Volume 43 — Mississippi Reports

Cunningham, J. Upon, application of Street, by habeas corpus to be discharged from custody or admitted to bail, he being confined in jail upon indictment found at January special term, 1870, of Yazoo circuit court, for murder.

Watts, J. Insisted that the universal rule is to apply monies arising under sales upon execution to the oldest judgment creditor, unless he has willingly suspended his lien and thereby lo,st his priority. Michie vs. Planters’ Bank, 11 How., 13. In this case, Andrew Thomas had no judgment lien subsisting — if the minutes of the court have been erased, even fraudulently.

McNair, J. The facts are sufficiently stated in the opinion of the court. Assignment of errors : 1. It was error to overrule plaintiff’s demurrer to defendant’s first amended plea to the scire facias. 2. It was error to sustain defendant’s demurrer to plaintiff’s second replication to defendant’s first amended plea to the scire facias. 3. It was error to sustain defendant’s demurrer to plaintiff’s third replication to defendant’s first amended plea to scire facias. 4.

Watts, J. In 1864, Mrs. Helen J. Kinnison, widow of Abner Kinnison, who died in 1863, made a deed of her interest in certain lands of which her husband died seized, to Nathaniel Kin-, nison, but with covenants of general warranty of the title. Nathaniel Kinnison held possession of the land under a contract of purchase from Abner Kinnison, in his life-time, and is still in possession.

Shaokleeord, J. Eiled the following assignment of error: The court below erred in overruling the motion to set aside the judgment against the plaintiff in error, surety in the recognizance of Samuel Bibb. Bibb was indicted for petit larceny, and entered into recognizance with one Jones as surety. Jones surrendered him to the sheriff, who took another recognizance with plaintiff in error as surety.

Bradford, J. Defendant in error brought suit in the court below on a promissory note made by Mary R Whitworth, John H. Whit-worth, Walter W. Troup, and Lucien B. Moore.

Watts, J. Eor the appellants the following errors are assigned: 1st. The court below erred in sustaining the defendant’s demurrer to the complainant’s bill. 2d. The court below erred in its decree dismissing the bill. The facts are fully stated in the opinion of the court.

Campbell, J”. Plaintiff in error assigned the following errors: 1st. The court erred in refusing the instructions asked for the plaintiff below. 2d. The court erred in granting the instructions asked for defendant Barksdale. . . 3d. The jury found contrary to the law and evidence. 4th. The court erred in overruling the motion of plaintiff for a new trial. 5th. The court erred in refusing to enter a special judgment against the buildings in the general judgments against Smith.

Watts, J. The plea of general issue was filed, and notice of the proof to be offered, also a special plea setting up a failure of consideration ; to this plea a demurrer was filed, which was sustained by the court below. This action of the court is the first error assigned by appellant. This special plea was responsive to the demand sued on, and was clearly proper to enable appellants to avail themselves of their legitimate defense. 2.

<p>Error to the circuit court of Yazoo county. Campbell, J.</p> <p>Plaintiff in error assigned the following errors:</p> <p>1st. The verdict was contrary to evidence.</p> <p>2d. The verdict was contrary to law.</p> <p>3d. The damages are excessive.</p> <p>4th. The court erred in refusing to give the defendants’ second instruction.</p> <p>1st and *2d. Insisted that the testimony established a contract of agency whereby defendants in error became the agents of plaintiff in error, to sell as auctioneers, a stock of goods. The power of the agent, being uncoupled with an interest, was revocable at the pleasure of Friedlander. Hunt v. Rousnianier, 8 Wheat., 174. The defendants in error, as such agents, had no interest in Friedlander’s goods, but only in the proceeds of their sale for their commissions. The goods remained in Friedlander’s possession and in his house. 3 Chit. Com. Law, 547; Paley on Agency, by Lloyd, 137; 17 Mass. R., 197; 4 Camp., 291; 3 T. R., 119-783; 1 East., 4; 5 Binn., 392; 7 East., 5; 1 Stark. R., 123.</p> <p>3d. If the court recognizes the correctness of these positions, then the damages found by the' jury were erroneously excessive. And here we will consider what is the measure of the damages in this case, a point directly presented in the fourth error assigned. 4th. The court below erred in refusing to give the second instruction asked by the plaintiff in error. This instruction is, in substance, “ That where there is a contract for services, and the party to render them is ready and willing to perform, but is prevented by the other party, the measure of damages is the value of the services actually rendered, with any specific " damages such party may suffer by the refusal of the employer to let him complete the contract.”</p> <p>• The principle embraced in the instruction refused has been fully recognized by this court in the case of Pritchard v. Martin, 27 Miss., 305-310. An unbroken array of leading cases and text books explicitly maintain the same doctrine. Chamberlain v. McOallister, 6 Davis’ Ky. R., 352; Caldwell v. Reed, Littell’s Select Cases ; Durkee y. Mott, 8 Barb., 423; Jones v. Yan Patton, 3 Ind., 107; Shannon v. Comstock, 21 Wend., 457; Hackshaw v. McOrea, 24 Wend., 304-9 ; Clark y. Marsiglia, 1 Denio, 317; Wilson v. Martin, ib., 602; Spencer y. Halstead, ib., 606; Boardman y. Keeler, 21 Yermont, 78-84,1 Gilm., 562; Miller y. Mariners Church, 17 Greenleaf, 51-55, 56 ; Smith’s Leading Cases, 441; Sedgwick on Damages, 219, 220, 221. See also, Hadley y. Baxendale, 9 Excheq., 341; Meade y. Rutledge, 11 Texas, 44; 4 Cal., 392; 6 ib., 19 ; Powell on Ev., 215. See also, Chit. PL, 321-326.</p> <p>The case of Armfield v. Nash, 31 Miss., 361, relied upon by the defendant in error, goes no further than sustaining the rule of pleading, and the question of what is the measure of damages is not made or decided. Summed up briefly, this decision goes no farther than to say that the face of the pleadings shows a cause of action; they show “ a contract and breach, as avered by the plaintiff, and that he had not been satisfied in his damages resulting from the breach.”</p> <p>All that Friedlander’s second instruction claimed, was the benefit of the rule allowing mitigation of damages. But the overruling of that instruction bound the jury, without choice, to find damages at the rate of five per cent, upon what they might think the value of the entire stock. Such finding is open to the additional objection, that the damages were speculative, as no one could say what they would actually sell for at auction.</p> <p>This case comes here on writ of error to the refusal of the court below to grant a new trial, and according to the repeated decisions of this court, you will look into the whole record to ascertain whether substantial justice has been done. All the testimony and the instructions given and refused are set out in the bill of exceptions, and it will be seen that the case turns upon the question, whether the court below erred in refusing the general instructions asked by the defendant.</p> <p>The proof shows that the plaintiff below offered to perform their part of the contract, which being refused by the defendant, they treated the refusal of defendant and their offer to perform, as equivalent to actual performance, and brought suit for the full amount. The rule we consider as settled; the contract fixes the measure of damages. Sedgwick on Damages, p. 199, et seq.</p>

McNair, J. This was a suit by Baggett and wife, on an injunction bond and sequestration bond, executed by tbe defendants in error, to Martha Baggett, whilst sole. These bonds were given on obtaining writs of injunction and sequestration in a suit in chancery to recover property — slaves and horses — claimed in the suit by Rachel H. Beard.

Campbell, J. The Revised Code, page 489, art. 64, says, “ original process shall be served personally on the defendant, if to be found, and a true copy thereof delivered to him.” Therefore, according to the Code as above, if the defendant is found, two things are requisite to a valid service; first, a personal service, and second, a true copy of the process must be delivered to him — both are indispensable.

Lovering, J. The plaintiffs in error assign the following causes of error: 1st. Want of proper service of subpoena on T. F. Gullett. 2d. Want of service of process on Nancy E. McWilliam, B. F. McWilliam, Nebraska McWilliam, Indiana McWilliam, Laura McWilliam, and Lenora McWilliam, minors. 3d. The court erred in appointing a guardian ad litem, without service. 4th. The court erred in rendering final decree against the minors without proof. 5th.

Smiley, J. The plaintiff in error assigned the following errors, to-wit: 1st. The death of Stewart, the original plaintiff, was suggested, and no proper order of revivor in name of defendant in error. 2d. The jury found not upon the issue joined, but “ gave judgment for plaintiff.” Wherefore they pray judgment, etc. Charles Stewart sued plaintiffs in error in assumpsit, and they pleaded to the action.

