § 1502; 7 Crunch, 2; 10 Peters R. 177; 1 Story’s Eq. 76, § 58 ; 2 Cushman’s E. 229 et seq.; 24 Miss. R.</p> <p>In the present case, however, the defendant is, in no sense, a bona fide purchaser, because he purchases from or through Andrew Woods, who had no semblance of right; who did not have either legal or equitable title, or any title at all; and therefore could not Sell any. See particularly Chilly v. Hull, 2 George R. 20.</p> <p>' The complainants claim an equitable title in Mrs. Woods to slave Jacko in possession of Pitman and Nancy, in possession of Dis-mukes and wife, as the children of Mary, who was the child of</p> <p>Hicksey, and to Amanda (and her offspring), alleging that Amanda is also the child of Hicksey.</p> <p>They allege that Mary was born after the accrual of their title to Hicksey, but in reference to Amanda, they make no such allegation.</p> <p>The statement of the bill on this subject is as follows:</p> <p>“ That in 18 — , Amanda,.a child of Hicksey, came into the .possession of Wallace Wilson, under a pretended contract of purchase from complainant, A. Woods, and that Wilson then knew she belonged to complainant Huldah, as her separate estate.</p> <p>“ That said slave Amanda, who is a black-complexioned slave, over the age of thirty years, with some four or five children,” &c.</p> <p>These are the only statements in the bill which have reference to the complainant Huldah’s title to Amanda. She claims her as the issue of Hicksey: to render her title valid, the slave must have been married whilst Hicksey was owned by them, and hence the importance of their alleging that Amanda was born after the 6th of April, 1818, the date of their alleged title to her master. Failing to do this, they show no title to Amanda and her children, and the defendant’s, Sturdevant’s, demurrer should be sustained, and the bill dismissed.</p> <p>They claim title to Hicksey under a deed in trust, alleged to have been executed in 1818 (on the 6th April), by William Caperton to Thomas S. Caperton, as trustee, to' secure Hicksey and other property to the separate use of Mrs.'Woods ; and they allege that on that day the said W. Caperton was the owner of Hicksey, and executed and delivered the deed,- and also the possession of the slave.</p> <p>Three things are essential to the validity of Mrs. Wood’s title,, any one of which not being established, her title is invalid.</p> <p>1. The ownership by W. Caperton, the grantor of Hicksey, and his right to convey.</p> <p>2. The due execution and delivery of the deed, and its registration.</p> <p>3. An acceptance of the deed and of the property under it by. Mrs. Woods, or her husband for her.</p> <p>I shall notice them in the order above set out.</p> <p>1. The defendants claim under A. Woods, and may therefore deny tbe title of W. Caperton and set up tbe title in Woods. Tbe complainants allege tbe ownership in tbe father of Mrs. Woods, and the defendants positively and unequivocally deny it, and assert in opposition thereto, an existing right in Andrew Woods.</p> <p>■ It was incumbent on them to show affirmatively the title of the donor in the deed in trust.</p> <p>It appears that Woods and wife married early in 1817, and that they resided with W. Caperton, the father of Mrs. Woods, until the fall of that year, when they went to housekeeping at a place not over one-quarter of a mile from the residence of the said William; that when they went home they carried the slave, Hicksey, and' another, with them; and all the evidence (except that of T. S. Ca-perton), further shows, that Woods and wife remained in the possession of said slave, from the time they first acquired it, until she was sold, about the year 1880.</p> <p>By the law of Tennessee, at that time, a parol gift of slaves was valid (the statute changing this rule was not passed until 1831); and it is now too well settled to admit of controversy, that where such parol gifts are valid, if the parent upon the marriage of a, child, or soon afterwards, deliver into the possession of the child a slave or other chattel, it is in law a gift, and not a loan, unless it be shown that an intention to loan merely was expressed at the time. This presumption is favored by the courts, and will not be held to be rebutted by slight circumstances, but only by clear and positive proof, because the gift is but the performance by the parent of a natural duty to the child, and because it unites the possession and the title. See Johnson et al. v. Billiard, 1 Bay’s R. 232; Moore v. Bavoney, 3 Hen. & Munf. 127; Torrence v. Graham, 1 Dev. & Batt. 284; Falconer v. Holland, 3 S. & M. 698; Adams v. Hayes, 2 Iredell, 361; Green v. Harris, 3 lb. 210. And this was the rule in Tennessee at the time this transaction took place. See Stewart v. Gheatham, 3 Yerg. 60.</p> <p>But complainants rely upon the evidence of T. S. Caperton to rebut this presumption and to establish a loan.</p> <p>This witness swears that the possession of A. Woods prior to the 6th April, 1818, was under a loan, and that Woods never owned her before that time. That on tho 6th April, 1818, Hicksey was in possession of William Caperton, who exercised ownership and control over her. But bow long before that day he bad possession, witness cannot state; all he knows is that on that day she was present, and delivered under the deed.</p> <p>This witness did not reside with his father, W. CapertCn, in 1817 and 1818, but in the town of Winchester. He does not state the facts upon which he bases his conclusion, that the possession of A. Woods was under a loan. He does not pretend that he was present when the possession was delivered, or that he ever heard Woods acknowledge that the possession he held was under a loan. He gives us nothing but his judgment that it was a loan: as to how he derived his impression or came to his conclusions, we are left entirely in the dark.</p> <p>But it is most probable that he was not present, and had no personal knowledge on the subject; he did not live with his father, but in Winchester; he does not know, though remarkably accurate as to dates, and other minutice on other points, when the slaves went into possession of Woods, nor how long they had possession before the date of the deed, nor how long after the marriage of Woods and wife it was when their possession commenced. Moreover, he is shown to be very wide of the mark, on the material point of the date of the marriage of Woods and wife, and intimately connected with the matter about which he testifies. He states that the marriage took place in 1818, just before the deed was executed, and it is clearly shown that it took place in the fore part of 1817, more than a year before.</p> <p>His ignorance on these points, and his remarkable particularity as to others, and his failure to state the grounds of his conclusion as to the loan, and his uniform course in mentioning his presence, and the grounds of his information on others, make it manifest that he had no personal knowledge of the matter about which he testified. It will be observed that he states that he was present when the deed was executed, was present when it was acknowledged, was present and delivered it to Hayter for registration, and he also details, unasked, the conversations between him and W. Caperton which led to the execution of the deed.</p> <p>Again : his statement “ that the possession was under a loan,” is necessarily a conclusion compounded of law and fact. And if he is mistaken in the law (as he was in relation to the loss of the deed destroying Mrs. Woods’s title), his testimony is worthless. Although the evidence is not strictly incompetent, yet it is intrinsically weak, coming, as it necessarily does, in the absence of the facts inseparably connected with the witness’s private notions of law.</p> <p>But in opposition to this witness, and in aid of the legal joresumption in our favor, there is much proof of a very convincing character.</p> <p>1st. John Caperton, Mrs. Woods’s brother, and a witness for complainants, was eighteen or nineteen years old in 1817. He resided with his father, at the time of the marriage in 1817, and up to 1821. He regarded the first possession as a gift. Woods claimed the ne-groes from the first possession, and witness’s father never after-wards set up any claim to them, and that the slaves were never, after the first delivery to Woods and wife, out of their possession, and in the possession of the said William Caperton. This witness, let it be remembered, resided all the time with his father, and within one-quarter of a mile of Woods and wife. It is incredible, that the slaves should have been out of the possession of Woods and wife, and in that of his father, and that his father should have claimed them, without his knowing or having heard of it.</p> <p>2d. Mrs. Elizabeth Woods resided within two miles of W. Caper-ton, and one and a half miles of Woods and wife, in 1817 and 1818. She proves that A. Woods and wife had possession of the slaves, from the time they went to housekeeping, in 1817, till the slaves were sold. This possession was continued and uninterrupted; and Woods' claimed them, and exercised ownership’and control over them all the time, including the time of his possession previous to 6th April, 1818; and this was notorious in the neighborhood. She never heard of this pretended loan, nor the surrender of the slaves to W. Caperton.</p> <p>8d. To the same effect is the testimony of Mrs. Patrick, who resided within two miles of W. Caperton. She also states that A. Woods sold one of Hicksey’s children to her husband, in 1827.</p> <p>4th. Calloway Garner was intimate with complainants and W. Caperton in 1817 and 1818, and resided in the same neighborhood, about two miles from the latter. It was understood in the neighborhood, that the possession of Woods and wife, before 6th April, 1818, was under a gift. Woods claimed the negroes, and exercised ownership and control over them, and had possession of them from soon after his marriage, previous to 6th April, 1818, and after-wards, continuously up to the time they were sold.</p> <p>These.witnesses all state positively, that the possession before 1818, was under a gift; but upon examining the grounds upon which the statement is made, it appears that they had no personal knowledge on that subject. But whilst they are not, therefore, direct witnesses of the gift, yet the three last, in connection with John Caperton, establish very clearly and circumstantially, there was a gift to Woods and wife previous to 6th April, 1818. They prove the continued and uninterrupted possession of Woods, from a period shortly after his marriage, when he went to housekeeping,, till the slaves were sold, long after 1818 ; that he claimed title and exercised ownership and control over them, prior to the date of the deed, and afterwards; and that his claim and acts in that behalf were notorious in the neighborhood. That all this was done by Woods, in sight of the residence of the grantor, who must, therefore, have been cognizant of them, and yet he never once asserts a contrary claim, or disputes the title of Woods, but acquiesces in the same. This is a very strong admission, on his part, that the claim of Woods was just.</p> <p>5th. The deed, on its face, furnishes very strong circumstantial evidence, that the donor had no title, and that, therefore, a gift had been made. The language of the grant is, that he conveys “ all his right, title, and interest, which he has at this time.” He conveys by quitclaim. This is an acknowledgment that he had done something before that time to defeat or impair his title; that thing was the'prior gift to Woods. A quitclaim deed is notice to the grantee, that the grantor’s title is defective; it operates merely as-an acquittance of any right or title that the grantor may have. Smith v. Winston’s Fx’ors, 2 How. Miss. 601. It is incapable of conveying anything but a doubtful title, and cannot be made the foundation of a bill in equity to remove clouds. Kerr v. Freeman, decided last April.</p> <p>6th. There was no change created by the deed, in the conduct of the parties and the family, in relation to the slaves. Woods claimed them before; he claimed them afterwards, and sold some of them in Tennessee and in this State, with the knowledge and acquiescence of the grantor, and of Mrs. Woods. A lawsuit is prosecuted to subject Amanda to Woods’s debts. An attempt is made to defeat it, and to secure the property in the family, to Wallace Wilson, a brother-in-law. William Oaperton has direct knowledge of this suit, by becoming a party to Wilson’s bond, obligating him to have the slave Amanda forthcoming. But although their efforts are unavailing, yet they failed to suggest what, if true, would have been a complete defence, — the title of Mrs. Woods. I suppose they hardly found other lawyers so ignorant as to believe that her title was lost with the deed.</p> <p>This uniform course in the conduct of the parties is perfectly consistent with the hypothesis, that there was a gift prior to 1818, and utterly at war with the pretence of a loan. And it is no answer to this to say, that the deed was lost (in the possession of the grantor); for whilst that may probably be regarded as a flimsy excuse for not setting up a claim under it, against Woods’s creditors, it certainly is no reason why Woods and the other members of the family, should always treat the slaves as the property of the husband, when the rights of creditors were not involved.</p> <p>7th. That the deed was not acknowledged for two years after its date, being unexplained and without any attempt at explanation; that it was never recorded, and was, after the lapse of forty years, found amongst the worthless papers of the grantor, all go to show, that the parties to it had no confidence in it, and that the design, once formed, to attempt to secure the property from Woods, was after-wards abandoned for some cause; and the concession on its face, that the grantor’s title was defective, shows that the true reason was, that the title to the property was not in a situation to be thus secured. But these points will be noticed more fully in the question of delivery of the deed.</p> <p>8th. The complainants, in their bill, do not allude to the fact, that there had been a delivery of possession to them soon after their marriage, and before the 6th of April, 1818. The bill distinctly conveys the idea, that the possession had never been in them previous to the 6th April, 1818, and that up to that time, it had always remained in the grantor. Considering the importance of this fact upon their right to recover, the omission of any allusion to it in the bill, is a fraudulent attempt to foist upon the court a state of facts which is untrue, and to gain a decree by trickery and chicane.. It is also evidence, that such possession was by virtue of a gift, and that the loan attempted to be proven by their witness was a mere after-thought, to repel the presumption which had arisen from the discovery of the fact which they had attempted to conceal. The delivery had taken place forty years ago, in a State distant from the place of the trial, in which the defendants, some of whom were minors, and the others (whose rights are to be affected) were married women, were unacquainted; the ancestors of defendants, through whom they claimed, were dead; many witnesses had died, and others had removed to distant and unknown pla.ces: under these -circumstances, the complainants deliberately suppress the material fact. Is there any motive for this, except the consciousness that it was incapable of honest explanation ? Will the court aid a party who thus invokes its interposition ? Fairness, good faith, and honesty seek no such concealment.</p> <p>II. The complainants have not shown that the deed was delivered or recorded.</p> <p>The answers deny positively these alleged facts.</p> <p>Thomas S. Caperton swears that it was delivered, and that he left it with the proper officer for record.</p> <p>On the other hand (leaving out for the present the answers in evidence), there exists the following proof against it:</p> <p>1st. Neither John Caperton, who resided with the grantor, and is a brother of Mrs. Woods, nor any of the witnesses residing in the immediate neighborhood, ever heard of the deed until this suit was instituted.</p> <p>2d. It was not acknowledged for two yéars after its date, although, by the laws of Tennessee, such instruments are required to be recorded. See Caruthers & Nicholson’s Dig. Stat. Laws of Tennessee, 557, ch. 12, § 1; lb. 587, c'h. 45, §§ 1, 2; lb. 588, §§ 1, 2. No explanation is given of this failure to prepare the deed for record, by the bill; and when T. S. Caperton is asked, on cross-examination, for one, he says he knows of none. The bill also states that the execution of the deed was notorious in the neighborhood. This is shown to be false, — -falsus in uno falsus in omnibus.</p> <p>3d. It is found, after the lapse of twenty years 'from its date, in possession of the grantor, — not as bailee for its safe keeping, but in a house which he had abandoned, and among worthless papers in an old barrel, mere trash, and regarded as of no value. This circumstance too is unexplained. The bill says that the deed was lost or stolen from the register’s office. This pretence is shown to be utterly false. What motive had the grantor to rob his own child, and to undo his own work ? The allegations of the bill and the statements of the trustee close the avenue to an explanation, on the supposition that, after its delivery, it was deposited with him for safe keeping. The first swears that it was stolen; the second swears that if it was in the grantor’s possession, after its date, he never knew it.</p> <p>4. T. S. Caperton swears he delivered it for record; but it appears from Pitman’s answer that it never was recorded. There is no indorsement on it that it was ever recorded, or filed for record, as required by the law; and the .excuse for its non-appearance on the record, viz., that they were mutilated or destroyed by fire, is also shown to be utterly false and without foundation.</p> <p>5. The prior gift to Woods, as before shown, and the subsequent conduct of all the parties, showing that the paper was regarded by them as invalid and worthless.