Volume 44 — Mississippi Reports

Smiley, J. Tbe plaintiff in error assigned the following errors: 1st. The court erred in overruling the motion of tbe plaintiff in error for a new trial. 2d. Tbe court erred in giving the 1st, 3d, 4th, and 5th instructions asked for by tbe plaintiff below. 3d. Tbe court erred in refusing tbe 1st, 3d, 4th, 5th, 6th, 7th, 8th, and 9th instructions asked for by the defendant below.. 4th.

Smiley, J. Insisted that the plaintiff in error was entitled to have his debt satisfied out of the “Elms property,” under the .provision of the Revised Oode, 336, art. 24. Plaintiff in error testified that he did examine the record touching the title to the “Elms property,” and only gave credit when, and because, he had found that the title was.in David Stanton. This is his tin contradicted testimony.

Tbot-ter, J. [ The facts of this case are sufficiently stated in the opinion of the court. The appellant assigned the following error: That the court below erred in the final decree in denying the relief sought by the bill of complaint, and in granting the prayer of the defendant’s cross bill. If the payment made by complainant to Wimberly, the Tennessee administrator, was a good payment, then he was clearly entitled ta a deed, and the decree below must be reversed.

Acker, J. The plaintiff in error, assigned the following : The judgment rendered in this cause by this court, on the 16th May, 1866, was erroneous in matter of fact in this, that John 0. Holloway, administrator of Nancy Martin, deceased, the defendant in error in the original suit, was, at the time said judgment was rendered, dead, and there was no revival of said cause against his successor, or the plaintiff iii 'error in the present cause.

COTHRAN, J. The opinion of the court contains a full statement of all the material facts of the case. 1st. The proof does sot show that character of fraud which entitled the complainant below to a rescission of the contract. A mere representation honestly made, and believed at the time to be true by the party making it, though not true in fact, does not amount to fraud.

Watts, J. ■ -1st. That plaintiff iii error, at the time said judgment was rendered against him, had no notice, actual or constructive, that said suit was pending against him. 2d. That he was a' non-resident of the state j and the facts in the case require an order of publication in some newspaper ; which publication was not made. 3d. The requirements of the attachment laws of the state were not complied with, in that there was no order of publication in a newspaper. 4th.

BRADFORD, J. The facts are fully set forth in the opinion of the court. 1.

<p>. Error to the circuit court of Lawrence county. McNaiR, J.</p> <p>,É Tlié first error assigned is the judgment overruling the. motion of the plaintiff to dismiss the appeal from the judgment..of. the justice's court. Joseph Bloom, under the act of the legislature, approved Dec. 3d, 1863, brought suit in the justice’s court to recover a bale of cotton. See acts of 1862, and 1863, p. 129.</p> <p>"On the 10th November, 1865,"the plaintiff had judgment The next regular term of the circuit court was begun and held Monday, Nov. 12, 1865. Hence only two days intervened between the rendition of the judgment in the justice’s court and the beginning of the circuit court.</p> <p>If defendant felt aggrieved by this j udgment he had a right to appeal to the circuit court. By the terms of the act, he should have done so at the next term of the circuit court. The words of the act are, “ the justice or clerk shall send to the circuit court, all the papers and proceedings, and a transcript of all. the orders and judgments in said cause, and shall deliver the same to be there docketed for trial, and the said circuit court shall, at the first term, empanel a jury and hear and determine the said cause.” There is some confusion of dates, but it is clear the appeal was taken on the 10th Nov., to the next term of the circuit court, which began on the 12th of that month, but more than five days after the rendition of judgment in the justice’s court. The act fixes no limit within which the appeal shall be taken, but it seems clearly contemplated that it should be taken to the first term of the court succeeding the rendition of judgment. We insist, therefore, that the court below should have sustained the motion to dismiss the appeal.</p> <p>The next assignment of error is the refusal of the court to permit the plaintiff to file his amended affidavit. This motion was made under the same act of 1863, sec. 16, which says, “ provided, the parties shall have the same right of amendment under this act, as under the acts providing a remedy by ’ attachment.” The plaintiff deeming his affidavit defective in describing the property, presented an amended one, and asked leave to file it, but this the court refused, which we think was clearly erroneous. The plaintiff was thus debarred of his right as secured under the act authorizing amendments in attachment cases.</p>

BRADFORD, J. The facts are clearly stated in the opinion of the court. 1st. The answer denies on oath that defendant in error was the administrator of the estate of Nancy Sorrel at the beginning of this suit, and the proof sustains the' answer. ' 2d. No decree pro confesso was taken against Wm. E. and Susan Lambeth. 3d. The record and proofs in the canse showthat the notes sued on were fully paid off and satisfied on the 9th of March, 1858. 4th.

