Volume 39 — Mississippi Reports

Hon. R. D. McLean, special judge. On the 16th day of June, 1858, Jesse J. Kelly and others, brothers and children of the deceased, brothers and sisters of Joseph P. Kelly,, deceased, filed their petition in the Probate Court of Yalobusha county, against Samuel R. Miller.

Hon. G. Q. Martin, judge. The petition in this case does not appear in the record; but it appears from other parts of the record, and the argument of counsel, that it was filed by Mrs. Cowles, the heir of Samuel Hurd, deceased, for the purpose of procuring distribution to be made to her of all the slaves of said Hurd, upon these premises: 1. That the said testator had bequeathed them to the American Colonization Society for the purpose of emancipation; and, 2.

Hon. J. S. Yerger, judge. No memorandum of counsel for plaintiff bas come to tbe possession of tbe reporter. Counsel for plaintiff in error insist on a reversal of the judgment below, because the account sued on was unreasonable, and there is no proof in the record to sustain it. Before answering this view we would remark, that it was neither presented nor urged in the Circuit Court.

Hon. P. T. Scruggs, chancellor. This case was forfnerly before tbis court, and is reported in 4 Geo. 312. It was then, decided upon demurrer in favor of Bridgefortk. The sole point presented by tbe demurrer was tbe validity of the limitation contained in the will of David Bridgeforth. The limitation was sustained, and the cause remanded for answer.

Hon. John W. Thompson, chancellor. Argued that a trust existed between the creditor and the surety; that the former will do nothing in his transactions with the principal which would impair the rights of the surety, or place him in a worse situation than he would have been if it had not been for the interference of the creditor. Story’s Eq. sec. 324, 506.

Hon. John Watts, judge. The proof in the cause fails signally to establish any contract by Lombard to pay at all in any event. Martin did not go to Lombard to get security, but information, and he obtained it. This is not an action'for deceit. It is not shown that Lombard misrepresented Cóx’s condition. ' His language is not a promise to pay for the goods, but is advice merely.

Hon. John Watts, judge. Tbis was an action of detinue by tbe defendant in error against plaintiff in error, to recover possession of a slave named Laurinda. Pleas, not guilty, and Statute of Limitation of six years. Tbe plaintiff below claimed title to the slave, by virtue of a deed in trust executed by Benjamin E. Bhodes as grantor, and Henry J. Davis as trustee, in Lauderdale county, Ala., in the year 1847.

Hon. John Watts, chancellor. David Williams died in Rankin county, in this State, in April, 1854. Joseph M. Jayne was appointed his administrator c. t. a. Reuben Williams, who resided in the State of Texas, was an heir at law and devisee under the will of David Williams, and as such entitled to one-fifteenth part of his estate. Reuben Williams died in the latter part of October, A. D. 1854, leaving a widow and several children.

Hon. E. Gr. Henry, chancellor. Cited and relied'on Buclcner & Stanton v. Galeote, 28 Miss. E. 432 • Young v. Clark, 30 Miss. Held: that where parties have proved their debts and taken a dividend from his effects, the District Court, and no other court, can annul the decree of the bankrupt’s discharge, either partially, for the benefit of a particular creditor, or wholly, to deprive the bankrupt of its operation.

The plaintiff in error, who'was a sister and one of the heirs at law of Hugh Johnson, deceased, filed her petition in the court below, on behalf of herself and the other heirs of said Hugh, against Jacob Sontheimer, one of the executors appointed in the last will of said Hugh Johnson, for the purpose of setting aside the probate of the same.

Hon, E. G. Henry, chancellor. It is insisted, on bebalf of appellees, that tbe limitation over to tbe surviving children of Susan Hodge depends not on tbe death of Mary and Elizabeth Hodge during tbe… Held: that a conveyance of a slave to A and his wife during life, and after their decease to their children, is valid.

Hon. X H. Postell, judge. In May, A. D. 1860, Elizabeth Murray, the appellant, and widow of the testator, filed her petition in the court below against the executor and heirs at law and devisees in the will of testator, in which she alleged that at the preceding March term oí that court the will of her late husband had been admitted to probate in common form. The petition set out literally the will, and the decree of the court admitting it to probate and record.

Hon. E. Cr. Henry, chancellor. Insisted tbat tbe jurisdiction of tbe Probate Court was ample and exclusive, and tbat tbe Chancery Court bad no j urisdiction; and they relied on Blanton v. King, 2 How. 856 ; Fdmonson v. Roberts, Id. ‘282; Farvés heirs v. Graves and wife, 4 S. & M. 711- The bill shows a regular pending administration in the Probate Court, which has full jurisdiction to afford all the relief the complainants are entitled to.