</p> <p>It is possible, though in the highest degree improbable, that the deed may have been delivered notwithstanding these opposing circumstances; but it is impossible that the deed could have been delivered and afterwards got into the possession of the grantor, upon the theory of the complainants’ bill, and of their witness, T. S. Caperton. The complainants say that .the deed was delivered on the day of its date, and was afterwards acknowledged and recorded; that the records were afterwards destroyed by fire or mutilated, and the deed stolen from the office, and that after the most diligent search it could not be found; that Mrs. Woods, believing herself to be remediless,'and that it was impossible to be present at the sale of the slaves by the sheriff did not attempt to do so, as it seems; and that the trustee wholly failed and neglected to discharge his duty in the premises, and that her claim under the deed was notorious in the neighborhood. That is their theory and their explanation of the matter; if it be false — proven so — and inconsistent with the other facts in the case, — it not only failk to serve as an explanation of these suspicious circumstances, but adds to the force of the proof against the validity of the deed.</p> <p>Their witness does not agree entirely with this explanation. He says that he did make efforts to prevent the sale, which complainants deny, and that he consulted two lawyers (both dead), who advised him that Mrs. Woods could not succeed without a production of the original, although he perfectly knew its contents.</p> <p>How does this explanation stand with the facts proven ? 1. The records were not destroyed or mutilated; and, 2, the non-appearance of the deed amongst the records is because it was never recorded. 3. The deed was not lost or stolen from the register’s office, but remained with the grantor (Mrs. Woods’s father), among his worthless papers. 4. It was never delivered for record, as pretended by T. S. Caperton, because it was the sworn duty of the officer to record it, and it was not; and it contains no memorandum that it had ever been filed; and it is in the highest degree improbable, that if it had been left for record, that it would have been taken out by the grantor before the purpose for which it was left was accomplished. 5. The claim of Mrs. Woods, under the deed, was not notorious; for all the witnesses (including her brother John) swear directly to the reverse. 6. It is in the highest degree improbable, that a lawyer should have advised that Mrs. Woods lost her title by the loss or destruction of her deed; but that two lawyers should have done so is incredible. 7. The explanation of the witness, and the complainants, is contradictory. They swear he wholly failed to do his duty; he swears he did everything, consulted two lawyers, and was advised he could not succeed. 8. And finally, the witness is inconsistent with himself. On his examination in chief, he swears that he made diligent search for the deed, and was unable to find it; and on cross-examination, when asked to explain, if he made a search, why he did not apply to Mr. Caperton, he swears that, “I did not search for said deed.”</p> <p>It being thus shown, that every single circumstance associated by the complainants with the alleged delivery of the deed, and its being out of their possession, is false, and manufactured for the purpose of the suit, and that their witness contradicts both them and himself, is it too much to say, that the main allegation as to the delivery avowed, which these falsehoods have been placed to brace and support, is also untrue?</p> <p>But the answers are evidence; notwithstanding it appears from them that the respondents had no personal knowledge of the matter, that circumstance does not even weaken their force as evidence. See MeGrehee v. White, 31 Miss. R>. 41. Regarding, for the present, that the bill is a sworn bill in the sense of the statute, — Rev. Code, 554, Art. 94, which abolishes the rule in chancery, requiring two witnesses to overturn the answer, whenever the complainant swears to his bill, — still I insist that it must be regarded as conclusive in the matter, and also on the point as to whether the first possession was a gift or a loan. The statute does not declare, that where the bill is sworn to by the complainant, and he produces one witness to sustain it, that the denials of the answer are to be considered by the court as disproven; but the court is directed, in such cases, to give the answer such weight and “ credit as in view of the interest of the party and the other circumstances of the case, it is entitled.” Rev. Code, 554, Art. 94.</p> <p>The answer is positive, and the deposition of T. S. Caperton is also positive. They are in direct conflict; there is oath against oath, but both are evidence. The court must give to each such weight, and credit as from the circumstances they are entitled. Upon which side of these two oaths do the circumstances of the case array themselves. If I have not been very unfortunate, I have shown that there is not a single circumstance proven in favor of the deposition of T. S. Caperton; that in many respects it is unsatisfactory, and in many others contradicted; but on the other hand they all agree and coincide with the statements of the answer.</p> <p>I desire to note a few more instances of bad faith, or what is equally as fatal to complainants, the bad memory of their trustee-witness.</p> <p>He says that Woods and wife were married in 1818. In this he is contradicted by all the witnesses. This mistake or misrepresentation is important and material. For if he were right, then the delivery of the slaves in the first instance, must have been nearly contemporaneous with the execution of the deed. It is shown by the other evidence that Woods and wife resided with the grantor several months after their marriage, and that the slaves were not delivered until they went to housekeeping. If this witness is to be believed, the delivery must have been but a few days before the date of the deed; and hence, the presumption in favor of a gift would not be so strong, if indulged at all.</p> <p>Again, he swears that A. Woods, at the time of the marriage, was insolvent — pressed with debt — and so regarded by the family. John Oaperton proves that Woods was then only eighteen years of age. And Calloway Garner swears that Woods was then regarded as a young man of fine prospects, and was said to have a good deal of property; and the “ old folks were much pleased with the marriage.” H. Petty, a son-in-law of complainants’, says he had property, but not at his command.</p> <p>It is certainly remarkable that he should be insolvent at eighteen years of age, when he was incapable in law of making a debt.</p> <p>But we are not bound to show that the proof, in the question of the gift before 1818, and the delivery of the deed, preponderates in our favor. The question is not, is the decree manifestly right, but is it clearly wrong. It is the duty of him who alleges error in the court below, to show it clearly to this court; and unless he can do so, the judgment will not be disturbed. See Fox v. Matthews, 32 Miss. R. 443, where this principle is distinctly recognized in a chancery case, and applied. The judgment is not without evidence, nor can it be said to be clearly and manifestly against it.</p> <p>There is another consideration which I think might properly be urged in support of the judgment. Mrs. Woods (if not Andrew Woods) was clearly a competent witness under the Revised Code. See Art. 190, Rev. Code, 510. This article applies in expess terms to suits in equity. Nor does the provision that the deposition of such witness shall not be taken, exclude her : 1st. Because, as the law intended to secure this right to all parties in all suits, in order to apply it to chancery, it must be understood that the party could be examined ore tenus, or they might have applied for an issue to a jury. She did apply to swear to the bill, but she was not in favor of being subjected to a cross-examination.</p> <p>I further insist that the bill was not sworn to in this case, so as to come within the provisions of ’ the statute modifying the rule as to two witnesses in the chancery court. The language of the act is, that the rule is abolished “ in all cases where the bill is sworn to by the complainant.”</p> <p>It establishes a rule in derogation of the .common law, and is therefore to be strictly construed. Upon the language of the statute there can be no difficulty in the construction. It was insisted in the court below, and probably will be here, that, by Art. 228, p. 516, the oath of an agent or attorney is sufficient. But this article only applies to proceedings in the Circuit Court. It is a part of the circuit court law, and does not in terms refer to chancery cases, as does the article 190 before quoted, in reference to the competency of witnesses. Moreover, if it were conceded that the provision did apply to chancery proceedings, it would not affect the question under consideration. The article in question refers only to cases, where an oath is required by law to be made, as the foundation and necessary prerequisite to some proceedings to be based on it. It can in no just sense be said that an oath is required by law, when it is perfectly optional with the party to make it or not.</p> <p>Again, if the construction insisted on in the court below were adopted, it would result in this absurdity, that the oath of one man would have the effect of overturning the answer if made twice; but if made only once, it would have no such effect. For if the oath of the agent be sufficient to make the bill a sworn bill, in the sense of the rule, then he, being a competent witness, might be examined, and his testimony would alone be sufficient to overthrow the answer. A construction which gives such efficacy to the formula of making two oaths, by the same person, to the same matter, instead of one, certainly cannot be adopted.</p> <p>III. There is no proof that the deed was ever accepted. It is nowhere shown, that either Mrs. Woods or Andrew Woods, ever saw the deed or knew its contents, until September, 1856. It is not shown that either were present at its execution, or ever knew of its existence. Giving to T. S. Caperton’s testimony all the force that is contended for by the other side, it still falls short of proving an acceptance by Mrs. Woods or her husband, until, at least, after the slaves had been sold. If the negroes were in possession of W. Ca-perton, on the 6th April, 1818, it certainly could not have been longer than for a day. The witness does not state they were out of the possession, for a longer period than was necessary to execute and deliver the deed, not over an hour. As Woods and wife lived not more than one-quarter of a mile from W. Caperton, such short possession of W. Caperton for the time specified, might have been, and probably was (if in fact it existed at all), without the knowledge or consent of Woods and wife; and hence, the continuance of their possession afterwards, furnishes no ground for the supposition that the deed was accepted.</p> <p>IY. As to Pitman and Dismukes, the proof shows clearly that their title is complete by the adverse, possession in Tennessee. Rebecca Curtes says, that Britton had possession of Mary (the mother of Jack and Nancy), in 1830, in Tennessee, and Calloway Garner shows that he bought the slave Mary„from Britton in Tennessee in 1836, and brought her to this State in November of that year.</p> <p>The Statute of Limitations in Tennessee as to personalty is three years, and it operates not only to bar the remedy, but to vest title in the adverse possessor. See Kegler v. Miles, Mart. & Yerger, 426; Partee v. Bridget, 4 Yerg. 174; Hardeson v. Says, Ib. 507.</p> <p>And wherever the Statute of Limitations of another State, not only bars the remedy, but extinguishes the right, it may be pleaded here. See Hamilton v. Cooper, Walker R. 542; Story’s Conflict Laws, §§ 582, 582 b; Shelby v. Guy, 11 Wheat. 361; Fears’ Administrator v. Lykes, 35 Miss. R. 633.</p> <p>In Tennessee, where the trustee is barred, the cestui que trust, although an infant or married woman, is also barred. Fergusson v. Kennedy, Peck’s R. 321; Williams v. Otey, 8 Humph. 563.</p> <p>Y. All the defendants are purchasers for a valuable consideration and without notice.</p> <p>Equity will never grant relief against a bona fide purchaser without notice, and this doctrince applies as well to purchasers of personal property, as of real estate. The reason upon which the doctrine is founded, is that equity will not disturb a possession which it is not unconscientious or inequitable for the defendant to retain; and that as he has parted with his money in good faith, under the belief that his title was good, he ought not to be disturbed. This reason applies as well to personalty as to realty. In England, where the rule first grew up, it may have been applied at first to real estate alone for the obvio.us reason, that there, and in that age, personal estate was buUa^mall portion of the property of the kingdom, and therefore did not occupy the attention of the courts and legislature to the same extent as realty ; but even there, since the progress and advance of that people in commerce and manufactures, has. increased so largely the value of personal estate, the doctrine is now applied to personalty. See Joyce v. De Moleyns, 2 J. & L. 374, cited, and the opinion of Lord Chancellor Sugden, quoted at length in 2 Leading Cases in Equity, part lj p. 41, 42.</p> <p>This doctrine has been recognized in this court. See Ewing v. Cargill, 13 S. & M. 83, 84; see also Wyse v. Dandridge, 35 Miss. Rep.</p> <p>And in Tennessee, where the deed under consideration was executed. See Eaves v. Gillespie, 1 Swan’s R. 128-132.</p> <p>To constitute a purchaser for a valuable consideration, and without notice, the following facts must exist:</p> <p>1st. He must be a purchaser of the apparent legal title, but,</p> <p>2d. It is not essential that he acquire the actual legal title.</p> <p>3d. The purchase must be without notice, and,</p> <p>4th. The weight of authority is (see 2 Leading Cases in Equity, before cited), that the purchase is good, as well against a legal as an equitable title.</p> <p>But for the present, let it be conceded that it is good only against an equitable title, and,</p> <p>1st. The defendants are purchasers of the apparent legal title. The vendor was in possession, claiming title, and apparently the owner. The title to slaves passes without writing. A person purchasing a chattel is not hound, therefore, as in cases of land, to inspect his vendor’s title-papers, and trace it to an original fountainhead ; there is no such common source of title to personalty, as the government is' in regard to land. He is, therefore, only bound to examine the record of mortgages, and deeds of trust, and the judgment roll, and see if there be any lien on the property. The possession and claim of title of personalty, is at least as good evidence of title, as a forged will or deed of realty, and in such a case the doctrine was applied. See Bassett v. Nosworthy, 2 Leading Cases in Equity, part 1, p. 33.</p> <p>But we actually acquired the legal title when we purchased.</p> <p>The legal title was vested in the trustee, and as to Mr. Nelms (the ancestor of Dismukes and wife and Pitman’s wards), the legal title of the trustee had vested in Britton and Garner by the adverse possession in Tennessee. The Statute of Limitations and adverse possession, not only barred the remedy but. vested the title. See Tennessee authorities before cited. Nelms then was a purchaser of the legal title.</p> <p>Purnell, the ancestor of Sturdevant’s wife, was also a purchaser of the legal title. He bought from Ross inv1848. Wilson, Ross’s vendor, bought in 1842, and the legal title of the trustee was barred in this State. We are not insisting that because he was barred, that Mrs. Woods was also barred, but only that the trustee was barred, and that the legal title Avas thereby vested in Ross, Purnell’s vendor.</p> <p>It is no answer to this to say that the trust was an executed one, and that the trustee had the dry legal title. The legal title was in him, and he alone could enforce it, and if not in him, it was executed in Andrew Woods, the husband, the Ayife being incapable of holding the legal title for her own use. It is perfectly clear that Mrs. Woods only had an equity, and that her estate Avas such as to make her bound by the rule under consideration. See Eaves v. Gillespie, 1 Swan R. 132; where the husband Avas held to have the legal title and the purchaser was protected. This case is important, as it was decided in Tennessee, where this deed AA’as made, if made at all.</p> <p>It makes no difference therefore, whether the trust Avas executed or not, for if the legal title Avas in the trustee, it was barred; and if in the husband, he conveyed it by his sale.</p> <p>Moreover, the parties are protected by the legal title vesting in them after their purchase. Their adverse possession, under the Statute of Limitations in this State, vested in them the title after their purchase. A subsequently acquired legal title will protect a bona fide purchaser for value. See 2 Lead. Cas. Eq. part 1, p. 37, 38, et seq.</p> <p>But Mrs. Woods claims only in equity. She sets up only an equitable title in her bill. She asks no relief upon the ground that she has the legal title. She expressly claims an equity, and no-more. The court will not-allow her to set up one title in her bill, and another in the hearing. She is bound by her title as set out in her bill.</p> <p>But we insist, further, that the claim of Mrs. Woods is old and stale, and that it will not be enforced. Every presumption that can fairly be made, shall be indulged against a stale demand. The court will reject it on considerations of public policy. Pickering v. Lord Stamford, 2 Ves. J. 582; Tevis v. Eliza, 7 Dana, 399-418; 4 Denio, 215.</p> <p>If the staleness of the demand is not an absolute bar, yet the court will consider it as a very unfavorable circumstance, -where the claim is not clearly made out, and where there is conflict in the testimony. This fact, then, strengthens greatly my position in reference to the prior gift, — the delivery and acceptance of the deed.</p> <p>But again: Mrs. Woods says she knew her claim, but permitted the sale, without objection. She quietly permits others to invest their money on the faith that the property was her husband’s; and she is now estopped to set up a claim to it. Here coverture was no excuse. See 2 Lead. Cas. Eq., and cases cited, part 1, p. 47.</p> <p>There never was a'stronger case for the application of the rule than the present.</p> <p>Upon the whole case, it is submitted that the decree should be affirmed.</p>