Smiley, J.: The plaintiff in error assigned the following errors: 1st. The court below erred in sustaining the demurrer of the defendant in error to the plea filed by the plaintiff in error. 2d. The court below erred in excluding the evidence embodied in the bill of exceptions of plaintiff in error. We apprehend that the case, as disclosed by the record, differs materially from Ware et al. v. Houghton, 41 Miss., 370.

McNair, J. The plaintiff in error assigned, the folloiving errors: 1st. Tbe court below erred in sustaining tbe motion for a new trial, and in setting aside tbe verdict of tbe jury. 2d. Tbe court erred in granting tbe instructions asked for by the defendants in error at tbe trial before the jury at the April term, A. D. 1868, thereby misleading the jury as to'tbe 1 aw of tbe case. 3d. The court below erred in overruling the motion for a new trial at the April term, A. D.…

Phillips, J. The order of the court setting aside its judgment of a previous term, is the first error complained of. Whilst a court remains in session it may, in most instances, exercise power over its judgments and decrees. But when the term has elapsed, this power ceases; the judgments are then final, and can only be reviewed by appeal or writ of error. Sagory v. Bayless, 13 S. &'M., 153. This is equally true of the final orders and decrees of the probate court.

<p>Error to tbe circuit court of Jasper county. Watts, J.</p> <p>The errors assigned are as follows:</p> <p>The court erred in reviving the judgment against the heirs of J. M. Langston, deceased—</p> <p>1st. Because no judgment was ever rendered against decedent in his life-time.</p> <p>2d. Because the heirs were not parties nor privies to the original suit.</p> <p>3d. Because the judgment sought to be revived was void: 1st. Because it was rendered upon three separate and distinct contracts made with different parties, at different dates, and drawing different rates of interest; and 2d. Because the judgment was entered up against the “ goods, and chattels, lands and tenements of deceased, now in the hands of said administrator;” and 3d. Because the original judgment draws a different rate of interest from one of the notes sued on.</p> <p>4th. Because the original judgment is not correctly described in the judgment of revivor.</p> <p>5th. There was no legal service of the scire facias.</p> <p>The first error seems sufficient to dispose of the case under the ruling in the case of Treadwell v. Herndon, 41 Miss., 48. The court says: “ But in this case no execution could have been properly issued, even upon notice by scire facias against the real estate of this decedent ill the possession of his heirs at law.” “ No judgment was obtained against the ancestor in his life-time, and consequently no lien existed,” etc. See also, McAfee v. Patterson, 2 S. & M., 593 ; Commercial Bank of Manchester v. Kendall, 13 S. & M., 278; Person v. Valentine, ib., 551; Anderson v. Williams, 14 S. & M., 684; Bridges v. The State, ib., 153. There was no legal service of the writ of sci.fa. See Bev. Code, p. 490, art. 73; also art. 64, p. 489. Woolley v. Bowie, 41 Miss., 553; Sawyers v. Smithy ib., 554; Ford v. Coleman, Britton & Withers, ib., 651; Glenn v. Wragg, ib , 654.</p> <p>The first error assigned by appellants is, “ That there was no judgment ever rendered against deceased in his life-time.” It is true the judgment was rendered against the administrator, but it is urged that that is sufficient to base the scire facias on to revive the same against the heirs of decedent, so as to create a lien on the real estate. Otherwise, where is the remedy of the judgment creditor against his deceased debtor ? The authority relied upon by the plaintiffs in error, does not seem to be applicable to this case. In that case, 41 Miss., p. 48; this question was not brought directly before the court.</p> <p>The second error assigned is not well taken. If the heirs had been parties to the original suit, there could have been no necessity for a sci. fa.</p> <p>The- third assignment is not sufficient to reverse the judgment. If the judgment was otherwise correct, this court can render a remititer for the excess of interest on the small note of $68 82.</p> <p>As to the fourth assignment, that the “ original judgment is pot correctly described in the judgment of revivor.” The petitions and sci.fa. state correctly the original judgment, and the error complained of is a mere clerical one, and no injustice is done to the parties.</p> <p>The fifth assignment is not tenable. It is insisted that the service of the sci. fa. by the sheriff, is sufficient, under the statute, and the authority relied on by plaintiffs in error does not sustain them. The other authority relied upon by the plaintiff in error, to sustain them in the first cause of error assigned, it is conceived, does not reach this case.</p>

Lovering, J. Appellant assigned the following errors: 1st. That the final decree was passed without reference to the clerk, or a master, to compute the amount due. 2d. That there is a fatal variance between the bill and the decree ; the bill praying the sale of the northeast quarter of section thirty-one, and the decree being for the sale of the northwest quarter of section thirty-five. 3d. That the. service is insufficient. 4th.

Bradeord, J. On the 4th day of September, 1866, M. M. Seay, agent of Greenwald & Labe, merchants in trade, sued out an attachment against Wilbourne & Davis, partners in trade, for Greenwald & Labe, alleging an indebtedness of defendants to plaintiff of $651 98.

Campbell, J. The record does not show that G. D. Bustamente, one of the appellants, “ could not be found,” nor that M. G. Bustamente, with whom the copy was left by the sheriff for him, was “ then and there one of his family,” as required by the statute. Rev. Code, 489, art. 64. 2d. The drawers of the bill of exchange sued on must be notified of its non-payment, by the acceptor, or they will be discharged.

<p>Error to the circuit court of Attala county. Campbell, J.</p> <p>The plaintiff in error assigned the following errors:</p> <p>Judgment was rendered without making any disposition of the pleas of defendant, in court below; no issue joined, no demurrer or replication thereto filed by plaintiff in court below.</p> <p>Judgment rendered for “ specie,” should have been for dollars and cents, or money., without designation of character or kind.</p> <p>The court erred in granting instructions for plaintiff.</p> <p>The court erred in dissolving injunction upon bill and answer.</p> <p>The first cause of error assigned is the action of the court in proceeding to trial and judgment without disposing of the pleas of the defendant, there being no joinder, demurrer, or replication in writing, to any of them, as required by the rules of pleading. Vanzant v. Shelton, 40 Miss., p. 330 ; Roby v. Britt (not reported).</p> <p>Second assignment of error: The judgment was for “ specie.” This was error. “ Specie” is not the only character of legal tender money. U. S. Treasury notes are legal tender, and they cannot evade this fact and require payment in “ specie” by rendering jüdgment for “specie.” By rendering this judgment the court required its clerk to issue execution for “ specie,” the sheriff necessarily demands “ specie” in accordance with the demands of the writ, and hence the defendants are debarred of their legal right to pay in United States treasury notes, which are as much a legal tender as “ specie.” See Legal Tender Act of Congress ; Ezelle et ux. v. Parker et ah, 41 Miss., 520; Graham v. Marshall, 52 Penn. R., 103.</p> <p>3rd. The third assignment of error is the granting of plaintiff’s instruction. The first instruction was error in this : it charged the jury that the relative value of Confederate money and good money, was not to determine the question. We contend that if Confederate money alone was to be paid, the measure of damages was the value, in good money, of that Confederate money.</p> <p>The second instruction ought to have been qualified by the court; as it was given, it virtually charges the jury that although the proof may have shown the negro, for which the note was given, was free and not property, still being a negro, he was property. Again, if the proof showed any guarantee or promise on the part of the plaintiff, that if emancipation did take place, defendant should not pay, this instruction debarred the jury from considering such guaranty.</p> <p>4th. The fourth assignment of error was the dissolving of the injunction. The bill alleges tender of money and its refusal. The answer admits this, but contends that it was not such money as they were entitled to demand. United States treasury notes were offered and were refused, and “ specie” demanded. If these notes were legal tender, the court should have sustained the injunction and required the party to receive them.</p> <p>The error assigned amounts to nothing. If there was error, it was caused under our statute of jeofails. Rev. Code of 1857. The injunction obtained by plaintiffs in error, operates as a release of errors in the proceedings at law. Rev. Code, art. 68, p. 551.</p> <p>The injunction was properly dissolved, and there is no error in the proceedings, so far as is discoverable from the record.</p>

Leachman, J. The plaintiffs in error assigned the following errors: 1st. The court below erred in overruling the demurrer to the evidence of the plaintiff below. 2d. In overruling the demurrer the court erred in rendering jugment final for ten thousand dollars, without reference to a jury to assess the damages. 3d. The court erred in overruling the motion of defendant below, to set aside the judgment of the court* Defendant in error sued for damages, alleging that plaintiff…

McNair, J. The following errors were assigned by the plaintiff in error: 1st. The court erred in allowing the substitution of the petition of the defendant in error to inforce the mechanics’ lien, in lieu of his declaration in assumpsit. 2d. The court erred in its rulings on the demurrer of defendants — minors. 3d. The court erred in overruling the demurrer of Mrs. Weathersby to the petition. 4th. The court erred in rendering judgment against the administrator for $550. 5th.