Scott, J. The plaintiff in error assigns the following errors : The allegation in the bill, that there was no administration on the estate of the payee in the note on which the bill was filed, being distinctly denied in the answer, and there being no proof of the fact, the court erred in not dismissing the bill at the hearing.

Smiley, J. Plaintiff i'n error'assigned the following errors: 1st. The court erred in the decree rendered in this effuse, because there was equity on the face of the bill of complaint, and the allegations were sustained by the evidence.- - -2d;-Because the allegations of the bill, the exhibits filed therewith, and the proof submitted at the hearing, show that the -complainants were entitled to a decree in their--favor, which this court will render in accordance with the…

<p>Í. Chancery — Amended bide — Notice—English bules. — By the English chancery practice, if the amendment of the hill he before answer, no additional subpoena need lie served upon the defendant. But ho is entitled to the full time for answering, from the time when he is served with notice of the amendment. If the amendment ho after answer, anci a further answer ho required, a subpoena must be served, but Service on the defendant’s solicitor is sufficient.</p> <p>2. Same — Notice.—A rule of chancory practice in this state requires that whenever a complainant shall file an amended bill or a supplemental bill, ho shall givo notice thereof in writing to the opposite party or his solicitor, within twenty days after the samo shall bo filed, and nopro confesso on such amended or supplemental bill shall be taken without proof of such notice, unless process shall have been served upon the opposite party under the amended or supplemental bill.</p> <p>3. Same — Amended bill filed after answer — Pro confesso — Final hearing."Where the original bill is answered and afterwards an amended bill is filed, and no answer is made, it is error to proceed to tho final hearing of the case, without having previously taken the amended b ill as confessed.</p> <p>4. Contracts — Certain contracts prima facie payable in confederate notes.— The statute of 1867 provides that in all cases founded on any promissory note, open account or other contract for the payment of money executed in this state, after the 1st day of May, 1862, and before the 1st day of May, 1865, shall be prima facie evidence that the payment was to he made in Confederate treasury notes, unless the contrary appear on the face of said contract.</p> <p>5. Same — Case at bar. — Complainant filed a hill to foreclose a mortgage, his claim being founded on a promissory note executed in this state on the 10th of September, 1862. There was no rebutting or countorvailng proof to show that the note was not payable in Confederate treasury notes. Held: The ordor of reference to the master should have been for the value of Confederate treasury notes, with interest from the date of said note in United States currency.</p>

Leachman, J. The facts are fully stated in the opinion of the court. The plaintiff in error assigned the following errors: 1st. The court erred in overruling the demurrer. 2d. The court erred in rendering the final decree. 3d. The court erred in confirming the report of the master. The demurrer raises the question of equity on the face of the bill; and in considering the general equity of the bill the second special cause will be considered.

HANCOCK, J. The plaintiffs in error assign several errors, only one of which is considered by the court in disposing of the case. It is, 1st. The court erred in proceeding to judgment without service of process on defendant, Payne. The judgment must be reversed, because it was rendered without service of process upon, or plea by Payne, or any appearance for him. But had the service been good on Payne, the judgment would be irregular without plea or appearance.

Campbell, J. The plaintiff in error assigns the following errors: 1. The court below charges tbe plaintiff with the hire of the negro man, John, from the grant of letters’in January, 1860, to the sale in October following, when the inventory and appraisement show that the negro did not come into his possession until the 13th of August, 1860. 2.

<p>1. Attachment — Measuee oe damages. — Where an attachment was levied on cotton which depreciated in value, from fifty to thirty cents per pound, after seizure and before the attachment was (juashed, the extent of the depreciation is the measure of damages to govern the jury in their verdict.</p> <p>2. Issue oe abatement. — In trying the issue of abatement, where the grounds on which the attachment issued are traversed, the jury have as large a scope to consider and determine the damages, as in a suit on the attachment bond.</p> <p>3. Measuee oe damages. — A person restrained by injunction from taking possession of a farm from March to September, is not restricted in a suit on the injunction bond, to proof of the value of the mere use of the farm during tho time, but may recover for the loss of crops.</p>

Clayton, J. The facts appear in the opinion of the court. Held: that he complied with condition of bond by giving deed to lot No. 78 in said township, though upon actual survey, it contained but 421 acres. Mann v. Pearson, 2 Johns., 36 ; Favre v. Martin, 7 N. Y. (3d Selden), 210; Northrop v. Summey, 27 Barbour.