<p>1. Will: construction of: case in judgment. — A will contained these two clauses : “ It is my will and request that all my property, both real and personal, be kept together for the purpose of raising my children ; also that my wife Jane keep all the property together until they become of age, or marry, and in that case the one becoming of age or marrying to have an equal share, according to the valuation of my estate so left.” “It is further my will that my wife retain all my property, both real and personal, for the purpose above named, until my children become of age or marry. or during her widowhood; but, in case of her intermarriage with another person — It is then my will that the property so left be equally divided between her and the children: — Held :</p> <p>1. That the children took a vested estate in the property immediately upon the death of testator. See Lowe v. Barnett, 38 Miss. R. 329.</p> <p>2. That neither by the first nor second clause was the widow’s distributive share taken away, and that she had a vested interest in such share whether she married or not.</p> <p>2. Trusts and trustees : trust property not liable to trustee’s debt. — Property purchased by a trustee with the trust funds will not be liable to a judgment against him, merely because he took the title, in his own name, if he always treated it as trust property.</p> <p>3. Execution : interest oe distributee in personalty not subject to sale under. — A judgment creditor of a distributee cannot levy his execution upon a portion of the undistributed personalty of the estate, merely because the interest of his debtor in the estate is of greater value than the property seized.</p>

<p>1. Estate: in tail, special: case in judgment. — A gift to A, “intrust for tlic grantor’s wife and the heirs of her body by the grantor begotten or to be begotten,” creates an estate in special tail in the wife by the common law, and is a fee by our statute; and the words, “heirs of her body,” &c., are words of limitation and not of purchase.</p>

Hon. Hiram Cassidy, chancellor. (The argument of Mr. Anderson, on the first argument of the case, only is given, as Mr. Moody did not present any views of the case materially different from those… Held: that the legacy vested, because all tbe interest as it fell due became tbe property of tbe legatees, as separate altogether from the residue. 6 Yes. 242,, Harrison v. Graham,. ' The cause havingsss been decided against appellees, their counsel, H. T. JSllett and Jno.

<p>1. Sheriff : deputy sheriff, liability of, to penalty for five hundred DOLLARS FOR FALSE RETURN ON PROCESS. — Al't. 120, p. 128, Of tile Rev. Code, which provides that “if any sheriff or his deputy, coroner, or other officer, shall make a false return on any process, such sheriff, deputy, &c., shall, for every such offence, he liable to pay the sum of five hundred dollars, &c.,” to he recovered on motion; and notice given “to such sheriff, deputy, &c.,” creates a penal offence against the officer committing the act, and renders him individually liable for it; and the sheriff and his sureties are not liable on motion under that Article for a false return made by his deputy : whether they would be liable in an action on the sheriff’s official bond — Qumre?</p> <p>2. The state : is a plaintiff and entitled to all legal remedies as such. — The State of Mississippi is as properly a plaintiff in a prosecution or suit instituted in her'name as a private individual, and hence is entitled to all the remedies provided by law for plaintiffs against sheriffs or other officers for misconduct in the execution and return of process.</p>

<p>1. Sheriff : motion against deputy. — A motion by a sheriff against his deputy for a failure to pay to him his costs collected by the deputy on various executions need not set out the executions, if a schedule or list of the executions bo filed with the motion.</p> <p>2. Same : same. — A sheriff may proceed against his deputy by motion for the failure to pay over costs collected by the deputy, on executions placed in his hands.</p> <p>3. Same : practice : demurrer : immaterial error no cause for reversal. — If a motion against a deputy sheriff be double in embracing two distinct grounds, for which the same judgment cannot be rendered, the defendant cannot assign for error that his demurrer thereto was overruled, if, before the trial, the plaintiff dismiss as to one of the grounds of the motion; for this action of the plaintiff secures to the defendant all the advantage he would have gained by having his demurrer sustained.</p> <p>4. Sheriff : deputy : estopped to deny his official character. — A deputy sheriff who has continued to act as such after the expiration of his term of appointment, by collecting money on executions and making returns on the same in his official character, cannot deny that he was deputy sheriff, in a motion against him by the sheriff for his failure to pay over money so collected.</p>

Hon. J. S. Yerger, judge. This was an action by Durfee against Fondren to recover damages for a false warranty of the soundness of two slaves sold by defendant to plaintiff. On the trial the plaintiff testified as to the unsoundness of one of tbe slaves, and tbe declaration made by tbe slave in reference to bis condition as stated in tbe opinion of tbe court. To tbe admission of tbis evidence tbe defendant excepted.

