Volume 42 — Mississippi Reports

Vm. Cotlrran, judge. On the 11th of January, 1858, A. O. Winn and wife executed the following conveyance to W. N. Scales and wife : — “ This indenture, made and entered into this, the 11th of… Held: ■that a capacity to take all is not a capacity to take half.

William Cothran, chancellor. Appellee, on the 20th day of January, 1860, sold to. one G. B. Davis certain lots of land in the town of McNutt, and took his promissory notes to secure the purchase-money, and executed and delivered a deed of conveyance with covenants of general warranty, which - recites that the purchase-money was paid. The deed from appellee to Davis was duly recorded in the Probate Clerk’s office of Sunflower county.

Hon. James M. Smiley, chancellor. Appellees filed their bill against appellant,- praying for a perpetual injunction against the sale of certain real estate in the city of Natchez, levied upon as the property of one Forbes, by execution emanating from a judgment in favor of appellant.

Eebor to tlie Circuit Court of Madison county. lion. J. A. P. Campbell, judge. Jacob Backraclc sued W. II. Held: until peace is made between said government and the parent government with which the de facto government is then at war, and in which the de facto government is destroyed and abolished by the parent government, in the terms of capitulation and surrender, made by the victor (as was the case in the'present instance), the law will not…

<p>1. Fixtures: now determined. —In determining whether a chattel is so annexed to the freehold as to become a fixture, reference must be had to the nature of the chattel itself, the position of the party placing it where found, the probable intention in putting it there, the injury that would result from its removal, and the object of the party in placing it on the premises with reference to trade, agriculture, or ornament.</p> <p>2. Same : between vendor and vendee, mortgagor and mortgagee, executor and heir, landlord and tenant. — As between vendor and vendee, mortgagor and mortgagee, executor and heir, all things which are necessary to the full and free enjoyment of the freehold, and which ar sin any way attached to it, are held to be fixtures. As between landlord and tenant, the rule is much more liberal in favor of the tenant.</p> <p>8. Same: gin-stands.— Gin-stands annexed to the freehold, as gin-stands usually are, are fixtures, and pass with a sale of the realty.</p>

<p>1. Powers : construction op intention op parties to govern. —In. the construction of powers, the intention of the parties, if compatible with law, must govern: the intention is to be determined from the instrument creating the power.</p> <p>2. Trust and trustees : appointment op a new trustee. — The power authorizing the appointment of a new trustee should plainly express the conditions on which a new trustee may be appointed, and should embrace every event that would render'such appointment necessary.</p> <p>3. Same : under what circumstances new trustee mat be appointed. — The appointment of a new trustee under a power cannot be made unless the terms of the power distinctly authorize it in the particular event which may have occurred.</p> <p>4. Same : case in judgment. —Deed oí trust from W. to C., for the benefit of P., authorized the cestui-qua trust to appoint a new trustee in the event of the refusal or neglect of the trustee to execute the trust. 0., the trustee, died without executing the trust. Udd — That the death of C. did not authorize the cestui-gue to appoint a new trustee, and that one could be appointed only by a court of chancery.</p> <p>8. Chancery practice : on motion to dissolve injunction upon dill AND ANSWER, BILL CANNOT BE DISMISSED UNTIL FIVE MONTHS AFTER ANSWER filed. — On sustaining a motion to dissolve an injunction where the answer denies the statements of the bill, it is improper to dismiss the bill until five months after answer filed, during which period, parties are allowed ' to take testimony.</p>

Hon. ¥m. Cothran, chancellor. P. H. Thornton, on the 5th of February, 1861, made a written agreement with B. W., H. T. and T. A. Cocke, to exchange lands. The terms of the written agreement were, that the Cockes were to convey to Thornton, their tract of land on Honey Island.

ITon. James M. Smiley, judge. Defendant in error sued plaintiff in error, as the administra- tor of Calcóte, to recover the value of labor clone and performed for the firm of Calcóte & Hitcbings. Tbe administrator of Calcóte resisted payment on tbe ground, that, by tbe terms of tbe partnership between Calcóte and Hitcbings, Hitcbings was to furnish all tbe labor; and that this was known to Williams.

<p>Error to the Circuit Court of Leaké county. Hon. Wm. Hancock, judge.</p> <p>Defendant in error sued to recover from plaintiff in error the value of five bales of cotton. The declaration sets out the written contract referred to in the opinion of the court. The plaintiff in error pleaded: 1st. Non assumpsit. 2d. That the contract sued on contemplated payment in Confederate money, which, at thé time, was worth thirty to one, as compared with gold coin or United States currency. 3d. That the cotton was wholly destroyed without the neglect of plaintiff in error. 4th. That the consideration of the contract for the sale of the cotton was Confederate money, illegally issued, and therefore void. The 2d, 3d, and 4th pleas were, demurred to. The demurrer to the 2d and 4th was sustained, and to the 3d plea confessed. Jury and verdict against plaintiff in error for three-hundred dollars. Writ of error to this court.</p>

Hon. A. M. Clayton, judge. The action was founded upon a promissory made by plaintiff in error, and Pobert Hardie, on the 15th of May, 1859, due the first day of January after date, to intestate of defendants in in error, “ bearing twelve and a half per cent interest from date as per contract.” The declaration describes the note, and “ demands judgment for the amount of the note with legal interest” The plaintiff in error appeared and pleaded the general issue, which was…

Hon; John Watts, chancellor. This cause is presented to this court on the original bill of appellant, and amended and supplemental bill, and the demurrer of appellees, and the order of the court below, sustaining the demurrer and dismissing the bills. The original bill states: That appellant was county treasurer of La Fayette county.

Hon. Wm. Hancock, judge. P. M. Eskridge sued out, on the 7th day of December, A.D. 1865, attachments against Israel L. Pickens, on the ground that he was about to remove himself out of the State. The causes of action were founded upon three promissory notes made February 17,1863, and one of which was not due until the first of January, 1866.