<p>1, Revised code : regulates proceeding in suits pending when it took effect : garnishment. — Where a garnishment was issued before the Revised Code went into operation, but was made returnable at a time subsequent to that date; and was also executed on the garnishee after the Code took effect; the mode of service, judgment, and all subsequent proceedings, will be regulated by the provision of the'Revised Code.</p> <p>2. Garnishment : is original process : and must be executed as such. — As to the garnishee, the writ of garnishment is original process, and when emanating from the Circuit Court, the return must show the mode and manner in which it was executed, as in other cases of original process emanating from that court. See Merritt v. White, 31 Miss. R.</p>

<p>1. PROBATE COURT : EFFECT OF RECITALS IN' DECREE, OF FROOF OF DUE AND LEGAL notice. — The Court of Probates has power, in a proceeding to sell the land of a decedent, to determine the regularity and sufficiency of the proof of service of notice upon the heirs, and if the decree recites that proof of service of notice on the heirs according to law, was made, it will be presumed, in the absence of proof to the contrary, that the service was duly and legally made. See Commercial Bank of Manchester v. Martin, 9 S. & M. 613;' Cason v. Cason, 31 Miss. R. 5Y8.</p> <p>2. Same : not necessary to describe specifically land ordered to be sold to pay debts. — It is not necessary that the land of a decedent should be specifically described, in a decree of the Court of Probates ordering a sale of it for the payment of debts: it is sufficient, if the descriptive terms used be comprehensive enough to embrace it: and hence, when the decree directed a sale “ of the lands and mills belonging to the deceased,” it is a sufficient authority to sell any land belonging to the deceased in the jurisdiction of the court.</p> <p>S. High court : practice : exceptions to evidence must be specific. — Where a party objected to the admission of a record from the Probate Court, decreeing a sale of the lands of a deceased person, and of the deed made in pursuance thereof, upon the grounds, 1st, that it did not appear that due notice had been given to the heirs; and, 2d, that the decree was void because it did not sufficiently describe the land: he will not be permitted in this court, to allege for the first time, as a further objection, that it did not appear that the sale had ever been confirmed.</p>