Watts, J. Plaintiff in error assigned the following error: The service and return of process upon the plaintiffs in error were illegal, and… Held: under the old statute, to be sufficient. By the Bev. Code of 1857, p. 489, arts., 63 and 64, the sheriff is required to return the process on the return day, “ with a written statement of his proceedings .-.thereon.” The old Code simply required the sheriff “ to make due return thereof to the proper court.” Hutch. Code, 443, § 7.

<p>1. Evidence — Constitutional Law. — The act “ changing the rulos of evidence in certain cases,” approved February 19th, 1867, is not a law impairing the obligation of contracts, and consequently, in this respect, is not repugnant to the constitution of the United States.</p> <p>2. Evidence — “ConeedehateMoney.”—-Under the act “to change the rules of evidence in certain cases,” approved February 19th, 1867, all contracts made between May 1st, 1862, and May 1st, 1865, for the payment of money, shall be presumed to have intended “ Confederate money,” unless the contrary appear on the face of the contract; and it is error to render judgment final by default, without a jury and writ of inquiry, to assess the value of that land of funds at the time and place of contraot.</p>

Watts, J. One great error of the court below was refusing to give the second instruction asked for by plaintiffs, on the trial at October term, 1860. It is as follows: That the statute of six years will not be computed wben the party pleading bas been out of the state, and if they believe from the evidence that the defendant has been out of the state all the time since the agreement sued on was made, they must find for the plaintiff.

— Bradford, J. It is incumbent upon the appellee to establish, by competent proof, negligent misconduct upon the part of the appellant, or their agents, before he can recover, and the injury itself is not, jwima facie, evidence of negligence. Miss. C. R. R. Co. v. Miller, 40 Miss. R., page 47 ; Terry v. N. Y. C. R. R. Co., 22 Barb. R., p. 574; Herring v. Wil. & Ral. R. R. Co., 10 Iredell R.,p. 402 ; Gral. & Chicago Union R.R. Co. v. Loomis, 13 111. R., p. 548; Cen.

Hancock, J. Plaintiff in error assigned the following errors: 1st. The judgment by default was improperly taken against him, as he had not been legally and duly summoned to answer as garnishee. 2d. The service and return of service on the garnishment summons is irregular and not in compliance with law. Beferred the court to Merritt-v. White, 38 Miss., 438; Bobertson v. Johnston, 40 Miss., 590 ; Foster et al. v. Simmons et ah, 40 Miss., 585.

<p>Error to the circuit court of Amite county. Smiley, J.</p> <p>The plaintiffs in error assigned the following errors:</p> <p>1st. The court erred in sustaining the demurrer to the second or special plea.</p> <p>2d. The court erred in not giving judgment that these plaintiffs should answer over on sustaining said demurrer. The judgment should have been to answer over.</p> <p>3d. There was no legal judgment upon said demurrer, and so far as shown by the record, said special plea, and the issue of law thereon, has not been disposed of.</p> <p>4th, Said demurrer should have been extended back and sustained to tbe declaration, because plaintiff sues in his-own right on a note given to him as guardian, and does not show any delivering of said note to him, 'as holder, in any capacity except as such guardian, nor any right to collect the money for Ms own use.</p> <p>Defendant in error sued plaintiffs in error on a note signed by them as sureties for W. T. McMillan. They pleaded that the note was given in payment for a slave sold under an order of the probate court, by Causey, as guardian for minors, in order to a division, and aver that the minors were not made parties to, or notified of the proceeding, nor were the-wards cited, or guardian ad litem appointed, and so the order of the sale is void; shows matter to excuse the vendee from delivering back the slave; and aver that defendant’s securities never had the slave in possession, and could not deliver, etc.</p> <p>To this plea a demurrer was filed, and these causes assigned; 1st. No notice to wards required. 2d. Title of purchase not affected by want of such notice. 3d. If proceedings void, purchase not prejudiced. Demurrer sustained, and no judgment to answer over; plaintiffs thereupon filed a notice that they would prove the same matters under the general issue.</p> <p>Counsel for defendant now insist that the demurrer was properly sustained, because the plea did not aver a tender back of the slave. "We reply that no such cause of demurrer was assigned by him. The only causes of demurrer are that the statute did not require notice to the wards, in case of such a sale; and that, if the defect existed, it could not affect the title of the vendee, and he could not be injured. The question to be considered is not whether the plea is defective for want of an averment of a tender back of the slave, but whether the demurrer ought to have been sustained for the causes of the demurrer actually assigned. The Code provides, in general, that the court shall regard no defects, “ except such as shall be assigned for causes of demurrer.” Rev. Code, p. 495, art. 108. It is too late to assign, in this court, new causes of demurrer. Was the notice required to be given to the wards, in order to obtain an order of sale for a division ? In such a case, the Code expressly requires “ all parties interested ” to be “ summoned before such decree is made.” Rev. Code, 453, art. 116. Notice to the parties being thus required, an order of sale, without such notice, would be void, and the purchaser under it would acquire no title. It is vain to pretend, in such a case, that the purchaser must pay the purchase money, inasmuch as the slave was afterward emancipated by the government. If the sale was void, he still belonged to the wards, and the purchaser was liable to them for him.</p> <p>As neither cause of demurrer was well taken, and the court could regard no defect not assigned as cause for demurrer, the demurrer was improperly sustained.</p> <p>2d. There was no judgment on the demurrer, and the matters thereof are still undisposed of. The statement that the court “ doth sustain said demurrer,” is not a judgment thereon ; not a judicial declaration of record that defendants take nothing by the plea.</p> <p>3d. If this be a judment it is erroneous, because it does not award that defendants answer over. This very point was decided in Lee v. Dozier, 40 Miss., 477. The fact that a notice of a like defense was afterward filed, under the general issue, does not cure this fatal defect in the judgment. 4th. The grounds of error are submitted without argument.</p> <p>There is no error in the proceedings of the court below. The demurrer of plaintiff to the second plea of defendants below was properly sustained. Ware v. Houghton, 41 Miss., 370 ; also, Cocke v. Rucks, 34 Miss., 105. The declaration in this case is sufficient in law, and the demurrer to the second plea should not have been extended back to the declaration. The declaration alleges that the note was executed to plaintiff generally. The copy of the note subjoined to the declaration, describes the plaintiff below as “ guardian,” but that is not a part of the declaration. Clackwell v. Reid, 41 Miss., 102. But, even if the declaration had described the plaintiff as he is described in the note, the declaration would still have been good. The last proposition, however, it is hardly worth while to discuss, as the declaration is undoubtedly good for the reasons and upon the authority given. Defendants having filed a plea of general issue, cannot extend the the demurrer back to plaintiff’s declaration. See 11 Wendall’s N. Y. Rep., 653.</p> <p>Another error assigned is that the judgment rendered by the court below on the demurrer to the second plea, should have been respondeat ouster, as required by statute. The judgment is that the demurrer be sustained, but no express leave to answer over is granted by the judgment. Conceding for the sake of the argument, that the judgment was not technically correct, yet the plaintiffs in error have no right to complain, nor will this court reverse the final judgment for that cause unless it appears that the plaintiffs in error were, or might have been, prejudiced. And that such was not the case appears from the fact that the plaintiffs in error did, in effect, answer over by filing a notice, which was received and acted on by the court. So that the plaintiffs in error did have the benefit of a judgment of respondeat ouster.</p> <p>If the case of Lee v. Dozier, 40 Miss., 477, is cited against us, we answer that it seems doubtful what the question before the court in that case really was. At p. 470, according to the statement of the reporter, “the demurrer being sustained the court proceeded,” etc., while in the opinion of the court, p. 483, it is said, “ no judgment was entered on the demurrer.” If there was no judgment on the demurrer, then it was not in any way disposed of, and of course it was error to proceed to try the issue of fact until the issue of law was first disposed of. But, treating that case as if there had been a judgment sustaining the demurrer without the judgment respondeat ouster, we think the judgment of the court in that case would have been different.</p> <p>The view of the question to which we allude is briefly this: That this court will not reverse the judgment of the court below for errors of which the plaintiffs in error might have avoided themselves, and might have had corrected in that court. With regard to the alleged errors in the judgment on the demurrer, they might have asked leave or made a motion for leave to file other pleas, which would probably have been granted; or, if refused, the parties having done all in their power in the court below, might then with propriety ask this court to reverse the judgment of the court below, but having neglected to avail themselves of their legal remedy at the proper time, this application to reverse the judgment of the court below comes too late.</p>

Campbell, J. Plaintiff in error assigned- the folio-wing errors: First, the court below erred in sustaining the demurrer of the defendant, to the evidence; Second, the court below erred in entertaining the demurrer to the'evidence in the cause; Third, the court below erred in giving judgment in favor of the defendants.

