Volume 41 — Mississippi Reports

Hon. R. M. Nelson, special judge. Appellants, as the next of kin of D. H. Parker, deceased, filed their petition at the February term, 1864, of the Probate Court of… Held: that as the writer had returned before his death, the paper could not be admitted to probate as a will. A person going to Ireland provided by will, that if he died before, his return, certain directions were to be followed, legacies bequeathed, &c. He went to Ireland, returned, and afterwards died.

<p>1. Statutes : construction of. — General words in a statute are not to he so construed as to give it an effect beyond the legislative power, and thereby render the statute unconstitutional.</p> <p>2. Franchise : ferry license across the miss, river : power of the STATE TO GRANT. — The act of Congress for the admission of the State of Mississippi into the Union, which declares “ that the Mississippi river shall be a common highway, and forever free to the citizens of the United States, without any tax, duty, impost, or toll therefor imposed by this State,” does not interfere with the police power of the State to grant ferry licenses across the river. Fanning v. Qregoine, 16 How. 534 •</p> <p>3. Same : power to establish and regulate ferries belongs to the STATES and NOT to CONGRESS. — The power to establish and regulate ferries belongs to the States, and is not included in that grant of power to the Federal Government “to regulate commerce with foreign nations and among the several States, and with the Indian tribes.” Conway v. Taylor, 1 Black, 604</p>

Hon. M. M. Cooper, judge. Wallace Henderson, in his last will and testament, bequeathed certain slaves to H. P. Herndon. Lawson E. Henderson was the executor of the will of Wallace Henderson,, and the guardian of I). P. Herndon. Lawson F. Henderson dies intestate, and Jefferson Love was appointed his administrator.

<p>1. Master and apprentice : probate court : power to apprentice orphan ereedmen. — It is not competent for the Probate Court, under the act of 22 November, 1805, to order the clerk to apprentice an orphan freedman without his presence and without notice to him.</p> <p>2. Same : same : same. — It is not necessary under the act of 22 November, 1865, that a Guardian ad litem should he appointed for a freed minor.</p> <p>8. Yalidity oe judgments, orders and decrees : notice indispensable. — The principle is universal, that no judgment, order or decree is valid or binding on a party who has had no notice of such proceeding against him. The court must not only have jurisdiction of the subject-matter, but also of the person; and it is notin the power of the legislature, under our Constitution, to dispense with this notice, either actual or constructive.</p>

<p>1. Statute oe limitations: adverse possession. — Where the declaration in an action of ejectment does not show that the defendant was in possession of the land, the character of that possession and the length of time for which enjoyed, the question of the bar of the Statute of Limitations on account of the adverse possession cannot be raised by a demurrer to the declaration.</p>

<p>1. The amendment to the Constitution of the State of Mississippi in reference to the High Court of Errors and Appeals adopted by the Convention of 1865, requires that two terms of the court shaE be holden each year for the dispatch of business from aE parts of the State, and under this amendment, the legislature has the power to increase the number of terms and to direct at what places they shall be held, but not to divide up the business and parcel it out so as to reduce the terms of the court, in efiect, to one in each year.</p> <p>2. The act of the legislature, approved February21st, 3867, and entitled ‘‘An act to provide for the holding of the High Court of Errors and Appeals of the State of Mississippi, and for other purposes,” so far as it might be construed to restrict the juMdioti.011 of the court at each term to the cases arising in the counties composing the district in which the court may for the time be holding its sessions, is unwarranted by the constitutional amendment of 1865, and the court wiE at each term provided by said act of the legislature dispose of the business from the State at large.</p> <p>8. AE writs of error, appeals and process of every description after the 1st Monday of April, 1867, must be made returnable to the next term of the court after the taking of the writ of error or appeal or issuance of the process, and to the place where said term may be held.</p>

J. M. Acker, judge. 1. That the deeds of Mobley were void on their face; and cited numerous authorities. The point raised was not considered by the court, and the argument is not inserted. 2. That the record from the Court of Ordinary in South Carolina, was improperly admitted as evidence. Stewart v. Suanrey, 23 Miss. R. 505. 3. That the death of Mobley did not vitiate the judgment rendered afterwards.

Hon. Wm. Cothran, judge. The substance of the testimony adduced on the trial in the court below is as follows : John H. Cocke, plaintiff, testified that — He met defendant in Oakland, 11th of January, 1866, and asked him about paying his debt; defendant replied, “ it was no use to talk about it; he was broke and could not pay it.” Witness asked, “what had he done with the land?” Defendant replied, “ he was owing his son George, and had made a deed of it to his son’s wife.”…

<p>1. Attachment : justice oe the peace : levy on real estate. — An attachment, issued, by and returnable before a justice of the peace, cannot be levied on real estate.</p>

<p>1. Evidence : rules oe : power oe legislatup.e to change. — The legislature has the power to change the rules of evidence, and to adopt new rules, so as to affect past and future rights of action.</p> <p>2. Statute oe limitations : new promise. — A new promise made according to the requirements of the statute of limitations of 1844, and before the adoption of the statute of 1857, is sufficient to prevent the bar of the statute, though the cause of action was barred at the time of the new promise, and the action commenced after the statute of limitations of 1857 went into operation.</p> <p>3. Same: act oe limitations oe 1857, prospective. — The statute of limitations of 1857, by its very terms, does not apply to actions commenced, nor to cases where the right of action, or of entry, accrued before the act went into operation. Kev. Code, Art. 28. p. 402.</p> <p>4. Same : pleading : new promise : how pleaded. — In pleading a new promise to revive a cause of action barred by tbe statute of limitations, it is not necessary, where tbe new promise is required to be in writing, to aver that tbe promise was in writing.</p>

<p>Error to the Circuit Court of Madison county. Hon. E. G-. Henry, judge.</p>

<p>1. Evidence : action to recover contents op trunk : proop ox — In au action to recover trunk and its contents, it is not necessary to prove all the articles contained in the trunk, hut a witness may bo permitted to testify as to his general recollection of contents and its estimated value.</p> <p>2. Same : jury to weigh testimony op interested party. — The jury-are to give such weight to the testimony of an interested witness, as in view of the situation of the witness and other circumstances it may be entitled to, and it is improper to instruct the jury, that they must rely on the testimony of such interested witness.</p> <p>3. Same : case in judgment. — The court below instructed the jury, that in an action to recover the contents of a lost trunk, “plaintiff is not required to specify all the articles contained in the trunk, but may state his general recollection of contents and its value; and if the allegations of value be not disproved by other evidence, the statement must be relied on.” Held — That the first part of the instruction was correct, the latter erroneous.</p>

<p>Error to the Circuit Court of Marshall county. Hon. Jno. "W. Thompson, judge.</p>