Hon. E. G. Henry, judge. The allegations are, that false and fraudulent representations were made by defendant to plaintiff in the exchange of horses, on which plaintiff relied; the scienter on his part is alleged, and that issue we supposed we were trying.

Hon. John Watts, judge. Hnder the view taken of this case by the court it is unnecessary to set out the pleadings, evidence, and charges, more in detail than they are stated in the opinion of the court. Made the following points: 1. The declaration was bad, because it averred a special warranty of soundness and servitude and alleged no breach of that, but alleged the falsity of other representations made at the same time.

Hon. J. M. Acker, judge. This was an action upon a promissory note given for the purchase of a slave, which was warranted sound by the vendor. The defence relied upon was the unsoundness of the slave at the time of the purchase. Verdict and judgment for plaintiff below for the amount of the note and interest. The particular exceptions to the action of the court below necessary to be noticed are set out in the opinion of the court.

<p>1. Practice : trial of right of property : duty of plaintiff in execution to cause issue to be made up. — By the express provisions of the statute (Art. 295, p. 582, of the Rev. Code) if, by the default of the plaintiff in execution, an issue to try the validity of the claim propounded by a third party to the personal property levied on be not made up at the return-term of the execution, the levy will be released, and the claimant discharged from his bond to have the property forthcoming to abide the judgment of the court.</p> <p>2. Same : same. — Where a third party claims personal property levied on under an execution, and executes a claimant’s bond, it is the duty of the plaintiff in execution to see that the sheriff discharges his duty by returning the execution, claimant’s affidavit and bond, by a day in the next succeeding term early enough to have an issue made up and tried at that term; and hence it is no excuse for the default of the plaintiff in execution, in failing, to tender an issue at that term, that the sheriff omitted to make return of the execution, &c., till it was too late to do so.</p>

Errob to' the Circuit Court of Rankin county. Hon. John Watts, judge. This was an action of trespass by plaintiffs’ intestate to recover, damage for injuries done to his slave by defendants. The pleadings are stated in the opinion of the court.

<p>1. Judgment : res adjudicata : statute allowing a year aeter reversal TO COMMENCE A NEW ACTION CONSTRUED : CASE IN JUDGMENT.— If, upon, tbe reversal by this court of a judgment rendered in the Circuit Court for a plaintiff, a judgment be liere entered for defendant upon a verdict which had been given for him in the court below, the judgment so • entered for defendant is a final and conclusive bar to another suit for the same cause of action ; and the statute which allows a plaintiff one year, after the reversal in this court of a judgment rendered in his favor in the Circuit Court, in which to institute a new action, does not apply to such a case.</p>

Hon. John E. McNair, judge. 'The pleadings and evidence are sufficiently stated in. the opinion of the court.

<p>1. Attachment : execution oe replevy bond by defendant equivalent to service of process on him. — The execution of a replevy bond by the defendant in attachment before the return-day of the writ is equivalent to personal service of process on him; and renders him personally amenable to the jurisdiction of the court.</p> <p>2. Same: surety on replevy bond only liable to value of property replevied. — It is expressly provided by statute that a surety on a replevy bond given by a defendant in attachment shall only be liable for the assessed value of the property so replevied. It will be error therefore to enter judgment against the surety for the amount of plaintiff’s debt, where the jury has omitted to assess the value of the property attached and replevied.</p>

Hon. John Watts, judge. No memorandum of tbe argument of counsel for plaintiff in error bas come to tbe possession of tbe Eeporter. Tbe case presents tbe single question as to tbe construction and effect of the attachment law, which went into operation after the alleged fraudulent act complained of had taken place. The fact that only six months separated the act from the law which, for the first time, made it cause for seizure of the parties’ goods, makes no difference.