<p>Error to tbe Circuit Court of Holmes county. Hon. J. A. Campbell, judge.</p> <p>Kobinson & Daniel brought tbeir action of ejectment against Micajab Frazer, to recover six hundred, and eighty acres of land in Holmes county. Frazer appeared and pleaded “not guilty,” in manner and form required by the statute.</p> <p>On the ti'ial of the issue, Robinson & Daniel offered as evidence a deed from Micajab Frazer to themselves for the land in controversy, executed and aclcnowleged by Frazer on the 9th day of February, A.D. 1865. This deed recites a consideration •of twenty-two thousand dollars in Confederate money paid. It was filed for record on the 19th May, A.D. 1865, and recorded the same day. After the certificate of the Probate Cleric that the deed was filed for record and recorded, appears the following : “ On the 23d day of January, 1866, Jno. W. Robinson appeared before me and made the necessary affidavit, presented the proper stamps, and requested that the foregoing deed should be stamped. I do, on the date aforesaid, affix the proper stamps to said deed, and hereby remit the penalty of $50, as authorized by the statute. F. S. Hunt, Col. 2 Dist. Miss.”</p> <p>On the margin of the foregoing certificate appears two revenue stamps, one for one dollar, the other for fifty cents, can-celled, “ F. S. IT., January 23d,-1866.” Counsel for Frazer objected to this deed as evidence, 1st, Because the consideration shown was Confederate money; 2d, Because the stamps are not on the deed, but on the cleric’s certificate; and, 3d, Because the stamps are not sufficient in amount. The objection was overruled by the court, the deed admitted, and counsel for Frazer excepted.</p> <p>IT. C. Daniel, one of the plaintiffs, testified — That after the purchase of the land, he, in behalf of himself and Robinson, made a verbal contract with Frazer for the lease of the lands for the balance of the year 1865, Frazer agreeing to pay therefor one tenth of the crop.</p> <p>Testimony was introduced, showing the value of the rent of the land from the 1st of January, 1866, to the time of trial, to be one thousand dollars. This was all the testimony in the cause. The only instruction aslced will be found in the opinion of the court. The jury returned a verdict for Robinson & Daniel for the land and rent, and after a motion for a new trial made and overruled, Frazer prosecutes a writ of error to this court. The errors assigned here are : That the court below improperly admitted the deed from Frazer to Robinson & Daniel, to be read as testimony. That the court erred in refusing the instruction asked by plaintiff in error.</p> <p>The first question presented for determination by this record is whether an executory contract of this nature, wholly founded upon the consideration of what was commonly called and known as Confederate money or “ Confederate notes,” issued during the recent war, will now be considered valid in law, and can, under any circumstances, constitute the foundation for a legal right. I insist that “Confederate notes” were issued in aid and support of the late rebellion, — were illegal and void, to all intents and purposes, — in violation of the Constitution of the United States and against public policy, and that such notes cannot constitute, or become, a valid consideration for any contract. The plaintiffs in the court below could not claim the benefit of an obligation or predicate a right of action upon an alleged expenditure of Confederate notes. This is not a suit to recover Confederate money or its value, but a right claimed to enforce a contract, void, for want of a legal and valid consideration in law. The consideration is expressed in the face of the deed, — “ Confederate notes,” which were designed and used in attempting to set up a power in opposition to the government of the United States, and to aid and support the military forces engaged therein. It may be.insisted that this contract is not void, as against public policy, unless it grows immediately out of the illegal act complained of.</p> <p>This position, I apprehend, cannot be maintained either upon principle or authority. If issuing and circulating “ Confederate notes,” in aid and support of the rebellion, against the United States, was contrary to the public policy of that government, then the deed under consideration must be held by this court void. Chitty on Cont. p. 217; The Inhabitants of Worcester v. Eaton, 11 Mass. Kep. p. 368 ; Hoover v. Pierce, 26 Miss. Hep. 627, 632.</p> <p>In the next place, the deed waá not admissible, for want both of proper stamping and an insufficient amount of stamps under the internal revenue laws of the United States.</p> <p>It is not sufficient to stamp the certificate of the Probate-Clerk, for that certificate may be removed, or attached to some other paper; but the law requires the deed itself to be stamped. Without such stamps “ it shall not be received or used as evidence in any court of law or equity.”</p> <p>The consideration named in the deed is $22,000, and yet stamps only to the amount of one dollar and fifty cents is found upon the deed. It may be said that they were placed upon the deed and cancelled by an officer of the government. He is required by law to see that the proper amount of stamps is affixed when presented to him for that purpose. He may relieve the party from the penalty by his certificate, but cannot, by the use of an insufficient amount of: stamps, make the deed admissible as evidence when without that it cannot be received. See United States Statutes of 1866-7.</p> <p>For the same reasons, the court erred in overruling motion for a new trial. The motion should have been granted.</p> <p>First on the stamp question. It was not stamped at the time it was made, 9th February, 1865, which was before the surrender ; but on the 23d January, 1866, before suit brought, this endorsement was put on it by F. S. Hunt, collector of internal revenue of the 2d District of Mississippi: “ On the 28d day of January, 1866, John W. Robinson appeared before me and made the necessary affidavit, presented the proper stamps, and requested that the foregoing deed shall be stamped. I do, on the date aforesaid, affix the proper stamps to said deed, and hereby remit the'penalty of $50, as authorized by the statute. F. S. Hunt, Col. 2 Dist. Miss.”</p> <p>With this certificate stamps were attached amounting to $1.50, cancelled by Hunt in proj>er form on said 23d January, 1866.</p> <p>The deed was thus stamped under the provisos to the 158th section of the Stamp Act, p. 9’6. It was a literal compliance with that proviso, nor is the manner of doing it objected to by Frazer.</p> <p>His objection is that these stamps and certificate were not 'put on the deed, but on the clerk’s certificate of record. It was the original deed, and that was offered. The deed and acknowledgement thereof was on one piece of paper; the certificate of record, the stamps and Hunt’s original entry, was on another piece of paper, firmly pasted to the other piece of paper. The certificate of record bears date before the act of stamping, and it certifies “ that the deed to which the certificate is attached, from Frazer to Daniel, was filed,” &c., thus showing that said certificate on which the stamps were placed was part of the deed at the time the stamps were attached, and Hunt’s certificate is “ that Bobinson requested the foregoing deed ” to be stamped, and “ I do affix the proper stamps to said deedP</p> <p>With these facts before the court, I am sure that I need not argue the question.</p> <p>But it is urged that the stamps are insufficient in amount. It will be seen that the consideration specified in the deed is Confederate notes, and therefore the nominal sum is not the standard of value, although a source of information by which to ascertain its value. But the tax law says that when the “ consideration or value does not exceed $500, fifty cents, and fifty cents for every additional $500.” Schedule B, p. 103. The value put by Hunt was then $1,500. The act requires that the collector “ shall affix the proper stamp to the instrument,” and note on the margin of the instrument the date of his so doing, and such instrument shall thereupon be as valid as if stamped when issued. These words make the collector the sole judge of what is the proper stamp. The collector is the agent of the government, and in this particular, its representative; and the Stamp Act recognizes his act as conclusive, and makes the deed valid. The court could not therefore go behind the collector’s certificate and institute an inquiry as to whether that collector had put a proper valuation on the property. The government is satisfied with it; no one else has a right to complain.</p> <p>Second. The only real question in this cause is on the Confederate money feature of the case.</p> <p>Upon the general question, I need not elaborate the argument. Attempts have frequently been made, in this court and elsewhere in the State, to establish the doctrine that contracts formed on Confederate money are void, because illegal. I am not aware that any court has gone farther than this, that executory contracts of this nature cannot be enforced through the courts. Some one or two of the circuit judges at first held that doctrine. But none have ever held that an executed contract was void. Hence, no court has ever denied a remedy on a promissory note of that character. And our convention of 1865, by authorizing a reduction on such notes, recognizes that a remedy exists on them. And this court itself, after elaborate argument and mature deliberation, has, by thoroughly matured and very able opinions, sustained these contracts, whether executory or executed. Murrell v. Jones, 10 Miss. Hep. 566; Green v. Sizer, 10 Miss. Hep. 530.</p> <p>Since these decisions, all such contracts, whether executory or executed, have been recognized as valid in every court in the State, and litigated rights have been adjudicated on the principle, perhaps, to the amount of millions. If, therefore, the voice of the convention, the decisions of this court, and the universal recognition of every court in the State, are to have any weight, or be of any authority to this court, the question is settled. It will produce confusion, injustice, litigation, and uncertainty, to unsettle a doctrine so firmly established, so universally acted on. Another year or two will end these questions ; perhaps nine out of ten of them have already been decided. Better a thousand times, that the doctrine shall, for the small remnant of these cases, remain as settled, than that all the past shall be disturbed. It is now more important that uniformity shall be preserved, than that the penal principle invoked by Frazer shall be enforced.</p> <p>But in this case, I do not think the question referred to is involved. In this case, the purchase of the land was made, and carried into effect, before the suit was brought. Bobinson & Daniel had paid the consideration. Frazer had made the deed, and as I contend, put Robinson & Daniel in possession of the property. The facts are, that after payment by Robinson & Daniel, and title made by Frazer, but while Frazer was in the actual occupancy of the land, by a distinct contract not contemplated at the time the purchase was made, Frazer rented the plantation from Eobinson & Daniel, for the balance of the year 1865, and was to give for the rent of that year one tenth of his crop. This contract of renting was not simultaneous with the purchase, but some time after it. This was equivalent to a surrender of the possession, and the acceptance of tenancy for the year. It made Frazer’s occupancy as tenant, the possession of Eohinson & Daniel as his landlord.</p> <p>The case, then, in this feature of it, is no suit to enforce the ■ contract of purchase, that has already been voluntarily executed by Frazer. It is a suit by landlords against their tenant, who unlawfully holds over after his term has expired; and without testing title, we were entitled to recover on the tenancy alone.</p> <p>But I may be asked how, under this view of the case, was Frazer’s deed admissible. Deference to the facts will show. Frazer had been in actual occupation in his own right, and under his own title for years. It was necessary for us to show that he had, in fact, become our tenant. We could not show the change of .title by parol, therefore we could not show it by Daniel’s evidence alone. To show the tenancy, therefore, it was necessary to read the deed, and prove the parol contract. When' this evidence was in, it proved correctly the facts, — one contract for the purchase, another for the tenancy,— and yet our case would not have turned on the legality of the contract of purchase, but on the question of tenancy. Let me illustrate. Suppose the contract of purchase had been made on Sunday, it was void, but the tenancy contract made afterwards, and not on Sunday, could Frazer have avoided the tenancy contract because the original purchase had been made on Sunday ? Again, suppose we had sued for the rent, and to prove the renting, had read the deed, and proved the contract of renting, would the illegality of the previous contract have avoided the contract which was legal ?</p> <p>In this case, we relied on both contracts, in fact, — upon title derived through, the contract of purchase, and upon tenancy ereated by the contract of renting: the deed was pertinent to both. If, therefore, I were to admit that it was not admissible to show title, still, it was admissible as part of the evidence, to show tenancy; and for the latter reason, if not for the former, it could not bo excluded by the court. The objection covered only one of the purposes for which it was sought to be read; the objection was therefore properly overruled, because it was admissible for the other purpose.</p> <p>Upon the evidence, Frazer asked the court to instruct the jury : That if the defendant has been in possession of the land, claiming’ it as his own from a period prior to the date of plaintiff’s deed, then the law of the case is for defendant; and they will so find if they believe the purchase-money was paid in Confederate notes (p. 17). The court refused it.</p> <p>That instruction, if given by the court, would have been equivalent to the court’s saying, that if the contract of purchase was illegal, because made for Confederate notes, the subsequent contract of renting was equally so, and plaintiff could recover on neither title nor tencmcy. I admit the proposition, that if the contract of purchase was illegal, and the contract of renting was a part of the contract of purchase, the renting part of the contract was void, although it might be true that there was no illegal consideration for the renting, if it had stood by itself. But here was a subsequent contract made after the other had been carried into effect, not made to rest on the consideration of the purchase, but disconnected from the contract of purchase, relating to a distinct obj ect; to wit, a term of rent and not to title or ownership of the land, founded on a new and wholly different consideration, to wit, a tenth of the crop, and not Confederate money. In short, a distinct and independent contract tainted with no illegality. The remedy exists on that contract, even if the prior purchase was ■ illegal. 40 Miss. Rep. 341; 6 S. M. 128; 8 ib. C38 ; 10 ib. 97; lAib. 29; 7 ib. 386.</p> <p>Again: The principle upon which courts act incases of illegal contracts, is that of strict neutrality. If it has not been executed, they will afford no remedy to execute it. If it has been executed, they will afford no remedy to rescind it.</p> <p>Now the contract of renting was not tainted with illegality, if it is permitted to stand alone in this case; our remedy against Frazer, as our tenant, unlawfully holding over after his term is expired, is undoubted; he does not deny the renting, or attack the renting contract. But he says that the previous contract of purchase was illegal, and our title deed void ; he asks the court to exonerate him from a legal contract, because of a previous illegal one. We claim the right of recovery under the legal contract. He attempts to interpose an illegal one. The-two are distinct and independent contracts. Now, if the court shall sustain him, is it not affording him a defence against a legal contract, by enabling him to interpose an illegal one ? Is it not giving him a defence to the legal contract, which he would not have but for his own previous illegal contract ? It as much gives him a remedy, as if he had filed the bill to set it aside because illegal, that no court would sustain. In other words, the court, instead of acting on strict neutrality as to the illegal contract, would make it the ground of an attack on a legal contract. The court would become a jpartisan and not a neutral on that contract.</p> <p>If, then, I were to admit the illegality of the contract of purchase, still the court properly admitted the deed, and refused the instruction, because, without testing title, we had the remedy on the contract of renting, which was in no way tainted with illegality.</p> <p>So much of the foregoing argument as relates to the renting, is useful in this case, only in the event that the court ^shall overrule its former adjudications on Confederate money contracts, or shall, without, adjudicating-that question,, conclude’that the law has been correctly administered on the tenancy contract, without reference to the other. I think the last the proper mode of deciding this- case, because I do not think that the legality of the purchase is really involved in it until the court shall decide against me on the tencmcy contract. In that event, the other question necessarily comes up for decision, and I implicitly rely upon former adjudications on that question already cited.</p>

