Volume 40 — Mississippi Reports

Hon. W. S. Bailey, judge. The opinion of the court recites the facts of the case. contended, That the case of Stewa/rt v. Morrison, 38 Miss. 41Y, was decided under a different state of the statute law from that which now exists, and under which this ease arose.

ON habeas corpus. Error to judgment of Chief Justice Iiandy. David Simmons, a white man, and at the date of the passage of the act of the Confederate Congress, between the age of forty-five and fifty years, was a citizen and resident of the county of Hinds, and State of Mississippi.

Tiie opinion of the court sets forth the facts, and the mode and manner in which the questions at issue were brought before the court. The arguments of counsel are not on file.

Hon. John E. McNair, Judge. . Tbe defendant in error sued plaintiff in error to recover tbe value of a trunk and contents, delivered to said plaintiff to transport, as passengers’ baggage, from Hazlehurst to Jackson. Tbe complaint alleges “ that the railroad company, ‘not regarding thei/r ckcty as common carriers, did not, nor would safely or securely carry or convey the trunk and its contents, nor safely and securely deliver the same at .

Eeeoe to tbe Circuit Court of Yalobusha county. Hon. Wm. Colhran judge. The facts contained iu the record are fully recited in the opinion of the court. contended, 1.

EeeoR to Circuit Court ■ of Monroe county. Hon. J. M. Acker, Judge. Tbe opinion of the court recites the facts of the case. cited following authorities, as to the form of the action: 7 Johnson, 140; 1 California R. 160; 10 B. Monroe, 33; 24 Yermont R. 371; 1 Dallas, 150; lWend. R. 109 ; 8 Barbour, 213 ; 23 Bar-hour, 240 ; 10 Wend. 349 ; 15 Mass.

Hon. Hiram Cassidy, judge. The defendant in error sued the plaintiff in error, clerk of the Probate Court of Amite county, for granting and issuing a license for the marriage of defendant’s daughter, she being under age, and without his consent. The action was brought to recover the penalty prescribed by the statute for unlawfully issuing a marriage license.

<p>1. Judgment by default : jury : cause not submitted to, unless issue joined.— Where a party fails to plead to the action, it is improper to submit the cause to a jury “to try the issue joined.” Judgment by default should be taken. 6 How. 193 ; 3 Smedes & ÍÍ.' 30Í ; l/Smedes &M.660; 32 Miss. 161.</p> <p>2. JURORS : how sworn in civil oases. — Jurors are never specially sworn in any civil case. They are sworn to try all issues and execute all writs of inquiry that may be submitted to them during the term or day for which they are summoned. Rev. Code, 501, article 143. where, therefore, the record recites that tlio jury were sworn “ to try the issue,” when the execution of a writ of inquiry was submitted to them, and vice versd, it is a mere clerical error and cannot be true in point of fact.</p> <p>3. Appellate tribunals : what judgments they will reverse. — It is a well settled principle that appellate tribunals will not reverse a judgment for any error or irregularity therein, that does not actually prejudice the party complaining of it.</p> <p>4. Spirit op modern jurisprudence. — The whole spirit of modern jurisprudence is directed to prevent substantial justice from being defeated by an adherence to mere technical forms.</p>

EbeoR to the Circuit Court of Chickasaw county. Hon. Joel M. Acker, judge. Suit was instituted by Carr against Ashby, on a note for seventy-five dollars. Ashby pleaded offsets to the amount of eighty-one dollars. These offsets were open accounts, which had been originally due to Pulliam, a third person, and by him transferred by delivery to Asbby.

EbeoR to Circuit Court of Olairborne county. Hon. Hiram Cassidy, judge. Tbe facts of the case are fully presented in tbe opinion of tbe court. 1-, That tbe canse should bave been continued upon filing tbe written notice required by tbe statute. Rev. Code, 503. This court bas decided that tlie process of garnishment is in the nature of a new suit. 13 S. & M. 596. The process of garnishment as to the garnishee himself is purely an original process. 9 Geo. R. 99, 100.

Hon. John E. McNair, judge. A judgment was confessed in tbe office of tbe clerk of tbe Circuit Court of Copiab county, by William Matbeny and William Hudson, in favor-of Joseph S. Totten, for tbe sima of twenty-two hundred and thirty-three dollars. Tbe judgment was made final at tbe May term, a. d. 1831, of said court. A writ of error, to reverse this judgment, was sued out and dismissed for want of prosecution.

lion. C. T. Miles, judge. Apjiellees filed tbeir petition in tbe Probate Court in Bolivar county for tbe establishment and probate of tbe last will and testament of John L. Harris, deceased. Tbe petition states that John L. Harris was tbe brother of petitioners; that be died on the 9th day of February, 1856, and during bis last illness and within a day or two before bis death, that be signed and published bis last will and testament.

EkeoR to Circuit Court of Lawrence county. Hon. John E. McNair, judge. This is an action brought in the name of the State, for the use of the heirs of James Mullins, deceased, against Cade ’Ward, administrator of Pollard Mullins, deceased, and Lucius H. Bridges and others, executors of B. R. Bridges, deceased, and Thos. J. Mullins. It is founded upon the administration bond of Pollard Mullins, administrator of James Mullins, upon which Thos.

Hon. John Watts, judge. ~We think the Probate Court was the proper court to decide who were entitled to the year’s provision and the exempt property. By article 1Y2, Rev. Code, page 469, the widow was allowed to retain all her husband’s personal property and the property exempt from execution, and the appraisers were required to set apart one year’s provision for the widow and children, or in lieu thereof, an allowance of money.

Hon. Geo. T. Swann, judge. Tbe facts of tbe case will be found in tbe opinion of Mr. Justice Ellett. Tbe brief of counsel as to tbe jurisdiction of tbe Special Court of Equity, is not on file.

<p>Error to the Special Court of Equity at Brookhaven. Iio'n. -Stone, judge.</p> <p>Provisional Governor Sharkey, by proclamation of 12th July, 1865, established special courts of equity “with equity jurisdiction in all contracts for cotton or other personal property in this State, with power to proceed in a summary way on petition, to enforce specific performance or rescind contracts, on notice to parties, to issue necessary process, to punish for contempt,” etc. By proclamation of 25th of July, 1865, it is recited that as doubts have arisen in the minds of some as to the jurisdiction of the special courts of equity, it is declared, that in “ decreeing specific performance of contracts in reference to cotton or other personal property,” the court “ has power to make decrees in the alternative, if the property itself cannot be had, or has been sold or disposed of — the measure of value to be regulated by the value of the thing at the time suit was brought, with ten per cent, damages.”</p>

<p>1. Tenant by courtesy. — To create a tenancy by courtesy there must exist marriage, birth of issue, death of the wife, and seisin in fact by the wife during coverture.</p> <p>2. Tenant by courtesy — seisin of the wipe. — -At common law the wife must have actual possession of the land during coverture to create a tenancy by courtesy. This rule is so far relaxed that, in case of wild and uncultivated lands, or where the parties in possession stand in the relation of tenants, either at sufferance or for a term of years, constructive seisin of the wife, without actual possession, will have the effect to invest the husband with his tenancy by courtesy,</p> <p>3. Tenancy by courtesy op estates in reversion and remainder. — Where the interest of the wife is an estate in reversion or remainder, expectant upon an estate of freehold, the husband is not vested with the tenancy by courtesy, unless the particular estate is ended during the coverture. Where the reversion or remainder is expectant upon an estate less than freehold, the right of courtesy accrues. 24 Miss. 261; 26 Miss. 619; 4 Kent’s Com. (29).</p>