ITon. Joel M. Acker, chancellor. On the 16th day of October, 1858, the appellee filed his bill in the court below, as the administrator of Caroline M. Goree, in which he alleged that on the 8th day of September, 1854, John Nelson, the father of said Caroline (who was the wife of Robert T. Goree), made a deed, conveying to his daughter, the said Caroline, an undivided two-thirds interest in certain lands therein mentioned, to have and to hold the same to her sole and separate…

<p>Error to the Circuit Court of Chickasaw county. Hon. ~W. H. Kilpatrick, judge.</p>

<p>1. Practice: judgments: motion to set aside under ordinance on august, 1865. — By the ordinance of the Convention, adopted August 23, 1865, any judgment rendered after the 9th of January, 1861, and prior to the date of the ordinance, may be set aside upon affidavit, that the party against whom the judgment was rendered was unavoidably absent from the court at which the judgment was rendered, and had no attorney present in court, and that the judgment is unjust.</p>

<p>1. Pleading: demurrer to plea must be disposed of before judgment ON VERDICT. — Wien a plaintiff elects to demur to a plea which he might have treated as a nullity, judgment or verdict without a disposition of the demurrer will be erroneous.</p> <p>2. High court : will not notice objections, not made in the court below. — This court will not inquire into errors of the court below, or notice objections to its action which the record fails to show.</p>

<p>Error to tbe Circuit Court of Yalobusha county. Hon. William Cothran, judge.</p> <p>The facts appear in the opinion of the court.</p>

<p>Error to Circuit Court of Smith county. lion. E. Gr. Henry, judge.</p>

<p>1. Evidence : contract, rescission op. — Extracts from the letters of a party which show his refusal to rescind a contract, and notice to the opposite party that the property is held at his risk and expense, are admissible as evidence for the party writing the letters.</p> <p>2. Pleading and practice : bill op exceptions : instructions to JURY, when A PART OP the record. — Instructions to the jury constitute a part of the record when marked “given or refused by the detrk" or they may be made part of the record by the bill of exceptions.</p> <p>3. Personal property : conditional sales. — If personal property is sold on a credit, with a warranty of soundness, and if unsound to be returned to the seller within a few days, and the property is returned as unsound, when the contrary is the fact, and the seller refuses to receive the same, the purchaser is liable for the price agreed to he paid.</p> <p>4. Same : sale op. — Where personal property is sold on a credit and warranted sound, with no stipulation to return the same, and the purchaser returns the property as unsound, when the contrary is the fact, and the seller refuses to receive the same, the return of the property does not divest the title of the purchaser, or exonerate him from liability to pay.</p> <p>5. Same : sale op : duty op seller, when property returned contrary to contract op sale. — Where personal property sold is returned to the seller contrary to the contract of sale, it is his duty to notify the purchaser that the property is held as his, and at his risk, and if the purchaser omits to take charge of the same within a reasonable time after such notice, the seller has the right to dispose of the property, and credit the purchaser with the amount of the sale.</p> <p>6. Verdict : when set aside by high court op errors and appeals.— When the verdict of a jury is manifestly wrong, it will be set aside by the High Court of Errors and Appeals.</p>

<p>1. Replevin : defence. — Proof that the property sued for was purchased by defendant for valuable consideration, and without notice of fraud practised by his vendor, competent, and constitutes a good defence to an action of replevin by original owner.</p> <p>2. Same: title: fraud. — A purchaser of goods for a valuable consideration from one who has obtained title, by fraud, is protected if he had no knowledge of such fraud. Story on Sales, 159.</p>

<p>1. Married women : contracts of. — As a general rule, a married woman can make no contract, and her promises are piimd faeie void.</p> <p>2. Pleading: plea of coverture. — It is not necessary that a plea of coverture should negative all the facts and circumstances, the existence of which would render a contract binding upon a married woman; such facts and circumstances should be alleged in the declaration, or presented by replication.</p> <p>3. Pleading: written instruments. — A written instrument should be set out in the pleadings by proper averments; the insertion of a copy is not pleading.</p> <p>4 Pleading and practice : action of court upon overruling demurrer to PLEA. — When a demurrer to a plea is overruled, it is not the duty of the court to require the plaintiff to reply to the plea, nor even to offer him leave to do so ; if he desires to reply, he should ask permission of the court.</p>

Hon. W. H. Kilpatrick, chancellor. 1. That the petition of the wife does not allege a separation. This is fatal to it. 2 Bright’s Husband and Wife, 5, 6, 7, 8, 9 ; 2 Kent’s Com. 133. 2. That the refusal of the court to hear testimony as to the pecuniary condition of the wife was error. 2 Bright’s Husband and Wife, 359, 360. 3. That by the statute of Miss., alimony pendente lite is not allowed.