<p>Error to tbe Circuit Court of Attalla county. Hon. J. A. P. Campbell, judge.</p> <p>Defendants in error commenced tbis suit in tbe Circuit Court of Attalla county. Declaration in usual form,' in assumpsit, filed March Term, 1867, on a promissory note, of wbicb the following is a copy: —</p> <p>“ $1000. Twelve months after date, we, or either of us, promise to pay John Winters or bearer the sum of one thousand dollars, loaned money, in gold, with interest at ten peícent per annum: this 26th day of May, 1859.</p> <p>“ Robert M. Harris.</p> <p>Ezekiel J. Reedges.</p> <p>Jesse G. Kimbrough.</p> <p>A. S. Hamilton.</p> <p>James Hubbebt.</p> <p>“ April 23d, 1862, received thirty-five dollars on the within note j July 28th, received twelve dollars.”</p> <p>The following pleas were filed, viz.:—</p> <p>1. General denial by all the defendants.</p> <p>2. Special plea, by defendants Bridges, Hamilton, and Hubbert, alleging that they signed the note sued on as sureties for their co-defendant, Harris, who was the principal debtor; that after the note became due, they, as sureties, in pursuance of the statute, gave notice to plaintiffs to sue on said note; that Harris, the principal, was then a resident of Attalla county,- that plaintiffs failed to commence such suit at the first term of the Circuit Court next succeeding said notice, which term began and was holden after, thirty days from the date of said notice; that at the time of giving this notice, Harris, the principal, owned, and had in his possession, eleven bales of cotton, worth $1,600, sufficient to discharge the note and interest; that the sureties therefore claim to be discharged; that the plaintiffs, disregarding the notice, refused to bring suit as requested, but after-wards, on the day of 1866, agreed withHarris, the principal, that he (Harris) might ship and sell his said cotton, which he did in the spring of 1866; a part of the agreement was that Harris should pay one half of the note in the spring of 1866, and the balance in the fall of same year; that these defendants’sureties objected at the time to this agreement, and so notified plaintiffs, and insisted on the cotton being subjected to the payment of the debt, stating that said Harris was in failing circumstances, and if suit was delayed, the sureties would suffer great prejudice; that suit was delayed aud not brought until the March Term, 1867, at which time Harris had become, and then was, and still is, insolvent; wherefore the sureties claim to be discharged.</p> <p>To this plea plaintiffs filed “ ^Replication and issue in short by consent.”</p> <p>8. Special plea by defendants: That “since they signed and 'delivered the note sued on, the same has been altered by interlining in the face of said note the words ‘ in gold; ’ as they conceive, a material alteration of said note, made without their consent or knowledge, and that the same so interlined is not their act and deed.”</p> <p>4. Defendants gave notice in writing that they would introduce evidence under the general issue, to prove that the note sued on was, after the signing and delivery of the same by them as sureties, changed or altered in a material point of view, — in this, that the words “ in gold ” were inserted by interlineation after it was signed and delivered, and without their knowledge or consent.</p> <p>The plaintiffs demurred to defendants’ third plea, and assigned following grounds, viz.: —</p> <p>1. That the plea was not sworn to.</p> <p>2. That the alteration complained of was not material.</p> <p>3. Dor uncertainty, informality, and defectiveness.</p> <p>This demurrer was sustained by the court at the September Term, 1867, and leave given to answer over.</p> <p>The following “ amended plea ” was filed at the same Term of court by the sureties: That the note sued on has been altered in a material part and manner since they signed and delivered the same, without their privity or consent, authority or acquiescence, by interlining the words “ in gold ” in the face of said note.</p> <p>This plea was sworn to by all the sureties.</p> <p>To this amended plea plaintiffs demurred, on the ground that the alleged alteration was immaterial, and did not affect the rights or liability of the parties thereto; that the plea was uncertain in not showing how or where the alteration was made.</p> <p>This demurrer was also sustained by the court.</p> <p>The record here shows a “second amended plea” by the sureties, filed Sept. 17, 1867, alleging that they signed the note sued on as sureties for Kobert M. Harris; that after its maturity they gave notice personally to the plaintiffs to sure, which they failed to do within thirty days after the notice.</p> <p>To this plea there is neither replication nor demurrer, and the record shows no disposition of it.</p> <p>A-trial was had on the issues joined on the first and second pleas ; the jury returned, “ We, the jury, find for the plaintiffs,” whereupon judgment was rendered by the court in favor of the plaintiffs and against defendants, for $1,783 damages, with ten per cent interest and costs.</p> <p>The alteration of the note, as alleged in the pleadings, was not controverted, and, if material, it must be accounted for. 36 Miss. 458.</p> <p>Inasmuch as gold was then more valuable than silver (in which it might have been received or paid), the alteration is material. It was rather better than paper currency then, and much better now; and as it was not explained to the court when the alteration was made, it creates a presumption the most unfavorable for the plaintiffs below, that the interlineation was made in 1864, or some other time when gold was exceedingly valuable. Moreover, if the alteration was fraudulent, whether material or immaterial, it matters not; unexplained, it avoids the instrument. 1 Greenleaf’s Ev. 750.</p> <p>It could not have been made without a motive; obviously it was not one for the benefit of the appellants, and the appellees sought advantage-by it. Of course it was fraudulent, as it was not even attempted to be proven to have been a part of the original contract.</p> <p>Contended — That the notice by sureties to the holders of the note to sue, although required by the statute to be in writing, that the statute was in this respect only directory; that it was not an indispensable prerequisite that it should be in writing; the appellees had actual notice and all the benefits that could have resulted from a written notice.</p> <p>With reference to fourth error assigned. It was erroneous: 1st. Because the verdict on which it was predicated was merely in general terms for the plaintiff, without specifying any amount; 2d. Because there was nothing in the record to authorize so large a judgment as was entered by the court, of $1,783, but on the contrary that the declaration referred to no note or bill of particulars filed therewith from which to fill up the blank verdict, even had it been right to do so; and, 3d. Because, according to the note, which seems to have been among the papers, the judgment was for $98.12 too much, the note being due twelve months after its date, without any stipulation for interest from ets date.</p> <p>The verdict of the jury was informal, erroneous, and defective, because it finds for the plaintiff, without specifying any sum, even costs, and for aught that appears, without any evidence to support it. The declaration makes profert of none, and the record does not recite that any was introduced.</p> <p>The alteration of the note sued on, even if made after its execution (of which there is no proof), was wholly immaterial, and in no way affected either the rights or liabilities of the parties thereto. The law implied a payment in gold: all notes of that date, if payable in “ dollars,” were in law payable in gold dollars. The insertion, then, of the words “ in gold ” was mere surplusage, and did not change the liability of the makers. There is no proof of any fraud, and none will be presumed in the absence of proof.</p> <p>The notice to institute suit was not such as is required by the statute. ■ See Code.</p> <p>As to the verdict: it ascertained the facts. The court then pronounced the judgment. There can be no error in this. The calculation of the amount due being upon a note, was properly made by the clerk. There is no error in the calculation.</p>

Hon. John W. Oliver, judge. Joseph Ratcliff, in 1851, in his last will and testament, made the following bequest: “ I give unto John and William one quarter section of land, my late residence, and farm;provided, however, that the children who are now living with me hold a home on said home plantation, until otherwise provided for.” The will contains a number of special bequests to the children of the ■ testator, and concludes as follows: “ All property held and claimed by…

lion. J. A. P. Campbell, judge. Charles J. Ingersoll, in 1861, filed his bill in the Chancery Court of Yazoo county, against Sarah G. Ingersoll, administratrix, and Charles J. Ingersoll, Jr., administrator of John Ingersoll, and said Charles J. Ingersoll, Jr.,William M. Ingersoll, Mary Ingersoll, Helen Ingersoll, and Caroline G. Ingersoll, heirs of John Ingersoll (the last two named being infants), to foreclose certain mortgages executed by John Ingersoll and wife.