Smiley, JV The plaintiff in error assigned the following errors: 1st. The court below erred in -giving the instructions asked for by the defendant. 2d. The court erred in refusing to grant the plaintiff a new trial as moved by him, the verdict being contrary to law and the evidence. We are bound to presume that Carter, the agent of plaintiff, was mistaken as to the time of demand.

Clayton, J. Tbe plaintiff in error assigned the following errors: 1st. The court below erred in granting the order of revival, upon the mere motion of defendant in error. 2d. The court erred in granting the order of revival, without directing a scire facias to issue to the defendants in the Norton judgment. 3d. The court erred in ordering the sheriff to apply the money to the Norton judgment. 1st. In courts of law, judgments can only be satisfied by means of execution or…

Henry, J. The plaintiff in error assigned the folloiving errors : 1st. The court erred in refusing to give the 1st and 2d instructions asked for plaintiff. 2d. The court erred in giving, severally, the 1st, 2d, 3d, 4th, 5th, 6th, and 7th instructions asked for defendant. 3d. The court erred in admitting in evidence the assignment of receiver’s certificate, purporting to be made by W. G. and S. V. Malone. • 4th.

JSTeely, J. The appellant assigned the following errors : 1. The court below erred in overruling the demurrer and motion of appellant to dismiss the petition, because it was filed by the nest friend of the minor who had a legal guardian that dissented from the filing of the petition. 2.

Campbell, J. In 1848, Hiram Hagan died, leaving a will, which has been duly probated. By its terms, all his property Avas to be kept in the hands of his executors, until all his children became of age, or married ; each one being allowed to withdraw his or her share, as he or she became of age, or married.

Lewis, J. The plaintiff in error assigned the following error : 1. The court below erred in appointing the defendants in error and Elizabeth Bebecca Warren, administrator and administratrix, with the will annexed, of James A. 'Jordan, deceased. 2. The court below erred in assuming jurisdiction over decedent’s estate. 3. The court below erred in assuming jurisdiction to probate the alleged will of James A. Jordan, deceased. 4.

Smiley, J. The appellant assigned: 1st. The court erred in sustaining the motion to dissolve the injunction, and in disallowing said injunction. 2d. The court erred in overruling the motion for the appointment of a receiver. “ As want of equity ” is the only ground on which this motion could have been sustained, we look to the grounds stated for an injunction ; and upon perusal of the bill, it is plain that New was entitled to the injunction, no matter what may be the…

- CothRAN, J. The plaintiffs in error assign the following errors: 1st. The court erred in sustaining the demurrer of defendants in error to the second plea. 2d. The court erred in refusing each and all of the instructions asked by plaintiff in error. 3d. The court erred in granting the instructions asked by the defendants in error. 4th. • The court erred in overruling the motion for a new trial. 5th.

Smiley, J. The facts are sufficiently stated in the opinion of the court. Appellant assigned the following -error: That the court below erred in overruling defendant’s demurrer to complainant’s bill of complaint. The demurrer was well taken and should have been sustained. As to the statutes of limitation, what is the nature of the instrument on which the bill appears to be founded? We insist that it is simply a mortgage.

Woeeokd, J. Appellants made the following assignment of errors : 1st. The court below erred in sustaining the motion made by defendant to dismiss the original petition of the plaintiff. 2d. The court erred in refusing to allow to be read as evidence in behalf of the plaintiff, the citation and the sheriff’s indorsement thereon, referred to in her petition. 3d. The court erred in excluding the testimony of the witness, M. L. Trewalla, and in refusing to allow to be read as…