<p>Appeal from the Probate Court of De Soto county. Hon. J. B. Morgan, judge.</p> <p>1. That articles of separation entered into between husband and wife, the latter contracting through the intervention of a trustee, are binding upon both,- Carter v. Carter, 14 S. & M. 61; Clancy’s Husband and "Wife,.399,400,401,402; Holies v. Hiell, 1 Cok i Ross v. Willoughby, 1-0'trice,"2; 2 East, 283; 1 Car. 36; 3 Bing. 349; 2 Barn. & Ores. 54; 3 Porter’s Ala. B. 614; Bishop on Marriage and Divorce, 614; Hutton v. Hutton, 3 Barr. (Penn.) R. 100.</p> <p>2. That the policy of onr courts and statutes has been to extend and enlarge the powers of the wife and her capacity to contract with her husband. Ma/ngum v. Fermucane, 38 Miss. R.; Allen v. Mrles & Adams, 36 Miss. R. 640.</p> <p>3. That the legislature has no power to exempt property from debts already contracted, the very property exempted being that upon the faith of which the credit was given.</p> <p>1. That the deed of separation as to appellee is a nullity; she never acknowledged it. Garrison v. Fisher, 26 Miss. R.</p> <p>2. That if a trustee is a necessary party to a ■ deed of separation (and the authorities all hold this), then some proof is necessary that he also signed, sealed, and delivered the deed. This was nowhere done.</p> <p>3. The deed of separation recites, that it is impossible for husband and wife to live together on account of dissimilarity in tastes and dispositions ; this was not a sufficient legal reason for separation. Where the deed discloses the causes of separation, and they are not sufficient, coixrts will not uphold them. Clancy’s Husband and Wife, 623-4-5 ; Shelford on Marriage and Divorce, 31 Law Library, 371.</p> <p>4. The question of sustaining articles of separation is res integra as to this court. Courts of the highest authority have declared against them, as violative of the good morals of the country, and have only tolerated them becaxxse they were bound by precedents in their own courts. Bishop on Divorce, 3 Ev.; Shelford on Marriage and Divorce, 31 Law Library, 361-2; 2 Bos. & Pul. 107; 8 Term R. 546; 11 Yesey, 537; 2 Mer. 268; 2 Hill R. 260 ; 25 Wend. 77.</p> <p>We ax-e told that the court is already bound by a precedent in Gcvrter v. Carter, 14 S. &M. 59. That is a mistake. Thei’emax-ks of Justice Clayton, in delivering the opinion of the court, are obiter dictum. The contract in that case was merely verbal, and is declared to be a nullity. All that follows is but a simple statement of what other ¡courts have decided, and without an expression of opinion on them. We insist that this is a new question in this State, and,we insist that no new causes of divorce shall be introduced by judicial decisions, and the frightful calamities of Connecticut and Indiana be foisted on our people. -This court has expresslyl^ret'ermjtted an opinion on the subject in Mills v. Bichareis, '34 Miss. R. 77.</p> <p>5. But we insist that defendant'in error could neither make, nor be bound by, any covenants of a.-Reparation deed. Almost every reported case has been founded on the application of the wife seeking the benefit of the deed..; The husband can bind himself to the wife, as an adult may contract with an infant; but both the wife and infant m&y ávpidlthem.</p> <p>Wm. Maddox, vol. 1, p. 306,' says “ that the court has never decreed a separation between hiisbapd and wife, and compelled the husband to pay a separaté'.ínainten'ance to his wife, without some agreement for the purpose.. *. * * The wife certainly is not bound in any degree by U; deed of separation, and a specific performance could not be enforced against her.”</p> <p>■ The same doctrine was heBifa-WctUcer v. Walleer, 7 Yerg. 283.</p> <p>■The same position seems to/beheldlsy-Wm. Jacobs, in a note stated in sec. 3, eh. 8, p. 354-5, .in 2 Bright’s Husband and Wife.</p> <p>As to the second assignment/of errors, -we only reply, that the exemption law of 1865 was the law at the date of Osborne’s death. We do not insist that fkat.,law is constitutional as to pre-existing creditors, if the estate is .‘insolvent. But there is only $500 of debts, and no allegatiem or proof of insol/oency. The only allegation is, that defendant ,in error gets all the personal property. It is not even'contended that she gets all the personal assets, — the real estate is -not even alluded to.</p> <p>contended that the case of Garrisony. Fisher, 26 Miss., has .-fre'ta 'üiuch weakened, if not entirely destroyed, by the case of 'lovev. 'Taylor, 26 Miss. 567.</p> <p>That Mrs. Osborne, when examined with her husband, acknowledged that “ she signed,pealed, and delivered the deed.”</p>

<p>Error to the Circuit Court of Adams comity. lion. Iliram Cassidy, judge.</p> <p>A statement of the case, the evidence adduced, and the instructions to the jury will be found in the opinion of the court.</p>

<p>Appeal from the Chancery Court of Hinds county. Hon. John "Watts, chancellor.</p>

Hon. Joel M. Acker, judge. The substance of the pleadings will be found in the opinion of the court. Held: that it would not be permitted to a bank in Ohio to establish an agency in Virginia for discounting notes, or for carrying on any other banking operations, nor could they sustain an action on any such note acquired by them. So in Slaughter’s case, 13 Grattan, 774.

<p>1. Comity between states: construction oe statutes. — The construction of a statute by the courts of the State whose legislature enacted it, will be adopted by the courts of this State.</p> <p>2. Contracts: consideration: agreements under seal: agreement TO PAY MONEY IN CONSIDERATION OE STOCK IN AN INCORPORATED company. — A written agreement under seal imports a consideration. The purchase of shares in an incorporated company is a sufficient consideration to sustain a promise to pay a certain sum of money therefor.</p>

<p>Error to tlie Circuit Court of Marshall county. Lion. John W. Thompson, judge.</p> <p>The pleadings in the cause are set forth in the opinion of the court.</p> <p>Defendant Cummings testified that he was indebted to plaintiff $1,150 for rent of land. That James Allen, administrator of Jared S. Allen, had recovered a judgment in March, 1853, in the Circuit Court of Marshall county, for $2,0J0, against the plaintiff, as the administrator of Vm. Dye. That plaintiff agreed to release witness from his debt, if he would have the same sum credited on the judgment referred to. That this agreement is evidenced by the writing obligatory sued on. That witness procured the receipt as a credit on the judgment, and tendered it to plaintiff, who refused to accept it, on the ground that at the time it was given, James Allen was not the administrator of Jared S. Allen. That the receipt was procured at the time it bears date, 1st October, 1853, and was signed by James Allen individually, and not in his character as administrator.</p> <p>That at the August term, 1851, of Marshall Probate Court, plaintiff, as the administrator of Dye, presented his final account, to which witness, on behalf of James - Allen, administrator of Jared S. Allen, who was interested in the estate of Dye, filed numerous exceptions. That the matter of the exceptions was continued until the December term, 1856, when it was agreed between witness and plaintiff that, if the exceptions were withdrawn and a final settlement allowed, and- a certain suit pending on behalf of witness against Plaintiff in the Circuit Court was dismissed, plaintiff would accept the receipt of Allen in full satisfaction of the agreement sued on. Plaintiff stated he was anxious to make a settlement of a certain controversy with the Union Bank of Tennessee, and the dismissal of the suits was necessary to enable him to effect it.</p> <p>That witness complied with his agreement and dismissed the suits.</p> <p>Plaintiff Byrne testified — That the suit against him in favor of Cummings was paid off, principal, interest, and cost, before it was dismissed by the defendant. That he made no agreement to release defendant from his obligation to obtain the receipt of Allen in consideration of the dismissal of the suit and the withdrawal of the exceptions. That these exceptions, he was advised by his counsel, were wholly worthless, because Allen had ceased to be administrator, and had no right to except to his final account.</p> <p>The record from the Probate Court shows that the exceptions were withdrawn.</p>

Hon. A. M. Clayton, judge. The facts of the case are set forth in the opinion of the court. 1. The court erred in not permitting witness McMillan to state what plaintiff’s testatrix said a short time before her death, as to defendant being indebted to her. The defence relied on was, that the testatrix had given defendant the debt, if she never needed the money. As proved, the gift was conditional and qualified, unexecuted and invalid in law.

Hon. Win. Cothran, judge. Tbe action in tbe court below was founded on tbe following bill of exchange : “ Exchange for $840.50. “ Graysport, Miss., June 5, 1854. “Eight months after date of tbis my first of exchange (second unpaid), pay to tbe order of Hilary Talbert, eight hundred and forty and JA dollars. Yalue received. “E. E. Willis. “ To McRae, Coffman & Co., New Orleans, La.” ) Accepted. McRae, Coffman & Co. 4 Endorsed. Hilary Talbert. Endorsed.

Hon. Jno. Watts, judge. 1. That the third and fourth instructions to the jury, given at the instance of defendant in error, were instructions as to the weight of evidence, and therefore erroneous. Rev. Code, 504, art. 161. 2. That the first and second instructions asked by plaintiffs in error were improperly refused.