<p>1. Attachment : execution : how levied on personalty. — It is essential to tlie validity of a levy of an execution or attachment on personalty that the property be taken into the possession of the officer, or his agent; and if, in a proceeding by attachment, a pretended levy be made on a chattel, without the officer ever taking it into possession, the judgment will be void as to that property.</p>

Hon. Jno. W. Thompson, chancellor. The contract set forth in the bill of defendant in error is, that if he, Rosson, would use his influence with the railroad company to have the road located over the land of Lesley, and the road should be so located, and if he, Rosson, “would pay him-, said Lesley, eight or ten dollars per acre (the same Toeing the alleged cost of it) for the half-interest in it, &c., he, Rosson, “should have half of the proceeds of the sale of said land.”…

Hon. Joel M. Acker, judge. On the 10th day of March, 1856, Alexander instituted an action against The New Orleans, Jackson and Great Northern Railroad Company for damages occasioned by the construction of their road through his premises. The second count was to recover damages for obstructing a street leading from plaintiff’s premises, and for rendering the same impassable.

<p>1. Levee laws : tax sale under : right of owner to redeem.— Land sold for delinquent levee taxes, under the Act of December 2, 1858, ch. 1, and purchased by a private individual, is, as well as land purchased by the levee treasurer, subject to redemption by the owner, within two years from the date of sale.</p>

<p>1. Chancery : new trial at law : duty oe parties to see that judgments in their eayor are entered on minutes. — It is the duty of a party, or his coimse], to see that the orders and judgments pronounced by the presiding judge in his favor are entered on the minutes of the court; and hence it is no ground for relief in equity that the judge of the Circuit Court sustained the complainant’s motion for a new trial, and that the judgment thereon was omitted to be entered on the minutes by the clerk.</p> <p>3. Same: new trial at law not granted where complainant is guilty oe laches. — A court of equity will not grant a new trial at law if the complainant has been guilty of any laches in availing himself of his rights in the court of law.</p>

Hon. William M. Hancock, chancellor. The father of complainants in the court below and eleven others, in the year 1836, formed an association called the “Mississippi Land Company,” for the purpose of entering’, on speculation, lands lying on the sea-shore in Harrison county.

Hon. William • Cothran, judge. A. Roy, as survivor of the firm of A. & W. D. Roy, sued Harrison in the court below, as a common carrier, for damages sustained by injury done to a load of goods which Harrison had contracted to transport and deliver to said firm. On the trial, it appeared from the evidence that Harrison had executed a receipt, as follows: “ Greenwood, Miss., Wow.

<p>1. Corporation : pleading and practice : character of party set OUT IN PLEADING NOT TRAVERSABLE UNLESS DENIED UNDER OATH.— A subscriber for stock was garnished by a creditor of the company, and he answered in the usual form, denying any indebtedness. The creditor took issue upon the answer, alleging that the garnishee was indebted to the company on account of his subscription for (Stock in the same: — Held, that on the trial of this issue the garnishee could not object that the company had never been legally incorporated, he having failed to deny under oath the legal incorporation of the company as required by Art. 237, p. 518, of the Rev. Code.</p> <p>2. Same : subscriber for stock in, not released by fraud in procuring it. — A member of an incorporated company is bound by the acts of its officers and agents within the scope of their authority; and he cannot therefore set up, against a creditor of the company who seeks to subject to the payment of his debt the indebtedness of such member on account of his subscription for stock in the same, that his subscription was obtained by the fraud of the agent of the company, nor any secret agreement between him and such agent, by which he was to be released from his subscription in case certain conditions promised by the agent were not complied with. See Walker v. Mobile and Ohio R. R. Co., 34 Miss. R. 245; Ellison v. Same, 36 Id. 572.</p>

<p>1. School fund: statutes: bights and rowers conferred by implication : acts, of 1854, ch. 845, and of 1856, cn. 27, construed. — When a statute gives a right or imposes a duty, it also confers by implication the power necessary to make the right available, or to discharge the duty ; and hence the Acts of 1854, ch. 845, and of 1856. ch. 27, which direct that the board of police should take deeds of trust on real estate from the borrowers of the common school fund, gives them the right to make the right available by purchasing the land, when sold for the payment of the debt due the school fund, and to resell the same for the collection of the debt.</p> <p>2. Same : same. — The Acts of 1854, ch. 845, and of 1856, ch. 27, are directory in requiring the board of police to take deeds of trust on real estate to secure the repayment of loans of the common school fund, and impose a plain duty on the board to 'do so ; but they do not make void a note given for such loan not secured by a deed of trust.</p>