<p>Appeal from the. chancery court of Hinds county. Watts, J. The appellant assigns the following, as error:</p> <p>That the court below erred in overruling the demurrer of appellants, to the bill of Peter A. Parker and E. E. McGowan.</p> <p>• Insisted that the relation of vendor and vendee does not exist between these parties; the deed from Bju-am to McGowan, contains no reservation of any lien; the note contains none, but merely recites that it was given for the payment of the purchase money for the land. This creates no lien, express or implied. The decisions to this effect are numerous. The assignee of • a note given for the purchase money of land, obtains no lien on the land for which the note was given; the assignment destroys the lien. Briggs et al. v. Hill, 6 How., 362; Burke et al. v. Gray, ib.; Dolla-hite et al. v. Orme, 3 S. & M., 590 ; Tanner et al. v. Hicks et al., 4 ib., 294; Parker v. Kelly et al., ib., 184; Wilkins v. Humphreys et* el., 23 Miss., 311; Skaggs v. Nelson, 25 ib., 88; Trotter v. Evans, 27 ib., 774; Walker v. Williams, 30 ib., 165; Lewis v. Beatty et al., 32 ib., 52 ; Littlejohn v. Gordon, ib., 235; Davidson v. Allen et al., 36 ib., 419; Klyce v. Broyles, •37 ib., 524 ; Stratton v. Gold, 40 ib., 778.</p> <p>The spirit of these decisions is in harmony with the equitable principle on which the doctrine of vendor’s lien reposes. It is just and equitable that an unpaid vendor of land shall have his money, before the general creditors shall come in and take the land he had sold, and before any subsequent purchaser with notice shall take it. When the vendor assigns the note for value, he is paid, and the whole reason of the equitable rule is swept away. The demurrer to the bill, therefore, was well taken, and ought to have been sustained-</p> <p>When Byram sold the land to McGowan, he, by agreement, reserved a vendor’s lien, describing the land in the note, as the consideration, and when he delivered the note to Parker, for'value, it was expressly agreed between them that he, Byram, should enforce the vendor’s lien for Parker’s benefit, and in order that he might effect this, he retained the legal title to tbe note. On these facts alone, if .Byram could have been made a party complainant, the lien could have been enforced for the benefit of Parker.</p> <p>Although Byram cannot be party, Parker comes in jointly with McGowan (the vendee of Byram), who is interested, and state the facts showing the necessity of the equitable remedy; and ask that Parker may have the benefit of the agreement with Byram. The lien in this case was created by express agreement between Byram and McGowan, and the numbers of the land inserted in the notes to that end. 2 Washb. on Beal Prop., 92; Meigs’ Tenn. B., 32 ; 2 Yerger, 84; 4S. &M., 294.</p> <p>McGowan sold the land to Coon, for $1,500, and informed him of the existence of the note, that it was for the purchase money, and was a lien on the land. In a settlement between McGowan and Coon, the latter is credited with this note on the $1,500, in the same manner as if he had actually paid it. Coon afterwards sold part of the land, to defendant, Lewis, who, in like manner assumed to pay off this note, and thus lift the incumberance, but has failed to do so. These facts create an equity in favor of McGowan, even if no vendors lien existed, and in favor of the holder of the note, which either may enforce.</p> <p>It is a fraud on both Parker and McGowan, for Coon and Lewis to refuse to comply with their agreements ; a fraud on McGowan, because he thereby gets only half the price for which he sold the land to Coon, and has to pay the note which they are bound to pay; fraud against Parker, because he will loose a debt justly due- him, and which Coon and Lewis are by these agreements, bound in good conscience to pay.</p> <p>On default of payment, both Parker and McGowan’s equities demand a sale of the land. Coon and Lewis assumed the debt as an encumberance on the land, and retained tie amount in their own hands; and it has been withheld only for the purpose of discharging this encumberance, recognized and assumed as an encumberance on the land.</p>

Bradford, J. The facts of that case sufficiently appear in the opinion of the court.

Campbell, J. The plaintiffs in error made the following assignments of error: 1st. The court below erred in permitting the deposition of S. 0.

McKaiR, J. The plaintiff in error assigned the following errors : 1st. The court erred in overruling the objections of the plaintiff in error to the evidence of the defendant in error offered om the trial. 2d. Because the evidence of the statements of Cornelius McLaurin, the deceased partner, should have been excluded from the jury. 3d. The court erred in refusing a new trial. 4th. The court erred in refusing the first and second instructions asked by plaintiff in error. 5th.