Hon. Wm. Cothran, judge. The declaration is in the following words: “ The said plaintiff by attorney complains of the said defendant of a plea of trespass.

Hon. ¥m. Cothran, judge. contended that the bond sued oil was not a part of the record or declaration for want of proferí and oyer, and not being marked filed; that the bill single and the fragment of proceedings on it in the Circuit Court, although made exhibits to the declaration, do not thereby become parts of it or of the record / that the general demurrer should hdve been overruled as to the second and third pleas, because the bond sued on, not having been approved and…

<p>1. Corporations: municipal and private: responsibility eor tortious acts OE agents. — Municipal corporations, as a general rule, are not, like private corporations, responsible for the tortious acts of their agents, and especially is this so where the agents have been appointed by the corporation in obedience to statutory regulations, and where their duties are prescribed by law, with penalties for non-performance.</p> <p>2. Same : municipal : agents responsible to third persons. — The agents of municipal corporations, when appointed in obedience to statutory regulations, are, as a general rule, alone responsible to third persons for the non-performance of any duty imposed by law. The duty of the corporation is to appoint the agent, and when that duty is performed in good faith and according to law, their responsibility ends.</p> <p>3. Boards oe county police : municipal corporations : duties oe.— The boards of county police of this State are, in certain respects, municipal corporations, and charged with the duty of making provision for the building of bridges, and making of roads and for keeping them in repair.</p> <p>4. Same : overseers oe roads : responsibility eor not keeping roads in repair. — Overseers of the road, and not the boards of county police, are responsible to third persons for any damage that may result from a failure to keep the roads in repair.</p> <p>5. Same : responsibility eor not keeping bridges in repair. — A party, who has contracted with the board of police of the county to keep a bridge in repair for a certain period of time, is alone responsible to the public for a failure to comply with his undertaking.</p> <p>6. Same : suits against, eor just’ claim against county. — Art. 34 Bev. Code, 419, authorizes any person having a just claim against the county, which the hoard of police may refuse to allow, to bring suit against the board. It is questionable whether this provision of the law contemplates a demand against the county for unliquidated damages founded on a tort.</p>

Hon. Joel M. Acker, Judge. The facts of the case sufficiently appear from the opinion.

Hon. J. A. P. Campbell, judge. 1. A levy on personal property changes the property, and is a satisfaction of the execution to the extent of the value. A levy is presumed to be a sufficient one. 5 How. (Miss.), 629; 7 ib. 393; 34 Miss. 293; 24 Miss. 633; 14 S. & M. 56; 23 Wend. 490. 2.

<p>1. Pleading : action on special agreement : special and common counts. — "Where the plaintiff declares on a special agreement, and also files the common counts, and on the trial proves a different special contract from that alleged, he cannot recover on the special count because of the variance, nor on the common counts, because a special agreement has been proven.</p> <p>2. Statute of frauds : lease for a longer term than one year to be IN WRITING. — A contract for the lease of lands for a longer period than one year is void by the Statute of Frauds, if not in writing.</p>

Error; to the Chancery Court of Yalobusha county. Hon. William Cothran, chancellor. The facts sufficiently appear in the opinion of the court.

Hon. A. M. Clayton, chancellor. Griffing was the holder of the legal title to the lands in controversy, being a trustee without any interest whatever. The claim of the defendants is based upon a judgment rendered by attachment against Griffing. The bill enjoined the sale of the lands under the judgment, and the legal title had been conveyed by Griffing to complainant anterior to the levy of the attachment.

Lion. Hiram Cassidy, chancellor. 1. That it was error for tbe court to decree a sale for notes not due at the time of the filing of the bill. It is a general principle that no cause of action can be maintained, or judgment or decree rendered, for a cause of action not existing at the time of commencement of the suit.

<p>Error to Probate Court of Monroe county. Hon. Thomas H. Davis, judge.</p>

Hon. Thomas A. Falconer, judge. On the 2d November, 1865, appellant presented the will of Peter McQueen for probate, in the Probate Court of Marshall county.

Hon. ~W. H. Kilpatrick, judge. In January, 1857, Bradford purchased from Jenkins a plantation in Choctaw county, mules, corn, farming implements, and one hundred and thirteen slaves, for the sum of $122,000; in the purchase the slaves were estimated at $93,000, the land at $22,000, and the mules, etc., at $7,000. A deed in fee simple was executed by Jenkins for the land, and a bill of sale for the slaves, who are warranted to be slaves for life.

<p>Error to the Circuit Court of Chipkasaw county. Hon. W. IT. Kilpatrick, judge.</p>

<p>1. Instructions to jury: must be relevant to the testimony. — An instruction to the jury, which has no relevancy to the testimony adduced on the trial, is erroneous.</p> <p>3. Same : must not assume a fact not proven. — Instructions to the jury should not assume the existence of facts not established by the testimony.</p> <p>3. Principal and agent: dissent of principal to unauthorized act, "when AND TO WHOM communicated. — The principal, when he is informed of the unauthorized act of his agent, is bound to repudiate the act and to communicate his dissent at as early a period as possible under the circumstances, to the party whom he intends to hold accountable.</p> <p>4. Same : case in judgment. — Bums deposited with Cratin for safe keeping the note of Kelley. In 1863, while Bums was absent from the State in the army, Kelley, by fraudulent representations induced Cratin to receive payment of the note in “ cotton money.” Bums heard of the transaction in 1861, when the facts were hurriedly communicated to him, and when his stay at home was limited to a day. In July, 1865, Brans communicated to Kelley his dissent to the receipt of the “ cotton money,” and from the conversation that passed, it appeared that Kelley had heard of the dissatisfaction before. Held — In an action by Bums to recover of Kelley the value of the note, that, under the circumstances of the case, the dissent of Bums was communicated at as early a period as was reasonably possible.</p> <p>5. Same: same: ratification, circumstances from which presumed.— The principal is not bound to express his dissatisfaction with the unauthorized act of his agent at the time the agent informs him of it, in order to entitle him to his action against the party dealing with the agent, nor is his failure to do so, a circumstance from which the jury are authorized to infer a ratification of the unauthorized act.</p> <p>6. Same : unauthorized act when binding. — The act of an agent, who exceeds his authority, is not binding on the principal, if he within a reasonable time express his dissatisfaction, and never voluntarily assents to or approves what was done.</p>