<p>Appeal from tbe Probate Court of Amite county. Hon. R. M. Neilson, judge.</p> <p>Tbe opinion of tbe court contains a concise and correct statement of tbe facts of tbe ease.</p> <p>Tbe question presented is whether a wife acquires such a right of dower in tbe lands whereof her husband was seized during coverture, as cannot be defeated or impaired by legislation.</p> <p>Tbe administrator, in bis answer to appellants’ petition, seeks to apply to this case article 30, page 337, Rev. Code, and cite case of Whitley v. Stephenson, 35 Miss., page 113, against us.</p> <p>Tbe record in that case shows marriage took place in 1852, but fails to show that tbe husband was seized of tbe lands in question prior to November 1, 1857. He died in 1858, and may have acquired title to them after November 1, 1857. Tbe record does not show concurrence of marriage and seisin before tbe Revised Code took effect. Tbe record in tbe case at bar does show concurrence of marriage and seisin before tbe Revised Code took effect; consequently we bold that Mrs. Young acquired such an interest in her husband’s lands as legislation could not impair. If, as we bold, the provisions of article 30, page 337, Rev. Code, are inapplicable to this case, tbe decree is erroneous. If Mrs. Young bad a vested right of dower in her bus-band’s lands at tbe time tbe Rev. Code went into effect, no legislation can impair it. 1 How., page 183; 7 Johns., page 477. But, it is said, her right was inchoate, and not consummate. An inchoate right may be as much a vested right as any other species of right. Tbe law existing at tbe time of her marriage with James Young, itself a part of tbe marriage contract, assured her that on the death of her husband, she should possess a certain portion of bis lands, without regard to tbe value of her separate estate. Can tbe legislature now, after tbe consummation of tbe marriage contract has rendered her powerless to change its terms, deprive her of that tbe law assured to her at the time of her marriage ?</p> <p>“ Dower is an interest attaching to the land, as soon as there is concurrence of marriage and seisin.” 4 Kent’s Com., page 50. “ The concurrence of marriage and seizure is properly the groundwork of dower.” Park on Dower, chapter 2, page 1. In our own statutes, the interest of a feme covert in her husband’s lands is called the “right of dower.” Hutch. Dig., page 609, section 20; Rev. Code, page 313, article 22. What is the use of the solemnities required in the execution of conveyances by married women, unless it be to divest a right in the lands conveyed ? In 4 Kent’s Com., page 48 et seq., and in other authorities, we are informed how the right of dower may be “defeated,” “barred,” “extinguished,” etc. What do these defeats, bars, extinguishments, etc., act upon, unless upon a right ? Appellees cite 24 Miss., page 85, and definition therein of “vested right.” By concurrence of marriage and seisin, there was, in our case, “a present fixed right of future enjoyment.” That this right was liable to be defeated by the prior death of the wife, is no argument against its existence. An uncertainty that the parties will ever come to the future enjoyment of the estate does not argue that there is no fixed right of future enjoyment. The case differs from the case put in Marshall v. King, 24 Miss., page 90, in that here, “the title or fee could not be disposed of by the deed of the husband,” “ so as to defeat her right of dower.” Miss. Code, page 608, section 19.</p> <p>An admission of a right in the legislature to impair a woman’s right to dower, would be productive of great evil and injustice. Suppose a lady, in a State where the common law prevails, marries, and by her marriage makes to her husband a gift of large property, the law at the time assuring her, in return, one-tliird of his real estate at his death. Supj>ose, after marriage, the legislature should limit her right down to ohetwentieth, or sweep it out entirely. Could such a law apply to her case ? It remains for the court to decide on the question, presented now for the first time, whether the assurances of the law to women about to marry, are to be made snares to induce them to dispense with marriage contracts, and to find themselves some day widows, impoverished, robbed by legislation of the means of support assured to them, before marriage disabled them from protecting themselves.</p> <p>Referring again, briefly, to Whitley v. Stephenson, it is enough to state that the point now presented was not presented in that case, and it cannot, therefore, be taken as a precedent, though the facts not presented by the record may have been the same as those in the case at bar. And hence we conclude that though the decision in that case, upon the points presented, was right, the decree of the Probate Court in this case was erroneous, and ought to be reversed.</p> <p>It will be observed that the right to dower is not claimed by appellants oh the ground of ownership by the husband at the túne of marriage.</p> <p>The legislature can, without interfering with vested rights, alter the law of dower, unless the wife’s interest has become 'vested by the death of the husband. We hold that on seisin of the husband, the wife takes no vested interest in any part of the real estate. “A vested interest is a present fixed right of future enjoyment.” Feame on Rem. How can interest be fixed, which depends on an uncertain contingency? Having had no estate during coverture, if she survives her husband, her right attaches by virtue of laws then in force. An estate is contmgent when the right of enjoyment is to accrue on a dubious or uncertain event. A wife’s right to dower depends on her surviving her husband. An interest depending on an uncertain event is not, properly speaking, an “ estate ” in the lands, being merely a right to home an estate in the'land, if the contingency happen. The wife’s interest being contingent, the legislature eould change the law. The case of Whitley v. Stephenson is decisive on this point, and covers the question in this case, for if the appellants are right, the court, in that ease, were clearly wrong.</p>