<p>Probate court: jurisdiction: decree in favor of assignee of a distributive share void. — An assignee of a distributive share of a deceased person’s estate, is a stranger to the jurisdiction of the Court of Probates, and a decree rendered by that court directing payment of a distributive share to him, is therefore void, and cannot be made the foundation of any legal proceeding whatever: and hence, a suit on the bond of an executor or administrator in the name of the probate judge, for the use of such assignee, cannot be maintained.</p>

<p>1. Probate jurisdiction : ACCOUNTS or EXECUTORS, administratobs, and guardians. — The Court of Probates has exclusive jurisdiction in the settlement of the accounts of executors, administrators, and guardians. See Searles v. Scott, 14 S. & M. 94; Neylans v. Burge, lb. 201.</p> <p>2. Same : same : promise to allow “ a pair compensation” por commissions. —A'promise by a ward or distributee, to pay the guardian, executor, or administrator “ a fair compensation” for his services, is a mere, promise to pay what may be allowed by the appropriate tribunal, according to law: and hence, where such a promise was made, and there was no final settlement between the parties, of the accounts, the Probate Court alone can determine what commissions shall be allowed.</p> <p>3. Same : same : chancery jurisdiction : settlement op executors’ accounts. —If a guardian, after the termination of his trust, execute a mortgage to his ward for a sum certain, as security for what may be due by him on a settlement of his accounts, he cannot, in a suit in equity to enforce the collection of the mortgage debt, have a settlement of his guardianship account, so as to use as a set-off, an alleged indebtedness of the ward to him : but he must proceed in the Probate Court, to have the accounts adjusted between himself and the ward.</p> <p>4. Same : same. — The obligation of a refunding-bond, is to refund a due proportion of the deficiency of assets to pay debts, which may afterwards be established against the estate. Whether there is a deficiency of assets, and the extent of it, can only be determined by a settlement in the Probate Court; and, therefore, a court of equity will not, where a refunding bond has been given, set-off against a claim of the obligor" in the bond, his pro rata share of a debt established against the estate, until a deficiency of assets, and his consequent liability to refund, has been established by the Court of Probates.</p> <p>5. Husband and wipe : when surviving husband max collect debt due the wipe : case in judgment. — The surviving husband, when the wife has left no issue, may maintain a suit in equity in his individual name, to collect a mortgage debt due to the wife by her former guardian, when there are no subsisting debts against her; and the guardian will not be permitted to show that there will be an indebtedness of the ward to him, on a future settlement of his accounts, to defeat the husband’s suit.</p>

<p>1. Probate court : property exempt prom execution descends to widow.— The husband’s personal property which is exempt from execution, descends, •upon his death without a will, directly to the widow, and vests absolutely in her, and is not therefore subject to administration by the Court of Probates.</p> <p>2. Widow : her right to exempt property. — The widow is entitled to the property of her intestate husband, which by law is exempt from execution, in addition to her distributive share in his estate. See Coleman v. Broolcs, 37 Miss. R.</p> <p>3. Same : advancements : widow not aeeected by. — The widow of a person dying intestate, is not affected by advancements made to the children, or a portion of them, iu the lifetime of her husband, but her distributive share, is a child’s part of all the personalty which shall remain after the payment of her husband’s debts.</p> <p>4. Same : widow’s distributive share, and dower, where she has separate estate, — Where the husband dies intestate, the widow’s distributive share in the personalty cannot be diminished because she owns a separate estate; but it seems that her right to dower, in the realty, will be diminished according to the provisions of Art. 30, p. 357 of the Rev. Ccide, whether her husband dies testate or intestate.</p>

<p>1. Probate court: practice: pleading: preliminary issue must be tried separately : case in judgment. — If, in a proceeding in the Probate Court, seeking to set aside the probate of a will, the interest or heirship of the petitioners be denied, the question thus raised is preliminary in its character, and should be determined before any trial is had upon the alleged invalidity of the will; and hence, in suelda case, it will be error for the Probate Court to order an issue as to the interest of the petitioners, and an issue devisavü vel non, to be made up and submitted to the same jury.</p> <p>2. Evidence: record of probate in common form not admissible. — The record of the probate of a will in common form, being ex parte, and made without notice to the heirs, is not admissible in evidence on the part of the executor, on the trial of an issue devisavü vel non.</p> <p>3. Statutes : construction : construed with reference to common law.— Statutes are to be construed in reference to the principles of the common law; and it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the necessity of the case absolutely required. See 1 Kent Com. (side page), 464.</p> <p>4. Same : case in judgment : bastard’s right to inherit. — The Act of the 23d February, 1846, which provides,that thereafter “all illegitimate children shall inherit the property of their mothers, and from each other, as children of the half-blood, according to the Statutes of Distributions and Descents, now in force in this State,” being an innovation of the common law, is to be construed strictly; and it does not, therefore, remove any disability of, or confer any right on, illegitimates, except such as are specially mentioned in the act.</p> <p>5. Same : same. — The legitimate children of a bastard who died previous to the passage of the Act of the 23d February, 1846, are not entitled, under the pro visions of that act, to inherit the estate of their illegitimate uncle or aunt, dying after the passage of the act.</p>

Hon. James M. Jones, judge. ' ' This was a petition by Davis and wife, to procure distribution of the estate of the fatheiv of Mrs. Davis. The substance of the peti- • tion, amended petition, and answer, and cross-bill, and also the action of the court on the cross-bill, are fully set out in the opinion of the court.