<p>1. Marshalling assets : not enforced between oo-legatees where LEGACY OF ONE HAS BEEN TAKEN BY TITLE PARAMOUNT TO TITLE OF testator. — The doctrine of marshalling assets does not apply to a case between specific legatees under a will where all the property bequeathed to them is subject to an incumbrance paramount to the title of the testator, and the property bequeathed to one of the legatees has alone been seized to satisfy the incumbrance.</p> <p>3. Same : case in judgment : contribution between oo-legatees.— A died, giving all his estate to B,who afterwards died, leaving specific legacies of the personalty so bequeathed to him to several legatees. Afterwards a judgment was rendered against the administrator of A, which was wholly satisfied by a levy on the property bequeathed to one of the legatees : — Held, that he was not entitled to contribution from his co-legatees, whose legacies were equally with his liable to the satisfaction of the judgment. In such a case the creditor has the right to levy his execution on any part of the property, and if he levy solely on the legacy of one it is a misfortune for which the legatee has no remedy against his co-legatees.</p> <p>3. Same : when co-legatees entitled to contribution against each other.. — Where one of several specific legatees has been compelled to pay the whole of a debt due by the testator, he will not be entitled to contribution against his co-legatees who have received their legacies, if the estate be solvent independent of their legacies, nor in case it become insolvent by the demstmü of the executor.</p>

Hon. Joel M. Acker, judge. This was a bill filed by the appellee against the appellant, seeking to have certain deeds held by appellant cancelled as clouds on .appellee’s title. It appears from the bill that both parties claim title to the land in controversy, through one Brandon.

<p>1. Executor, and administrator : when personal representative op deceased administrator the proper party against whom to revive. — In a proceeding against an administrator to bold him accountable for maladministration, in case he die pending the litigation, his administrator, and not the administrator do bonis non of his intestate, is the proper party against whom to revive.</p> <p>2. Same : high court : how legality op appointment op administrator to be questioned hbre. — This court will not notice a suggestion that the administrator against whom a suit has been revived in this court, was irregularly or illegally appointed. The question of the legality of the appointment can only be raised in this court by appeal or writ of error from the judgment of the court making the appointment.</p> <p>3. Probate court : pleading : petition to set aside sale must specify its illegality. — A petition to set aside sales of really and personalty made under the order of the Probate Court, should set out in what respect the sales were invalid; a general charge that they were fraudulent and without authority of law will not do.</p> <p>4. Same: same: ie petition good in past, demueeee to the whole must be oveeeuled. — Where a petition in the Court of Probates is good in respect to part of the relief sought, hut had as to the remainder, a demurrer to the whole petition should he overruled.</p>

<p>1. Parent and child : right of father to the custody of his child. — By the common law the father, as against the mother, is entitled to the custody of his infant child, unless the child he so young as to render the care and attention of the mother necessary to its nurture, or unless it he shown that the father is of such character, or is in such circumstances, as to render it prejudicial to the health, comfort, or morals of the child that it should he in his keeping.</p> <p>2. Same : right of child to elect its custodian : habeas corpus. — - If the claim of the parent to the custody of his child he asserted hy habeas corpus, and the child he of sufficient age to judge for itself and make a rational choice as to where it will go, the child’s choicé will he respected.</p> <p>3. Same : power of court to dispose of child where parents are DIVORCED UNDER THE STATUTE OF THIS STATE.-Art. '17, p. 334, of the Bev. Code, which gives the Chancery Court the power, in making a decree for a “ divorce,” in its discretion to make all orders touching the care, custody, and maintenance of the children, * * * having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, ’ ’ annuls the paramount right of the father, as it exists at common law, to the custody of his child, where the parents are divorced, and vests the power of disposing of the child in the court. And if the court, in pronouncing the divorce, fail to make any order in respect to the custody of a . child, the fruit of the marriage, any other court before which the right to its custody may be litigated may regard the mere legal right of the father as at an end, and make such disposition of the child as may appear to be equitable and just.</p> <p>4. Sam® : father forfeits his right to child when divorce caused by his adultery. — If the adultery of the father be the cause- of the divorce, the care and custody of the children ought to be committed to the mother, if she be not shown unfit for that duty.</p> <p>5. Same : father’s right forfeited by intemferance and obscenity. - — Proof that the father had been twice divorced for adultery, that he is addicted to intemperance to such an excess as to be guilty of the grossest vulgarity and obscenity in actions and language in the presence of others, both male and female, is sufficient to deprive him of the care and custody of a female child of three years of age, in favor of the mother, against whom no objection exists on the ground of morals.</p>

Eebob to tbe Probate Court of Panola county. Hon. J. T. M. Burbridge, judge. Tbe item in tbe account for board ought to have been allowed. The guardian had a right to command the ward to board with him, and the ward was under obligation to obey him. There was therefore no consideration for the promise of the guardian to board him without charge.