<p>Appeal from the Probate Court of Hinds county. Hon. John W. Robb, judge.</p> <p>On tbe 9th of January, 1863, appellee filed her petition in the Probate Court of Hinds county, in which sbe asked that her legal share of the estate of her husband might be allotted to ber according to tbe laws of this State. The petition represented that appellee was a resident of the city of Lynchburg, Virginia, was the widow of Samuel Garland, senior, deceased, who was, at the time of his death, a citizen of said city and State. That be died in November, 1861, without leaving any child or descendant of any child, him surviving, and leaving a last will and testament, which was dated December 7, 1857. That said Samuel Garland, at the time of his death, was the owner of a large estate, real and personal, in the States of Yirginia and Mississippi, all of which was devised and bequeathed in said will, and provision made therein for appellee. The will was admitted to probate in the Hustings Court of the city of • Lynchburg, on the 2d day of December, 1861, and an authenticated copy thereof admitted to probate in the Probate Court of Hinds county, on the 6th of November, 1862. Appellee, on the 6th of March, -1862, filed, in said Hustings Court, her renunciation of the provisions of said will, and her written election to take her legal share in lieu thereof; and on the 5th of Janr uary, 1863, duly authenticated copies of these, and “also an original renunciation and election in substance like thereto,” were filed in the Probate Court of Hinds county.</p> <p>Appellant demurred to this petition, and assigned the following causes:</p> <p>1. Petition showed that the husband was a non-resident at the time of his death.</p> <p>2. That under her renunciation and election, made in Yirginia, she was bound to take such legal share, according to the laws of Yirginia, and is not entitled to receive the same according to the laws of Mississippi.</p> <p>3. The petition showed that more than six months elapsed from the probate of the will in Yirginia, before the renunciation and election were filed in the Probate Court of Hinds county.</p> <p>4. The renunciation and election filed in said Probate Court are not authorized by law, and are void.</p> <p>This demurrer was overruled, and leave given to appellant to answer over. Afterwards appellee, under leave of the court, dismissed so much of her petition as related to the real estate.</p> <p>The Probate Court, on a final hearing of the cause, and after appellant had answered, decreed that appellee should be allotted that portion of the personal estate to which she was entitled, according to the laws of Mississippi; and from this decree an appeal was prosecuted.</p> <p>If the widow takes under the laws of this-State, she is entitled to one-half of the personal estate absolutely; but if she claims under the laws of Virginia, she will take one-third of the slaves for her life only, and one-third of the remaining personal property absolutely. See Rev. Code of Va., volume 1, page 381. The code of 1849 has not altered the law.</p> <p>The case of Garland v. Powan, 2 S. and M., page 617, and subsequent cases in this court, declare that the Virginia law shall prevail; and the point that remains to be considered is, does the Rev. Code of 1857 alter the law as it stood before its adoption ?</p> <p>It is manifest from the language of article 110, page 452, Rev. Code, that it deals with the second branch of the subject, and changes the former law as to intestacy only. There is no evidence in any part of the Code of a design to alter the rule as to wills. It simply declares that when a party dies intestate, the estate situated here shall descend and be-distributed according to the laws of this State, and not in conformity with any foreign law. The last clause of article 110 was only added lest it might be supposed the widow was excluded, as her share was considered in the nature of a dower, and as she does not take by descent or distribution. See Oa/rllant v. Bernard, 7 S. and M. The words, “ shall descend and be distributed according to the laws regulating the descent and distribution ” • — “ hews or persons entitled to distribution ” are applicable to intestacy only.</p> <p>To place the widow, renouncing the will of her husband under a foreign law, on the same footing with the widow of an intestate, would be-violating the spirit of our laws, which discriminate against the widow renouncing her husband’s will. The widow of an intestate takes her share of her husband’s estate without being required to bring into the account her sepcwate estate, whereas exactly the reverse is the case with one renouncing the provisions of a will. Code 337. She is expressly prohibited from dissenting from her husband’s will when her separate estate is of equal value with her share in her husband’s estate.</p> <p>A foreign will cannot be renounced in our courts at all. The evidence of renunciation under the foreign law, or law of the domicil, may be produced here, but in giving effect to the renunciation we do so,' not because we give effect to our law, but to the foreign law which allows it. The effect of such renunciation, and the terms on which it is to be allowed, are determined by the law of the testator’s domicile.</p> <p>Our Code did not design to interfere with foreign wills, nor to alter the grounds on which they stood: and when the widow claims property here against the provisions of such will, she claims under the foreign law, under which she was allowed to renounce, and we deal with her renunciation as we deal with the will which it qualifies. Unquestionably the right to oppose a will and defeat it, is a qualification of the testamentary power, and belongs to the law which confers the power to make the will; and so the extent to which the will may be opposed must be determined by the law of the testator’s domicile. Story on Conf. Laws, 348, section 474; lb. 402, section 479c.</p> <p>The widow of an intestate comes hei'e by virtue of the law of this state, she stands, therefore, upon our statute; but the widow who comes here because a foreign law has allowed her to renounce her husband’s will, comes here by the force of that law, and the courtesy of nations. She has not, nor can she, renounce under our law. Her renunciation, its validity and effect on the will, are to be considered with reference to the foreign law under which it was made. She stands in our courts on the foreign 1cm, and must abide by it.</p> <p>cited the following authorities, viz.: Rev. Code, article 110, section 14, page 452; Roberts v. Roberts, 34 Miss., page 322; Rev. Code, article 111, page 453, and articles 162, 163, page 467, and articles 168,169, page 468, and article 42, page 433, and article 49, page 435; ITutch. Code, section 50 of Act of 26th November, 1821, page 623, and section 1, 2, page 621, and section 45, 46, page 620; Code of 1849, section 12, page 522, and section 10, paragraph 5, page 124; Garland v. Rowan, 2 S. &M. 617; Mahomet. Horn, 9 S. & UVX. 247; Wells v. Wells, 35 Miss. 638; Bcdley v. Osborne Adnir, etc., 33 Miss. 128; Turner et al. v. Turner, 30 Miss. 427; Wash v. Young, 31 Miss. 134; Oolemcm et al. v. Broolce Adnir, 37 Miss. 71; White v. Stephenson et al. 38 Miss. 113; Morgan Adnir v. Morgan, 36 Miss. 348: Gi/oin v. McCarroll, 1 S. & M. 351; Prentiss v. Miller, 1 S. & M. 521; Enas v. Smith, 7 S. & M. 85; Me Comb v. Ellett, 8 S. & M. 505; Overstreet v. Da/ois, 24 Miss. 393: Bidley y. Ridley, 24 Miss. 648; Steen y. Steen, 25 Miss. 513; Work y. Earper, 24 Miss. 517.</p> <p>By the common law, as declared by this court in the case of Rowan y. Garland, 2 S. & M. 617,. the personal estate of decedent is to be distributed according to the laws of the country of his domicile. Article 110 of Revised Code, page 452, changes the rule of common law, as declared in the above case. If we transpose the words providing for the rights of the widow, and connect them with that portion of the sentence which speaks of the domicile, it will read thus: “Notwithstanding the domicile of the deceased may have been in another State, the widow of such deceased person shall take her share in the personal estate according to the laws of this State.” The widow is entitled to a fixed portion of the real and personal estate of the husband, whether he dies testate or intestate. Article 163, page 467, Revised Code.</p> <p>Articles 110 and 163 are to be construed together, because they relate to the same subject-matter. The restrictions on the power of the husband, contained in article 163, are as applicable to parties domiciled abroad as to those domiciled in Mississippi. A will of fixed or immovable property is generally governed by the lex loci rei sistce. 1 Jarman on Wills, page 1, and cases cited in note. The same rule now applies to personality in this State.</p> <p>The effect of a renunciation of the widow is the same as if the husband bad died intestate, because, upon renouncing, sbe claims and takes under the law and its pro-visions, and not under the will.</p>