Campbell, J, The facts are sufficiently stated in the opinion of the court.

Wallace, J. 1st. The court erred in decreeing a sale of the lands, the service of process and publication as to the heirs being defective. 2d. There was no proof of the insolvency of the estate. A question presented is, the right of appellants to contest in this court, the regularity of the decree of the court below.

<p>1. Yendo®’s Lien — Enforcement of, as Against Sub-Vendee. — A vendor’s equitable right to subject the land conveyed to the ultimate seoürity and payment of the purchase money, wiR be enforced in chancery against subsequent purchasers of the same land, if such purchasers had, or by the exercise of proper precaution, could have had, notice of the original vendor’s right in the premises.</p> <p>■ 2. Recitals in Deeds — Estobbel.—The recital in a deed of conveyance that the purchase money has been paid, is not conclusive proof of payment, nor an absolute estoppel to a denial of this recital; hut such recital is only prima facie evidence of such payment. 1 Green. Ev., § 26, p. 33 — Note.</p> <p>3. Notice — What Amounts to. — Whatever is enough to excite attention, or put a party on inquiry, is notice of everything to which such attention or inquiry might reasonably lead. Sufficient information to lead to tbe knowledge of a fact, shall be sufficient to charge him with the knowledge of that fact.</p> <p>Innocent Purchasers. — In order to the protection of aninnocentpurchaser, without notice, the purchasemust bo complete by execution of the deed and payment of the money. If notice of prior equity is given before full payment of the price, the lien attaches to the extent of the purchase money unpaid, in which case the sub-vendee has a paramount equity to be reimbursed for payments made before notice.</p>

Gifford, J. The facts are stated in the opinion of the court. The only question involved, and which is raised by the demurrer, is whether the acts of the Legislature of Mississippi (so called), in attempting or assuming to suspend “ certain parts of the statute of limitations,” during the year 1862, were valid.

Tercer, J. The facts sufficiently appear in the opinion of the court.

The facts fully appear in the opinion of the court. The first assignment of error is, that the court permitted ¿3.

<p>1. Payment — Evidence—Peovince oe Louies. — On the trial of an action of assumpsit on a promissory note, upon an issue of payment, proof that the defendant had offered, after the date of the alleged payment, to pay the whole amount of the note without referring to the alleged paymont, is a fact proper to go to, and be judged of, by the jury, but is not conclusive against the plea of paymont.</p> <p>2. Coneedebate Money — Agency—Discretion—Liability oe Agents. — Where during tho years 1861-2, a principal placed in the hands of his agent, for collection, a number of notes and drafts, by their terms payable in United States currency, with no instructions as to the currency in whieh the collections were to be made, but leaving the agent to “ exercise his discretion as to tho procedure ” to be taken “ to enforce payment;” and, thereupon, the agent accepted Confederate currency in payment, and surrendered the notes and drafts to the debtors. Held: That the action of the agent was wrongful as to his principal — being without authority, actual or presumed — and that he is liable to pay to his principal the full amount of the notes and drafts in United States curroncy. And this, although Confederate money was, at the time and place of the payment, the only currency in circulation.</p> <p>3. Attorney at Law — Responsibility oe. — Dictum: That whenever an attorney at law disobeys the lawful instructions of his client, and loss thereby ensues, he is responsible for such loss. 5 Mass., 57.</p> <p>i. Agency — Reciprocity oe Liabilities — Set-oef—Practice.—Against an agent for receiving depreciated funds contrary to, or without instructions, the proper remedy is assumpsit for money had and received. And, therefore, the claim of the principal in such case may be pleaded as a set-off or payment against assumpsit on a promissory note.</p> <p>5. Peincipai, and Agent — Pbesdmetions Aeeecting -their Relation to Each Otheb. — la the absence of any understanding between the principal and agent as to whether the latter is to be paid for his services, the law, by implication, supplies the neglect, holds him an agent for hire, and makes him acdountable accordingly.</p>

Smiley, J. This was an action of assumpsit. Plea, the general issue. The error assigned is, that the jury were not sworn to try the issue joined; but were improperly sworn “ to set as jurors in this case.” It is vain to pretend that a lawful oath was administered to the jury, and practically, there is no verdict of twelve sworn men, upon which a valid judgment could be rendered.

Shackleford, J. The appellants filed the following assignment of errors: 1st. The court below erred in granting leave to file the supplemental bill. 2d. The court below erred in overruling the appellant’s demurrer to the supplemental bill. The appeal comes to us indirectly from the civil law, but ■directly from the English law. The term “ petition of appeal,” in art. 103, Rev. Code, is borrowed from the proceeding on appeal in the English court of chancery.

The facts are recited in the opinion of the court. The plaintiff in error assigned the following errors: 1st. The court below erred in refusing to confirm the commissioner’s report of sale; in setting aside and vacating said sale, and ordering a re-sale of the land described in the decree. The grounds presented by the record for setting aside the sale in this case, are resolved into the following: Inadequacy of price, the advanced bid, accident, and surprise.

<p>1. Assumpsit on Unstamped Note__In an action of assumpsit, with one count on notes not stamped according to the United States revenue laws, and another upon an account for the original consideration of the notes, if the notes be held inadmissible as evidence, the plaintiff may recover for goods sold on account.</p> <p>2. Asency — How Cheated, and how Pboved. — An agent may be constituted by sealed writing, by “parol words,” or by acts and implication; except that if the act to-be done by the agent is to be under seal.</p> <p>3. Same — Peovinoe oe Juby to Decide. — In a case turning upon the question of agency, and there is a conflict of testimony upon the fact, the jury must decide it upon the weight of evidence. And it must be a very olear case in which the verdict of the jury will be set aside.</p>

Campbell, J. The following errors are assigned: 1st. The court erred in granting the instructions asked by plaintiff below; 2d. In refusing the instructions asked by defendant below; and 3d. In overruling the motion for a new trial.

Hyde, J. The plaintiff in error assigned the following errors: 1st. The heirs at law and distributees of Mrs. Davis, deceased, were proper and necessary parties in the proceedings in the probate court.

Foote, J. This was an action of assumpsit on a promissory note, brought by the defendants in error against the plaintiffs in error. There was a summons to Oktibbeha for both the, defendants and a duplicate summons to Ohickasaw county for Malone.

Cothran, J. The facts are fully stated in the opinion of the court. The court will see, upon looking into the evidence, that the case presented by the record is a contest between two incumbrancers for priority in tbe application of the proceeds of property which each claim under a mortgage. The moral equity of the complainants cannot be denied, and if there is no legal obstacle in tbe way, would certainly determine the question in their favor.

Ossood, J. The defendant, Robert Woods, was indicted by the grand jury, at the November term, 1869, of the criminal court of Warren county,… Held: that “ If there be a doubt about the act of killing, all will concede that the prisoner is entitled to the benefit of it; and if there be any doubt about the will, the faculty of the prisoner to discern right and wrong, why should he be deprived of the benefit of it, when both the act and the will are necessary to make out the…

Smiley, J. Appellants assign the following errors : 1st. It was error in the court to overrule the demurrer of defendants, and to render the decree made in this cause. 2d. It was error in the court to refuse to set aside the pro oonfesso taken against the defendants on their motion. 3d. It was error in the court to refuse to confirm the sale made herein by the commissioner, Thomas.