<p>1. Husband and wine : husband’s interest in slaves on wine held under act on 1839. — It is well settled, in tliis court that the husband is entitled to the possession and usufruct of slaves held by his wife under the Married Woman’s Act of 1839 during his life, and that after his death they go to the surviving children. Cam&'on v. Cameron, 29 Miss. R. 112Stead-man v. Holman, 33 Id. 550 ; Smith v. Williams, 36 Id. 545.</p> <p>2. Same: administrator on wine not entitled to possession on slaves on wine held under aot on 1839. — The husband being entitled in his own right to the possession and usufruct, during his life, of slaves held by his wife under the Act of 1839, cannot, as administrator of the wife, maintain trover for the wrongful conversion of them by a third party, See Steadman v. Holman, 33 Miss. R. 550.</p>

<p>1. Husband and wipe : competency op widow to testify on behalf op heb husband’s estate. — The widow is a competent witness on behalf of the estate of her deceased husband, to prove a conversation between her husband in his lifetime and the opposing-party in relation to the subject-matter of the suit.</p> <p>2. Same: competency op'wipe to testify pob heb husband. — The incompetency of husband and wife as witnesses for and against each other at common law arises, first, from their identity of interest; and, second, from principles of public policy. The statute of this State having removed the incompetency arising from interest, there remains no legal obstacle to the admissibility of the testimony of the wife in favor of the husband where it does not embrace confidential communications between them, which are excluded on principles of public policy.</p>

<p>1. Htjsband and wife : dealing between regarded with jealousy.— Any transaction by which the separate property of the wife becomes vested in the husband is regarded with scrutiny and jealousy by a court of equity; and it is incumbent on the husband and those claiming under him with notice of the wife’s rights to show that it was honest and fair, and such as in equity and good--conscience the wife ought to have acceded to. See Pennington v. AeJcer, 30 Miss. R. 161.</p> <p>2. Same : husband trustee for wife. — The husband is regarded as a trustee for the wife whenever a disposition of her separate property for his benefit is attempted; and the rule applicable to ordinary trustees .acquiring an interest in the trust-estate will be enforced in such cases with the greatest rigor.</p> <p>3. Same : agreements between injurious to wife not presumed.— Agreements between husband and wife in relation to her separate estate, which are injurious to her and beneficial to him, will not be presumed; but every reasonable intendment will be indulged to the contrary. See Miles §■ Adams v. Allen, 36 Miss. R. 640.</p> <p>4. Same: same: case in judgment. — If the husband, upon a joint deed for land being executed by himself and wife, take from the purchaser his note, payable to the husband or bearer, for the purchase-money, it will not be presumed to have been done with the consent of the wife; and her right to collect the note, or enforce the vendor’s lien, will not be affected by an assignment of the note, or of a judgment recovered on it, by the husband to a parly having notice that it was her separate property.</p> <p>5. Chancery : evidence : rule denying a decree against a defendant examined as a witness by complainant abolished by rev. code.— The rule in chancery, which denied to the complainant a decree against a' defendant whom he had examined as a witness upon a material point, is not founded on very satisfactory reasoning, and is abolished by the provisions of the Rev. Code allowing parties to the record to be examined as witnesses.</p>

<p>1. Insolvent debtor : land exempt prom: execution loses its privilege op exemption upon its sale by debtor. — The land exempt by Ait. 281, p. 529, of tbe Eev. Code, from sale under execution against an insolvent debtor, becomes liable to sale in satisfaction of a judgment against tbe debtor as soon as tbe debtor shall abandon its use and occupation in pursuance of a sale thereof by bim to a third party.</p>

<p>1. Insolvent debtor : may make a gift of a chattel exempt from execution. — An insolvent debtor may make a valid donation of a cbattel which is by law exempt from seizure and sale for the payment of Ms debts.</p> <p>2. Same : same : case in judgment. — An insolvent debtor, who was engaged in business which subjected him to the will of his employer as to where he should reside, made in this State, where he was then domiciled, a gift, in good faith, to his wife, of a slave which he held exempt by law from execution, and in a few days thereafter, in obedience to the command of his employer, removed to Tennessee, leaving the slave in this State: — Held, that the gift to .the wife was valid, and that the slave was not subject to the payment of a judgment rendered in this State against the husband before the gift to the wife was made.</p> <p>3. Same : husband and wife : insolvent husband may give his wife a chattel exempt from EXECUTION. — The proviso to Art. 23, p. 336, of Rev. Code, which declares, “that any deed from the husband to the wife, for her use, shall be void as against his creditors, who were such at the time of executing the deed,” does not prevent a voluntary conveyance to the wife by the husband of a chattel which is exempt by the laws of this State from seizure and sale for the payment of his debts.</p>