<p>Appeal from tbe Probate Court of Franklin county. Hon. James M. Jones, judge.</p> <p>Calvert and wife filed their petition in the Probate Court of Franklin county, against ~W. B. Mundy, George H. Sellers, arid William H. Baldwin, executrix and executors of Littleton Mundy, deceased. Petition filed July, 1858, and showed that appellants had qualified as executrix and executors in January, 1855, under the will. That by the terms of the will Mrs. Calvert was entitled to a specific legacy of slaves, and one-sixth of certain other property, notes, and moneys, which property, notes, etc., are specifically described in the petition, and the amount due her stated. That as one of the children of Little-ton Mundy, she is entitled to a share in the said estate not disposed of by will. That this consisted of two slaves, not mentioned in the will, and the increase of the slaves between the time of making the will and the death of testator.</p> <p>That more than twelve months have elapsed since the grant of letters testamentary, and petitioners offer to execute a refunding bond.</p> <p>The executrix and executors are required to answer on oath each allegation of the petition.</p> <p>Process was prayed against other persons, some of whom are stated to be minors, but are not stated to be legatees or distributees of the estate.</p> <p>Prays that executors distribute and pay to petitioners the several sums specified as due to Mrs. Calvert; that they have execution therefor, and for general relief.</p> <p>The will is not made an exhibit to the petition, nor does it appear in the record; there is no inventory, report, or other proceeding on the part of the executors.</p> <p>Citations issued for the defendants’ service on W. Ií. and Charles Baldwin, 24th July, 1858, as by return of sheriff,</p> <p>“ Duly executed.” Cameron and wife, by acknowledgment, signed by them on the citation. Citations served on Littleton, Mary, and Gertrude Baldwin (minors), by copies delivered in person, July 26, 1858. Executed on George LI. Sellers, as executor and administrator of Helena, and upon him and Itowena Sellers, “ by copy left at his residence, 27th July, 1858, * they being absent,” and on Abner ILennison and wife, “by copy left on table in the hall of his residence, they being absent, July 27, 1858,” and on Lucinda Mundy, by return, “ duly executed 27th November, 1858.”</p> <p>At the December Term, 1858, W. LI. Baldwdn filed his answer, stating that the slaves specifically bequeathed to the petitioner were delivered to her; also the special legacy of $1,200 paid to her husband, William Calvert; that the two slaves not disposed of by the will were left undivided in Washington county, and that he cannot answer further; that Sellers was the active executor, and that he is not advised of his actings and doings. This answer was not sworn to.</p> <p>At the same time Lucinda Mundy, Geo. LI. Sellers, and W. H. Baldwin, executrix and executors, filed their plea to so much of the petition as seeks to have distribution of the slaves, born since the date of the will and before the death of the testator, and say, that all such slaves are the issue of female slaves specifically bequeathed with their future increase, and pass to the several legatees to whom they were bequeathed, and therefore are not subject to distribution generally, “ and pray judgment if they ought to answer further in respect to such matter pleaded to.” This plea is not sworn to.</p> <p>The plea Avas set down for hearing as to its sufficiency in laAv, adjudged to be insufficient, and defendants required to answer further.</p> <p>At the same Term, a motion was made to reject the answer of Baldwin, “ because tbe same is not sworn to as required by the petition and the statute.”</p> <p>Then follows the decree of the court, reciting “ that the, motion coming to be heard, it is decreed that said answer is insufficient, and that said defendants answer further; whereupon defendants failing to answer, and having filed their plea, which is adjudged insufficient, and failing to answer further, it is ordered that the petition be taken as confessed against the executors.”</p> <p>Then follows a decree, “that the executors and executrix, George H. Sellers, 'William H. Baldwin, and Lucinda Mundy, pay and distribute to Minerva Calvert, wife of William Calvert, the sum of $11,190.20, due her as distributee and legatee of Littleton Mundy, upon her entering into bond, as the statute requires, in a penalty double the amount of this decree.”</p> <p>From this decree a writ of error was sued out by the executors.</p> <p>No proof is shown by the record to have been offered; no account taken; no guardian ad Utem appointed to the minors.</p> <p>The following errors are assigned :</p> <p>1. The court below erred in adjudging the answer of W. H. Baldwin, executor, insufficient.</p> <p>2. In rejecting the answer of defendants, because the same was not sworn to, and in taking pro confesso thereon against them.</p> <p>3. In proceeding to final judgment without disposing of the answer of W. H. Baldwin, executor to the petition.</p> <p>4. In proceeding to final judgment, without giving to defendants (plaintiffs in error) a reasonable time to answer more fully to, and make defence against the petition.</p> <p>5. In rendering final judgment against defendants, without requiring refunding bond with security, and without naming or specifying the security to be given.</p> <p>6. In proceeding to final judgment without proper service of process upon defendants, and more particularly upon Geo. H. Sellers and others.</p> <p>Y. In proceeding to final judgment without proof of service of process upon D. 0. and A. M. Cameron, and without the appointment of a guardian ad litem for the minor defendants, Charles, Littleton, Mary and Gertrude Bald-win.</p> <p>8. In proceeding to final judgment without disposing of the cause as to all of the defendants below, and more particularly as to John 0. Cameron and wife, Rowena 0. Sellers, wife of George H. Sellers, Abner E. Rinneson and wife, George H. Sellers, as administrator of Helena Mundy, deceased, and Charles, Littleton, Mary, and Gertrude Baldwin, as to all of whom said cause was not disposed of.</p> <p>9. In rendering judgment against plaintiffs in error for the sum of $11,190.21, in favor of William Calvert and wife; because no mere money judgments could be rendered upon said petition in said cause; because said judgment was rendered without any account taken, or proof made as to the matters and things complained of; because said judgment is excessive in amount, and is rendered against plaintiffs in error individually, and not as executrix and executors ; because said judgment is rendered for money generally, and not for property in kind; because it charges plaintiffs in error with alleged amount and value of debts uncollected and negro slaves on hand in kind, instead of adjudging them to be distributed.</p> <p>10. In adjudging the plea of plaintiffs in error insufficient in law as to the matters to which it referred.</p> <p>contended:</p> <p>1. That the petition was for legacies, for distribution, not of money only, but of slaves left undisposed of by will. Every application of this kind, made under the statute, Rev. Code, 454, articles 11Y, 118, includes a division of the property in specie. The decree in such a case is, that the executor pay the legacy, and make distribution of the property undisposed of by will. If that property consist of slaves, the court can only malee a rule on the executor to distribute according to law, and a division must of necessity take place, there being two or more distributees. In such cases, by the express provisions of the statute, no order or decree can be made unless tbe other legatees and distributees are notified, and tlie guardians of such as are minors must be summoned. It was error, therefore, to make any decree in the cause until the necessary parties were before the court.</p> <p>It is no answer to this position, that the decree does not affect the minors or other parties in interest. The proceeding, in its nature, affects the interest of legatees and distributees, though the executor is alone to perform the decree.</p> <p>2. That the decree was rendered solely on the allegations of the petition, taken as admitted on the pro confesso. Taking the petition to contain allegations, which sufficiently charge waste or devastavit of the slaves liable to distribution, and the notes and debts due the estate, it is contended that there could be no personal decree for a specific amount against the executors without an account. The proceeding is not merely an application for distribution of property in the hands of the executors, but seeks to charge them with maladministration, and to obtain, not the rule to make distribution according to law, according to the Code, 454, but a decree to charge them personally for such maladministration.</p> <p>The allegations, therefore, that the executors had not disposed of the estate in due'course of administration, required an account, and certainly proof.</p> <p>The court could only regard the failure to answer as ground for “ the rule to make distribution according to law,” or as ground to order an account. -</p> <p>The pro confesso decree is unknown in the ordinary application for distribution and account, and the statute authorizing it under stated circumstances seems to preclude the idea that it is proper in ordinary proceedings.</p> <p>The extent to which the court could go on well-established principles was, either to make a rule on the executors to distribute property in their hands, or, on the charge that they had converted the slaves or other property, an order to render an account thereof to the court. If the plea and answer were insufficient, such is the decree the court should have made.</p> <p>3. That the court should have allowed the answer to have been filed without being sworn to. It was not a plenary proceeding. The answer alleged payment of the legacy of $1,200, and was good to that extent. If the practice in chancery is the criterion, the court should have allowed reasonable time to answer.</p> <p>4. The plea purports to answer only one charge in the petition. It was a complete bar to the claim set up to the increase of the slaves between the date of the will and the death of testator. Homdel v. ElUott, 1 Iredell’s Law, 183 ; Gole v. Gole, 1 lb. 460; Iredell’s Digest, Title, Legacy, 355, 362, sections 30-50; Puller v. Puller, 3 Rand. 83 ; Peno v. Pamis, 4 Hew. & Nunf. 283.</p> <p>argued,</p> <p>1. That “ the alleged answer of the defendants ” was a plea. It is a plea to so much of the petition as claims distribution of any “ slaves born after the date of said will, and before the death of testator.” No such claim is made in the petition. It claims that certain slaves did not pass by the will. It is impossible to say to what portion of the petition the plea refers, except to the prayer for a discovery. This is sufficient to condemn it; it was irrelevant. The answer was insufficient. The executors are required to answer on oath, and neither the plea nor answer 4.were sworn to. This is conclusive against them. The parties having failed to answer, the pro confesso was properly taken. Rev. Code, 430, section 25.</p> <p>2. That the record shows that the answer of Baldwin was rejected on motion, and the defendants were required to answer further. They did answer, and the answer was frivolous. They had no claim to “ further reasonable time,” after filing a frivolous, unsworn answer and plea. They did not ask further time, nor intimate that it was necessary.</p> <p>3. That it was not necessary for the decree to require refunding bond with security, and to name the securities. The petitioners are required to give such bonds, conditioned as the law requires.</p> <p>4. That citations are prayed against certain persons, and it is not shown that they are legatees or distributees, or in any manner interested in the proceeding. If they were not interested, the executors cannot complain that process was not duly served on them, or that a guardian was not appointed for the minors.</p> <p>One distributee may petition alone for his share, and need not bring in codistributees. Benoit v. Bull, 7 S. & M. 31; Grant v. Spann, 33 Miss. R. 135 ; Hutch. Code, 670, section 112, page 673, article 2, section 2.</p>

<p>1. Last will and testament: probate of: capacity of testator: real and personal property : domicile. — The capacity of a testator to make a will, and the rules regulating the disposition of personal property, are governed by the law of the testator’s domicile: and the matte'rbf probate belongs to the-tri.tai.nal of the domicile, though there may be no property within the jurisdiction to be affected by the will. The rules regulating-the disposition of real estate, are governed by the laws of the State where situated.</p> <p>2. Last will and testament: probate ,of: situs of property: domicil: femes covert. — Where a feme covert derived capacity to _make a will from an - ante-nuptial contract, which limited her capacity to convey^Qcertain property situated in a different State from that of her domicile at the time of her death, and she did make her will conveying the property in pursuance of the ante-nuptial contract, it is proper for the courts of the domicile of the testatrix to admit the will to probate, though it could alone dispose of the property situated in a different State.</p> <p>3.’Same: case in jud&ment. — Mrs. T., a feme covert, and a citizen of the State 1 of Mississippi, by an ante-nuptial agreement, derived capacity to dispose by will ’ of her property situated in the State of Arkansas. She made her will, disposing of all her property, and upon its being propounded for probate in the courts of ' Mississippi, it was resisted on the ground that the ante-nuptial contract did not give capacity to dispose of property in Mississippi, and that it could alone affect property in the State of Arkansas, aud should be probated there. Held — That the will was properly propounded for probate in the tribunal of the domicile, and the validity of its dispositions was a question to be adjudicated in another form.</p> <p>4. Last will and testament: probate of: derisavit vel non: probate, not affected by invalidity of bequests. — Upon an issue of dejysavü vel non, the questions involved are the competency of the testator to make the will, .the free and actual execution of the instrument by the testator, and according to the requirements of law. The legal effect of the will, and the validity of its dispositions, are to be determined afterwards by the appropriate tribunals. Lusk v. Lewis, 32 Miss. R.. 300.</p> <p>5. Instructions to jury: error in, when sround for a new trial. — The error of the court in instructing the jury is not a ground for a new trial, where it is manifest that the verdict is correct.</p>