<p>1. Executor and administrator: accounts: what a sufficient voucher for payment of a JUDGMENT. — Tho receipt of a sheriff, given to an executor, which shows on its face that an execution was in the sheriff’s hands against the decedent, and that it was paid to him by the executor, is prima facie evidence of the existence of the judgment, and is a sufficient voucher to authorize an allowance for the payment.</p> <p>2. Same : same : rule where payment is made of unprobated claim.' — If an executor pay an unprobated open account against his testator, he must, in order to entitle him to an allowance therefor, show by proof, that it was a valid claim against, and had never been paid by, the testator.</p> <p>3. Same : same. — Where an open account is probated against the decedent, for a balance after deducting payments credited thereon, the executor will be entitled only to an allowance for the balance probated, unless he prove that the credits were also paid by him.</p> <p>4. Same: account of_executor or administrator is a suit: accountant not a competent witness. — The account of an executor or administrator, propounded for settlement in the Probate Court, is a suit, withiu the meaning of Art. 190, p. 510, of the Revised Code, to establish the claim of the accountant against a deceased person’s estate; and the accountant is not therefore a competent witness to establish any item of credit in his account, nor to exonerate himself from any sum with which the heirs or legatees may allege he is chargeable.</p>

Hon. Hiram Cassidy, chancellor., I. Tbe appointment of Armat as collector of tbe estate of Mc-Neill was void, and consequently the bond… Held: that where an executor dies without any personal representative, a court of equity may, at the suit of a legatee, and without any previous suit having been brought against the executor to convict him of a devastavit, convene the sureties of the executor, or their representatives, and the persons who would be interested in any estate…

<p>1. Evidence : citizenship : proof of. — Proof that a free white person has been residing in this State, and keeping house for twelve months, is sufficient to show that he is a citizen of the State, in the absence of all proof tending to show, that he was a mere sojourner or transient person.</p> <p>2. Same : proof that a party is a free white person : case in judgment.— If it appear that a party to a suit, married in this State, and kept a hoarding-house, and hired slaves, it is sufficient in the absence of all proof to the contrary, to show that he is a free white person.</p> <p>3. Exemption laws : party becoming householder after judgment, entitled to benefit of. — If a judgment-debtor, being a free white citizen of this State, .becomes a householder and the head of a family, after the rendition of the judgment, and before the sale, he will he entitled to hold exempt from sale, under a levy made to enforce that judgment, the quarter-section of land exempt from execution by the provisions of Art. 281, p. 529, of the Revised Code.</p>

<p>Widow : title op exempt property uuder act op 20th October, 1852. — The interest and estate of a widow in the property of her deceased husband, exempt from execution, held under the Act of the 20th October, 1852 (Session Laws, 66, ch. 66), cease and determine upon her marriage to another husband; and if there be no children of the first husband, at the time of his death, or thereafter, such property will revert back to his estate, and will be subject and liable to the payment of his debts.</p>

Hon. Stanhope Posey, chancellor. This was a bill filed by the children of Hugh W. Wormly and Mary Wormly, his wife, to recover possession of certain slaves, which they claim under an antenuptial settlement, executed between their parents and a trustee.

Hon. William M. Hancock, chancellor. This was a bill filed in the Chancery Court of Clarke county by the appellee, to procure a new trial at law. The grounds upon which'the new trial is asked are, that the complainant was prevented from making his defence at law; by the erroneous rulings of the judge who presided at the trial, and that he was deprived of his remedy to correct, said errors by writ of error to this court, without fault on his part.

<p>1. Pleading : practice : averment op damages under pleading act op 1850. —An averment of tlie amount of damages claimed by the plaintiff, is unnecessary in an action to recover a debt, under the Pleading Act of 1850, and if made in the complaint, is surplusage ; and hence, if the judgment exceeds the damages claimed in the complaint, it will be no ground for reversal.</p> <p>2. Executor and administrator: statute op limitations: 12th section op act op 1844. — The twelfth section of the Limitation Act of 1844 (Hutch. Dig. 831), which limits actions against executors and administrators to the period of four years and nine months after their appointment and qualification, applies only to suits where the cause of action accrued within the lifetime of the decedent. See Bingaman v. Robertson, 25 Miss. R. 501; Pope v. Bowman, 27 Id. 194.</p> <p>3. Statute op limitations : exception op absence prom the state. — The reason of the exception of the time of the defendant’s absence from the State, from the period limited for the bringing of suits, is, that during such absence, the plaintiff is prevented from pursuing his remedy to recover his debt: if, therefore, the plaintiff’s right to sue be unimpaired, notwithstanding such absence, he will not be entitled to the benefit of the exception.</p> <p>4. Same : same : act 21sf October, 1852: executor and administrator.— The Act of the 21st October, 1852 (Session Laws, ch. 56), which provides, that where an administrator of an estate within this State, resides beyond the limits of the State, so that the ordinary process of law cannot be served on him, notice of suits at law against him may be served by publication in a newspaper; furnishes parties having claims against a decedent’s estate, a full and ample remedy for their collection, notwithstanding the absence of the administrator: and hence, the running of the Statute of Limitations in favor of the administrator, will not be affected by his absence from the State. Smith, 0. J., dissented.</p>

<p>1. Circuit court : jury : duty of court nr respect to empanelling. — As a general rule, both in civil and criminal cases, it is the duty of the court to empanel a competent and impartial jury; and for this purpose, the court may propound to the jurors returned, not only such questions as may be necessary to ascertain their competency, but, in its discretion, may also examine them in relation to their impartiality, prejudice, or bias.</p> <p>2. Same : party has no right to interrogate juror without challenge.— "Where no challenge is made to a juror, it is discretionary with the judge, whether he will permit the parties to interrogate him as to his bias or prejudice in the case.</p> <p>3. Same : how to challenge a juror. — The proper mode to challenge a juror is, for the party objecting to specify distinctly the cause of the challenge, so that an issue in law of fact may be joined, and that it may be known whether it is for principal cause or for favor, and the mode of trial be determined; and if this be not done, the challenge is not complete, and may be wholly disregarded by the court. See Mann v. Glover, 2 Green’s R. 195 : Freeman v. The People, 4 Denío R. 31.</p> <p>4. Slander : pleading : notice of justification, what it must contain.— The notice of justification, accompanying the plea .of not guilty to an action for slander, need not in form amount to a special plea of justification, but it must fully notify the plaintiff, in substance, of the specific charge relied on, so that he may be prepared to prove his innocence; and hence, a notice “ that the defendant will prove the truth of the words complained of,” is insufficient.</p> <p>5. Same : right of defendant to show proyocation : case in judgment. — In an action of slander, if the evidence show that the defamatory words were spoken immediately after a trial of a lawsuit between the plaintiff and defendant, and that they were occasioned by it, it will be competent for the defendant to show, in mitigation of damages, the facts and circumstances occurring on, and the conduct' of the parties during, that trial."</p> <p>6. Same : evidence as to character must be general. — In an action of slander, evidence of the general character of the plaintiff, alone is admissible ; and hence, evidence of particular rumors against the plaintiff, circulating among, or of charges preferred by, a minority of his neighbors, is inadmissible.</p> <p>7. Same : same. — Proof of character must be made by inquiries as to the general reputation of the party, where he is best known, and as to what is generally said of him by those among whom he dwells, and with whom he is most conversant ; and ordinarily, the witness ought to come from Ihe neighborhood of the party whose character is under investigation.</p> <p>8. Same : same : province of court and jury in respect to. — The court will not, unless under peculiar circumstances, undertake to determine, by a preliminary examination, whether a witness to character has sufficient knowledge to enable. him to testify; and henee, what is the neighborhood of the party whose character is the subject of inquiry, whether it be circumscribed or extended, and what weight is to be given to the witnesses living near or remote, and the sufficiency of their knowledge of his character, are matters to be considered and determined by the jury.</p> <p>9. Same : mitigation : words spoken in a passion. — That the actionable words were spoken in a sudden heat of passion, is a circumstance in mitigation of damages.</p>

<p>i. Evidence : physician : necessary, be a graduate of a medical college, or have a license from any medical hoard to practice, in order to render him competent to testify as an expert, in relation to matters connected with his profession.</p> <p>'2. V Damages : exemplary : when counsel fees cases, proper the infliction of exemplary damages, the jury in estimating those damages, have a right to tahe into consideration the probable expense of the litigation, to which the plaintiff has been subjected, in order to obtain redress for the wrongful act of the defendant; and it is therefore competent for the plaintiff to prove, before the jury in such a case, the reasonable and proper charges of his counsel.</p> <p>3. Bill op exceptions : cannot contain what is a part op It is the office of a hill of exceptions, to make a part of the record, such extraneous matters as do not necessarily constitute a part of the record in the cause; and therefore, no proceeding in the court below, which is necessarily a part of the record, can be certified to this court through the medium of a bill of exceptions.</p> <p>4. High court : record ; motion 3?or a new trial a part op : now certified to this court. — A motion made in the court below for a new trial, is a necessary part of the record in the cause, and cannot therefore be certified to this court in a bill of exceptions.</p> <p>5. Same: same. — This court will not revise the judgment of the court below on granting or refusing a new trial, unless both the motion for a new trial and the judgment thereon be certified to this court, as a part of the record in the cause, otherwise than in a bill of exceptions.</p> <p>6. Railroad law: principal and agent: collision evidence op negligence. — In an action by a passenger on a railroad, to recover damages against the company, for an injury done to him, by a collision, proof that a collision did take place, and that the plaintiff was thereby injured, is prima facie evidence of negligence or want of skill on the part of the servants of the company; and it casts the burden of proof on the company, to show that its employees in charge of the colliding locomotive, were in every respect qualified, and that they acted with reasonable skill aDd the utmost caution, and that the collision could not have been prevented by any human care or foresight.</p> <p>I. Principal and agent: liability of principal for torts of agent.— In all cases where it appears, that the employment of the principal afforded the agent the means and opportunity, which he used, while so employed, in</p> <p>. committing an injury to a third person, the principal is responsible, whether the injury results from the negligence, or the wilful and malicious conduct of the agent.</p> <p>8. Same: same: responsibility of railroad companies for acts of employees. — Upon a principle of public policy and public necessity, the rules of law which fix the liability of the principal for the torts of his agent, are applied with strictness to common carriers; and especially to those using forces for the propulsion of their carriages, which are calculated to endanger life or property.</p> <p>9. Same : samf.. — A railroad company impliedly warrants, that its engineers, conductors, and other employees engaged in running its trains, are possessed of due skill, and are competent and faithful; and it is liable under all circumstances, for any injury occasioned by the misconduct, rashness, or negligence of such persons; and where an injury is caused by the gross negligence, or wanton and wilful misconduct of its employees, it is liable for exemplary damages.</p> <p>10. Evidence: witness: party’s interest may be considered by jury. — The jury in determining the weight, and credit tq be given to the testimony of a party to the suit, have the right to consider of his interest; and it will be error therefore for the court to charge the jury that they cannot disregard the testimony of a party; unless Ms manner and conduct, in giving in his testimony, and the evidence of the other witnesses in the cause, satisfy them that what he said is false.</p>