<p>1. Marriage: liability of probate clerk for issuing license for the marriage of infants. — By Art. 6, p. 332, of the Bev. Code, the probate clerk is prohibited from issuing a license for the marriage of males under twenty-one and of females under eighteen years of age, without the consent of the parent or guardian; and in case he issue a license without such consent being first given, he acts at his peril, and becomes liable for the statutory penalty, notwithstanding he may have been honestly mistaken as to the age of the party.</p>

<p>1. Vendor and vendee : when vendee entitled to rescind eor misrepresentation as to title. — Where tlie vendee relies upon the representations of the vendor, in reference to the title of the land, and this is known to the vendor, the vendee is entitled, without previous eviction, to rescind, in case the title is bad, although the vendor honestly believed the representations to be true at the time he made them.</p> <p>2. Contract : where misrepresentations, though innocently made, are binding. — Where one party to a contract knows that the other trusts to his representations, and not to his own judgment, in relation to a matter material to the contract, it makes no difference, if the representations be false, whether the party making them knew their falsity or not. In either case he is bound to make the representations good.</p>

Hon. Joel M. Acker, judge. The plaintiff in error filed his complaint against defendant in error in the court below, in which he alleged “ That on the first day of September, 1849, the said plaintiff' was seized and possessed as of his own property of certain negro slaves, to wit, [here follow the names and descriptions of the slaves] of great value, to wit, of the value of ten thousand dollars, and having casually lost the said slaves out of his possession, the same came to…

<p>1. Chancery : vice-chancery court retained jurisdiction to execute A DECREE OE FORECLOSURE OF MORTGAGE TILL NOVEMBER, 1857. — A cause standing in tiie Yice-Ciiancery, at the date of the amendment to the constitution abolishing the court, on a decree of foreclosure of a mortgage which is then unexecuted, is a cause depending in the court, in the meaning of the amendment which continues the jurisdiction of the court as to causes therein then depending until the 1st Monday in November, A. D. 1857.</p>

This was a motion by appellant to obtain a writ of assistance to put him in possession of tbe land which be bad recovered by tbe decree of tbis court in tbis cause.

<p>1. Husband and wife : provision for separation ceases on reconciliation. — Where a settlement is made by the husband upon the wife, for a permanent separation, a reconciliation and cohabitation afterwards extinguish any future Claim of the wife under the settlement, which will not be revived by any subsequent disagreement between the parties. See Clancy on Husb. and Wife, 405; Bright on Husb. and Wife, 319.</p> <p>2. Same : same : case in judgment. — Upon the marriage in 1833 the wife was the owner of two slaves. In 1837 there was a separation by mutual agreement of husband and wife, and the husband gave up to the wife the slaves as her separate property, and surrendered his marital rights therein, and permitted her to retain possession of them. In 1840 the parties were reconciled, and the wife returned to the husband bringing with her the slaves. Afterwards she filed her bill for a divorce and to recover the slaves under the title above stated : — Held, that the surrender of the slaves in 1837, by the husband to the wife, was not an absolute gift of them to the wife, but a provision for separation, and that on reconciliation, notwithstanding the passage of Act of 1839 during the period of separation, in relation to the separate property of married women, the original right of the husband to the slaves was revested, and that the wife could not recover them.</p>

Hon. Jacob S. Yerger, chancellor. The sole question presented by this record is, whether a voluntary assignment to his wife and children, made by an insolvent debtor, of a… Held: there was no jurisdiction.” * * * “ The question is very nice and difficult. In Taylor v. Jones, the master of the rolls got at it; but he got at it through a doctrine which, as reported, it is very difficult to maintain; and which seems to have surprised Lord Thurlow very much in Dundas v. Dutens.

Hon. John Watts, judge. Bowman brought- his action of covenant against the Mayor and Aldermen''of the City of Jackson to recover five thousand dollars under the contract set out in the opinion of the court.' He alleged full performance of his part of the contract, and assigned for its breach on the part of the defendants that they had granted license for retailing within said city to one Franceola.