<p>EbRoe. to Circuit Court of Oopiab county. Hon. John E. McNair, judge.</p> <p>The opinion of the court recites fully the facts of the case.</p> <p>contended,</p> <p>1. That the Probate Conrt of Copiah county never acquired jurisdiction by virtue of the special act for the relief of Harris, because the probate judge in Hinds did not transfer and transmit to the court in Copiah county, a full and complete record of the administration of Harris.</p> <p>The intestate of Harris was domiciled at the time of his death in Hinds county. The Probate Court of that county bad jurisdiction to grant administration; the jurisdiction was exclusive, and became so, in tlie strictest sense of tbe term, by the grant of administration to Mrs. Learned. Hutch. Code, 655, section 54. Wright v. BecJc, 10 S. & M. 281.</p> <p>"Whatever jurisdiction, then, the Probate Court of Copiah had, it acquired by virtue of the special act of the legislature. “ Where statutory powers are conferred upon a court of inferior jurisdiction, and a mode of executing those powers is prescribed, the mode pointed out must be strictly pursued, or the acts and judgments of the court are coram non judÁce, and void.” White v. Conner, 5 Blachford, 462, 469; B^wi’s Abdg. 261; 1 W. W. Story’s R. 487; 1 Story’s jHjjffl^tions 96-177; Williamson v. Williamson, 3 S. & M.</p> <p>2. It was insisted that the petition of Buckner Harris, filed the 19th day of April, 1841, praying an order for the sale of the real estate of Learned, deceased, was finally dismissed, as to the lands in Copiah county, at the June Term, 1841, and the subsequent proceedings had on said petition by citation returnable to August Term, 1843, and the decree then made for the sale of the lands was and is void.</p> <p>“ If at any time the Probate Court may open and reverse its own judgments, litigation would be endless.” Smith v. Denson, 2 S. &. Ml 339; Trumbull v. Enchicott, 3 S.. & M. 303; Griffiths, admr., v. Vertmr, 5 How. 741; Austin v. Tamo/r, 23 Miss. 190; Singleton v. Ga/rrett, 23 Miss. 195.</p> <p>3. That the failure to have the sale reported and ratified at the Term next succeeding the sale, was fatal to the title of defendants in error. Róbb v. Halsey, 11 S. & M. 140; 30 Miss. 263; Smith v. Reason, 2 S. & M. 338; Hoel v. Cou/rsery, 26 Miss. 520.</p> <p>4. On the question of adverse possession the following authorities were cited: Hutch. Code, 830, section 5; 1 S. & M. 219, 530 ; 1 How. 561.</p> <p>1. That the special act of the legislature, for the relief of Buckner Hams, gave the Probate Court of Copiah, county jurisdiction of the administration of the estate of Learned, deceased.</p> <p>That the transfer of the jurisdiction from the Probate Court in Hinds was not made to depend upon the character of the transcript sent; that the act annexed no such conditions to the assumption of jurisdiction.</p> <p>This special act is different from that which is discussed in Williamson v. Williamson, 26 Miss. There the act made the giving of a bond an indispensable condition precedent to the assumption of jurisdiction.</p> <p>2. That the sale of the lands is shown to be valid as to notice, and fair Jfed Iona fide. The court has jurisdiction to decree the sale, and a sale was made in accordance with law and the decree of the court.</p> <p>That the act of the administrator, a ministerial officer, in a matter not pertaining to the manner in which he had executed the decree of the court, but in making timely report of the execution, should render the sale inoperative and void; such a doctrine finds no analogy and sanction in any system of jurisprudence.</p> <p>The statute requires a report at the next succeeding Term. “ Suppose the administrator should die between the sale and the time for making his report ? ” This is not an improbable event. Would the sale be void? There could be no report in such case, and yet the sale may be contested and set aside, or confirmed, nevertheless. Tlie court has acquired jurisdiction; the sale has been made and the deed executed. Can it be contended that the law was in such a state, that this probable event, or other casualty interposing to prevent a report at that particular time, would render the previous proceedings abortive ?</p> <p>It is analogous to chancery sales, and the failure of the commissioner to report the sale would not avoid it, nor render the court powerless to obtain information of it. Elxdridge v. MeMdkm, 38 Miss. 72.</p> <p>That confirmation of the sale must be presumed from lapse of time. Matthews on Presumptive Evidence, 217, 218 ;■ 467, 468.</p> <p>Parties interested, according to the principle in analogous cases, will be held to have received confirmation of the sale. Gardner v. Lee, 26 Miss.</p>

<p>1. Estates of decedents; final settlement, -without notice Required by statute, void. — Final settlement of an estate without the notice or publication required by the statute is void, unless the parties interested are of full age, and present by themselves or attorneys waiving citation or publication of notice.</p> <p>2. McWhorter v. Donald, January Term, 1861, cited and explained.</p> <p>3. Accounts op executors and administrators. — It is improper to charge an administrator or an executor with the hire of slaves not the property of the decede nt, and they should be permitted to show by testimony that the slaves were not the property of the intestate, or anything else tending to establish that they are not liable to the estate for hire.</p>

Hon. E. G. Henry, judge. cited the following authorities : 3 How. 216, 300 ; 4 How. 242; 1 How.'115; 27 Hiss. 61; ' 28 Hiss. 152; 37 Hiss. 110. contended, That tbe statute was conclusive of the question; its language can admit of but one construction: “ That unless the claim is registered within the two years, no suit at law or equity shall be sustained thereon.” Rev. Code, 444, article 83.

Hon. Robert N. Hall, judge. On the 3d day of February, 1866, Elizabeth Buck filed her petition in the Probate Court of Hinds county, relinquishing her right to administer on the estate of her deceased husband, and requesting the appointment of Jones S. Hamilton. The petition states the value of the personal estate to be not exceeding $5,000. Hamilton was duly appointed administrator at said February Term.

lion. William S. Bailey, judge. Appellee as tbe executor of Starkey Collins, deceased, filed bis petition in tbe Probate Court of Madison county at the September Term, 1865, for a sale of all tbe lands of his testator, and alleging that tbe personal property was insufficient to pay the debts of tbe estate. Appellant, as tbe widow of Starkey Collins, was made a party to the petition, and upon a return of citation, duly executed, appeared and answered.

Hon. Thomas A. Falconer, judge. The facts of the case are set forth in the opinion of the court. No brief on file. The clauses of the will under which the defendants claim their legacies are as follows: “Item 4th. I give to mj son, John Mooring, four hundred acres of land, etc. (describing the land). I also give him negroes to the amount of $3,350, negro men at $800, women at $600, and smaller negroes in proportion. “ 5th.

EekoR to tbe Probate Court of Tippah county. Hon. B. F. Worsham, judge. Letters of administration were granted to defendants in error upon the estate of H. L. Machen, deceased, at the February Term, 1853, of the Probate Court of Tippah county. Report of notes and accounts, made to said Term, shows due estate, good debts, $6,071.72; doubtful débts, $1,068.07; desperate debts, $122.61: in all, $7,262.40.

Hon. W. ~W. Chisolm, judge. The guardian has a perfect right under the statute to bring this appeal, because thp minors, being legatees under the will, have an interest therein; and unless the judgment below is reversed, they are forever barred by it. They will be injured by the judgment, and therefore are to receive advantage by tbe reversal thereof. JF. O. I. ds G. JF. R. R. v. Rollins, Administrator, 36 Miss., page 386. Flournoy v. Smith, 5 Iiow., page 62.

EkRoe to tbe Circuit Court of Hinds county. Hon. Jobu Watts, judge. On the 24th of November, 1865, defendant in error presented bis petition, to which his affidavit was made, to tlie Hon. D. 0. Merwin, judge of tbe Criminal Court of Warren county, in which it was represented that the State was indebted to petitioner in the sum of $2,407, for services rendered as district-attorney from October, 1863, to 22d May, 1865.

Eeeoe to the Circuit Court of Monroe county. Hon. W. H. Killpatrick, judge. Tbis was an action of trespass on tbe case, brought by Bluford Westbrook against Hatch Whitfield and Wiley Howell, to recover damages for maliciously prosecuting Westbrook on a chai’ge of larceny. To the declaration, which was in the usual form, defendants in the court below pleaded not guilty.

EeRoe to Circuit Court of Amite county. Hon. James M. Smiley, judge. Plaintiff in error sued out an attachment against defendant in error.