LoveRING, J. The plaintiffs in error assigned the following errors: 1st. Said circuit court rendered judgment by default against said defendant without service of process, and against W. A. Bacon, without proof of acknowledgement endorsed on said process. 2d. Judgment by default was rendered against H. T. A. Bacon, at the return term of the process, without personal service. 3d. The record shows said H. T. A. Bacon was a married woman, the alleged maker of the note, and…

Simmons, J.: Appellees assign the following causes of error : 1st. Emma, one of the defendants below, being a minor, was not properly in court when the decree was rendered against her. 2d. The decree was taken against said Emma at the return term, and the same term at which her answer was hied ; the cause not having been at issue hve months. 3d. The decree was taken without any proof or evidence to sustain the allegations of the hill. 4th.

OlaytoN, J „ This was an action brought to the March term, 1868, of the Tippah circuit court, against G. W. Yaughan, A. M. Ayres, and Samuel P. Pool, founded on a note made by them for $1,738 66, dated July 3d, 1860, and payable twelve months after date, to Cornelia Mull (afterwards Cornelia Hill), bearing interest at ten per cent, until paid.

Okk, J. The facts appear in the opinion of the court. 1st. The judgment was void for want of jurisdiction.

<p>1. Paetheeshd? — Dissolution—Remedy_Whore partners hayo settled their partnership business and a balaneo in monoy is ascertained to be due from one to the other, an action at law ■will lie for such balance. So, if an actual separation of the partnership effects is made,, so that certain specific articles of property aro assigned as the sharo of oaoh, an action at law will lie for either party. If the community is severed only partially, touching particular assets, so that by agreement a separate ownership is established in one, then he has his legal remedy.</p> <p>2. Equity jtousdiction. — 'Where the raw material and manufactured articles wore not divided, but only an agreement to divide, they remain joint assets until they are divided, and there is no remedy at law. Equity alone can dispose of the effects according to the partnership agreement.</p>

Orr, J. The indictment was found at the August term, 1889, and the subsequent proceedings were had at the July term, 1870. The tenth section of the bill of rights says, “The accused has the right to demand the nature and cause of the accusation ” made against him by the state. This is done by the indictment under the provisions of the Rev. Code, art. 257, 614.

Coe-eee, J. Appellant assigned the following errors : 1st. The court erred in sustaining the defendant’s demurrer to the complainant’s petition. 2d. The court erred in deciding that the chancery court had no jurisdiction of the petition. 3d. The court erred in dismissing the petition.

Boone, J. Oady was indicted by the grand jury of Monroe county, at the July term, 1870, for the murder of Minerva Ligón; and at the same time, was tried and convicted of the crime as charged in the indictment.

<p>1. Indictment — Practice—Verdict.—Several persons indicted jointly maybe tried separately, at the option of the state; and in an indictment against two or more, where the ehargos are joint as well as several, one may bo convicted and another acquitted by the jury, and judgment rendered accordingly. But whore several persons are jointly indicted and convicted, the sentencomust bo several, and the imposition of a joint fine would be erroneous.</p> <p>2. Evidence — New rule oe, by statute — Verdict.—The 9th article of the Bev. Code, 199, is held to introduco a new rule of evidence in the trials of those indicted for violation of its provisions; and where partners are jointly indicted under that article, they may be convicted and punished, although one of them may have been wholly ignorant of the illeagl act, each being responsible for the illegal act of his copartner whether he participated in it or not.</p> <p>3. Pbactice — Retailing—Knowt-edge ob assent_There is no partnership in crime, and hence it is not necessary to allege, in the indictment, that several committed an offense as partners. So, under this statute, it is immaterial whether the liquor was sold by the defendant, or by his servant, or partner, with or without his knowledge or assent, having an interest in the liquor sold, he is indictable whether he assented to or knew of the sale or not.</p>

Simmons, J. The facts appear in the opinion of the court. Contended, 1st. Injunction is the proper remedy in this case; citing Hilliard on Injunction (2d ed.), 386, ch. 22 47 Penn., 592; 43 ib., 372. 2d. The governor has no power to remove officers appointed Toy him under art. 12, § 6, Constitution; citing Const., art. 12, §§ 20,21; Story on Const., § § 15, 43 ; 1 Kent, 308, § 16; Proceedings in Trial of Andrew Johnson, published in 1868, pages 680, 683; 1 Cranch, 162; 1…

Magee, J. The facts appear in the opinion of the court. The plaintiff in error made the following assignment of errors : 1st. It was error in the court to render a decree against appellants, and by such decree condemn their lands to be sold in satisfaction of the sum found due appellee. 2d. It was error in the court to render a money decree in favor ofuthe guardian against the ward and award execution thereon.