<p>1. Guardian and ward: probate court: jurisdiction oyer minors. • — ■ The Probate Court, before the constitutional amendment of 1865, had no power to appoint a guardian to a minor whose father was living; and all subsequent proceedings, relating to such appointment or the accounting of such guardian, are coram non, judice, and void.</p> <p>3. Same : responsibility oe guardian whose appointment is yoid. — A guardian, whose appointment is a'nullity, cau be made responsible in tho proper form for the property of the infant which has come into his hands, and for the management of his estate.</p>

<p>1. Probate court : jurisdiction, exercise or. — When the jurisdiction of the Probate Court has attached to a case, with all the parties in interest before it, and the subject-matter properly cognizable by it, the court should so exercise its powers as to settle all questions in controversy, if practicable, and not force litigants to other tribunals for remedies, when their rights are clearly apparent. Courts should endeavor to discourage litigation and circuity of action, by maldng their judgments and decrees as comprehensive and conclusive as the facts and law of the case will warrant.</p> <p>2. Same : case in judgment. —Q. D. Gibbs and Elizabeth D. West qualified as administrator and administratrix of the estate of James It. West, deceased; pending the administration, Q. D. Gibbs died. Washington D. Gibbs, his administrator, filed an account in the Probate Court of Yazoo county for the final settlement of the administration of Q. D. Gibbs; this account showed a large balance to his credit. Exceptions wore filed to various items in the account; some were sustained, others overruled; the final account was restated by a commissioner under direction of the court, showing a balance of $35,313.68 due the administrator. The proof showed a large outstanding debt against the administrator in favor of factors, for money and supplies to carry on the farm of .the estate, and that this debt was substantially the same as one of the vouchers excepted to, and that it had been paid by the surviving administratrix after the death of Q. D. Gibbs. Held— That the Probate Court should have sustained the exception to this item, and charged the administrator with the amount thereof; that it was unnecessary and improper to force the distributees to another court to secure their rights.</p>

. Error to tbe Circuit Court of Hinds county. Hon. John Watts, judge. ■ Defendants in error sued out an attachment against plaintiff in error, on the ground that she was a non-resident of tlio State of Mississippi. Elea in abatement traversing tbe alleged cause. On tbis issue jury and verdict for defendants in error. Pleas in bar were then filed, and, on tbe issues presented, jury and verdict and judgment for defendants in error.

Hon. John S. Neely, judge. At the December Term, 1858, appellee was appointed guardian of appellant, by tbe Probate Court of Pontotoc county. At the December Term, 1859, appellee filed his first annual account, which showed balance. due ward of $469.69J. The account was examined and allowed. The second annual account was filed February, 1860, and was allowed by the court.

<p>Appeal from tbe Probate Court of Chickasaw county. Hon. B. F. Owen, judge.</p> <p>Appellees filed tbeir petition in tbe Probate Court of Chickasaw county against appellant and others, asking for a division of certain lands devised to them by the will of - Samuel Williams. Appellant pleaded in bar of the petition, that on the petition of the executor of Samuel Williams the lands had been decreed to be sold in November, 1858, by the Probate Court; that appellees were made parties, and gave their solemn consent thereto ; that the decree under which the land had been sold was destroyed by the Federal troops during the war. The testimony in reference to the decree of November, 1858, and the proceedings' in the court below, will be found in the opinion of the court.</p> <p>The court below decreed a division of the lands according to the terms of the will. Appellant, through' her guardian ad litem, prosecutes an appeal, and makes the following assignment of errors:</p> <p>1st. Because the testimony adduced by appellant proved that the lands sought to be divided had been sold in pursuance of a decree made at a former term of the court, and the sale confirmed.</p> <p>2d. Because the same subject-matter had been adjudicated between the same ¡parties at a former term of the court; that appellees were parties thereto, and were estopped thereby from assailing the same. •</p> <p>3d. In granting a decree for a division of all the lands, three of the devisees being estopped from attacking the decree for the sale made at a former term by their own solemn consent in eourt to such decree.</p> <p>4th. In granting a decree in favor of some of the devisees without their asking the aid of the court in their behalf.</p> <p>5th. In refusing to set aside the final decree and grant a new hearing.</p> <p>1. The destruction of the records of the Probate Court having been shown, proof of the existence and contents of the decree of November, 1868, was admissible. 1 Greenleaf’s Ev. §§ 558, 84; note 509; 3 Philips’ Ev. (Gowen de HUI), 106T, note 123; 11 Eow. W. S. 360.</p> <p>2. Conclusive presumptions are made in favor of judicial j>roceedings. Every act of a court of competent jurisdiction is presumed to have been rightly done until the contrary appears. 1 Greenleaf’s Ev. § 19, note 20 ; Broom’s Legal. Max. 729 ; 12 Wheat. 69, 70 ; 10 Peters, 469; 14 ib. 458; 10 8. & M. 461; 2 ib. 337-8; 26 Miss. 208, 210; 31 ib. 432, 578; 38 ib. 100.</p> <p>3. The requirements of the statute for the service of process from the Circuit and Chancery Courts do dot apply to the Probate Court. Eev. Code, 428, arts. 20, 21.</p> <p>4. The party who impeaches the validity of the decree of sale because of want of notice to him, is a competent witness, and he must mate good his allegation by his testimony, otherwise the legal presumption in favor of the validity of the sale will prevail. Bargea/nt v. State Banh of Indiana, 12 How. 384-6 ; Handolfh v. Boss, 4 How. (Miss.) 205 ; Harris v. Hansom, 24 Miss. 504.</p> <p>5. The Probate Court had jurisdiction of the subject-matter and of the parties, and though it may have committed errors, yet, for these errors, in a proceeding like this, the court will not set aside the sale and declare it a nullity. Griffith v. Verifier, 5 How. 736; 9 Smith v. Denson, 2 S. & M. 326; Blaoid v. Muncasier, 24 Miss. 63; Hardy v. Gholson, 26 ib. 70; Wall v. Wall, 28 ib. 408 ; Stewart v. Siedbvns, 30 ib. 66.</p> <p>6. The decree of November, 1858, is a bar to subsequent proceedings, and operates as an estoppel. 1 Green. Ev. 22-204; 2 Smith’s L. O. 511, 572; Lee v. Gardner, 26 Miss. 547; Miller v. Ewing, 8 S & M. 421; Agnew v. McElroy, 10 ib. 552: Boon v. Barnes, 23 Miss. 134; Joslinv. OaughTAn, 32 ib. 106 ; Henderson v. Winchester, 31 ib. 296; Brown v. HUI, 27 ib. 51, 52.</p> <p>7. The court erred in making a decree in favor of those devisees who did invoke the aid of the court. One may be entitled to a division, and others may be estopped. Hoot v. McEerrin, 37 Miss. 53.</p> <p>1. The will of Samuel Williams directs a division of the lands, in a specific manner, among the devisees, and if a decree of sale for the purposes of division was made, it is void, because in conflict with the provisions of the will. Rev. Code, 458, art. 13G; 26 Miss. 134; 38 ib. 329; 24 ib. 395 ; 39 ib. 796.</p> <p>2. The testimony does not show that there was a decree for the sale of the lands, or that the sale was ever confirmed. Before any presumption as to the validity of the decree can be indulged, it must be shown that such a decree was made. But if a decree was shown to exist, it is necessary to show the existence of all facts which would give the Probate Court jurisdiction. Root v. MoFerrin, 37 Miss. 17.</p> <p>3. The testimony shows that the pretended decree was void for want of notice to all the parties.</p>