Hon. John Watts, judge. It is very manifest tbat the rejoinder to the replication of coverture sets out a grievcmce, but not a legal avoidance of tbat replication ; tbe grievance is not greater than tbat wbicb appears in Selph v. JTowIcmcl, 23 Miss. 264. Tbe first rejoinder will be considered. It must be borne in mind tbat this rejoinder is intended to support tbe plea of payment, and must be considered with reference to its proper office in tbe order of pleading.

Ebeoe to Special Court of Equity at J ackson. Hon. George T. Swann, judge. The facts of the case are fully stated in the opinion of the court. contended, 1. Held: that if a horse is sold on Sunday, and a note taken for the purchase-money on the same day, both the sale and the note are void, and the title to the horse remains in the vendor. 10 Ala. 566; 11 lb. 885; 13 lb. 390; 2 Douglas R. 73; 26 Maine, 464. 3.

<p>1. MARRIAGE: NOT A CONTRACT WITHIN THE MEANING OP TIIE CONSTITUTION: power op legislature over. — Marriage is a personal relation between the parties, a civil status, created by the law and subject to the public will, and not to that of the parties. It is not a contract within the meaning of the constitutional prohibition in reference to the inviolability of contracts. Hence, the legislalature has the general right to legislate on the subject of divorce.</p> <p>2. Divorce: power op legislature over: obtained by suit in chancery. — The constitution of the State of Mississippi provides, “ that divorces from the bonds of ' matrimony shall not be granted but in cases provided for by law, by suit in chancery.” This clause of the constitution prohibits the legislature from granting divorces from the bonds of matrimony, and by necessary implication authorizes the legislature to provide in what cases such divorces may be allowed by suit in chancery.</p> <p>8. Divorce : legislature may authorize por cause happening before passage op law : character op such legislation. — The legislature may provide that divorces may be granted for causes happening before the passage of the law. Such legislation is impolitic, unwise, and unjust.</p> <p>4. Power op legislature to pass retrospective laws: enactments will not BE CONSTRUED TO HAVE RETROSPECTIVE EFFECT, UNLESS INTENTION MOST CLEARLY expressed. — The constitution of the State imposes no prohibition upon the power of the legislature to pass retrospective laws, but its enactments will not be construed to have a retrospective effect unless such intention is manifested by the clearest and most positive expression.</p>

lion. W. H. Kilpatrick, judge. At the May Term, 1863, Margaret Whitfield, administratrix of Needham A. Whitfield, instituted her action of detinue to recover from Hatch Whitfield tbe following property: slaves Jack, and Lucy bis wife, and their four children, Georgiana, Julia, Ben, and Daniel; Barney, and Sarah his wife; two mules, one bay mare, one yoke of oxen, one ox-wagon, six bead of cattle, nineteen head of bogs.

Hon. John Watts, judge. The only question presented by the second assignment of error, is, did the conrt below err in permitting the plaintiff below to contradict by his evidence matters stated by the defendant in his affidavit for a continuance? The defendant below was forced into trial upon the admission of the facts stated in the affidavit.

EbeoR to tbe Circuit Court of Newton county. Hon. John Watts, judge.

<p>1. Pleadings: motion to strike out irrelevant and redundant matter: case in judgment. — Irrelevant and redundant matter in pleading should be stricken out on motion, and does not invalidate matters of substance, properly stated. Plaintiff in error, in his amended declaration,avers all things complained of in his original declaration, which is necessary to be averred, and in addition and amendment thereto, etc.” Held — That this was surplusage, should have been stricken out on motion, and did not invalidate matters of substance.</p> <p>2. Common carriers : eight to demand or passengers prepayment oe eaee.— Common carriers have the right to demand of passengers, applying for transportation, prepayment of fare; if payment in advance is not demanded, they must rely on the integrity and responsibility of the passengers, or their lien on their baggage.</p> <p>3. Common carriers: liability of, for injuries to “dead-heads.” — Common carriers are responsible for injuries to passengers, who are received as passengers by the assent of the carrier, whether they pay their fare or not.</p> <p>4. Infants may sue by guardian, or next friend. — Infant may sue either by guardian, or next friend who is not his guardian.</p>

EeROR to Circuit Court of Madison county. Hon. E. S. Ilenry, judge. Held: that although the defendant was liable for an injury done by him, whether intentional or not, yet “ the intention is material in considering the amount of damages.” So in New Hampshire, Judge Woodbury said: “ In respect to the intention, that is not in cases of this sort a subject of inquiry, except to prevent vindictive damages.

Hon. John Watts, judge. Appellee filed his bill in the Chancery Court at Jackson, against appellant, to redeem certain slaves, which were alleged to have been mortgaged by appellee to appellant.

Hon. George T. Swann, judge. contended, That the contract is executory; no cotton was seen or sold; it is a mere executory contract by Hamblin for the future delivery of nine bales of cotton ; bence, no title passed. The rule in sncli cases is, that the absolute risk is with the vendor.

Hon. John Watts, judge. The action is founded on a promissory note, of which the following is a copy: $1800.00 December 30, 1859. On the first day of February next I promise to pay James T. Dozier or order eighteen hundred dollars for value received. ' JohN G. Lee. The declaration is in the usual form. At the May Term of the court, 1860, defendant Lee pleaded the general issue.

Hon. John E. McNair, chancellor. The facts of the case are stated in the opinion of the court.' contended, 1. That the circumstances under which the partnership articles were signed, give them the character of terms on which a partnership is to be formed in future. 2.

<p>EeeoR to the Circuit Court of Iiemper county. Hon. H. W. Poote, judge.</p> <p>cited Hwrit v. Chambers, 1 Zabriskie (N. J.), 623; 2 lb. 556, and note; Fox v. Hambivrgh, Cowp. 245 (450); Lacld v. BilUngs, 15 Mass. 18; 12 Pick. 324; 15 Pick. 11; 21 Miss. 829.</p>

<p>1. Swamp land commissioner: duties and liabilities op. — The commissioners appointed under the act of 16th March, 1862, for the sale of the swamp and overflowed lands in the State of Mississippi, are bound to appropriate the proceeds, arising from the sale of said lands, to the general purpose of leveeing and draining swamp and overflowed lands. The purpose is general and for the public good; and an individual, who is the purchaser of swamp and overflowed lands, cannot recover from the commissioner damages for a failure to have his particular land drained and leveed, or the amount expended by him for draining and leveeing the said land.</p> <p>2. Public oppicers: liability op, to private individuals por omissions op public duty. — Public officers are liable for omissions or breaches of public duty, involving private injury, and at the suit of the party injured. 13 S. & M. 394; 4 McCord, 36; 9 Johns. 384, 385.</p>

EbboR to Chancery Court of Newton county. Hon. John Watts, judge. contended, That the demurrer to the bill should have been sustained. There are no circumstances alleged showing why the vendor could not sue at law on the notes, and collect them in that way. It is not alleged that the vendee is insolvent. This, or some other reason, was necessary.

Hon. E. G-. Henry, judge. 1. That a return of “ executed ” was not sufficient on a summons in chancery. The execution of original process is the same in the Chancery as in the Circuit Court. Rev. Code, page 544, article 27, page 489, article 64. It has been settled by this court, that the sheriff must show how he has served the process. 37 Miss. 438; 38 Miss. 544. 2. That the decree should have directed a sale of only portion of the land.

<p>Ebeoe to the Circuit Court of Tallahatchie county. Hon. Wm. Cothran, judge.</p>

Arpeal from tlie Special Court of Equity at Jackson. Hon. Geo. T. Swann, judge. Appellant filed his bill in tlie Special Court of Equity at Jackson, to recover of appellee twenty-seven bales of cotton. Tbe bill charges tbat tbe cotton was purchased on tbe 17th day of March, 1865, part of wbicb cotton, about ten bales, was in tlie lint, and tlie balance in tbe seed. That appellee estimated the cottpn at thirty bales, but was to retain one for his own use.

<p>1. Fraud : fraudulent conveyance. — A conveyance made with intent to hinder, delay, and defraud creditors, is void.</p> <p>2. Statute of frauds: bona fide purchaser: conveyance to secure preexisting debt. — A conveyance of property to secure a preexisting debt, does not make the party, for whose benefit the conveyance is made, a bond, fide purchaser, as defined by the 3d article of Statute of Frauds.</p> <p>3. Principal and agent: trustee and cestui que trust: notice to agent and trustee. — Where a trustee has notice of the fraudulent intent with which a grantor executed the deed of conveyance, wherein he is trustee, and who acted in the matter by agreement between the grantor and cestui que trust, notice to the trustee is notice to the cestui que trust.</p>

<p>Eeeoe to tbe Chancery Q^urt of Monroe county. Hon. Joel M. Acker, judge.</p> <p>cited Derrrmlt v. Strong, 4 Johns. Ob. R. 688, 691; Fowler v. McGortney, 2L Miss. R. 509 ; 30 Miss. R. 489, 490.</p>

Hon. Joba Watts, judge. Tbe nature of tbe action, and tbe evidence, will be found in tbe opinion of tbe court.