<p>1'. Replevin : may be brought in the name of one for the use of another. — The action of replevin may be brought in the name of one party for the use of another ; it may be prosecuted in the name of the party holding the legal title, in his own name, but as trustee for another who may be entitled to the avails of the suit. This may appear in the pleadings, and the cestui que trust be not a party to the suit. Pede v. Ingraham, <& Pdd, 28 Mss. R. 246, 266.</p> <p>2. Same : when action brought for the use, the judgment should BE AGAINST THE PARTY IN WHOSE NAME SUIT IS BROUGHT, AND NOT AGAINST BENEFICIARY. — A judgment for the defendant in an action of replevin, where the suit is brought in the name of a party for the use of another, should be against the real plaintiff and not against the beneficiary, the usee in the action.</p> <p>3. Same: writ of inquiry how executed. — In an action of replevin, where the plaintiff who has given bond for the forthcoming of the property makes default, and a writ of inquiry is awarded, the jury in executing the writ should not only .assess the damages sustained by the defendant, but also the value of the property replevied.</p> <p>4. Same : form of judgment against plaintiff who has replevied the property. — In an action of replevin, a judgment against the plaintiff, who has given bond for the forthcoming of the property in controversy, should be against him and the securities, on his replevin bond that they restore the property to the defendant or pay him the value thereof as assessed by the jury, and also the damages assessed for the wrongful suing out of the writ.</p>

Hon. John Watts, judge. Willis sued Moody to recover $1,000 alleged to be due by special contract. Moody, besides other pleas, pleaded that plaintiff was indebted to him in the sum of $2500, for which he claimed a judgment over.

Hon. J. A. P. Campbell, judge McKay brought an action of trover against plaintiffs in error to recover six bales of cotton which they had illegally converted to their own use-. McKay claimed title by purchase from Mrs. Boles in 1863. After the surrender in 1865, Mrs. Boles, being-advised by her son-in-law, Jno. S. Robinson, that she could hold the cotton, gave him the management of it.

<p>1. Measure oe damages for the taking and detention of personal property. — In actions for the taking and detention of personal property, where no question of fraud, malice, oppression, or wilful wrong, either in the taking or detention, intervenes, the measure of damages is the value'of the property at the time of the taking or conversion or illegal detention, with interest thereon to the time of trial. Whitfield v. Whitfield, 40 Miss', ft.</p> <p>2. Same: where malioe, fraud, oppression, or wilful wrong. — Where the trespass, detention, or conversion is attended by circumstances of fraud, oppression, or wilful wrong, the measure of damages becomes a matter for the consideration of the jury, guided by the evidence before them. Whitfield v. Whitfield, 40 Miss. R.</p> <p>3. Measure of damages for .breach of contract to deliver personal property when purchase-money paid. — The measure of damages in an action of assumpsit for a failure to deliver personal property where the purchase-money was paid in advance of the time appointed for the delivery, is the value of the property at the time of the delivery, with interest thereon to the time of trial.</p>

Hon. W. H. Kilpatrick, judge. The following proposition is at this time generally regarded as beyond controversy.

Hon. William H. Sims, judge. Wyatt Moye was tbe executor of the last will and testament of Moses Westbrook. The will directed that the estate, real and personal, be sold by tbe executor, and tbe proceeds equally divided amongst tbe three sons of testator, Charles, Titus, and Moses. Wyatt Moye was appointed their testamentary guardian. After tbe estate of Moses Westbrook was finally settled Moye qualified as guardian. The guardianship of Charles was finally settled in 1859.

<p>Error to the Probate Court of Carroll county. Hon. J. S. Johnson, judge.</p>

Hon. S. W. Smythe, judge. Frazier and wife filed their petition in the court below, in January,1867, alleging that the wife was a distributee of the estate' of Samuel Murff, deceased ; that her interest was one-sixth of the estate. That letters of administration had been granted to appellees in 1860, who immediately after sold all the personal property for the sum of six thousand four hundred and ninety-three dollars.

<p>1. Probate court : jurisdiction oh : proceedings by a eather to recover possession oe his child. — The Probate Court has no jurisdiction of proceedings by a father to recover possession of a child, alleged to be wrongfully withheld from his custody.</p>

<p>1. Evidence : admissibility op parol to explain or contradict written instruments. — Written instruments, including records, cannot be contradicted or explained by parol testimony.</p> <p>2. Guardian and ward : conclusiveness op final and annual accounts : cannot contradict by parol. — Where the final or annual account of a guardian states the balance against him in dollars and cents, he cannot impeach or contradict it by proof that the balance stated was money collected in the depreciated issues of broken or suspended banks, or in Confederate money, or that the same was at the time invested in Confederate bonds. Bailey v. DBnmrih, 10 S. & M. 404.</p> <p>3. Same : annual accounts may be corrected in cases op mistake and inadvertence. — The annual accounts of guardians are final and conclusive against them in the court where rendered, and can only be set aside by due course of procedure. Inaccuracies in such accounts arising from sheer inadvertence or oversight, or from palpable mistake or miscalculation, may, in proper eases, be corrected. 33 Miss. 553 ; 35 ib. 540; Grwrvp v. GerocJi, 40 ib.</p> <p>4. Same : same. — Where a guardian in his annual accounts has repeatedly stated the balance due his ward in dollars and cents, he will not be permitted to show by parol testimony that such balances were in Confederate treasury notes or in Confederate bonds, and especially after the circumstances of the country had wholly changed, and'the Confederate notes and bonds had become entirely worthless.</p> <p>5. Probate court : practice : exceptions to accounts. — It is the duty of the Probate Court to cause an account to be restated by a commissioner or otherwise, where exceptions to the same have been sustained and a correction decreed with which the guardian does not comply.</p>

<p>1. Executors acto administrators : power to lease lands, and to WORK, OR LEASE AND HIRE, EXISTING FARMS, WITH STOCK, ETC. — Under the act of the legislature of Nov. 23, 1865, pamphlet acts of 1865, 140, 141, executors and administrators are not authorized to lease or cultivate the waste or wild lands of the estate, but to work, or lease and hire, existing farms, with the mules, farming utensils, &e., on them, when beneficial to all parties.</p>

Appear from tbe Circuit Court of Noxubee county. Hon. H. W. Foote, judge. 1. That the statute which authorizes an appeal from tbe boards of police to tbe Circuit Court, declares “ that the judgment of tbe Circuit Court shall be final. Code, 419, art. 33. ‘2. An appeal is a proceeding unknown to the common law, and cannot be extended beyond tbe plain and obvious import of the statute granting it. . Street v. Francis, 3 Hammond, 277; 14 Mass. 420; 7 Pick. 321. 3.

Hon. James M. Smiley, judge. The action was commenced in September, 1861. Defendant Hinds pleaded in abatement at the October term, 1861. A demurrer was filed to this plea in September, 1866. Defendants McGinty and Burch demurred to the declaration in September, 1866. A statement of the case will be found in the opinion of the court.

Hon. Win. Cothran, judge. The distinction must be borne in mind, in construing title bonds and promises to pay the purchase-money, as to whether the obligation to convey and the promise to pay be… Held: that though the covenant be independent, yet if the vendee tender the purchase-money and demand a title, if the vendor be unable to make it he cannot recover. See also Pegues v. Mosby, and Feemstev v. May.t stopra.