Smiley, J. ' This was an action against the Wilkinsons and Day, as makers, and Galtney as endorser of a note, payable at twelve months. The declaration avers neither demand nor notice, to charge defendant Galtney as endorser. Galtney did not appear.

<p>Appeal from the chancery court of Pontotoc county. Kil-PATRICK, J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Appellant assigns the following causes of error:</p> <p>1st. The court belo'w erred in overruling the demurrer of Wm. Parks, one of the defendants, andin disregarding'the same and considering it overruled as of course, because it -was not set down at the term after the same was filed, and taking the bill of complainants as confessed as to said defendants.</p> <p>2d. The court below erred in overruling the motion of defendant, Charles Williams, to set aside pro confesso taken against him at rules, and in disregarding the affidavit of said Williams in support of said motion, and in disregarding the demurrer filed by his counsel in court below.</p> <p>3d. The court below erred in confirming the report of the commissioner as to said defendant, Charles Williams.</p> <p>4th. The court below erred in rendering a decree against defendants over the answer of B. B. Newsom, guardian ad litem of minor defendant.</p> <p>ñth. The court below erred in the final decree, and erred in rendering judgment against Charles Williams, one of the defendants, for mesne profits and costs of suit.</p> <p>6th. The court below erred in rescinding the contract of sale on final decree and vacating and setting aside guardian’s sale.</p> <p>The bill was framed with a double aspect. 1st. For the sale of the lands for the payment of the purchase money ; or, if this cannot be done, then for a rescission of the contract. Appellant had no connection with the sale of the lands except as a purchaser froin A. J. Jones, who had bought a part (200 acres, from B. A. Tardy, the purchaser of all the lands named in the bill, at guardian’s sale, made by Andrew J. Duncan, former guardian of complainants.) This sale by Duncan, as to the 200 acres, was totally void for uncertainty of* description, title thereto remaining in the complainants, as heirs and dis-tributies of James W. Duncan, deceased. This sale was also void for want of timely report and confirmation. The case was not regularly continued at the December term, 1860, the confirmation having been at March term, 1861. Learned v. Mathews, 40 Miss., 210. The appellant was not a necessary party. 1 Story’s Eq. Jur., § 72.</p> <p>That which is in the nature of a mortgage alone gave jurisdiction in this case, but it does not follow, necessarily, that because a vendor has a lien for the purchase money, to enforce which he can go into equity, he may also insist on that court retaining jurisdiction merely to collect mesne profits, where he has a clear legal remedy. 1 Story’s Eq. Jur., § 511; 3 How., 380 ; 8 Vesey, 527; 13 ib., 198 ; 1 Maddox Oh., 531; 5 Oowen, 580 ; 4 Kent, 182; Stark v. Mercer, 3 How., 379. The right of plaintiif to recover mesne profits depends not upon his possession, but upon his title. 6 Yer-ger, 467. Complainants ought to have brought ejectment against Williams, and thus he would have been enabled to claim compensation for valuable improvements, and been protected in his lien therefor on the land. Bev. Code, 389, art. 20.</p> <p>Defendant, Williams, shows by the bill of exceptions, that he was, by the representations of the guardian, Mitchell, (that he would only loose the 200 acres of the land, and would not be liable for mesne profits), and being also so advised by his legal counsel, induced to make no defense to said suit, and pro confesso was taken against him ; that after-wards, when he discovered that complainants were seeking to render him liable for a large amount of mesne profits, suits, etc., he then moved the court below to set aside the decree and permit him to make defense, which was refused. At this time the cause was not at issue for the want of service of process on the heirs of Tardy, who were necessary parties. This court will note the fact that the truth of Williams’ affidavit on which his motion to set aside Avas based, is not controverted by counter affidavit of Mitchell, or otherwise, and it shows conclusively that it was the assurances alone of Mitchell, as therein set forth, that induced him Williams, to neglect to make his defense at a proper time. See R.ev. Code, 463, art. 152, .as to the guardian lien on property sold, and Mosely et al. v. Wall et al., 33 Miss., 83.