Hon. Wm. Cothran, chancellor. The facts of the case are fully stated in the opinion of the court. The argument of counsel too lengthy for insertion.

lion. James F. Trotter, judge. contended, 1. That process from the chancery courts must be executed in the same manner as like process from the circuit courts. Rev. Code, 544, article 2t. 2. That the sheriff is required to return all process with a ■written statement of his proceedings thereon. Rev. Code, 489, articles 63, 64. 3. That the return as to Thornton was defective.

<p>1. Chancery: pleadings: alterations on. — No alteration can be made in any pleading, or other matter, that has become a record of the court, without the sanction of a previous order, or a rule of court authorizing- it, or without special leave. 1 Barbour’s, Oh. Pr. 209; 1 Daniels, Cb. Pr. 468.</p> <p>2. Chancery : pleading : amendment on. — Amendments of pleadings are in the discretion of the court, and allowed with great liberality, until the proofs are closed, except in cases where the bill is upon oath.</p> <p>3. Chancery: pleading: amendment. — Amendment of pleadings, made without leave of the court and acquiesced in by the opposite party, cannot be objected to on the final hearing of the cause.</p> <p>4. Chancery: practice and pleading: amendments, how made. — Amendments of pleadings should be made on application for leave to amend, accompanied with the proposed amendment.</p> <p>5. Chancery : practice and pleading : when cause not ready for piñal hearing as to all parties. — A cause, which is not ready for final hearing as to all the parties, should be remanded to rules, until prepared for final hearing.</p>

Hon. George T. Swann, judge. . That tlie Special Court of Equity bad sueb jurisdiction as pertains to courts of equity generally, in matters of personal property, and no more. 2. That the contract of March 12, 1864, constituted and established a partnership between tlie parties; and this contract was tbe foundation of tlie proceeding in tbe court .below.

Hon. E. G. Henry, judge. , contended, 1. That appellees were not bona fide purchasers. The testimony of Holes, and the circumstance attendant upon the sale, and conduct of appellees in secreting and running off the slaves, show that they had notice of the title of appellant. If a party has notice before he has paid the whole purchase money, he cannot claim as a bona, fide purchaser. Wormley v. Wormley, 8 Wheat. R. 149, 450; Tommlle v. Hadsh, 3 P. Williams’ R. 301.

<p>1. Chancery pleading and practice : demurrer and answer to same bill. — It is a general rule of chancery pleading, that an answer will overrule.a demurrer, where both extend to the same matters in the bill; where the matters to which they severally refer are different and distinct, the answer is not a waiver of the demurrer. 1 Story’s Eq. PI., section 442.</p>

<p>Error to tbe Circuit Court of Smitb county. Hon. E. G. Henry, judge.</p>

Hon. John W. Thompson, judge. contended, 1. That a commissioner for the State of Mississippi, resident in the State of Tennessee, was not an officer authorized to administer oaths in attachment cases. That an affidavit for an attachment can be made alone before the officers enumerated in the attachment law. Rev. Code, 372, article 2. 2. That the Code requires that the officer before whom the affidavit is made shall issue the writ. Rev. Code, 372, 373. 3.

<p>Ajppeal from tbe Chancery Court of Yazoo county. Hon. E. G. Henry, judge.</p>

Lion. A. Peterson, judge. Tbe facts of the case will be found in tlie opinion of the court.

<p>1. Executors and administrators : interest, how calculated. — It is erroneous ■for executors and administrators to charge themselves with the interest on all sums received, and to credit themselves with the interest on sums paid out, the interest being calculated to the date of final settlement.</p> <p>2. Executors and administrators: entitled to credit for interest raid. — An executor or administrator is entitled to credit for amount actually paid as interest on debts against the estate.</p> <p>3. Executors and administrators, statute oe limitations. — Executors and administrators are not entitled to credit for claims paid by them, that were barred by the statute of limitations anterior to the grant of administration. Byrd v. WeUs.</p> <p>4. Executors and administrators: confederate money. — Executors and administrators are entitled to credit for Confederate money received by them on account of sales of personal property made by order of the Probate Court during the war, and which they retained in their hands until after the surrender, for the purpose of paying the taxes of the estate for the year 1865.</p> <p>6. Executors and administrators : confederate money and confederate BONDS: VALIDITY OF ACT OF 2d AUGUST, 1861, AUTHORIZING INVESTMENTS by trustees. — The act of the legislature of August 2, 1861, authorizing executors and administrators and other trustees to invest money or effects, liable to t>e invested at interest, in bonds or treasury notes issued since the 9th of January, 1861, by authority of the State of Mississippi or Confeclerate States, was, at the time of its passage, a valid and binding law: and for investments so made, executors, administrators, and other trustees will be entitled to credit.</p> <p>6. EXECUTORS AND ADMINISTRATORS : WHEN AND HOW LIABLE FOE KENT OF LAND.— Executors and administrators are not liable for the rent of land, cultivatedby them with the assent of the heirs, and without an order of the Probate Court. If worked without the consent of the heirs, and without an order of court, they are not amenable therefor to the Probate Court, but liable, if at all, to the heirs' to whom the lands descended upon the death of the ancestor.</p> <p>1. Probate court : power to compel administrator to make returns conformable to the views OF the court. — The Probate Court has no power to compel an administrator to conform his returns, made under oath, to the views of the court. It is the administrator’s duty to make returns, and the duty of the court to judge their effect.</p>

<p>1. Executors and 'administrators : statute op limitations : payment op claims barred. — Executors and administrators cannot revive a cause of action, which was barred by the statute of limitations at the time of the death of the decedeftt, or at the time of their qualification.</p> <p>2. Same : same : same : payment when claim not barred at death op decedent. — Executors and administrators will be allowed credit for money paid on debts against the estate, which debts were, at the time of payment, barred by the statute of limitations, but not at the time of their appointment.</p> <p>3. Same : allowance for amount paid por labor to cultivate farm. — When executors or administrators hire labor for the purpose of carrying on the plantation of their testator or intestate, and account for the crops raised, they will be allowed credit for amount paid for such labor.</p> <p>4. Same : right of exception to final account by remainderman or reversioner. — Where property is devised to the widow of testator for her life, and at her death to his children, the children, during the life of the widow, cannot except to an allowance to the executor on behalf of, and affecting alone, the life interest.</p>

<p>1. Dower: lands sold by husband during- coverture. — By the laws of this State the widow is not entitled to dower in lands conveyed, during the coverture, in good faith and for a valuable consideration, by the husband.</p> <p>2. Dower: when lands sold eor a valuable consideration, so as to bar dower —The provision of the statute, which requires a valuable consideration in order to support a conveyance affecting the wife’s right of dower, contemplates that the husband is to acquire property or means in which the wife may have a benefit in lieu of the right conveyed.</p> <p>3. Same : Case in judgment. — The husband during coverture executed a deed of gift of certain lands to his son. Subsequently, in consideration of the exchange of the lands before given to the son, and of other lands of little value, the father conveyed to the son other lands, the deed reciting a consideration of $16,000. Held — That the widow was entitled to dower in the lands conveyed to the son.</p> <p>4. Same : want cot good faith : oase in judgment. — The husband and wife separated in a state of alienated affection, and he afterwards conveys all of his real estate, not previously given to one of his sons, to his children by his first marriage, and by his will gave to the wife $10, and to his two children by her certain other property, upon condition that the wife should relinquish her right of dower in his estate; and exchanged lands of much value with his son for lands of little value previously given him. Held — That these, coupled with other circumstances in reference to the secrecy of the conveyance from the father to the son, and the continued possession of the father, were evidences of want of, good faith in the exchange of lands between father and son, and that the widow was entitled to dower in the lands.</p> <p>5. Dower : statute in reference to : how construed. — The statute authorizing a conveyance by the husband to operate as a bar of dower, is in derogation of the common law rights of the widow, and should receive such a construction as would confine the husband’s power of alienation to the limitation specified in the statute.</p> <p>6. dower: conveyance by husband, if made under circumstances of suspicion, PARTY CLAIMING UNDER, MUST SHOW GOOD FAITH AND VALUABLE CONSIDERATION.— If the conveyance of lands by the husband is shown to be made under circumstances of suspicion, it is incumbent on the party claiming under the conveyance and adversely to the widow’s right of dower, to remove such suspicion, and to show that the conveyance was made in good faith and for a valuable consideration.</p> <p>1. Dower: widow entitled to dwelling-house if manifest injustice not done to children. — The widow is entitled to have allotted to her as dower the dwelling-house, and the improvements attached to it, of her deceased husband, unless it appears that such an allotment would be manifestly unjust to the children.</p> <p>8. Dower : probate court, , jurisdiction of, to allot dower as against a stranger to the estate of the husband. — The Probate Court has jurisdiction to' allot to the widow dower in lands, claimed by a stranger to the estate of her husband, but not to order possession of the lands so allotted.</p>