ILon. H. W. Foote, chancellor. Appellants, in 1866, filed their bill against Lockhart and wife, Moody, and the heirs of Joseph B. Cobb. The bill states that Billups and Clayton, as administrators of J. B. Cobb, petitioned the Probate Court of Lowndes county for a decree to sell the lands of their intestate. That, in order to pay debts, it was necessary to sell lands or personal property; and the sale of the lands would best promote the interest of all parties.

Hon. James M. Smiley, chancellor. An abstract of the pleadings will be found in the opinion of the court. No testimony was taken in the cause. 1. That the payment of the money of the wife towards the purchase of the land gave her an interest in proportion that the amount paid bears to the purchase-money. 4 Kent, 301 to 310; 2 Maddox, 113 ; 2 Sugden on Vendors, 152 ; 1 Equity Cases, 380; 2 Story’s Equity J. 1201; Adams’ Equity, 165 ; 1 Johns.

Hon. John E. McNair, chancellor: 1. That the lien of the vendor is not affected by taking the note of the vendee payable in specific articles. Plowman v. Pidclle, U Ala. R. 196. 2.'The taking of security is a waiver of the lien unless otherwise expressly stipulated. ■ Way v. Patty, 1 Carter, Ind. 102.

JELoii. IT. W. Foote, judge. The suit was for the recovery of the value of three bales of cotton. The declaration is in the common form against a common carrier, for the non-delivery of the cotton at the place of destination. The evidence to sustain the action was a written contract containing the following stipulation: “West Point Station, Nov. 3,1865.

John Watts, chancellor, on exchange of circuits with Hon. W. H. Eoote, chancellor of sixth judicial district. Defendant in error filed his bill for the purpose of enforcing the vendor’s lien. Process was returned properly served.

' lion. J. A. P. Campbell, chancellor. Drane filed bis bill of complaint for tbe purposes of enjoining tbe sale of certain lands under a trust deed executed by Drane to Winter, to secure tbe payment of a loan of money from Mary R. Fort.

<p>1. Chancery courts: jurisdiction to remove clouds prom title limited, And does not draw to it incidental powers op the COURT. — The jurisdiction to remove clouds, doubts, and suspicions from over the title of the true owner of real estate, conferred by. art. 8, p. 541, of Rev. Code, upon the Chancery Court, is special and limited, and does not, as an incident to this jurisdiction, authorize the court to assume control of the entire controversy in relation to the title to the land, the right of possession, and the rents, issues, and profits. •</p> <p>2. Husband and wipe : deed op married woman void, unless made JOINTLY WITH HER HUSBAND : MAY MAKE SEPARATE RELINQUISHMENT OP dower. — A deed conveying the separate property of the wife, executed ' by her alone, is void. A married woman may separately relinquish her right of dower.</p> <p>8. Vendor and vendee : party in possession op real estate under VOID DEED HAS NO COLOR OP TITLE, AND IS TENANT OP OWNER. — A party in possession of real estate under a void deed does not occupy the position of one in the adverse possession of real estate, but is the tenant, at will or by sufferance, of his vendor, and cannot, either in law or equity, dispute the title of his landlord, and is estopped from setting up title in himself or claiming title under another. 24 Miss. R. 272 ; 38 ib. 389.</p> <p>4. Tender : legal tender notes : value op confederate money, HOW estimated. — By the decision of the Supreme Court of the United States, “legal tender notes ” are a legal tender, and in determining the value • of “ Confederate money ” it should be compared with legal tender notes and not with specie.</p> <p>5. Chancery jurisdiction to remove clouds : delivery op possession: account por rents: case in judgment. — P., a married woman, by her separate deed^conyeyed real estate to E., who paid for the same in Confederate money. P. and her husband filed their bill to cancel the deed as a cloud upon their title, for a recovery of the possession of the property and an account of the rents. Held — That the deed was void and should be cancelled, but that the Court of Chancery had no jurisdiction to decree an account for rent or a delivery of the possession of the property.</p>

<p>1. Widow : right op, to personal property exempt from execution. —Personal property exempt from execution is no part of the estate subject to administration, but descends directly to the widow. WMtley v. Stevenson, 38 Miss. B. 115.</p> <p>3. Same: same: duty to set apart, and remedy of widow. — It is not the administrator’s duty to have the personal property exempt from execution or the year’s allowance set apart to the widow; it is made by statute the duty of the appraisers, and if they fail, the widow may obtain relief in the Probate Court.</p> <p>3. Same : same : report op appraisers, when confirmed, conclusive upon the rights op THE widow. — The report of the appraisers setting apart the personal property exempt from execution and the year’s allowance, when confirmed by the Probate Court, is conclusive upon the rights of the parties, and the widow cannot taire what is allotted to her by the report, and institute a new proceeding for the residue of her claim.</p> <p>4. Revivor when action pending against administrator. — A proceeding commenced in the Probate Court by the widow against the administrator of her deceased husband, to have set apart the personalty exempt from execution and the year’s allowance, upon the death of the administrator, is not to be revived against his representatives, but against the administrator de bonis of the husband.</p>

<p>1. Husband and wine : husband may convey directly to wine : rights on creditors. — Art. S3, page 336, of Bev. Code, authorizes couveyauces to be made directly by tbe husband to the wife for her own use, subject only, as in all other cases, to the rights of creditors.</p> <p>3. Same: effect of act of February 19, 1867, upon right of husband to make conveyance directly to wife, and upon conveyances already made. — The act of the legislature of 19th February, 1867, Pamphlet acts, 1867, § 5, page 737, repeals so much of art. 33, page 336, of Bev. Code, as authorizes conveyances to be made directly by the husband to the wife, and restores the law to the footing on which it stood before the adoption of the Bevised Code. The repeal of the law cannot have the effect to invalidate a conveyance executed before its passage.</p>

Hon. H. W. Foote, judge. The action was brought by defendant in error upon a promissory note made by one Lockhart on the 1st of January, ■1862, and due one day after date, to Baskervijle & Whitfield, and by them endorsed in blank to Harris on the 24th of June, 1862. The action was brought against Lockhart as maker, and Baskerville & Whitfield as endorsers. Baskerville testified that the note was given for goods purchased by Lockhart in the years 1860 and 1861.

Hon. John E. McNair, judge. cited Rev. Code, 361, art. 1. That the declaration makes a concise statement of the grounds of complaint; the indebtedness of Crawford is for goods sold and delivered, and files as an evidence of indebtedness his promissory note executed therefor. This is the same as a count for goods sold or money lent; under this count, where the note is void, because tainted with illegality, the plaintiff may recover on a count for goods sold or money lent.