<p>Appeal from tbe Probate Court of Madison county. Hon. W. S.’Bailey, judge.</p> <p>At tbe November Term, 1867, of tbe Probate Court of Madison county, E. I). Wade, clerk, presented a list of claims probated, registered, and filed witb him against the estate of S. H. Lanier, deceased, of which appellant was the administrator de bonis non, and which had been previously declared insolvent; notice of said declaration of insolvency had been published as required by law. In this list of claims is one in favor of Geo. W. Gillam for $8,209.95, being a judgment in Madison Circuit Court, rendered on 1st October, 1866.</p> <p>Appellant and W. M. Fowler, a creditor of the estate, excepted to the report of Wade, clerk and commissioner, for the following reasons :</p> <p>1. Because the claim of Geo. W. Gillam, which is embraced and included in said report, was not presented to said commissioner until after the time allowed and prescribed by law.</p> <p>2. For other causes to be shown on the hearing.</p> <p>On the trial of these exceptions the following testimony was introduced: .</p> <p>E. D. Wade testified — That the claim of Geo.W. Gillam was not presented to him until after twelve months from the date of the first publication to creditors to present their claims against the insolvent estate, and had no actual knowledge of said claim until it was presented as stated; that it was probated and registered on the 1st of January, 1861.</p> <p>It was then shown that suit was instituted on the claim on 13th of February, 1866, in Circuit Court of Madison county, and judgment rendered 1st of October, 1866, and which judgment was enrolled.</p> <p>J. B. Powell, appellant — That in 1865 and 1866 he sold cotton belonging to his intestate amounting to the sum of $-;</p> <p>that the amount was placed to his credit by his commission house in New Orleans, and used by him; that the Probate Court made no order requiring him to loan the money out; that money was loaned at eight and ten per cent.</p> <p>A number of witnesses testified as to the judicious management of the estate.</p> <p>At the March Term, 1868, the court decreed, that the exceptions to the allowance of the claim of G-illam be overruled and said claim allowed, and the report ■ of the commissioner be confirmed, exhibiting claims against the estate amounting to $52,603.64; “ and it appearing to the satisfaction of the court that the account of the administrator exhibits a balance in his hands of $11,405.88, and it also appearing from proof that the money charged in said account had been embraced therein without interest, and that the same had been received by him as early as January 1st, 1866, and used in his commission house in New Orleans, and that sometimes he paid eight and sometimes ten per cent interest for the use of money,” it is ordered, that interest at ten per cent, from’ the 1st of January, 1866, until the allowance of said account, be calculated on the balance reported; that commissions be allowed the administrator; that th ejpro rata share of the creditors is fifteen per cent, making the following amounts due to each (here follows a statement of name of each creditor and amount allowed him); it is ordered that appellant pay to each of the said creditors the amount allowed to each, “for which execution shall go in favor of each creditor.”</p> <p>Prom this decree appellant prayed and obtained an appeal to this court, and assigns the following errors:</p> <p>1. Because tbe court overruled, tbe exception to tbe allowance of the claim of G. W. Gillam.</p> <p>2. Because the court erred in charging appellant with ten per cent interest.</p> <p>3. Because the court erred in ordering execution against appellant in his personal capacity in favor of each creditor.</p> <p>1. The claim of G. W. Gillam was bared, not having been presented to the commissioner of insolvency within twelve months from date of first publication to creditors. See B. Code, § 12, art. 101, p. 449; and also Anderson v. Tindall, 26 Miss. B. p. 332. Art. 103, p. 450, Revised Code, relied upon by appellees, cannot help them, for it evidently refers to registration in the book of registry to be kept by the Probate Clerk as clerk of that court, and not as commissioner of insolvency; and to that extent, and only to that extent, is the decision in the case of Perry, executrix, v. West, administrator, reported in 40 Miss. B. p. 233 et sequens, upon which appellees rely. The decision in the case of Anderson v. Tindall, above referred to, was made under Hutchinson’s Code, p. 668, which is substantially the same as in Revised Code above cited.</p> <p>2. Powell, the administrator, should not have been charged with ten per cent interest. There is no proof showing that ho used the money received from the sale of the cotton advantageously, or that it was worth to him either six, eight, or ten peícent, by way of interest. The only proof was, that he had paid eight, and sometimes as high as ten per cent, for borrowed money. It is evident from the proof that he never was ordered by the Probate Court to loan out the money, or that he agreed to' take it on interest. Powell as trustee was not chargeable with more than he had received, unless there was evidence of gross negligence amounting to wilful default, and of this there was no proof, but on the contrary. Osgood and others v. Prwnldin and others, 2 Johnson’s Chancery R., top p. 26, side, ib. 27, and authorities there cited. Trustees will not be held responsible on slight grounds, or where there is evidence of fair and upright intention. Hart v. Ten Eycilc and others, 2 Johnson’s O. R. p. 76. If interest is allowable, as to when it shall commence. 1 J. C. R. 108. Six months after reception of fund is a reasonable time.</p> <p>3. The court erred-in ordering execution against Powell for the amount reported by the commissioner, E. D. Wade, clerk, etc. When the estate was declared insolvent, all matters passed from the administrator delonis non into the hands of the Probate Clerk of Madison county, E. D. Wade, as commissioner of insolvency. The jurisdiction of the Probate Court over the administrator, J. R. Powell, ceased, except as to amounts unaccounted for, of which there is no proof; and the remedy and the only remedy of creditors was by suit in the Circuit Court of Madison county against Powell and his sureties upon his administration bond for their pro rata share. See Anderson v. Tindall, 26 Miss. R. p. 332.</p>

lion. II. W. Foote, judge. On tbe 26th day of February, 1868, plaintiff in error sued out an attachment, before the clerk of the Circuit Court of Winston county, against defendant in error, on the ground that he was about to remove from the county of Winston, where the debt was contracted, to the county of Ilolmes, and that the indebtedness was created prior to the year 1865. The attachment was made returnable to the Circuit Court of Winston county.

<p>Error to the Circuit Court of Leake county. lion. J. A. P. Campbell, judge.</p> <p>The proceeding in the court below was founded upon tbe petition of plaintiff in error. Tie petition states that in 1864 tbe defendant in error issued to plaintiff in error its warrant for ■$4000, that tbe same is due and unpaid, that no provision for its payment bad been made, and that defendant in error had refused to pay or provide for its payment. Tbe petition asks that tbe President of tlie Board of Police of Leake county “ be cited, by notice or summons and rule from the Circuit Clerk’s office, to appear at the next' Circuit Court, and show cause why-said warrant should not be paid, and a peremptory mandamus should not be granted.” The Circuit judge ordered the notice to issue as prayed for.</p> <p>At the next term of' the court defendant in error answered: “ That the warrant was given for the loan of Confederate money, which was borrowed for the purpose of purchasing supplies for the families of soldiers ; that payment in Confederate money was contemplated, and that the loan was made in aid of the rebellion.”</p> <p>Upon the answer being filed, plaintiff in error ' moved for a peremptory mandamus, which was refused, and the petition dismissed. From this judgment a writ of error to this court.</p> <p>submitted the following :</p> <p>A mandamus is a suit within the meaning of the Constitution. Weston v. City of Charleston, 2 Pet. Pep. 449 ; Holmes v. Jemminson, 14 ib. 564; 1 Kent’s Com. 321, and note 6 ; Eentucl&y v. Ohio, 24 Plow. U. S. S. C. Pep. 66. The Circuit Court has authority to grant writs of mandamus. Hiehols v. Comptroller, 4 S. & P. (Ala.) Pep. 155. ■ A mandamus lies to the comptroller of public accounts to compel the issuance of warrants on the treasury. The general rule, that a mandamus will not be allowed where the party has another remedy, must be understood to refer to some specific remedy which will place the party in statu quo. Etheridge v. Hill, 7 P. (Ala.) Pep. 47; Jones, ex parte, 1 Ala. Pep>. 15.</p> <p>A peremptory writ will not be issued in the first instance on petition, but only a rule on defendant (as in this case) to show cause why the writ should not be issued. 2 Ala. Pep. 19.</p> <p>A mandamus' is the proper remedy to compel a Board of Police to levy a tax for the payment of its warrants. 28 Miss. Pep. 38; 9 S. & M. 77; Madison Court v. Alexander, Walker’s Pep. 523.</p> <p>A mandamus is addressed to the sound legal discretion of the court. Ross v. Lane, 3 S. & M. 695 ; Davis v. Prior, 6 S. &M. 114; 3 S. &M. 529.</p> <p>The judgment of the Police Court auditing and allowing a claim against the county, is final and conclusive, until vacated on appeal. 3 S. & M. 592, 695 ; 19 "Wend. 60; 12 Pet. 527; ib. 412; 12 Ohio, 58; 3 S. &‘M. 547. Mandamus will lie to compel a municipal corporation to levy and collect taxes. 4 Wallace TJ. S. S. C. Pep. 535.</p> <p>A claim against county officers cannot be impeached collaterally. Supervisors v. U. S. ex relatione, 4 Wal. U. S. S. C. Pep.</p> <p>The authorities above cited are believed to dispose of every question involved in this case favorable to the plaintiff, with the exception of some technical points of minor importance. The order, from which the warrant in this case emanated, is in strict and literal compliance with the requirements of art. 32, Pev. Code, 419. The terms order and wa/rramb are synonymous. The Board clearly so considered them. The literal and legal meaning of the two words are about the same.</p> <p>The answer of defendant does not pretend that Leake county scrip and Leake county warrants are not the same. The last and only remaining question is the power of Leake county to borrow and raise money upon her warrants. There can be no doubt on the subject. The law is express. See Pamphlet Acts of 1863-4, p. 119, § 12, approved December 2, 1863; and that this act is valid, see Sill et al.v. Doyland et al., 40 Miss. 618, as to the legislation of the State during the late war..</p> <p>An order of allowance of a claim or demand against the county by the Board of Police is a judicial sentence, final as to the county. The action can only be revised by the Circuit Court in cases in which an appeal lies, and this is not one.</p> <p>Nor can a subsequent Board of Police revoke the definite sentence of a former one which establishes a claim against the county. A judicial proceeding cannot be assailed by a collateral proceeding.</p> <p>To maintain that the maintenance of destitute families of soldiers, carried by conscription into the rebellion, was an illegal act, would unsettle all the conservative rules by which the certainty and stability of legal judgments are upheld.</p> <p>As to the rebellion itself, it is admitted, and has been sufficiently declared, to be treason. But acts of humanity and charity arc not treasonable or illegal, but are encomaged by all law, human and divine.</p> <p>Therefore the several laws which authorized Boards of Police to levy taxes, etc., to help those who were left helpless by the rigors of war and powers of conscription, were not in furtherance and support of the war, but were designed to alleviate the suffering condition of its helpless and innocent victims. For could such be true, then the planting of corn would 'also have been treasonable, for thq “ staff of life ” was the mainstay and support of the Confederates.</p> <p>The Act of 1863 makes provision for the .indigent families, etc., and not for all families of soldiers.</p> <p>In the case at bar, the money was loaned to feed non-combatants. The only question is, was it of any vedue f The return does not state that it was depreciated, or that it did not answer the purpose for which it was obtained.</p> <p>The warrant in this case was not issued upon the condition and allowance of a claim, under the provision of the Code, art. 32, p. 419 ; but was a mere security for the loan of money, under the Act of Dec. 2, 1863. So it is merely a security for a loan. It differs from an ordinary warrant in this: that it was given to secure a loan, authorized by a special act of the legislature ; that it was countersigned by the President of the Board; that there is reqrdred to be kept of it a separate account by both the treasurer and clerk of the Board of Police; that it has a personal surety upon it; and though payable at sight, bears eight per cent interest, showing that immediate payment was not contemplated.</p> <p>The record does not show that the seal was affixed. It is a mere evidence of debt, and consequently the legality of the consideration can be inquired into. It was given for an illegal purpose — to aid the rebellion against the Government of the United States. The Act of Dec. 2, 1863, was essentially a war measure. Only the families of soldiers were admitted to the benefits of this act. But if it were conceded the loan was for a lawful purpose, still we have the benefit of the ordinance passed by the Convention of August, 1865, for it is admitted that the parties did not contemplate payment in specie, but in other currency. ' The mandamus was very properly refused, because “ the court could not enter into an inquiry to ascertain the facts, and settle unsettled matters.” 9 S. & M. 90 ; vide Ordmance of Convention, p. 41. Plaintiff had his remedy by action at law in the Circuit Court. Bev. Code, 419. To bo entitled to this writ he must have had a clear legal right, with no specific remedy for its enforcement. 40 Miss. 290; Bacon’s Abrid., vol. vi. 431.</p> <p>Had a bond been executed instead of the warrant, it would not be pretended that a mandamus would lie to enforce payment. The remedy would be a suit in the Circuit Court. If, then, we can go behind the warrant, and inquire into the circumstances under which it -was issued, it follows conclusively that the writ of mandamus will not lie.</p>