lion. Alexander M. Clayton, judge. contended, 1. That the bill was for the settlement of an administrator’s account, and of such matters the Probate Court has exclusive jurisdiction. 2 How. Miss. 856; 3 lb. 252; 7 lb. 314; 6 S. & M. 194; 24 Miss. R. 87.. 2. That there must be a settlement of the administration account in the Probate Corn’t, before the relative rights of the parties can be ascertained. Ratliff v. JDmis, 38 Miss.

Hon. ~W. A. Tucker, judge. Tbe will of Tbomas Brandon is as follows : WILL. In tbe name of God, Amen.

<p>1. EXECUTORS AND ADMINISTRATORS: BINAD SETTLEMENT WHEN DECREED. — As a general rule, a final settlement of an estate should not be required until the estate has been fully administered by payment of the debts and the collection of the assets.</p> <p>2. Executors and administrators : einal settlement when estate not bully administered. — The final settlement of an estate will be decreed, when an executor or administrator lias rendered himself chargeable with the assets of the estate as cash by his fraud or neglect, or when creditors, distributees, or legatees, agree and offer to receive the assets of the estate in their existing condition.</p> <p>3. Executors and administrators: devastavit: final settlement before debts are paid. — Executors and administrators are liable for a devastavit, if they finally settle and make distribution of an estate, without paying the debts duly probated, and those of which they had notice.</p> <p>4. Executors and administrators: distribution after lapse of twelve months, how obtained. — After the expiration of twelve months from the grant of administration, the distributees may compel distribution of any balance of money or other assets in the hands of the administrator, not required for the immediate exigencies of the estate, by the execution of proper refunding bonds.</p> <p>6. Executors and administrators: final settlement: distribution when DEBTS NOT due AND LIABILITIES CONTINGENT. — A final settlement will Dot be decreed, when an estate is owing debts not yet due, and there are contingent liabilities hanging over it. In such a case, a distribution will be ordered upon the execution of proper refunding bonds by the distributees.</p>

Hon. Joseph Drake, judge. contended, 1. That it was manifestly the intention of Jefferson Pate that his wife should participate with his children in the inheritance under the will of his father. This intention is deduced from the language of the will, and the circumstances surrounding the testator. 2. That this intention must be carried out, unless there be some rule of law against it.

Hon. R. N. Hall, judge. contended, 1. That the guardian should not be charged with interest. Reynolds v. Walher, 29 Miss. 290. 2. That the principle on which the coru’t acted in expunging the balances from the accounts, is not prescribed by the statute, Rev. Code, 462, article 150, and would, in many cases, render guardianships impracticable. The court below proceeded on the idea that each year’s income, whether in hand or not, must meet each year’s expenses of tb^J^ard.

Hon. W. A. Tucker, judge. Tbe will of M. B. Bucbanan is in substance as follows : First. Tliat bis executors shall dispose of such property as they deem best for tbe payment of debts. Second. Special legacies of slaves to certain of bis children, to make them equal with other children who have received advancements. Third. That Lucetha Love, daughter of Emily Love, the child of testator, shall have a small negro, worth about five hundred dollars. Fourth.

Hon. J. A. P. Campbell, judge. presented tbe following points: On tbe death of an ancestor intestate, seized of an estate of inheritance, bis lands immediately descend to bis heirs, with tbe right of entry and possession. 2 Black. Com. 208, 210; 1 Tnck. Com., book 2, 187, 188; 4 Kent’s Com. 374, 375; 3 Cruise’s Digest, 362, 363 ; 2 Comyn’s Digest, title Descent, 0.

Hon. Pobert Bowman, judge. contended, 1. That the guardian was not liable for interest, and cited Hendricks v. Huddleston, 5 S. & M. 422 ; Austi/n v. Lamarr, 23 Miss. R. 189, 193 ; Reynolds v. Walker, 29 Miss. R. 250. ■ 2. That there was no proof showing that the notes, with which the guardian was charged in the court below, were payable to the guardian or collected by him, and that the charge was erroneous. Reynolds v. Walker, 29 Miss.

<p>Appeal from the Probate Court of Rankin county. Hon. J. W. McMaster, judge.</p> <p>cited Rev. Code, page 461, article 145; Foster v. Bislamd, 23 Miss. R. 296 ; Rice v. Smith, 37 Miss. R. 644.</p>

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

Hon. John Watts, judge. Appellant filed bis bill in tbe court below against appellee, alleging that on tbe 17th clay of October, 1861, be conveyed to appellee an estate for ninety-nine years, from tbe 3d day of March, 1833, in certain lots of land situated in the town of Brandon; that appellee, in consideration of said sale, executed to him bis three several promissory notes, by which be agreed to pay on tbe 1st of October, 1861, and 1862, and 1863, $1,000 in middling…

<p>1. VENDOR and vendee. — A purchaser of land, in possession nnder a deed containing covenants of warranty, oannot avoid the payment of notes given for the purchase, by setting up an outstanding title in a stranger.</p> <p>2. Vendor and vendee: representations by vendor that he has good title: effect of. — The representations by a vendor, that he has a good title to the land conveyed, is no more than is stated in a more solemn form when he executes a deed with covenants of warranty; and such representations, when there is an outstanding title, will not enable a vendee, in possession under a deed with covenants of warranty, to avoid the payment of the notes given for the purchase of the land.</p> <p>3. Promissory notes : payable to bearer. — In a suit by the holder of a note, payable to bearer, no defense existing between the original parties can be set up in bar of a recovery, unless it he shown that the plaintiff is the holder of the note without valuable consideration, or with notice, actual or constructive, of the equities existing between the original parties.</p> <p>4. Promissory notes: holder of, presumed to be bona fide and for value.— The holder of a promissory note is primd facie a bond fide holder, and for value.</p>

<p>1. Trusts and trustees : resulting-trusts: evidence to establish. — To establish, a resulting trust, where one employs the money of another in the purchase of real estate, and where there is no valid agreement to purchase the property with the trust-money, it is necessary to show that the money, at the time of the purchase, was the fund of the party claiming it, and that it was used in the purchase of the property.</p> <p>2. Same: oase in judgment. — whore money was loaned by the wife to her husband, to.be paid, principal and interest, or invested in real estate for the use of the wife, and the husband subsequently promised verbally to purchase real estate to the amount of money received by Mm, and take the title in the name of the wife. Afterwards the husband purchased certain lands, which he was enabled to make alone through the money received from his wife, and took the title in his own name. Held — That these allegations were not sufficient to establish a resulting trust in favor of the wife, or her heirs, in the lands purchased; and that the special promise did not create an express trust, because not in writing. •</p> <p>3. Trusts: statute oe erauds. — A promise or agreement to create an express trust must be in writing; only implied trusts are excepted from the operation of the statute of frauds.</p> <p>4. Trusts and trustees: husband and wife : husband trustee eorwiee. — The statute, Eev. Code, page 336, article 24, which makes the husband trustee for the wife, if he purchase property in his own name with her money, applies to cases where the husband purchases property in his own name with the money of the wife, and without her consent.</p>

<p>EeboR to tlie Circuit Court of Iiincls county. Hon. John "Watts, judge.</p> <p>The opinion of the pourt recites the facts of the case.</p>