'Appeal from the chancery court of Pontotoc county. Bradeord, J. The appellant assigned the following errors : 1st. The court below erred in sustaining the demurrer to defendant’s cross-bill. * 2d. The said court erred in entering up a judgment^? confesso against the said appellant, after the demurrer to her said cross-bill was sustained, and while said cause remained at issue on her original answer to appellees amended bill of complaint, which had been filed in said cause…

<p>1. Guardianship — Jurisdiction.—Jurisdiction for the appointment of a guardian (under the old judiciary system) belonged to the probate court of the county in which the minor resided.</p> <p>2. Bastardy — Presumption Against. — A child begotten and born during wedlock is presumed, though not conclusively, to be legitimate. To overcome this presumption, there must be proof of non-intercourse between the parents.</p>

Watts, J. The case is fully stated in the opinion of the court. The plaintiff in error assigned the following errors: 1st. The court erred in overruling the motion of the plaintiff in error to quash the indictment. 2d. The court erred in granting the instructions asked for by the state. 3d. The court erred in refusing to grant the third instruction asked for by the plaintiff in error. 4th. The court erred in overruling the motion for a new trial.

The plaintiff in error assigned the following errors : 1st. The court erred in hearing and passing upon the objections to the final account, in the absence of the administrator and his counsel, and without giving the administrator an opportunity to be heard and to show by proof that the objections were not well taken, and that the rejected items, if not supported by legal vouchers, were nevertheless just and legal claims against the estate. 2d. The court erred in ordering…

Owen, J. The plaintiff in error assigned the following errors : ,1st. The court erred in the restatement of the second annual, and final account, in this : 1st. That it struck out and disallowed the sum of $1,354 by administrator paid to Samuel 0.

<p>1. Chanceby Court — Jubisdiction.—Where the chancery court can afford complete and adequate remedy, and, by one litigation and decree, adjudicate the rights of the parties, it may take jurisdiction over the entire subject matter, and if necessary, enjoin a.party from proceeding in a suit in the probate court, when such suit only embraces part of the subject.</p> <p>2. Same — Legacies—Ante-Nuptial Contracts. — Where the widow claimed under an ante-nuptial contract, and also under the will of the husband. It is competent for the chancery court in a controversy whether the legacy is in satisfaction of the contract, to enjoin a suit in the probate court for the legacy, and to draw to itself cognizance over both subjects.</p> <p>3. Legacies — Ademftion and Satisfaction — Presumptions—If the benefit to the donee be different in “ species ” or of less value, the presumption of satisfaction will not arise; and such presumption may he repelled by the acts and declarations of the testator. Story Eq., § 1102. But the presumption in equity is against double portions.</p> <p>4. Same — 'Wills—Evidence—Whether the legacy (according to many authorities) was in performance, and satisfaction of an antecedent covenant, or was a gift, might be proved by extrinsic evidence, or gathered from the face of the will.</p> <p>5. Ademption — Tendency of Modebn Adjudications. — The tendency of modern eases is not to push the doctrine of presumption, satisfaction or ademption further. Many courts question its propriety, and accept and act upon it as a rule of equity, resting on a weight of authority, not to be departed from.</p> <p>6. Wills — Consteuction—Evidence.—If a will itself, fairly interpreted, expresses the testator’s mind on the subject, then the necessity to resort to extraneous aid does not arise.</p> <p>7. Same. — In the construction of wills it is always competent to prove, by parol, the situation and surroundings of the testator as respects his family and property.</p> <p>8. Same — Case at Bab. — Erom the face of the will, the conclusion is reached that the legacy was meant to be in satisfaction of the provision of the marriage contract, and, referring to the parol testimony, it was deduced that the legacy was intended to have been paid in Confederate money. But the widow was not entitled to both the provision for her in the “articles” and the legacy, but the former was not contemplated to be paid in Confederate money.</p>

Smiley, J. Tbe plaintiff in error assigned the following errors: 1st. There is error in the judgment of the circuit court sustaining the demurrer of the defendants to the first avowry filed by the plaintiff. 2d. There was error in the order of the circuit court striking out the avowry and the special pleas in the case, and ordering the case to be tried on the general issue of not guilty alone. 3d. There is error in the charges to the jury, given by the court at the request…

McNair, J. The facts are sufficiently stated in the opinion of the court, except the testimony of the witnesses relating to the confessions of the prisoner. William Kennedy, a witness for the- state, testified that he was a prisoner in jail, in the same room with the prisoner John Pitts, but in a different cage. Heard and saw Mr. Geo. Magee, Mr. Joseph Magee, Mr. Zachary and several others talking to the prisoner.

Smiley, J. We contend in behalf of plaintiff in error, that the demurrer should have been sustained for the reasons assigned.

<p>1. Contract — Consideration—Practice.—The purchaser of personal property on credit, at guardian’s sale, under erroneous decree of the probate court, cannot setup error in docreo as defense to an action for the purchase mo.ioy; but in such case he must seek relief by a reversal of the decree and return of the property.</p> <p>2. Sales — Caveat Ehttor. — In this country there is an implied warranty by a vendor of the title to his own goods if in his possession at the time of sale; but if in the possession of a third party, there is no such warranty, and the maxim caveat emptor applios.</p> <p>3. Trust Sales — Caveat Emptor__It is well settled that in trust sales of any kind there is no implied warranty of title, soundness or quality. And if the vendee bo put in possession, and protected by covenants of warranty, he cannot defeat an action for the purchase money, (except in cases of fraud,) without a previous eviction ; and this rule applies to sales of personal, as well as real of property.</p> <p>é. Judicial Sales — Void Decrees — Erroneous Decrees — Title.—The purchaser at a sale made under a void, decree, obtains no title ; but if the decree be under a decree not void but only voidable or erroneous, the title is good, and the sale must stand till the decree be reversed on error.</p>

county. Quin, J. The plaintiff in error assigned the following errors : 1st. The court erred in not sustaining the demurrer to the whole of the petition, and in not dismissing the same. 2d. The court erred in allowing the petition for discovery to be taken as confessed without disposing of the demurrer to the petition. 3d. The court erred in rendering a decree against the defendants, in the court below, as executors, and directing the property of the deceased to be sold; and…

Clayton, J. The Southern Express Company, appellant, filed its hill in the chancery court of Marshall county, in which it alleges that Heber Craft, the appellee, at the March term, 1866, of the circuit court of Marshall county, Mississippi, recovered a judgment against said appellant, for the sum $207, etc. That execution thereon had issued, etc. It is alleged that complainants had no notice of the suit in which the judgment was rendered; that the process in said suit was…

McNair, J. This suit was commenced in the circuit court of Pike county, to recover the amount and interest of a promissory note of plaintiffs in error, dated February 14,1862, for tbe sum of six hundred dollars, payable to the defendant in error. The defendant in the court below filed the plea of non assumpsit, to which tbe plaintiff below replied. At tbe next term of the court, tbe defendant asked for and obtained leave to file additional pleas.

<p>1. Chanoeey Pbactioe — Appointment of a Reoeiveb. — To justify tlie appointment of a rec eiver before the merit of the cause are disclosed — as before answer filed, or pro confesso taken — there must be strong special reasons laid; as, where the defendant has withdrawn himself from the jurisdiction of the court to avoid service of its process, or is guilty of fraud endangering the property, or, in case of a suit to foreclose a mortgage, the mortgaged premises are a slender and scanty security, entitling the mortgagee to collect and appropriate the rents, and other like cases.</p> <p>2. Mobtgagob and Mobtgagee — Rents—Received.—A mortgagee is not entitled, after default, to the rents and income of the mortgaged premises, nor to a receiver to get them in, unless he contracted for them, or, unless the mortgaged property be insufficient to meet the debt.</p> <p>3. Appointment of a Receives — Notice of Motion. — To give the chancery court jurisdiction of a motion for the appointment of a receiver, it is indispensible that notice of such motion shall be served on the parties to be affected thereby. Rev. Code, p. 552, art. 74.</p>

McNair, J. The plaintiff in error assigned the following errors : The court below erred in overruling the demurrer, and rendering j udgment by default against plaintiff in error. Tbe defendant in tbe court below assigned as a cause for demurrer, a variance between the writ of attachment and declaration.

Hancock, J. Isaac Osborne died in 1866. His widow filed a petition in the probate court, asking for the whole of his exempt property. The court decreed it to her; and an appeal was taken to this court, and the decree below was affirmed. See Stephenson v. Osborne, 41 Miss., 119. The exempt property had, in the first instance, been sold, and the petition was for its proceeds. This was given to her.