<p>1. Evidence not material to the issue, inadmissible. — The issue of the liability of a party to pay a note given as an endowment to an institution of learning, is not affected by the application of the funds collected by the trustees, and evidence of such application is inadmissible.</p> <p>2. Failure oe consideration : evidence to rebut. — When the maker of a note, given as an endowment fund to an institutibn of learning, pleads failure of consideration and introduces testimony tending to show that the institution had “ gone down,” it is competent for the payee of the note to show that the trustees contemplated reorganizing and carrying on the institution in its full exercises, when they were enabled by means collected from the subscribers.</p> <p>3. Promissory notes: failure of consideration resulting from maker’s default. — A party cannot take advantage of his ovm wrong, and the maker of a promissory note cannot set up as a defence thereto, a failure of consideration which has resulted from his failure and refusal to comply with his part of the agreement.</p> <p>4. Instructions to jury : assumption of fact not prejudicial to opposite party. — A charge to the jury, which assumes a fact not prejudicial to the opposite party, and one which is well established by the testimony, is not improper.</p> <p>5. Principal and agent : representations of agent when not binding. — The representations of an agent, when made without authority, or when contradicted by the express terms of the written contract made at the time of the representations, are not binding on the principal.</p> <p>6. Same : same. — The principal is not bound by an agent’s representations, which are so manifestly absurd that it would be scarcely possible that any one would be deceived by, or rely on them. 36 JCss.- 573.</p> <p>7. Same : same : matters of opinion. — The agent cannot bind his principal in mere matters of opinion.</p>

<p>Error to the County Court of Carroll county. Hon. James S. Johnston, judge.</p>

<p>Error to the Circuit Court of Noxubee county. Hon. IT. W. Eoote, judge.</p> <p>cited 1. How. (Miss.) 273 ; 2 S. &. M. 541; 27 Miss. R. 473 ; 4 How. (Miss.) 113.</p>

<p>1. Process: return “duly executed.” — A return of “duly executed” upon a summons is insufficient, and a judgment by default taken upon suck a return is erroneous.</p> <p>2. Circuit court : actions not local where brought. — All civil actions must be commenced in the Circuit Court of tbe county in which the defendants, or any of them, may be found, except where otherwise provided by statute. Rev. Code. 483, art. 32.</p> <p>3. Same : same : effect of a dissmissal when none of defendants FOUND IN THE COUNTY WHERE SUIT IS BROUGHT. — When an action is commenced against several defendants none of whom are found in the county in which the suit is brought, but duplicate writs for other defendants found in other counties, are returned properly executed, the dimissal of the suit as to the defendants in the county where the suit is brought, and upon whom process has not been executed, will oust the court of its jurisdiction of the cause.</p>

<p>Error to the Circuit Court of Tishamingo county. Hon. "W. H. Kilpatrick, judge.</p>

<p>Error to the Circuit Court óf Panola county. Hon. Alex. M. Clayton, judge.</p> <p>cited Rev. Code, 374, art. 7; 489, art. 63-4; Merritt v. White, 37 Miss. 438; Drake on Attachment, §§ 211 to 219.</p>

Hon. W. H. Foote, judge. Suit was instituted by defendant in error against Benjamin Bradford, John D. Bradford, and the executors of W. H. Duke, on a title bond executed by Benjamin Bradford, John H. Bradford, and W. H. Duke. Process was duly served and pleas filed by all the defendants. Pending the suit, Jobn D. Bradford died, and the snit was revived against Joseph Billups, his administrator. 1.

Hon. ¥m. Cothran, judge. contended that • the sale was absolutely void; that the excuse for the failure to return was sufficient, and that it was contrary to the public policy of the State and of the United States to enforce any contract growing out of the right to hold slaves. contended that the defective return of the service of the citations did not render the sale void, and that the same could not be collaterally impeached.

<p>Error to the Circuit Court of Adams county. Hon. James M. Smiley, judge.</p>

<p>Error to the Circuit Court of Hinds county. Hon. Jno. Watts, judge.</p> <p>cited Pussell v. McBougaTl, 3 S. & M. 247-8; Boon v. Boon, 8 ib. 318; Ralph v. Prester, 28 Miss. R: 744.</p> <p>cited 23 Miss. R. 750; 6 Term R. 8; 1 Caines R. 9; 9 Johns. R. 526; 19 ib. 245; 3 Cowan, 49.</p>

Hon. John Watts, judge. The facts of the case are fully stated in the opinion of the .court. ) The contract between the parties was a written one. The promissory note sued on, and the bill of sale of the slave for . which the note was given, both being in writing, constitute the whole contract.

ELon. Wm. Cothran, chancellor. The error complained of in this case is, that the chancellor sustained the demurrer of the defendants, and dismissed the bill filed by the plaintiffs in error. Held: that in parol sales of land, “ evidence of a verbal contract will be rejected unless, being taken altogether, it makes out a ease to stand as an exception to the statute ” (of Frauds).

lion. Alexander M. Clayton, judge. Crump & Co sued out an attachment against Wooten on the ground “ tbat be was about to assign Ms property witb intent to defraud Ms creditors, or give an unfair preference to some of them.” Tbe action was founded on a promissory note, of wMcb tbe following is a copy:— Nov. 8, 1862. One day after date we promise to pay Crump & Co. twenty-four hundred dollars, value received, bearing interest, &c. K. G. Martin, J. W. Wooten.

Hon. James M. Smiley, judge. The opinion of the court states the history of the case. Suit was brought by Hoffman and wife to recover on sundry notes deriving title as bearer. Wren pleaded that the debt for which the note was given was the debt of his ward, and that he then had no assets of his ward, nor did any afterwards come to his hands; and that the note was not to be paid unless there were assets on hand, or to come to hand. To this plea a demurrer was sustained.

Hou. John Watts, judge. Í. That the'courts • of Mississippi had no jurisdiction of an attachment sued out by and against residents of other States. Hosey v. Eerrier, 1 S. & M. 661. The present Code does not extend' the remedy by attachment to non-residents against non-residents! - It is against the policy of Mississippi for her éourts-tobe'the* forum for the settlement of controversies between citizens of other States. 2.

Hon. William M. Hancock, judge. The first judgment referred to in the opinion of the court, was rendered on the 19th of April, 1866. The writ of replevin was issued on the 9th of April, 1866, and made returnable to the 3d Monday in April next. The opinion of the court states the facts. 1. There was no service of process on Petit. Revised Code, 489, article 64. 2.

<p>Error to tbe Circuit Court of Marshall county. Hon. Alexander M. Clayton, judge.</p> <p>cited "Wright v. Robinson, 34 Miss. 116.</p> <p>cited Simpson v. Bowden, 23 Miss. 524; Dunlap v. Edwards, 29 ib. 41.</p>

Hon. W. I). Bradford, judge. A statement of the case will be found in the brief of counsel for plaintiff in error. This was an action of assumpsit, on open account for services as overseer rendered by intestate, husband of defendant in error, in his lifetime to Nelson, administrator of C. N. Goree, deceased: It appears by the record that summons was issued November 16, 1866, and executed on Nelson same day. On December 14, 1866, plaintiff Rogers filed her declaration.