<p>.Ekrob to the County Court of Washington county. Hon. K. L. Dixon, judge.</p>

<p>■ On motion of plaintiffs in error to docket the cause.</p>

Mon. Thomas Shackelford, chancellor. Appellees, the administrator and heirs of James Johnson, deceased, filed their bill in the court below, against appellants, the executor and heirs of Edward P. Johnson, deceased, to enforce the vendor’s lien on certain lands. Process was duly-issued and returned, as stated in the opinion of the court. After the return of. the process as to Pettie Erwin, an infant, on motion of appellees, a guardian acl litem was appointed for her.

Hon. J. A. P. Campbell, judge. Defendant in error sued out an attachment against Richard R. Roberts, on an alleged indebtedness of one hundred and two dollars, and had N. Gr. Nye summoned as garnishee. Roberts appeared and pleaded tbe “ general issue ” to tbe action. ■ No answer of tbe garnisbee, Nye, appears in tbe record. The following entry was made : “Jambs M. Barry v. Richard R. Roberts.

Hon. J. A. P. Campbell, judge. Action by defendant in error against plaintiffs in error on a promissory vote. Plea of the general issue, and two special pleas of the ^Statute of Limitations. The special pleas were demurred to, and demurrer sustained, and jury and verdict for defendant in error on the issue presented by the first plea.

<p>Error to tbe Circuit Court of Noxubee county. Hon. H. W. Eoote, judge.</p>

<p>Error to the Circuit Court of the Second District of Hinds county. Hon. John Watts, judge.</p> <p>On the 26th day of May, 1866, Mary S. Jones, administratrix of William S. Jones, sued out an attachment against Philip Rotchford and Sheperd Brown, surviving partners of Rotchford, Brown & Co., for the sum of $3,116.03, and had Inman Williams, and H. C. Robertson, executor of Hiram D. Robertson, summoned as garnishees.</p> <p>H. C. Robertson answered: That he was indebted to Rotchford, Brown & Co. in the sum of $300; that he was indebted to said firm in á much larger sum, evidenced by his two promissory notes, both of which had been transferred, and notice of the same given before service of garnishment. '■ ‘</p> <p>Inman Williams answered to the following effect: That he was not now, nor was he at time of service of. garnishment, indebted to Rotchford, Brown & Co., or the survivors of said firm; that in March, 1861, he was indebted to said firm in the sum of $4,470.37, with ten per cent interest from maturity, for which he executed his three promissory notes to Rotchford, Brown & ■Co., or order, of which he had notice of their transfer to other parties than the payees.' One of the'' notes, amounting to §1,594.89, garnishee had notice, on 22d May, 1866, was transferred to E. K. Converse; and Sheperd Brown, in May last, informed the garnishee that the other two notes had passed out of the hands of Botchford, Brown & Co., to creditors of the firm; “ therefore affiant declares he is not in any manner indebted to Botchford, Brown & Co., nor was he at the time of the service of the garnishment.” The answer was sworn to on the 13th August, 1866.</p> <p>After proof of publication made for the defendants in the attachment, and judgment by default against them, the following entry appears in the record: “ And it further appearing.to the satisfaction of the court, from the answer of the garnishee, In-man Williams, and the proofs offered in the cause, that said Williams is indebted to défendants' in ■ a sum larger than due from defendants to plaintiff, it is therefore considered by the court that plaintiff receive of said Williams the sum of §2,205.45 ” ' ■ ■ •</p> <p>Judgment against Bobertson for the sum of §300.</p> <p>Tlienfollows this entry: “On motion of plaintiff for judgment against the- garnishee, Inman Williams, notwithstanding his answer, plaintiff introduced the following testimony: Deed of trust from Inman Williams, executed on 16th March, 1861, to John Shelton, trustee, to secure the payment of the notes to Botchford, Brown & Co., mentioned in the answer of Williams. Plaintiff’s counsel admitted that the note for §1,594.90, mentioned in the deed, of trust, was transferred to E. XL Converse, in good faith, before the service of the garnishment.”</p> <p>Williams, .the garnishee, testified that in the latter part of May, 1866, he went to New Orleans, and Sheperd Brown, of the firm of Botchford, Brown & Co., informed him that he had passed off the notes of witness in liquidation of the débts of the firm; that.upon diligent inquiry he was unable to ascertain who are the holders of said notes, nor does he know at this time.</p> <p>. It was admitted by plaintiff that at the time of the exeeution of the notes, it was understood that they were to be passed off in licjuidation of the indebtedness of Botehford, Brown & Co.</p> <p>The garnishee, Williams, from the judgment against him, prosecutes a writ of error to this court.</p>

Lion. J. A. P. Campbell, judge. Action of assumpsit on an open account by defendants in ■error for tbe use of W. E. Meelc against plaintiff in error. After return of process executed as stated in tbe opinion of tbe •court, judgment by default for $542.59. Writ of error to this court.

<p>Error to Circuit Court of Monroe county. Hon. W. H. Bradford, judge.</p>

Hon. J. Milton Acker, judge. On the 23d of April, 1860, defendant in error instituted his action against Hubbard Saunders, B. B. Barker, and B. M. Bradford.