</p> <p>So much of .the bill as set out the metes and bounds of the 200 acres is mere fiction, and unsupported by any testimony whatever, and is, therefore, to be considered as abare, naked assumption. The petition of A. J. Duncan, guardian, etc^ simply states that about 200 acres of the land, section 1 township 8, range 2 east, belong to his wards, and prays a sale, etc.</p> <p>The first error is the refusal to set aside the pro confesso on motion, and to allow defendant to answer; but the motion states no ground for the application. •</p> <p>This motion was based on an affidavit, stating that he believes he has a meritorious and legal defense to the suit; that complainants, just before the term of the court, took a pro confesso at rules, against Williams and others ; he was informed, as he understood complainant, by him, that defendant would not be held liable for anything more than the land ; that he would lose that, but have recourse against his vendor or his estate, and would lose nothing but the land ; affiants’ legal counsel also advised that he could not hold the land, and, therefore, relying on what he so understood, determined to let the land go. A. J. Jones, who, as the bill states, acquired from B. A. Tardy, who bought from the administrator; which last sale was void. Upon his own purchase, affiant took, and has since held possession, and has made considerable improvements of a substantial nature.</p> <p>It does not appear that he presented any answer with his application, as he should have done. 1 Barb. Ch. Pr., 367.</p> <p>It appears that appellant was notified, by the bill itself, that a decree was sought for rents and profits, in case a sale could not be enforced to pay the notes. The affidavit is defective in not designating which of complainants made the statement. The guardian'is probably the person referred to, but the statement seems but the expression of an opinion; but there is no pretense of any assurance that complainants would waive their right to rents in case said sale was void. The report of sale was not made until December term, nor was it confirmed until the ensuing March term; and thus, it is contended the bill showed the sale was void under the sale affirmed in the Learned case. But he says he has a legal and meritorious defense ; that the guardian’s sale was void. If so, complainants were entitled to the lands. He admits he has occupied the lands of infants, and that they have the very remedy in equity; given to them in this case. Carmichael v. Hunter, 4 How. (Miss.), 315; Nelson v. Allen & Harris, 1 Yerger., 373; 1 Story Eq., § 511.</p> <p>2d. The second error alleged is that appellant is decreed to pay the rents. This is based on the supposed want of jurisdiction in such case, and it has aready been answered. The infancy of complainant settles the matter.</p> <p>3d. Lastly, it is objected that the court received and allowed the report of the commissioner to whom it was referred to ascertain amount due for rent. There was a formal order of reference, and regular report made, upon notice to Williams, which report was duly confirmed. No objections were taken before the commissioner, nor any exception filed to the report.</p> <p>The^ro oonfesso against Williams was not dependent, at all, upon the prior service of process against the other defendants.</p> <p>The bill of exceptions shows that certain of the probate records were introduced to show the guardian’s sale was void. As Williams, with the pro oonfesso against him, could not offer such proof, it is presumed that it was offered by the defendants, who had answered.</p> <p>Williams being in possession, and liable, was a proper party to the suit: he was sub-vendee of the lands, and directly interested in the suit.</p>