<p>ERROR to the Circuit Court of Jackson county. Hon. William M. Hancock, judge.</p> <p>This was an action of detinue by the administrators of Margaret Fairly to recover possession of two slaves, — Caesar and Calvin. Pleas, not guilty, and the Statute of Limitations. The defendant was a son and heir of Archibald Fairly, deceased. The plaintiffs claimed title to Calvin, as the issue of a slave Nancy, which they alleged belonged to their intestate. They claim title to Caesar, alleging, that he had become the property of the intestate on the division of the mother’s estate.</p> <p>It was shown that the slave Nancy had several children, which had been divided among, and were possessed by, the children of Archibald Fairly. Suits were pending for the recovery of all these, and by consent of the parties they were all tried with this.</p> <p>On the trial plaintiffs introduced as a witness, John Fairly, who was a brother of plaintiffs’ intestate, and one of her heirs. He was objected to by the defendant on the ground of interest. Plaintiffs then exhibited a deed made by the witness, by which “ for and in consideration of natural love and affection and of one dollar to him in hand paid,” he gave, granted, and released to his children and grandchildren, “ all his right, title, and interest, in any and every right or claim, which he has, in and to all and every part of the property of his sister Margaret Fairly, deceased, both at law and equity.” Upon being interrogated by the defendant, the witness admitted, that he had executed this deed, that he might be a witness in the case, and that the consideration of one dollar therein mentioned was never in fact paid. The court decided, that the deed did not divest the grantor of his interest in the result of the suit, but permitted him to testify as an interested witness, under the provisions of the Revised Code; and the plaintiffs excepted.</p> <p>The witness then stated, that he and his brother Archibald, and his sister Margaret, all formerly resided in North Carolina, where their father and mother lived and died; that upon the distribution of his father’s estate, a sum of money was due to his sister Margaret, as her share in the estate; that she gave this money to Archibald Fairly, who went to Virginia to buy a negro with it, for her; that soon after Archibald’s return from Virginia, with the girl Nancy, he stated, that he had bought a negro for Margaret, and he had run away; he sold him and bought another^ and he also ran away, and be therefore sold him, and with the proceeds he bought the girl Nancy. That Archibald afterwards repeatedly spoke of the girl Nancy as the property of Margaret; that Margaret and Archibald, after their father’s death, resided with their mother until she died, some ten or twelve years ago,-and that- after their mother’s death, Margaret continued to reside with Archibald, and very soon thereafter removed with him to Mississippi; that in North Carolina Margaret owned land, and her negroes worked it; that she owned no land in this State, and her slaves worked on Archibald’s land, who generally managed her business; that Margaret always claimed Nancy and her issue as her own, and- that it was the common understanding in the family, that the.y were her property. That shortly after Margaret’s death, which took place six or seven years ago, Archibald told witness he intended to divide her negroes among his children, and witness told him he had better not do so; that Margaret acquired Cmsar, on a division of her mother’s estate.</p> <p>Cross-examined. The witness stated that he had removed from North Carolina to this State in the year 1821, and had visited'that State only once since; that after Margaret and Archibald removed to this State, they visited witness very seldom.</p> <p>Plaintiff then introduced Bayid Berry, and proved by him the names and ages of Nancy’s children, arid that some of them were in the possession of each of the children of Archibald Fairly.</p> <p>On cross-examination, this ydtness stated, that he knew Archibald Fairly’s family fifteen years, and had removed with them from North Carolina to this State; that Archibald had the slaves in possession during his lifetime, and “ seemed to control them; he hired them out, and received' their wages; never heard Margaret claim them, and don’t recollect -to have heard it stated by any one, that they were hers.</p> <p>The plaintiff then asked this witness if he were not interested in the result of this suit. Defendants objected to the question; this objection was sustained, and plaintiff excepted.</p> <p>Plaintiffs then proved by one witness, that about a year before said Margaret’s death, he went to see Archibald about hiring Csesar; and Archibald told him to go to his sister Margaret, as she controlled him herself; that he, Archibald, could hire him Calvin, or Amos (Nancy’s children); that they belonged to Margaret, but that he controlled them. Another witness, who was a relative, (a cousin) of both parties, stated : that a year or two before Margaret’s death, she requested witness to carry Csesar to Mobile and hire him out, which witness did; that she claimed Csesar as her own ; but he does not know whether she claimed the others or not. “ It was the common understanding, that a portion of the slaves in Archibald’s possession, were Margaret’s.” Another witness stated, that a short time after Margaret’s death, Archibald came to witness’s house and stated that he had divided his sister Margaret’s negroes among his children, and that such was her request. Another witness stated that Archibald said he was going to divide the negroes of his sister Margaret among his children.</p> <p>The defendant then offered in evidence a bill of sale under seal, purporting to be made by William Pollock, and to convey the girl Nancy to Archibald Fairly for the sum of $400, and dated 25th July, 1818. On it appeared the name of two attesting witnesses. There was indorsed on it: “ Filed for record and recorded in my office, July 5th, 1853. S. Davis, clerk of Probate Court of Jackson county, Mississippi.”</p> <p>In support of the deed, plaintiff proved by S. Davis, that shortly after Margaret Fairly’s death, Archibald Fairly offered the instrument to him for record, and that he recorded it.</p> <p>James Fairly (a son of Archibald, and a defendant in one of the suits) testified, that ever since his mother’s death, which took place sixteen or seventeen years ago, his father’s papers were kept in a trunk, of which his aunt Margaret kept the key. Margaret had access to the trunk, and could read and write. That she and his father lived together; and after his mother’s death, she superintended matters about the house. He never heard of her claiming any of the negroes; they were in his father’s possession, and he hired them out, and received the pay therefor. Witness first saw the bill of sale about eighteen years ago. Witness’s father owned the place in North Carolina in which he and Margaret lived, and sbe never claimed any interest in it. Witness found the bill of sale in the trunk before mentioned after his father’s death. Witness’s grandmother died eleven years ago, without any property. Caesar was born his father’s; was the child ,of Elva, who came to his father from witness’s grandfather’s estate, and had been owned by his father ever since witness could recollect.</p> <p>Cross-examined. Witness stated he-- was thirty-two years old; that he never knew his aunt Margaret to have any property or money, and “ don’t think she ever controlled any of the negro property and that he, witness, had always lived with his father until his death.</p> <p>Upon this proof, the court permitted 'the bill of sale to be read, and the plaintiff excepted.</p> <p>John Fairly, for defendant, stated : that he had had two conversations with Archibald Fairly respecting the negroes in controversy, in which his statements were directly contradictory. In the last conversation, Archibald said that the negroes were his, and he had a bill of sale for Nancy, and had paid taxes for them, and they were in his possession.</p> <p>Cross-examined. In the first conversation, said Archibald said, “ he had divided, or would divide (witness does not remember which) his sister Margaret’s negroes or property (don’t recollect which), among his (Archie’s) children.” This conversation took place soon after Margaret’s death.</p> <p>Matthew Fairly, the defendant, testified, that he is twenty-eight yeas old, and lived with his father till his death. His father hired out the negroes in controversy, and received the wages; never heard his aunt Margaret claim them, and never heard of her claiming any property here or in North Carolina, and she never cultivated a farm or carried on any business, either here or in North Carolina, and he never heard his father’s title questioned.</p> <p>Cross-examined. Witness does not recollect to have heard either his father or his aunt say anything in relation to the title of the property. His father had other slaves besides that in controversy. After his aunt’s death his father divided Caesar and the children of Nancy among his children; he divided no other property among his children.</p> <p>Defendant also proved by two witnesses that each of them had assessed the property in controversy, and that it was assessed as</p> <p>Archibald Fairly’s; and on one occasion Margaret was present when'this was done, and made no objection.</p> <p>The instructions given and refused, which were made the subject of an assignment of errors in this court, are fully stated in the opinion.</p> <p>The verdict was for the defendant, and plaintiffs moved for a new trial, which being refused, they sued out this writ of error.</p> <p>1. John Fairly was a disinterested witness. The deed executed by him fully divested him of all interest in the estate. Fairly v. Fairly, 34 Miss R. 18.</p> <p>2. The question propounded to witness Berry, which sought to show that he was interested, was competent. The rule only extends to the prevention of a party’s introducing general evidence to impeach his own witness.</p> <p>3. The bill of sale was improperly admitted. Proof of the execution of ancient deeds is dispensed with, but they must be shown to be ancient, otherwise than by their date. 1 G-reenl. Ev. § 171; 2 Phil. Ev. Cow. and Hill & Edward’s notes, p. 478.</p> <p>4. The court erred in refusing the instructions asked by plaintiffs. They were strictly correct and applicable to the evidence; and the instructions given for defendant were erroneous, and calculated to mislead the jury.</p> <p>Insisted that it was well settled that there may be a legal and an equitable title in slaves, and that in respect to them, there may be a naked legal title outstanding, which a court of law.is bound to protect. Here the legal title was in defendant, and the verdict was on that ground correct. Moody v. Farr's Lessee, 33 Miss. R. 209 ; Fresbyr. Rogers, 24 lb. 520. It is true that a writing is not essential to convey the legal title to the. equitable owner, but its conveyance in some form ought to be distinctly proven, to enable a court of law to give him relief. The proof is clear that the legal title is in Archibald, and the resulting trust attempted to be set up in favor of Margaret, depends upon the most uncertain of all kinds of evidence, — the declarations of a party made long anterior to the trial; and the evidence in relatiqn to these is contradictory. It seems clear that Margaret knew that Archibald had the legal title, and she never complained of it, or attempted to enforce her alleged equity; on the contrary, it is manifest she permitted her brother not only to hold the legal title, but to enjoy the beneficial interest in the slaves, and directed him to convey it to his children. This direction is as competent to rebut the resulting trust, as the parol admissions of Archibald are to establish it.</p> <p>Possession of property ought not to be disturbed, unless upon very satisfactory evidence of title in the party assailing it, especially when that possession has continued for years, and is protected by a legal title shown to have existed at some time, and no evidence that it has been distinctly surrendered.</p> <p>The evidence here goes to this point only, — that certain declarations of Archibald Fairly, about which the evidence is conflicting, leads to the supposition that he held the legal title in trust for Margaret, and that Margaret had consentéd that he should hold it for his children. In a court of law, taking cognizance only of the legal title, this was clearly insufficient.</p> <p>The testimony of two of the defendants is direct and positive that Caesar was the descendant of Elva, who belonged to Archibald, and had always been in Archibald’s possession. If the jury believed this evidence, they were bound to find for the defendant as to Csesar.</p> <p>Indeed, from the character of the case, the position of the witnesses, the uncertainty which long lapse of time and failing memory and the bias of interest throw over these facts, with but one distinct, undoubted fact existing, to wit, continued possession, with written evidence of title in Archibald, the verdict ought not to be disturbed.</p> <p>The instructions — take all that were given — there was sufficient to guide the jury properly; take those refused, and there was nothing withheld which could have enlightened them.</p> <p>The result seems to be right. Where from fifteen to twenty instructions are presented to be acted on, errors in the abstract are committed, always, we may say ; but no errors here which substantially affected the merits of the case.</p>