Campbell, J. The plaintiff in error assigned the following errors: 1st. The court erred in sustaining defendant’s demurrer to plaintiff’s second, third, fourth, and fifth pleas. 2d. The court erred in allowing defendant to join issue on fourth and fifth pleas of plaintiffs, after and pending the judgment of the court sustaining defendant’s demurrer thereto. ■3d. The court erred in not extending defendant’s demurrer to plaintiff’s second, third, fourth, and fifth pleas, back…

<p>Error to the circuit court of Claiborne county. Smiley, J.</p> <p>The facts are fully sjtated in the opinion of the court</p> <p>The admission of the plaintiff in his declaration in the court below that, at the time of distress, he did owe a part of the money, which had been distrained for, destroys his claim for double damages. Rev. Code, p. 341, art 10; N. Y_ Dig., p. 712, case 12; Taylor’s Landlord and Tenant (5th ed), p. 155, § 732.</p> <p>Rent service was the only kind of rent known at common law, and the right of distress was incident thereto. Taylor’s Landlord and Tenant, 420, § 559. Rent is a certain profit, etc. It must be capable of being rendered certain by either party. 2 Black. Com., 41. It need not be money, but^may be property, produce, or services. Ib. Bacon, Abr., title, “ Distress ; ” 3 Thomas’ Coke, 253; Taylor’s Landlord and Tenant (5th ed.), 269-279, § 369, 370, and p. 104, § 152. For rent service, the landlord may distress by common right. 2 Black. Com., 42; Bacon, Abr., “ Distress ” a; 3 Thomas’ Coke, 253; Coke’s Littleton, 96 a; 1 Salk., 262; N. Y. Dig., p. 714, case a, 14, citing 2 Cowen, 652; ib., citing 10 Johns. R 91.</p> <p>If the landlord has good reason to apprehend his tenant will dispose of his property to defeat his claim for rent, he may distrain before the rent is due. Rev. Code, p. 340, art. 3.</p> <p>There must be_ a lease and sum certain agreed upon for rent, or if the rent is payable in service, they must be such as that their value can be ascertained to a complete certainty. See Tift v. Virden,10 Johns., 11, and 156 ; Smith v. Colson, 10 Johnson, p. 91; Jacks v. Smith, 1st Bay., p. 315 ; Smith v. the Sheriff of Charleston, ib., 443 ; Valentine v.' Jackson, 9 Wendell, 305.</p> <p>The distress warrant in this case was sued out under article 3, p. 340 of the Code, which allows a landlord to distrain for rent before it falls due, on his making oath that he has just cause to suspect, and verily believes that his tenant will remove his effects from the demised premises before the rent will fall due so that no distress can be made. Now, even if the court had considered the services in which the rent was to be paid, capable of being reduced to a sufficient certainty, could their value be proved under this statute ? Briscoe makes an affidavit that the specific sum $309 43, will be due him for rent, from McElween on the 1st day of January, 1869. The question is, after swearing that this amount of rent will be due on the 1st of January, 1869, in money, is he not estopped from proving that the rent was due in services ? and is he not estopped from proving their value, and ought he not to be precluded, altogether, from justifying himself in this action of trespass, on the ground that the rent was to be paid in services ? It strikes us that even if the value of the services were sufficiently certain under this statute, he should have made an affidavit that so much rent was due in services, specifying them, and that his tenant was about to remove his property from the demised premises, without performing these services, and no distress could be made to compel the performance of the services, or the payment of their value.</p> <p>Again, this statute contemplates that the distress under it can only be made on a money demand. It is a statute in derogation of the common law on the subject of rent, and is certainly a penal statute, as the tenant dare not dispute the landlord’s right to distrain except at the peril of paying-double rent. For these reasons it must be strictly construed. At common law, even in the days of the feudal landlords, no distress could be made for rent until the last day in the evening, the tenant having until dark of that day to pay his rent, as he was entitled to sufficient daylight in which to count the money. The books constantly use the words “ rent in arrear.” See Taylor on Landlord and Tenant, sec. 573, pp. 429, 430, 5th edition; 1 Harding Ky. Reports, p. 297; 1 Saunders Reports; 3 Kent, p. 537; Woodfall on Landlord and Tenant, p. 314. Now, then, this statute allowing the rent in certain contingencies to be collected before 'it becomes due, by the extraordinary and oppressive remedy of distress, being in derogation of common law, should it not be confined to its terms, that is a money demand ? xknd was not the court below justifiable in refusing to admit proof of the value of the services ? Taking all these matters into consideration, we think the court below was correct in excluding the testimony.</p> <p>There is no testimony to show that Briscoe had any good cause to suspect or believe that McElween was going to remove his property from the demised premises. This court will seldom interfere with a verdict of a jury on a questioh of the weight of evidence. See Leflore v. Justin, IS. & M. 381; Ellzey v. Stone, 5 S. & M., 21; Watson v. Dickens, 12 S. &. M. 608; Mann v. Manning, ib., 615; Wall V. Kirkman, 13 S. & M., p. 599; McMullin v. Mayo, 8 S. & M. 298; see Pitchard v. Myers, 11 S. & M., 169.</p> <p>The remedy by distress for rent is peculiar, and there should have been a separate distress on each separate and distinct demise, and Briscoe was a trespasser when he dis-trained on three different demises in one general distress warrant. See Taylor on Landlord and Tenant, sec. 574, p. 430, 5th edition; Rogersv. Berkshire, Strange, 1040. Taylor uses this language: “ When there are separate and distinct demises, there must be separate distresses on the several premises subject to each distinct rent, although the several premises are demised to the same tenant. If counsel should insist that the execution of the deed of trust by McElween to Thrasher, for the benefit of Baldwin, was such a removal of the property within the meaning of the statute, article 3, page 340, Code of 1857, as to justify Briscoe in taking out the distress before the rent fell due, then we would refer your honors to the case of Mayre v. Dyche et al., 41 Miss_ R., 420, where it is decided that the property of third persons found on demised premises is not liable to distraint, and that a Iona fide sale of the property by the tenant, absolutely or by way of mortgage or by deed of trust, will defeat the landlord’s right to distrain.</p>

Hancock, J, ' Appellant assigned the following error: The court erred in sustaining the demurrer of the defendants to the complainant’s bill.

Mill-saps, J. Plaintiff in error assigned the following errors : The court erred in dissolving the injunction and dismissing the bill of complaint. This was a bill for injunction, filed by a debtor to the county, who had borrowed a portion of the three per cent, fund, to restrain a sale of his property for gold or greenbacks, when he was willing to pay, and offered to pay the debt in the warrants of the county.

Trimble, J. The plaintiff in error assigns the following errors : 1st. The court below erred in overruling the motion of the defendant to quash the writ of attachment to Coahoma, Tunica and Bolivar counties, for the reasons assigned. 2d. The court below erred in overruling the motion of the defendant to‘quash the returns on the said writ of attachment for the reasons assigned. 3d. The court erred in overruling the motion of the defendant for a new trial for the reasons…

<p>Error to tbe circuit court of Chickasaw, comity. Bradford, J.</p> <p>Plaintiff in error assigns the following errors :</p> <p>1st. In giving the instructions to the jury, asked by the plaintiff in the court below.</p> <p>2d. In refusing the instructions asked by defendant in the court below.</p> <p>3d. In overruling motion by plaintiff in the court below for a new trial.</p> <p>4th. The verdict was void, because it is for gold, and not for currency of United States.</p> <p>1st. The court below certainly erred in holding that in an action of assumpsit the verdict of the jury should be for the highest value of the goods constituting the consideration of the demand, at any time from the date of the liability to that of the trial. And this is the undoubted effect of, the rulings of the court upon this question, in giving and refusing instructions upon the measure of damages. See Sedg. on Measure of Damages (3ded., 1858), p. 499, (marginal p. 472), et seq.</p> <p>2d. And the court, with equal certainty, erred in disallowing the motion' of plaintiff in the court below, for a new trial, because of the errors in giving and refusing the instructions asked by the parties, and, because the jury had. found, not only “ contrary to the evidence,” but really in utter defiance and contempt of all the evidence in the case. Eor there was really no evidence even tending to show any liability of Jamison.</p> <p>3d. A verdict for payment to be made in gold is void, because in violation of the acts of Congress making United States treasury notes a legal tender.</p>

Cooper, J. The plaintiff in error assigned the following cause of error : The court below erred in refusing the prayer of the petitioner, and in dismissing the petitioner at his costs. We insist the bequest to the plaintiff is a legal and valid gift of a thousand dollars, and that the jurisdiction of the probate court of Madison county is full and ample to enforce its payment.