Hon. John Watts, judge. 1. The court erred in refusing the third, fourth, and sixth instructions asked by the prisoner, and modifying them to this effect, that the jury could find William guilty, if he aided Richard off before Telfair died, if he was “in a dying condition” when Richard left.

Hon. H. H. Miller, Esq., presiding as special judge. This was an action of ejectment commenced on the 13th October, 1856, by A. H. Polk, the defendant in error, against Amos A. Alexander, for the recovery of six hundred and forty acres of land situated in said county. Pleas, general denial, and Statute of Limitations, with notice of a claim for the value of improvements made by defendant on the locus in quo.

Hon. John Watts, judge. Defendant in error, as clerk of the Circuit Court of Warren county, presented an account for services rendered in State cases to the plaintiff in error, auditor of public accounts, for allowance. The account was for the regular taxable cost of the clerk in criminal cases where the State had failed in the prosecution, or the defendant, though convicted, was insolvent.

Hon. W. A. Tucker, judge. This was a petition filed by tbe brothers and sisters, wbo are tbe beirs at law, of James T. Sartor, for tbe purpose of annulling and setting aside tbe probate of a certain instrument wbicb bad been theretofore admitted to probate as tbe will of said Sartor.

<p>Error to tbe Circuit Court of Hinds county. Hon. John Watts, judge.</p>

Hon. James A. Campbell, judge. The appellant filed her petition in the court below against the appellee, to compel him to make a final account of his administration of the estate of John Adams, deceased. The account was filed; and she excepted thereto on various grounds. The third item of credit in said account was an account in favor of the administrator for $132.54.

Hon. John Watts, judge. This is an action on an administrator’s bond to recover the amount of a judgment recovered against the administrator, upon the ground, as the declaration alleged, that the administrator had received sufficient assets and had failed to apply them to the payment of plaintiff’s judgment. To this the administrator and his surety pleaded several pleas— the second, third, and fifth of which are as follows: 2. Nul tiel record. 3.

<p>Appeal from the Court of Probates of Warren County. Hon. L. S. Houghton, judge.</p> <p>Cited Lidderdale v. Robinson, 2 Brock. C. C. R. 160; Johnson v. Johnson, 2 Hill, (S. C.,) Ch. R. 293; Green v. Sarberry, 2 Brock. 403 ; Fonte v. Norton, 36 Miss. R. 365.</p> <p>They also cited and commented on Nolan v. Oalvert, 12 S. & M. 273, and same case reported as Gaultney v. Nolan, 36 Miss. R. 569, to show that these last decisions were made with reference to the hypothesis that the administration bonds were separate and not joint.</p> <p>No memorandum of their argument has come to the possession of the Reporter.</p>

<p>Appeal and cross-appeal from tbe Chancery Court of Rankin county. Hon. John Watts, chancellor.</p>

Hon. J. H. Postell, judge. The substance of the petition is fully set out in the opinion the court. The defendant (who is the appellee) demurred to the whole petition, and assigned eleven causes of demurrer. The first, second, third, and fourth causes had reference to so much of the petition as referred to real estate.

<p>1. Probate court: jurisdiction to compel administrator to make A DEED WHERE TITLE-BOND HAS BEEN MADE BY INTESTATE : CASE IN judgment. — The Probate Court, in the exercise of the powers vested in it by Art. 137, p. 458, of the Revised Code, to compel the administrator of a vendor who has executed a title-bond to make a deed to the vendee upon proof that the purchase-money had been paid, will not order such a deed to be made where it appears that the intestate had made a valid sale of the land to another prior to the execution of the title-bond, and of which the vendee in the title-bond had notice when he purchased.</p>

Ekbob to the Circuit- Court of Hinds county. Hon. John Watts, judge. This was an action of ejectment by Sizer, the defendant in error, against Gordon and wife, the plaintiffs in error, to recover possession of an alley four feet wide in lot No. 1, in square No. 8 south, in tbe city of Jackson. Pleas, not guilty, and Statute of Limitations. ' On tbe trial, plaintiff offered in evidence a deed made by C. W. Pierce to him, dated 15tb February, 1853.

Hon. B. S. Hudson, judge. 1. Tbe plaintiff' below was bound by tbe contract made and received by Ms agent. Held: in England, (in cases of express contract,) liable for the want of such care as a prudent man would take of his own property. Batson v. Donavan, 4 B. & Aid. 30 ; Duff v. Budd, 3 Brod. & B. 182.