<p>Judgment: lien: case in judgment. — Where several judgments are rendered, against the same person on the same day, and are afterwards, within thirty days from the adjournment of the court, enrolled on the same day, in the order in which they were rendered, that judgment which was first entered and enrolled has a prior lien. See Smith & Pickett v. Ship, 1 How. 234.</p>

<p>1. CmcuiT court: motion’: practice: parties. — On the trial of a motion against the sheriff, to recover a sum collected by him on an execution, he may show, in his defence, wherever-such a claim would be considered on the trial of a motion, that the attorney who recovered the judgment, has a valid lien on the fund for his commissions, and that he has notified the sheriff to retain it for him; and hence, it will be improper for the court to allow the attorney to be made a party to the motion, upon his claim, that he has a lien on the fund in controversy.</p> <p>2. Attorney^-at-law : lies. — Whether an attorney has a lien on the fund collected under a judgment recovered by him for the payment of his fees, where the amount of his fees has not been fixed by special contract, or by established professional usage, — Qucere? But conceding that he has a lien in such a case, it will not be noticed or considered on the trial of a motion against the sheriff for a failure to pay over money collected on execution.</p> <p>3. Higii court: practice: exceptions.- — -This court will not notice an objection made, in the Circuit Court, to the admission of a new party to a motion against a sheriff for a failure to pay over money collected on execution, unless it be excepted to.</p>

<p>Wills: vested legacy: provision' to keep property together material: case nr judgment. — The testator directed all his property to be kept in the hands of his executors, until his youngest child should arrive at full age or marry, but allowing each of his children to have his or her portion upon his or her becoming of age ; that his executors should cultivate his plantation, and apply the nett profits, after paying plantation expenses, and the clothing and education of his children, in the purchase of such other property as the “ wants of his plantation should require';” and that, when his youngest child should arrive at full age or marry, “ an equal division of all his property, real and personal, should be given to each of his children and his wife, allowing her a child’s part of everything he should then own.” He then appointed his wife and brother executrix and-executor, and enjoined “ on them the faithful care and protection” of his five children. The widow and brother of testator refused to qualify as executrix and executor, and an administrator c. i. a. was appointed. The widow married a second husband, and had issue, one child, and died; and before the youngest child of testator arrived at full age or married, her said child by the second marriage petitioned for distribution of her share in the estate. It was held:</p> <p>1st. That a vested estate was given to the children of testator, to be enjoyed in severalty, in futuro.</p> <p>2d. That as the widow, as. executrix, was charged with the care and protection of the children, and as no other means for her support were provided to enable her to discharge this duty, she was entitled to be maintained out of the profits of the plantation, and that she had a vested interest in the devise and bequest to her, but which could only be enjoyed by her in severalty, when the youngest child arrived at full age or married.</p> <p>3d. That the direction in the will, to keep the property together, was not formal, but material, and could be executed by the administrator c. í. a.; and hence, after the death of the widow, no distribution of her share could be made until the happening of the contingency mentioned in the will.</p>

<p>1. Railroads : act of 1854, exempting them from taxation, construed.— By the 15th section of the Act of 27th February, 1854, incorporating the Southwestern Air Line Extension Railroad Company (see Session Laws, ch. 354, p. 516), it is enacted: “ That the fixtures and property of said company shall be exempt from taxation, for and during the full period of twenty years from the passage of this act; and that the privileges and benefits of this provision shall be extended to all railroad charters heretofore granted by the legislature of this State, as well as those hereafter to be granted, unless specially excepted; and the same shall be a part of said charters.” This provision exempts all the property of railroad companies from municipal as well as State and county taxation.</p> <p>2. Same : same. — The exemption from taxation granted to railroad companies by the 15th section of the Act of the 27th February, 1854, is secured to companies then chartered, for the period of twenty years from the passage of that act; and companies thereafter chartered, will be entitled to such exemption for twenty years from the date of their respective charters.</p> <p>3. Statutes: repeal by implicamos" : construction. — It is true that the repeal of statutes by implication is not favored; but when a subsequent statute contains nothing restricting the general terms used in it, effect must be given to such terms according to their plain meaning; and if, when so construed, the statute is repugnant to a former statute, the latter is repealed to the extent of such repugnancy.</p> <p>4. Same : same : case in judgment. — A subsequent statute exempting, in general terns, a certain class of property from taxation, will operate as a restriction upon a power previously granted to a municipal corporation, to levy taxes on all property within its limits.</p>

<p>1. Board or police : max employ counsel. — By Art. 35, p. 420, of the Revised. Code, the board of police is empowered to employ counsel, in all civil cases in which the county is interested; a plea in abatement, therefore, to a suit instituted in the name of the board of police, denying- that the counsel whose name is signed to the declaration has authority in law to bring the suit, and averring that such authority is vested alone in the district attorney, should be stricken out as frivolous.</p> <p>2. Circuit court : jurisdiction, to enforce penalty for failure to work on public roads. — The Circuit Court has jurisdiction to entertain an action in favor of the board of police, to recover from the owner, overseer, &c., of slaves, the penalty prescribed for a failure to work such slaves on a public road, wherever the amount of the penalty exceeds the sum of fifty dollars.</p> <p>3. Master and slave : public roads : when master not liable for failure of slaves to work on roads. — -The owner of slaves,.who is absent from home, leaving them in the possession and under the management of his overseer, is not liable for the statutory penalty imposed for a failure to work the slaves on a public road, when the notice to work was given to the overseer and of which the owner had no knowledge until after the failure to work had occurred.</p>

Hon. John E. McNair, judge. The apparent diversity in the decisions of the several States on the subject of contracts made on Sunday, will be found to result from the difference in the terms and scope of their several statutes. Sabbath-breaking tested by the Scriptures is one thing, and sabbath-breaking as denounced by temporal laws and statutes is another. There is no such thing as a public, policy covering the whole scope of the scriptural injunction.

Hon. Jacob S. Yerger, judge. In May, 1856, Morgan McAfee sued out an attachment against plaintiff in error, for $1600, with interest from 1st Jan. 1849, for so much money had and received by the defendant below for his use, and for so much laid out, and paid, and expended .by plaintiff for defendant. The defendant below appeared, and pleaded the general issue, the Statute of Limitations, and payment.

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

Hon. John E. McNair, judge. This was an action of ejectment, commenced on the 9th October, 1858, by the defendants in error against the plaintiff in error, to recover a lot of land situated in… Held: there was no estoppel. He said the principle of estoppel originates in the relation of lessor and lessee. The title of the lessee is, in fact, the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests upon it to maintain and justify his possession.

<p>Land laws : surveying : magnetic variation. — The true boundaries of land once owned by the United States, are the lines established by the survey made by the government, and under which it was sold; and wherever these lines are obvious, they must be followed, notwithstanding the government survey may . have been made upon an assumed, or a wrong magnetic variation.</p>

Hon. William M. Hancock, judge. This was an action of ejectment, instituted under the Pleading Act of 1850, by the heirs of John Porter against Samuel White and Rebecca Nixon, to recover possession of a tract of land situated in the Bay of St. Louis in said county, together with the rents and mesne profits. The defendants pleaded a general denial, and gave notice that Mrs. Nixon would claim the value of the improvements made by her.

Hon. John W. Robb, judge. In June, 1855, D. Morrison filed a petition in the Court of Probates of Hinds county, representing that the appellant, W. B. Stewart, had in his possession a large amount of property belonging to his two children, Alexander and John Stewart, who were the issue of the said Stewart and his first wife, who is now dead, and was a niece of petitioner; that said Stewart was not using this property to the advantage of his said wards, but “is wasting;…

<p>Error to the Circuit Court of Claiborne county. Hon. Hiram Cassidy, judge.</p> <p>As to the power of guardian to act for ward, cited Bingham on Infancy, 152-156 ; Gfoleman v. Turner, 14 S. & M. 118 ; Weed v. JEllis, 3 Caines’ Cases, 253; Keith v. Jolly, 4 Cushm. 132; damage v. Noble, 2 lb. 150; OocJce v. 1lueJcs, 34 Miss. 107.</p>

Hon. William Cothran, judge. This was an action of ejectment, commenced under the Pleading Act of 1850, to recover a quarter section of land, situated in Chickasaw county. The defendant pleaded a general denial, and set up a claim for improvements made by him on the land.