Vance, J. The appellants in error assign the following errors : 1st. The court erred in not affirming the sale made to Wm. Hull, of the lauds of which the said Hull became the purchaser, and for the purchase money of which he gave his bond with A. M. Clayton, his surety, and in canceling said bond. 2d. The court erred in not confirming the sale of the slave named Joe Wade, to F. 0.

Vance, J. The plaintiff in error made the following assignment of errors: 1st. The court erred in calling back two jurors and placing them on the panel after they had been challenged by the plaintiff in the court below and set aside, and the jury had been accepted by the plaintiff, and turned over to the defendant for his acceptance or objection. 2d. The court erred in permitting the testimony' of the witness, J. W. Vance, to go to the jury, showing what was said by the…

<p>Appeal from the chancery court of Carroll county. Cothran, J.</p> <p>The appellant assigned the following errors :</p> <p>1st. The court erred in sustaining the demurrer of defendant to the original bill.</p> <p>2d. The court erred in sustaining the demurrer to the amended bill.</p> <p>3d. The court erred in dismissing the original, amended and supplemental bills.</p> <p>No principle of equity is more clearly and firmly established than that “ a man shall not be benefitted by his own wrongful acts to the injury of another.” It has recently been repeatedly recognized and enforced by this court. 30 Miss. Rep., 135; 31 ib., 107-9 ; 33 ib.,173 ; 37 ib., 579 ; 39 ib., 116.</p> <p>Invoking this principle, we have come into equity, seeking relief against an advantage at law, which Samuel B. Marsh, now deceased, and the defendant, his administrator, have acquired over the complainant by a protracted and fruitless litigation carried on by them for long years in the superior court of chancery, enjoining the collection of a judgment at law, in favor of complainant, until all adequate remedies at law were destroyed. For the remedies thus lost, the object of this suit is to obtain the substitution of a remedy which shall be adequate to compel the defendant to discharge the duties of his intestate to the complainant, as evidenced by his bonds filed as exhibits to the bill; which obligations are,' to pay and satisfy a judgment obtained by complainant against him in the circuit court of Carroll county, July 12, 1838, and interest from its rendition to the present, and costs and damages sustained by reason of said injunction.</p> <p>The prayer of the bill is in the alternative for, either,</p> <p>1st. A decree based upon the bonds for the amount actually due; or,</p> <p>2d. An injunction restraining the defendant from pleading the bar of the statute of limitations to proceedings at law upon the original judgment — so long enjoined.»</p> <p>To either relief the complainant is entitled, and the bill should have been sustained.</p> <p>The bill charges that the defendant, and before him his intestate, protracted the injunction suit for co long a time that the debt (principal and interest on the judgment enjoined, costs, and damages), intended to be secured by the bonds, far exceeds the penalty of said bonds.</p> <p>In an action at law on the bond, judgment could only be recovered for the penalty of the bond. Wild v. Clarkson, 6 Term, 303 ; Strong v. Holmes, 7 Cow., 325; 3 ib., 151. Thus if driven to a suit at law on the bonds, the complainant would lose near one-third of the debt due him; but in equity, where the bond is given to secure the payment of a sum of money mentioned in the recitals of the bond, and payment is delayed by the acts of the obligor until the sum with interest due thereon exceeds the penalty, the court will decree and compel the payment of the amount actually due. Duvall v. Terry, Showers’Pari, 0., 16 ; Jeudwine v. Agate, 3 Sim., 129 (S. 0. 5 Cond. Eng. Oh., 51); Grant v. Grant, 3 Sim., 340 (S. C. 5 Cond. Eng. Oh., 144); Paltney v. Warren, 6 Ves., 73 ; Hale v. Thomas, 1 Vern., 349 ; Bond v. Hopkins, 1 Scho. & Lefr., 413 ; Mower v. Kip, 6 Paige, 88; Baker v. Morris, 10 Leigh, 285 ; Harris v. Clapp, 1 Mass., 308 ; Pitts v. Tilden, 2 ib., 118.</p> <p>The object of an injunction bond is to indemnify fully, the party restrained. It is not a matter of choice with the party enjoined to accede to the terms of the contract. It is forced upon him, Cox v. Vogh, 33 Miss., 189, and if an instrument intended as an injunction bond, be not executed under seal, upon which the writ issues, it is a valid contract at common law. Ib., 189. The recital in the condition of a bond, is evidence of the agreement between the parties. Jeudwine v. Agate, 3 Sim., 129.</p> <p>The first bond recites the judgment at law which is enjoined, and the obligation of Marsh (his contract is to pay that judgment in case he fails to maintain his injunction). To pay and satisfy a judgment which bears interest, is to pay the principal. The second bond recites the said judgment, and the obligation of Marsh. His contract is to well and truly pay and satisfy all damages and costs, within thirty days after dissolution, which may result from the injunction issued at his request. What under this bond, is the measure of damages? The judgment enjoined with interest, and the costs to the obligee.</p> <p>At law we cannot enforce the contract, the obligation of Marsh, viz.: to pay and satisfy the judgment of 1838 against him, and costs and damages resulting from the injunction ; because the penalty of the bond is the limit, beyond which we cannot go, it matters not if our debt were treble the penalty ; and as a general rule, courts of equity follow the law; but under special circumstances they will compel the obligor to pay the actual sum he owes, notwithstanding it exceeds the penalty. Duval v. Terry, etc., supra.</p> <p>But it is said, we have been guilty of laches in not apply-plying to the chancellor to modify the injunction, or in not disregarding the injunction, so as to keep the judgment enjoined alive; that we failed to revive the judgment by scire facias against the administrator, and that the judgment is extinct because of such laches on our part. The judgment at law has nothing to do with it except as data, by which to ascertain the sum which the obligor promised to pay. Berry v. Bacon, 28 Miss., 325. In Grant v. Grant (supra), the chancellor said that “ if a party chooses by improper procedings to prevent a creditor from receiving payment as soon as the creditor ought, those proceedings shall not operate to the prejudice of the -creditor, but he is entitled to receive what is really the amount due 'to him.”</p> <p>In Jeudwine v. Agate (supra), suit was brought in equity by the obligees against the administrator of the deceased obligor to recover the sum of money which the obligor had promised to pay in his bond, the vice-chancellor remarking, that when there is a distinct agreement that one thing shall be done, as the payment of a sum indefinite in amount (as here), “ then, notwithstanding the agreement appears in the form of a bond with a penalty, the court will consider that the recital in the condition of the bond is evidence of the agreement, and will not limit the relief it gives, to the amount of the penalty.”</p> <p>In Bond v. Hopkins, 1 Scho. & Lefr., 413, the court held that the obligor should not take advantage of the delay, and decreed that he should pay the debt with interest, notwithstanding it exceeded the penalty. Showers’ Pari 0., 16; Hale v. Thomas, 1 Vern, 349 ; 1 Salk., 154.</p> <p>In the case of Mower v. Kip, 6 Paige, 89, the chancellor held, that “ upon a money bond given by a principal debtor, the obligor is both legally and equitably liable for the whole amount of the principal secured by the condition of the bond, although such amount exceeds the penalty of the bondand it seems that interest by way of damages for the detention of the debt during the time the defendant delays its collection by an improper or protracted litigation may be recovered even as against a surety.” And a fortiori, it would .seem, does this principle apply to to the principal debtor. See, also, Judge <fe Co. v. Haydock, 8 New Hamp., 491; Baker v. Morris, 10 Leigh, 285 ; 1 Mass., 408; 2 ib., 118 ; 5 Munf., 494; 3 Caine’s Oases, 48 ; 4 Day, 30 ; 4 Dali.,149; 6 Greenl., 14 ; 1 Ry. & Moody, 105; 2 Burr, 1059.</p> <p>2. But the bill is sustainable upon the equity that the bar of the statute of limitation has attached to all action at law upon the judgment, in consequence of the injunction sued out by the judgment debtor and sustained for the length of time prescribed by the statute to attach the bar, against which the bill prays relief.</p> <p>“A debtor at whose instance an injunction has been issued and kept in force seven years, restraining the collection of a judgment against him at law, will be enjoined by a court of equity from setting up the statute of limitations as a defense to the collection of the judgment.” Suggs v. Thrasher, 30 Miss.Eep., 135; 31 ib., 107; 33 ib., 173; 37 ib., 597; 39ib.,165.</p> <p>But it will be insisted upon the authority of Robertson v. Alford, 13 S. & M., 513, a case at law, that the judgment creditor ought to have taken the steps necessary; such as applying to the chancellor for a modification of the injunction, so as to permit the issuance of executions, or to have issued executions in disregard of the injunction, and thus kept the judgment alive. The issuance of executions upon judgments, where one has been issued within a year and a day, is the only recognized mode of keeping a judgment alive between the original parties to it. A writ of soire, facias cannot issue. Locke v. Brady, 30 Miss., 21. This was prohibited by the writ of injunction. The same argument and the same authority relied upon here was used by counsel for appellant in the case of Suggs v. Thrasher; but the court there said: “Why was it that.the plaintiff at law delayed this long period to enforce his judgment? The response is, that the debtors, by the means they employed, forced him to delay. * * * He but obeyed the process of the court, issued and kept in operation by the debtors, in the fruitless litigation which they carried on for this long period of time. * * * He ceased to prosecute his remedy on his judgment, because such was the command of the process, which issued in pursuance of the prayer of the debtors. * * •* If execution could go into the hands of the sheriff at all, it would be for complete execution, and not for part,” etc. Ib., 143.</p> <p>The object — the purpose of the soire facias — to revive a judgment against the administrator, is to give him notice that he may show cause why the creditor shall not have execution of the judgment, to be levied of the goods and chattels in his hands, belonging to the estate of the deceased debtor. Its sole object is to have execution. 2 Harris’ Entries, 460-728, and not merely to revive the judgment against the administrator, by name. “ And the law does not countenance vain and useless things, especially when unnecessary costs must be the result of the abuse of its process.” Locke v. Brady, 30 Miss., 27.</p> <p>At law, the statute of limitations commenced from the date of the judgment; but in equity, a useless, fruitless litigation, or other wrongful or fraudulent conduct prevents the running of the statute, and it begins to run only at the termination of such conduct. Upon what other theory can the rule of equity courts, which denies to those who have been guilty of such conduct, the benefit of the bar of the statute, be sustained. But it is said that the case of Suggs v. Thrasher is not analogous to this case, and that the rule recognized by this court, in that case, cannot be applied to the case at bar. But this court, in the case of Edwards v. Gibbs, administrator, etc., 39 Miss., 166, held the administrator responsible for the “ unconscientious acts ” of his intestate, so far as to deny to him the benefit of the bar of the statute of limitations, an advantage at law acquired by such acts. The weight, or rather the universal rule of the authorities, both English and American, upon the question, raised in this case, sustain the following propositions:</p> <p>1. That where a bond is given to secure the payment of a debt mentioned in the recitals of the condition, and payment is delayed by the acts of the obligor, until the amount of that debt, principal, interest, etc., exceeds the penalty, a court of equity will decree the payment of the amount actually due, notwithstanding it exceeds the penalty.</p> <p>2. That when a debtor sues out and keeps in operation an injunction restraining the collection of a judgment against him at law, for such length of time as will suffice for the bar of the statute of limitations to attach to legal remedies to enforce the collection of the judgment enjoined, he will be enjoined by a court of equity from setting up the bar to an action at law to enforce the collection of that judgment. And these two are but subdivisions of the general rule of equity, “ that a party shall not avail himself of an unconscientious advantage obtained by his own act, and without the fault of his adversary.” 6 Ves., 73; 10 ib., 549; 3 Sim., 340; ib., 129; Showers’ Par. Cases, 15; 1 Ball. & Beat., 239 ; ib., 262; 3 Rus., 589; 3 Atk., 517 ; 3 Brown P. C., Toml. Ed., 607 ; 4ib., 517; 1 Scho. & Lefr., 413 ; 9 Jur., 717; Eq. Abr., 91; 1 Salk., 154 ; 1 Vern., 549; Bacon’s Abr., 239; 2 Brown P. 0., 333 ; 1 East, 486 ; 17 Ves.,' 106; 11 Bligh., 158-187; 1 Ry. & M. 105 ; 21 E. C. Law Rep., 391; 1 Wm. Sand., 58, note 1; 6 Paige Ch., 86 ; 8 N. Hamp., 491; 10 Leigh, 285 ; 1 Mass., 308; 2 ib., 118; 5 Munf., 494 ; 3 Cain’s, 48 ; 1 Paine C. C., 661; 4 Day, 30 ; 4 Dali., 149; 6 Greenl., 14; 2 Burr, 1094; 2 Story Equity Juris., §§ 903-1316 (a), §1521; Coop. Eq., 143 ; Mitf. Eq.,by Jeremy, 134,135 ; 2 Eden’s Inj., ch. 16, pp. 408, 409 ; 3 Mad., 181; 10 S. &M., 501; 13 ib., 553 ; 30 Miss., 135; 31 ib., 107; 33 ib., 183; 37 ib., 579 ; 39 ib., 166, etc.</p> <p>The bill was demurred to and the demurrer sustained, and this may be regarded as the only error assigned. This court settled the law in the case of Robertson v. Alford, 12 S. & M., 509, that an injunction did not stop the running of the statute of limitations ; and what is the reason given for it ? That the injunction can, at any time, be modified by the court, upon the application of the party interested, so as to enable him to sue, if there is danger of the statute becoming a bar. This was the opinion of Chief Justice Sharkey.</p> <p>The same doctrine is held in the case of Kilpatrick v. Byrne et ah, 25 Miss., 580 ; and Judge Yerger in the opinion there delivered, in express terms, affirms and follows Judge Sharkey’s opinion. The doctrine, then, is fully settled, that before an injunction can be modified by a court, so as to enable a party to see when there is danger of the statute of .limitations barring the claim, the injunction does not at law or in equity, stop the running of the statute. Now in this very case, an application could have been made at any time, by the creditor, to have the injunction so modified that Minter could have been such, either by scire facias, or began action of debt on the judgment. He had his choice of remedies, and a mere suggestion that the statute was likely to become a defense, would have been sufficient. This is expressly ruled in the above cases.</p> <p>But the counsel for plaintiff in error, rely upon the case of Suggs et al. v. Thrasher et al., 30 Miss., 141. In this last case the injunction was dissolved at the June term 1848, of the superior court of chancery. The parties took their appeal to the high court, and the case was not decided in that court, until March, 1853. Here the injunction was by virtue of this appeal, kept in force from 1848, until 1853, in a court which had no power to modify the injunction, because it will not be pretended that the high court could do more than review what the court below had done. As a court of original jurisdiction, it had none, and hence the creditor was without remedy as having the injunction modified after the case got into the high court. The decisions of the court are as uniform as they can be made on the point, that when a party can have an injunction modified, and fails to do so, the statute will continue to run.</p> <p>When a case is in the high court, however, where no such application can be made, the case of Suggs v. Thrasher, says that the party shall not set up the defense, because there was no remedy or means of modifying the injunction.</p>