<p>1. Attaoiimnt: traverse: pleading. — A traverse of the grounds for which an attachment is sued out should contain a simple denial of the causes for the attachment as stated in the affidavit.</p> <p>2. Same : same : same : notice 'of special matter does not affect traverse. ■— A plea properly traversing the causes for which an attachment is sued out, is not demurrable because of objections to the notice of special matter appended to it.</p>

<p>1. Pleading : replication: discontinuance when plaintiff fails to reply. — The failure of the plaiutifE to reply to a plea in. confession and avoidance of the action, amounts to a discontinuance of the cause, which may be taken advantage of by the defendant at any time before verdict.</p> <p>2. Statute of jeofails : does not cure omissions to plead. — The statute of jeofails, after verdict and judgment, though it cures many defects in pleading, yet it does not cure an omission to plead. The failure to reply to a plea of payment is not, after verdict and judgment, cured, and for such omission a cause will be reversed.</p>

Hon. J. S. Y’erger, judge. Action of debt, commenced at tbe April Term, 1861, by defendant in error against plaintiff in error and Peter B. Starke, on tbe writing obligatory copied in tbe opinion of tbe court. Plea of nil debet and Statute of Limitations of six years. Demurrer to plea of Statute of Limitations, wbicb was sustained. Jury and verdict on tbe plea of nil debet for defendant in error, at tbe October Term, 1866. Writ of error to this court.

Hon. Wm. Hancock, judge. Alfred Brown, one of the defendants in error, sued out an attachment before a justice of the peace against plaintiffs in error. The causes for which the attachment was sued out -are stated in the opinion of the court. The attachment was levied, and returned to the March Term, 1866, of the Circuit Court of Wayne county.

<p>1. Judgments: correction of, after the term, by motion or writ of error coram noeis. — Errors of fact committed in the rendition of judgments in the High Court of Errors and Appeals may bo corrected by motion after the term of the court at which the error was committed. A more correct practice would be to correct the error by a writ of error oomm nobis.</p> <p>2. Same : same : practice in high court in reference to. — When an error of fact committed in the rendition of a judgment in the High Court of' Errors and Appeals is sought to be corrected by motion made subsequent to the term of court at which the judgment was rendered, the party making the motion shall give at least ten days’ written notice or citation to the opposite party, or his attorney.</p>

Hon. Wm. Cothran, chancellor. Wadlington ■& Dyche leased from Mrs. M. P. Marye, appellant, for tbe year 1867, a plantation in Sunflower county. Held: that the jurisdiction properly belonging to one of these courts could not be conferred on another. The legislature could not confer on the Circuit Court equity jurisdiction. Stewart v. Morrison, 38 Miss. 47; Em jpcnte Atkmson, 40 id. 17.

lion. Wm. Cothran, judge. Attachment by plaintiff: in error against defendants in error for $750. Declaration on open account for money paid and money had and received.

Hon. John Watts, chancellor. From the facts in this case it is apparent that the important questions involved are: 1. There being no children of D. G-. Perryman or descendants of them, and the estate being insolvent, did his widow take a fee-simple which descended to her two sisters, the defendants in error? 2.

lion. J. A. P. Campbell, chancellor. Appellants filed their bill to enforce vendor’s lien on a note given by appellee to Presley for certain lots in the town of Goodman. The note, which was payable to bearer, was transferred by endorsement to Lindsey. Appellee demurred, which was sustained, and the bill dismissed. To reverse this decree this appeal is prosecuted. 1. That Presley had a lien for the purchase-money on the lots sold, is not denied.

<p>Error to tbe Chancery Court of Adams county. IJon. James M. Smiley, chancellor.</p> <p>A statement of the case will be found in tbe opinion of tbe court.</p> <p>cited- Story’s Equity PL, § 200; 2 Barbour’s Ob. Pr. 1J4.</p>

Hon. Walker Brook, special chancellor. In November, 1856, Sarah Bailey, then Griffith, and Richard Griffith, her husband, sold to appellant a tract of land in Washington county. Appellant, Bowen, to secure the purchase-money, executed his four promissory notes, payable in one, two, three, and four years after date, each for the sum of $3505.

Hon. A. M. Clayton, judge. Action at law by plaintiff in error on the first, second, and last notes given for the purchase of lands. Plea by defendant in error, that a bond for title was given, conditioned to make title upon payment of the notes and interest, and no deed made or tendered to him. Demurrer to plea, which was overruled, and plaintiff in error declining to reply, judgment “ nil capiat ” against him.

Hon. W. D. Bradford, j udge. On the 10th day of October, 1866, a summons issued from the Circuit Court of Chickasaw county against Mary A. Buckingham, executrix, at the complaint of J. S. Nelson, returnable to the October Term of said court. The summons was returned executed 17th October, 1866.

lion. Alexander M. Clayton, judge. Charles O’Brien, a dentist in Holly Springs, rented a room for the practice of his profession, from W. E. Mason, one of the plaintiffs in error. During the existence of the lease, in the year 1860, O’Brien died.

Hon. John Watts, chancellor. The facts of the case will be found in the opinion of tbe court. That tbe loan of the Confederate notes was illegal and void, and was in direct violation of tbe public policy of tbe United States; that they never did, nor could, amount to a legal consideration, for they were issued in support of, and furtherance of, the rebellion which was carried on to overthrow tbe power and authority of the United States.

Non. Jho. Watts, judge. Action by defendant in error to recover of plaintiff in error tbe value of tbe hire of certain slaves. Plea of tbe general issue. The testimony showed that the slaves were hired in 1863. Plaintiff in error asked the court to instruct the jury that the slaves were emancipated on the 1st of January, 1863, by the President’s proclamation. The charge was refused. Jury and verdict for defendant in error for amount of hire claimed to be due.

Hon. John Watts, judge. The opinion of the court contains a statement of the case. The briefs of counsel discuss mainly questions not referred, to in the opinion of the court.

Hon. W. D. Bradford, judge. Defendant in error sued plaintiff in error on the following promissory note: “$4,355.

Hon. Hugb W. Fultz, judge. Appellant, as tbe administrator de bonis non of Robert Howard, deceased, filed bis petition in tbe court below, stating that tbe personal estate was insufficient to pay tbe debts, that the slaves belonging to tbe estate bad been freed, and that tbe notes and accounts were of little or no value. A schedule of liabilities and assets was filed.

Hon. John A. Hancock, judge. Counsel for defendant in error contend that it is üiefcdlure, and not refusal, of an executor or administrator to return an inventory wliieb requires bis removal under tbe statute. According to tbis, wilful, continued and obstinate refusal to do so, within the time required by law, is no ground to vacate letters; yet failure to coinjily (it may be through ignorance, inadvertence, or accident) will vacate them 1 Tbis is contrary to all reason.

Hon. J. W. Scarborough, judge. Executors and administrators should act witb prudence and circumspection, and not pay claims till full time is allowed to learn the true condition of the estate, etc. They are required to pay debts “as speedily as may be,” “if the estate be solvent ” (Kevised Code, arts. 82, 443); but creditors are allowed two years to present their claims.

Hon. J. A. P. Campbell, chancellor. 1. That the realty of a decedent was protected from sale for the payment of debts until the personalty proved insufficient. Pev. Code, art. 80, p. 443. 2. That the same reason and necessity which protects the lands of a decedent, of which- he is seized in fee, from sale for the payment of debts, extends to a leasehold estate. 3.

TIon. W. D. Bradford, chancellor. No State can pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. Const. IT. S., art. 1, § 10; Const. Miss., art. 1, § 10. Appellants, on 4th September, 1865, obtained a license from the Board of Police of Tishomingo county, Miss., to retail vinous or spirituous liquors in the town of Corinth for twelve months from date. Corinth had a population less than one thousand.

<p>Appeal from the Chancery Court of Hancock county. Hon. Wm. M. Hancock, chancellor.</p> <p>A statement of the case will be found in the opinion of the court. . .</p>

<p>Error to the Chancery Court of Lawrence county. lion. John E. McNair, chancellor.</p>

■ Hon. A. TVT. Clayton, judge. Action on a promissory note by M. Duncan and N. L. Daizy, executors of N. A. Daizy, against plaintiffs in error and O.R. Miller, brought to March Term, 1861. - Process returned, executed on defendants (naming them), by delivering them true copies of this writ. Pleas filed at the September Term, 1861, by William D. Carter. At the September Term, 1866, death of Duncan suggested, and order of revivor in name of N. 1.

<p>1. Practice : judgments cannot be rendered without issues op daw OR PACT MADE BY THE PLEADINGS ON PILE: STATEMENT OP CLERK. ■ — • The pleadings in a cause must evolve an issue of law or fact before a judgment can be rendered: the evidence of the existence of such pleadings is their appearance amongst the files; the statement of the cleric, that they have been filed and lost, is not sufficient evidence of their existence to authorize a judgment. Steele v. Palmer, 41 Miss. 88.</p>

<p>Error to the Circuit Court of Lafayette county. Hon. John W. Thompson, judge.</p> <p>cited as to first assignment of error, Eev. Code, 521, art. 253; 3 S. & M. 234; 1 Cushman, 276; 30 Miss. 4T0. Second assignment of error, Eev. Code, 489, art. 64.</p>

<p>1. Summons: defective service cured by plea. —A plea of tlie defendant to the declaration is a waiver of defective service and return of the writ.</p> <p>2. SCL FA. : now EXECUTED AND RETURNED. —Bev. Code, art. 73, p. 490, provides that a scire facias shall he executed and returned in the same manner as a summons.</p> <p>3. Judgment by default, when to be taken. — On proper return of scire facias, judgment by default should not be taken before fourth day of court.</p> <p>4. Same: same: case nr judgment.— Patty sued Lampkin in Circuit Court of Winston county. Before judgment, L. died, and Davis became his administrator. Sai. fa. was issued against him, and returned, “ executed by personal service,” and judgment by default taken first day of the term, field — • Birsfc, that the judgment by default could not be properly taken before the fourth day of the term; and, second, that the return was insufficient.</p>

Hon. William Cothran, judge. Attachment by Steele for the use of Young & Eskridge against Bursby; plaintiff in error summoned as garnishee; judgment by default against plaintiff in error as garnishee; no judgment against Bursby, defendant in attachment, and as far as the record shows, no service of process or publication. Writ of error by garnishee.