John W. Robb, judge. The objection to Gilbert’s accounts as guardian, is, that he exceeded the income of the estate, without an order of court. There is no pretence that the accounts are false, extravagant, or improper. That the accounts are reasonable and proper, is shown by the items thereof. We shall not, of course, argue the moral question involved in this cause. We are merely to consider the cause in its legal aspect.

Hon. William M. Hancock, judge. The plaintiff in error entered a njotion in the court below against the sheriff of Clarke county and his surety, on his official bond, for the failure of the sheriff to pay to the plaintiff money collected under an execution in his favor and against Melancthon Smith, administrator of John S. Smith.

Hon. E. Gr. Henry, judge. This was an action instituted in the name of the probate judge, for the use of Owen Yan Yacter and wife, against John Lipscomb, as surety of one A. A. McWillie, on his official bond as executor of Ann McWillie, deceased.

<p>1. Principal and surety: right op creditor to waive notice in writing by surety to sue principal. — That provision of the statute authorizing a surety to give notice to the creditor to sue the principal within a specified time, which requires the notice to he in writing, is for the benefit of the creditor, and he . may, therefore, waive it, and agree to accept notice ore terms.</p> <p>2. Same : same : what is a waiver op written notice. — When a surety gives notice ore tenus to the creditor to sue the principal within the time prescribed by the statute, and that upon his failure to do so, that the surety will be no longer hound, and the creditor thereupon promises the surety to sue as instructed : this promise is a waiver of the provision of the statute requiring the notice to he in writing, and if not complied with, the surety will be released.</p> <p>3. High court: practice: when piñal judgment will not be reversed for error in overruling demurrer. — When the plaintiff upon the sustaining of a demurrer to his replication to a good and valid plea, which is an answer to the whole action, declines to reply further, whereby judgment final is entered against liim, this court will not reverse that judgment because the court below improperly overruled the plaintiff’s demurrer to another plea of the defendant.</p>

Hon. E. G-. Henry, judge. In this case, but one question is presented in the record. The sureties on the note sued on plead specially that they notified plaintiff, more than thirty days before the ensuing term of the court, to sue, and that he failed to do so. Plaintiff replied, that the notice was given by one of the co-sureties, for himself, and it was no discharge of the other. Defendants’ demurrer to this replication was overruled. In this, we contend, the court erred.

Error, to the Circuit Court of Claiborne county. Hon. Hiram Cassidy, judge. Held: that if a writ issued against two defendants, and be served upon one only, and an alias writ subsequently issued against the same two defendants in the case, which is served upon both defendants, that this is for all purposes a new suit, and not a continuance of the first, so as to avoid the operation of the statute, and the bar…

Hon. E. G-. Henry, judge. The plaintiffs filed their declaration in the court below, against the defendant, with the indorsement thereon as stated in the opinion of the court.

Hon. Joel M. Acker, judge. After the plaintiff had reformed and amended his whole pleading and process to suit himself, the defendant moved to quash the attachment, because it did not allege a ground of action upon which an attachment could issue. This point is of more importance to the defendant below than all the preceding, as it goes to the whole action; and, if sustained by the court, will dismiss the attachment. He asks the attention of the court to it.

Hon. E. G. Henry, judge. Heard & Simmons having recovered a judgment in the court below against one W. D. Roy, for $928 27, and costs, sued out a writ of garnishment against A. Roy.

Hon. J. S. Yerger, chancellor. On the 24th day of November, 1841, the New Orleans Canal and Banking Company recovered a judgment in the United States Circuit Court for the Southern District of this State, against George Joor for $3717. Execution issued on this judgment, and was levied on personal property of the said Joor, who thereupon gave a forth-' coming bond, with Mordecai Powell and William Rushing as his sureties.

Hon. E. G-. Henry, chancellor. The case is very fully stated in the opinion of the court. Held: “ there is nothing in the objection about his leaving it by his will, for there is nothing testamentary in a promise to leave at his death,” so that it would seem that the will had no bearing on the case; the legal validity of a parol promise to make a will was not established by this case.

<p>1. Executor and administrator: sale oj? land to pay debt barred by statute. — An administrator has no right to sell the land of his intestate, to pay a debt barred by the Statute of Limitations.</p> <p>2. Probate court : sale . or land to pay debts : parties : equity, poaver OP, TO ENJOIN SALE ORDERED BY PROBATE COURT : CASE IN JUDGMENT.-A party in possession of land, and claiming it by a purchase at a sheriff’s sale, made under a judgment rendered against a decedent, is not a proper party defendant to a proceeding in the Probate Court to sell the land for the payment of debts; and hence, has no opportunity to contest it in that court; but, if a sale of the land is ordered by the Probate Court to pay a debt barred by the Statute of Limitations, he may enjoin it in equity.</p> <p>3. Statute of limitations : dower barred by. — A widow’s right to dower is subject to the bar of the Statute of Limitations ; and her remedy for its recovery against a purchaser, under the husband, will be barred by his possession, after the removal of her disability of coverture, for the period prescribed for bringing an action of ejectment. See 1 S. & M. Ch. R. 494; 1 Harrison (N. J.), R. lOY ; 10 Ohio R. 24,</p> <p>4. Same : same : equity : injunction against proceedings to allot dower, barred by limitation. — A court of equity will, at the instance of a purchaser under the husband, enjoin the widow from proceeding in the Court of Probate to procure an allotment of dower, where her right is barred by the Statute of Limitations.</p> <p>5. Forthcoming bond : judgment on : good against survivors where one obligor is dead at its forfeiture. — A judgment on a forfeited forthcoming bond is rendered by mere operation of law, without the intervention of the court or the parties, and without entry on the minutes of the court: and for this reason, such judgment only will be considered as rendered on its forfeiture as might be legally rendered ; and hence, if one of the obligors die before the forfeiture of the bond, the judgment thereupon rendered by operation of law will be against the survivors only, and will be valid as to them.</p> <p>• 6. Res adjudioata. — A party will not be permitted to reliligate a matter once adjudicated, by merely presenting new arguments on a state of facts not materially different, in support of the right formerly determined against him.</p> <p>7. Same : sale of decedent’s land without reserve : parties and attorneys EQUALLY BARRED BY IRREGULARITIES IN EXECUTIONS : CASE IN JUDGMENT.— The rule charging parties with the consequences of irregularities in executions, is as stringent against attorneys who issue and control them, and purchase at sales made under them, as it is against plaintiffs who become purchasers ; and hence, where the record in a suit, which unsuccessfully attacked the validity of a sale of land, upon the ground that the defendant died before the teste of the execution, and that the judgment had not been revived, disclosed the fact that the purchaser controlled and managed the execution as the agent of the plaintiff, it will be no ground for relitigating the matter in a new bill, that since the determination of the first, it has been discovered that the attorney purchased for the plaintiffs in the execution.</p> <p>8. Same : what parties concluded by former suit. — Where a substantial right is claimed in behalf of a party suing in chancery conjointly with another, such party cannot be considered as a merely nominal complainant; and he will be concluded by the adjudication in that case.</p> <p>9. Same: ejectment: action for mesne profits, bar to defendant’s claim for improvements. — If the defendant in an action of ejectment, or in an action for mesne profits, fail, without sufficient excuse, to set up his claim in that action for valuable improvements made by him on the premises, he cannot afterwards come into equity for relief on that account.</p> <p>10. Same: party cannot relitigate in equity the grounds of a motion for new trial at law. — A party cannot get relief in equity against a judgment at law, upon the ground that it was obtained by the fraud of his antagonist. If he made a motion for a new trial on that ground, and it was adjudged insufficient or unsupported by the evidence, in such a case the judgment of the court on the motion for a new trial is conclusive.</p> <p>11. Chancery: jurisdiction: right to compensation for improvements made on land of another. — Whether a court of equity would give relief upon a bill filed for that purpose, to a party who entered bona fide and under color of title upon the land of another, and made valuable improvements thereon, Quaere?</p> <p>12. Same: same: complainant must do equity: rule on that subject: case in judgment. — The principle that he who seeks equity must do equity, does not apply to a matter set up as equity against the complainant, which is not a defence to the relief sought by his bill, but is an independent claim for relief on the part of the defendant; and hence, where a complainant has recovered possession of land, and also mesne profits, in an action .at law, and afterwards comes into equity to remove clouds upon his title caused by the wrongful acts of the defendant subsequent to the recovery, his bill will not be dismissed because he will not allow the defendant compensation for valuable improvements made on the land.</p> <p>13. Champerty: what constitutes. — To bring an agreement within the rule against champerty, it must appear, 1st. That the agreement was made before the suit was commenced, and that it was the moving cause of it; and 2d. That it was agreed by the party undertaking it that it shall be carried on at his expense; and hence, an agreement between an attorney at law and the owner of a judgment, that the attorney shall have one-half he may collect, is not champertous.</p>

.Appeal from the Chancery ■ Court of Monroe county. Hon. Joel M. Acker, chancellor. The substance of the hill is stated in the opinion of the court. The creditors in the deed of trust were, together with Keaton the grantor, made parties defendant. James T. Harrison, one of the creditors, did not answer, his debt having been paid, as appears by the answer of the other defendants. Overton Harris and Keaton demurred, as stated in the opinion, and afterwards answered.

Hon. Joel M. Acker, chancellor. This was a hill filed by the appellants to rescind a contract by which Moye sold to Mrs. Alexander certain lots in the town of Aberdeen.

Hon. Felix Embree, judge. This was a petition filed in the court below by the appellants (one of whom is the mother and only surviving parent of John W. Brown, and the other the only surviving brother of said Brown), seeking to set aside the probate of the will of said Brown, and the grant of letters testamentary on his estate.

Hon. E. Gr. Henry, chancellor. A very full statement of the case will be found in the opinion of the court, and the argument of counsel for appellees. Held: especially in cases of local legislation, that an act which comes complete from the hands of the legislature, may nevertheless depend for its operation and effect upon the contingency of a vote of the people.