Smiley, J. The plaintiff in error assigned the following errors : 1st. The verdict of the jury was excessive. 2d. The verdict of the jury was contrary to the instructions of the court. 3d. The verdict of the jury was against the law and the evidence. 4th. The court erred in overruling the motion for a new trial. 5th.

McNair, J. The facts are sufficiently stated in the opinion of the court- The plaintiff in error assigned the following errors : 1st. The judgment of said circuit 'court should have been for the plaintiff. 2d. The judgment of said court for Rufus F. Learned should have been for half of the land sued for. 3d. No judgment should have been given for the defendant. 4th. No judgment should have been given for the value of improvements. 5th.

Iii error to the circuit court of Tippah county. Boone, J. The plaintiff in error assigned the folio wing errors: 1st. The circuit court erred in giving the 2d, 3d, 4th, 5th and 6th instructions asked for the defendant, and in each of them. 2d. The court erred in overruling the plaintiff’s motion for ¿i new trial. 3d. The court erred in permitting Mrs. Fleming, wife of the defendant, to testify as a witness for her husband, against the objection of the plaintiff.

Watts, J. The appellant assigned the following as error: That the court below erred in sustaining the demurrer of the defendant to complainant’s bill. Appellant had been licensed by the board of police, to retail vinous and spiritous liquors, and had paid for such license, $350. The tax collector demanded from him $709 25, for his state and county taxes, on his business as a retail grocer for the year ending 14th May, 1866.