<p>1. Writs or error : appeal : in whose name prosecuted. — Writs of error and appeals from the judgments of courts of law must he sued out in the name of all the parties against whom the judgment is rendered, and one party may sue out the writ of error and take the appeal in the name of all without first obtaining their consent.</p> <p>3. Summons and severance. — When a writ of error is sued out, or an appeal taken in the name of all the parties to the judgment in the court below, some of whom do not unite in assigning errors, and in prosecuting the suit in the High Court of Errors and Appeals, those prosecuting the suit of error or appeal may have a summons and severance as to the others.</p>

<p>Error to the Circuit Court of Carroll county. Hon. ¥m, Cothran, judge.</p>

<p>1. Appearance : recital in the record not conclusive. — A recital in the record by the clerk, in the absence of a plea that the defendants appeared by attorney, will not constitute an appearance for those not served •with process, and will not warrant a judgment against them. Pittman v. Planters' Bank, 1 How. 527; 2 S. & M. 213; 14 S. & M. 75.</p> <p>3. Same : by attorney : effect of general plea. — Whenever an appearance by attorney is entered on the record, it is always considered that it is done by the authority of the party. A plea filed by attorney will be considered as an appearance for ail the defendants, unless there is something in its language to restrict its application.</p> <p>3. Same : remedy against attorney entering an appearance without authority. — A judgment rendered upon the appearance of an attorney who acted without authority is regular. The injured party has his remedy at law against the attorney; but where he is not able to respond in damages, or where there is fraud or collusion between him and the plaintiff, a Court of Chancery will interfere and grant relief.</p>

of Panola county. Hon. Alex. M. Clayton, chancellor. cited Rev. Code, 511, articles 26-31; Gwin v. Williams, 27 Miss. R. 332; Pittman That the substance of the assignment is that no process was ever issued or served upon the defendants; that no appearance was entered for them; that their signatm/res to the answer filed was not proven/ and that, therefore, they never were legally before the court, and hence the decree is void.

Hon. Wm. Cothran, judge. Thiswas an action against Eord as owner, and Kopperl as endorser, of a bill of exchange. Kopperl appeared and pleaded, and ■withdrew his plea, and judgment by default was ordered against both defendants. The return of summons of process is in these words: “ executed as to Kopperl, 3d of Oct. 1860, by handing him a copy, and as to W. II.

<p>Error to Circuit Court of Winston county. Hon. 'll. W. Foote, judge.</p>

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

<p>1. Personalty exempt prom execution : widow entitled to, nr addition to her distributive share. — The widow of an intestate is entitled to the personalty exempt from execution, in addition to her distributive share of his estate.</p> <p>%. Same : same : duty or appraisers : title to, not dependent on their action. — It is made by statute the duty of the appraiser to set apart to the widow the personal property, exempt from execution; hut her title to the property does not depend on their action, but vests, by operation of law, without any condition, limitation, or restriction as to the right.</p> <p>3. Same: same: right to, not arreoted by her ownership or a SEPARATE ESTATE, OR THAT SHE IS WITHOUT CHILDREN, — The right of the widow to the personal property of her deceased husband, dying intestate, exempt from execution, and to a year’s allowance for her support, is not affected by the ownership of a separate estate at the time of her husband’s death, nor by the fact that she had no children.</p>

Hon. J. A. P. Campbell, judge. Plaintiff in error brought his action to recover of defendants the price agreed to be paid for two hundred bales of cotton. The contract between the parties was in writing, and is set forth in the opinion of the court. It was shown by the testimony, that the cotton was never delivered as stipulated, and that on the day the second contract was made it was burned by the Confederate forces.

Hon. Alexander M. Clayton, judge. Harris, in the County Court of Panola county, brought an action of unlawful detainer against Lester to recover possession of certain lots in the town of Panola. A verdict was rendered in favor of Lester. Harris appealed to the Circuit Court, and there the case was tried “ de novo ” on its merits, and a verdict returned in his favor. Lester, as far as the record shows, did not insist upon a trial on the record of the County Court.

Hon. Wm. Cothran, judge. •That the action was not founded in tort will clearly appear from an inspection of the declaration. A special contract to carry a passenger and his baggage is clearly alleged, and to establish this'contract and its breach, the proof was directed. Nothing in the nature of a tort was either charged or proven.

On motion for a transfer of this cause to the clerk’s office at Macon, and for a trial of the same at the next term, to be held at Macon.

Hon. John Watts, judge. On the 30th of January, 1866, Kelly sued out an attachment against the estate of Baker, upon the ground that Baker was about to remove himself out of the State of Mississippi. The allegation was traversed under the statute, issue joined, and a verdict thereon in favor of Kelly.

Hon. R. N. Hall, judge. The act of 1857, under which this estate was administered, directs, that when an estate is shown to be insolvent, the clerk of the court (who is ex officio a general commissioner in insolvency) shall give notice for six months, requiring creditors to “ come forward, amd home thei/r olañms duly probated and registered in the registry Icept by the clerh,” and furthermore provides that any creditor who does not do so, shall lose his claim.

<p>1. Chancery pleading: demurrer to bill charging fraud. — Where the statement of facts in a bill charging fraud, are not sufficient to justify a Court of Equity in granting relief, the charge of fraud need not be answered, and in such a case it is proper to demur.</p> <p>3. Fraud: waited by new engagement respecting original contract. —If a party with knowledge that he has been defrauded, makes new engagements respecting the original contract and affirms it, he thereby waives the fraud, and is not entitled bo equitable relief.</p> <p>3. Rescission of contract : party asking rescission must place the OTHER IN POSITION OCCUPIED BEFORE CONTRACT MADE--Before a party can demand a rescission of a contract he should offer to refund the money he may have received, and to place the other party in the position he occupied before making of the contract.</p>

Hon. Jno. Watts, chancellor. Where the bill charges fraud, and the denial in the answer is not positive, but inferential only, the injunction will not be dissolved. Roberts v. Anderson, 2 Johns. Ch. Rep. 204; Nichols v. Wilson, ib. 115. A denial from information and belief not sufficient. Apthorpe v. Oomstock, Hopkins, 140; Ward v. Yan Bokkelen, 1 Paige, 100.

Hon. Wm. M. Hancock, judge. Taylor and Myers brought their action to recover the price of a quantity of lumber sold to one McCaughn, as the agent of J. R. Conner. The suit was commenced by attachment, which was levied on a schooner, the property of the defendant, who replevied the 'property and pleaded “ non assumpsit ” to the declaration. With the plea of non assumpsit was filed a notice of certain special matters that would be introduced as evidence on the trial.

Hon. W. D. Bradford, judge. That the statute requires that all civil actions shall be commenced in tbe Circuit Court of the county in which the defendants or some one or more of them may be fownd, except where otherwise provided, &c. See Revised Code, page 483, art. 32. This is not one of the excepted cases.