Hon. H. W.. Foote, judge. Defendant in error, for a debt contracted in 1859, and for the sum of two hundred dollars (principal), sued out an attachment against plaintiff in error, on the ■ ground that he had removed himself from the county, so that the ordinary process of law cannot be served upon him. On motion, the attachment was quashed on account of the insufficiency of the affidavit, and leave given to file a new affidavit and bond.

<p>1. Attachment : writ of, how returned executed. — A writ of attach ment is required to be executed in the same manner as original summons from the Circuit Court; in Ms return upon a writ of attachment, the sheriff is required to state the manner in which he executed the same.</p> <p>2. Garnishment : now executed : no process of, required when writ OF ATTACHMENT ISSUED. — When a writ of attachment is sued out, no process is required against a garnishee; but the sheriff, on suggestion^ is required to summon him, and in his return he must note the manner in which he summoned the garnishee to appear and answer.</p>

Hon. H. W. Foote, judge. Action by defendants in error on an open account against plaintiff in error as tbe executor of W. McLeod, in Circuit Court of Noxubee county. Original and. alias summons to Noxubee county returned not found. Pluries summons to Sun flower county returned executed.

Hon. John Watts, judge. George Shaughnessey filed his petition in the Circuit Court of Hinds county, alleging that he had furnished M. McLaughlin materials for the erection of a ten-pin alley and bar-room in the city of Jackson, describing the lot on which the building was made; that the said materials consisted of nails, brick, sand, sash, locks, butts, screws, shutter-fastenings, thirty-six bolts for alleys, “ and were furnished and delivered to defendant at his request;”…

Hon. John Watts, judge. Futrell sued Richardson in an action of assumpsit. Tbe declaration contains two counts: tbe first is on a receipt in tbe words and figures following: “$6850.

Hon. W. I). Bradford, chancellor. Appellants, with S. S. Shaw and other complainants, filed their bill to enforce vendor’s lien against appellees. At the March Term, 1868, a final decree for the sale of the lands was made, after process returned properly executed, and proof of publication. During the term, a motion was made by all the complainants, except appellants, to set aside the final decree for the following reasons: 1.

<p>Error to the Cbaucery Court of Noxubee county. Hon. Ii, W. Foote, chancellor.</p> <p>cited Rev. Code, arts. 32, 38, pp. 545-6; MoKey v. Toney, 28 Miss. 78; 1 Barbour’s Oh. Pr. 679, 680, 682, 685; 2 ib. 33, 34; 2 Paige’s Rep. 214,358, 476; 3 Paige, 655; 4 ib. 416.</p> <p>As to the conclusiveness of the decree: Ha/rdy v. Gholson, 26 Miss. 70;' Cason v. Cason, 31 ib. 578; Garmon v. Cooper, 39 ib. 784.</p>

Hon. ’Win. Cothran, judge. The Mississippi and Tennessee Railroad connected with- the Mississippi Central Railroad at Grenada, immediately… Held: that a grant to a railway company to construct their road between two towns, gave them implied authority to construct a branch to communicate with a depot and turn-table on a street in one of the towns (New Orleans) off the direct line.” Redfield on ■ Railways, p. 192. See Knight v. Ca/rrolton Railway, 9 Louisiana Ann. 284; If.

Hon. John Watts, judge.' ' Tbe facts of tbe case are fully stated in tbe opinion of tbe court. contended that the proof in tbe case failed to establish tbe commission of tbe trespass by… Held: that the granting or refusing a new trial rested in the sound legal discretion of the court below. Mowng v. Englehart, 1 Howard, 19. It has been held, that courts of appeal will not set aside a verdict on account of preponderance of evidence alone. Dicl&son v. Parher, 3 Howard, 219.

Hon. John Watts, judge. The finding of the yerdict was clearly unsupported by the evidence and the law. Statham was not carried beyond Terry station, which was his destination. The cars remained at the platform the usual length of time. The conductor did not know of Statham’s illness ; he made no effort to get off the cars, nor did he call the conductor.

Hon. John Watts, chancellor. William B. Taylor, defendant in error, on the 31st of May, 1866, filed his bill in the Chancery Court of Hinds county, stating that he was the… Held: and they were held; and now the pretence is, that those officers elected according to the Constitution and laws, and required and sworn to act, had no lawful authority to discharge the functions of their offices. The resolution restoring Tennessee is significant in another important particular.

Hon. H. W. Foote, judge. Action by plaintiff in error, for the use of L. Merchant & Co., against defendant, to recover tbe value of five bales of cotton. Plea of the general Issue, with an agreement that any special matter of defence might be given in evidence under it. On tlie trial it was shown, that defendant in error, in 1862, for the purpose of equipping and arming some military companies for tbe Confederate service, bad donated ten bales of cotton.

Hon. J. A. P. Campbell, judge. Attachment by plaintiff in error against defendant in error. The affidavit for attachment states, “ that the ‘ Steamboat Hope,’ a steamer in the navigable waters of this State, is justly indebted to Patrick Dever in the sum of $339.15, and prays an attachment.” An attachment was issued and levied upon certain cabin furniture of the “ Steamer Hope,” which was replevied by the captain, upon giving bond with security.

Hon. John Watts, chancellor. The receipts which are referred to in the opinion of the court are as follows: “ Received of Mi’. Patrick McGuire two thousand dollars, it being in part payment for a house and lot sold him hy my brother, C. M. Stevens, Jackson, Miss., Oct. 8, 1863. “J. O. Stevens.” “ Received Nov. 22, 1863, of Patrick McGuire, seven hundred dollars, as part payment on house and lot. “Chas. M. Stevens.” “ Received of Pat.

Hon. James M. Smiley, judge. The statute in reference to a bond is merely directory. The defendant has the preference, and no time is specified; but if he does not choose to execute a bond and retain possession of the property, the plaintiff can then execute a bond and gain possession.

Hon. J. B. Morgan, judge. Defendant in error, as the widow of William Maxwell, who died without children or descendants, had allotted to her by the Probate Court one half of her deceased husband’s lands as dower. Afterwards, as the administratrix of her husband, on' a deficiency of the personalty, the petitioned the court for an order of sale of the lands not allotted to her as dower, for the purpose of paying debts.

<p>1. Dower : widow entitled to one third in value. — As between the widow and the heir, the widow is entitled to have set offi to her as dower one third in value of the lands of which her husband died seized and possessed, the value to be estimated at the time of the assignment, and due reference being had to the rents and profits of the whole premises; as between the widow and purchaser from the husband, the value, with some exceptions, is to bo estimated at the time of the sale.</p>

Hon. Jno. E. McNair, judge. On the 20th of March, 1867, defendants in error sued out an attachment against W. P. Baggett. Held: possession'under a deed'of trust executed by W. P. Baggett, to secure Summers & Brannin. . . • ■ ' ■ This deed of trust, which was read in evidence, was recorded in Lawrence county, on the 30th of January, 1867, was executed on the.19th of December, 1866, by W. P. Baggett,’ plaintiff in error, and Summers & Brannin.

lion. Win. Cothran, chancellor. Appellant and his wife, in 1859, sold and conveyed by deed, without any special reservation of lien, certain lands to Dickson Priddy, and took the two notes undel* seal of Priddy and Cullen MeCullin-as surety, payable to appellant, to secure.the two last instalments of the purchase-money.

<p>1. Contract of sale : executed when seller divests himself of title. —A contract for the sale of slaves is executed when the seller mates title to a third person for his indemnity, and to be and remain in him until the debt for which such third person is surety for the purchaser is paid; the use and possession of the slaves being with the purchaser.</p> <p>2. Slaves: warranty of title: emancipation no breach of. — A warranty of title has reference to the status of the property at the time of the warranty, and is not intended to protect the title against future events; and in the case of a sale of slaves with warranty of title, their subsequent emancipation is no breach of the warranty.</p>

<p>Error to the Circuit Court of Adams county. Hon. James Smiley, judge.</p> <p>cited: Me Gender v. Union Ban7c, 3 Peters, 90; 2 Greenleaf, § 190; Wall v. Bry, 1 La. An. Pep. 312; Gray v. Bell, 2 Bieh. Bep. 67; Story on Bills, §§ 230-232; 3 Kent’s Com., 146.</p> <p>cited: Goddi/ngton v. Dams, 3 Denis, 2485; Union Panic v. I£yde, 6 Wheat. 575; Gommena v. Mix, 15 La. 166; 20 How. 500.</p>