McNair, J. On the 12th April, 1864, defendant in error sued out a writ of attachment against plaintiff in error, returnable to the circuit court of Oopiah county, at the October term, 1864. Plaintiff in error was not found. Notice was posted at the courthouse door, and four other public places in the county, on and before the 1st September, 1864. At the October term, judgment was rendered by default against the plaintiff in error.

Cop-pee, J. Appellant assigns for error, that the court erred in oyer-ruling the demurrer of the defendant to complainant’s bill. This was a bill filed to enjoin the execution of a judgment, on the ground that Clifford, the judge presiding, was not judge of'said court; because, being an appointee of General Ames, his office was vacated by the adoption of the new constitution of 1868. The judgment was rendered on the 31st of March, 1870.

Leachman, J. The plaintiff in error assigns the following errors: 1st. The court below erred in overruling the demurrer to relator’s petition for mandamus. 2d. The court erred in refusing to allow the return and answer to be filed on the overruling of the demurrer. 3d. The court erred in overruling a peremptory mandamus.

<p>Errror to the circuit court of Lowndes county. Foote, J.</p> <p>The plaintiffs in error assign the following errors:</p> <p>1st. The court erred in overruling the demurrer to the defendant’s first plea.</p> <p>2d. The court erred in sinking out defendant’s second plea,</p> <p>3d. The court erred in giving each of the charges asked by the plaintiffs below.</p> <p>4th. The fith charge for the plaintiffs is mainifestly erroneous.</p> <p>5th. The verdict was contrary to the evidence.</p> <p>6th. The verdict was contrary to the law and the evidence.</p> <p>7th. The court admitted for plaintiff, incompetent and irrelevant evidence.</p> <p>8th. The court erred in refusing to grant a new trial.</p> <p>9th. The court permitted plaintiffs to make testimony for themselves, as to the supposed probate court records.</p> <p>10th. The witness, Christian, testified to a fact, incompetent, and tending to mislead the jury touching the memorandum of McKinney Irion.</p> <p>The note sued on is payable to Harriet E. Irion, guardian, etc., defendants pleaded that the note sued on was the property of Bessie Irion, ward of said Harriet E., and still a minor, and at the death of said Harriet, all her powers as guardian ceased, and that plaintiffs have no such interest in the note as to enable them to maintain this suit. Plaintiff traverse this plea, and say, that the claim for which the note was given, was the property of the estate of McKinney Irion, deceased, and came to the hands of said Harriet as his executrix, who took a renewal of it, payable to herself, as guardian of said ■Bessie, in ^contemplation of a settlement with the probate court, but died before it was effected. That she never reported said note as the property of Bessie, but left the estate and note to be administered, and proceeds to be divided and distributed according to law. To this replication defendant demurred, and the order of the court overruling the' demurrer, is now assigned as error. The replication admits the material allegations of the plea, and we insist that the matter set up in evidence does not show title in said Harriet E. Irion, personally to the notice in suit, but only as guardian of said Bessie. Her failure to perform the contemplated duties as guardian, etc., cannot effect the title of the ward to the note now.</p> <p>If, as stated in the plea, and admitted in the replication, the title to the note was in Bessie Irion, we deny that the administratrix of s'aid Harriet E. Irion, the deceased guardian, can maintain an action upon it. Cocke v. Rucks, 34 Miss., 108, 107. This note grew out of a contract between McKinney Irion and the makers. He was legally entitled to the first note. But his executrix takes a new note to herself, as guardian,- intending to make a future settlement for the ward. Then this note was not the property of either, McKinney Irion, or of Bessie Irion, the ward. The proceeds of the note could not be applied to the payment of the debts of said Harriet nor distributed among her heirs.</p> <p>‘ 2d. The testimony of Hogan, Harrison, and Crusoe was improperly admitted. They were permitted to state conversations between them and Harriet E. Irion, in reference to the note sued on, not in the presence of the plaintiffs in error. It is a violation of the general rule of evidence, that a party shall not be allowed to make testimony for himself.</p> <p>3d. The third charge given for defendants in error, is erroneous. The issue before the jury, was the title to the note sued on. If the jury believed that the note was the property of McKinney Irion, instead of being instructed to find for the plaintiffs below, they should have been charged to find for the defendants below.</p> <p>It was also error to charge the jury that the burden of prooof was on the defendants below. The charge should have been the reverse, and that the onus was on the plaintiffs to establish the allegations óf their replication. The other assignment of errors we will submit to the court without argument.</p> <p>The defendants in error are administrators of Harriet E. Hogan, deceased, and administrator de bonis non of McKin-néy Irion, deceased; they sue in this action in the former capacity. Plaintiff s replication to the first plea avers the legal title to the note to be in them as administrators of said Harriet E. Hogan. As administrators de bonis non of McKinney Irion, they held the equitable title to it, but did not sue for the use of themselves as such administrator de bonis non, because the court could enforce only the legal title. The first plea averred the legal title in the note to be in Bessie Irion, the ward of Harriet E. Hogan, deceased. This averment is traversed by the replication; if the plea was a good one, the replication was also a good one. If the demurrer had been sustained, it would have reached back to the plea, and defendants cannot complain of an error in their favor.</p> <p>We pass over the second assignment of error, and proceed to“ the third, which complains of the charges given for the plaintiffs below. Upon examination of these charges, it will be seen that the 1st and 2d have again and again been decided by the high court as the law, and the 3d and 4th are manifestly correct under the issue presented to the jury. But the giving of .the 5th charge, is the error upon which the defendants seem most to rely. That charge was substantially, that the burden of proof was on the defendants to sustain their first plea, viz: That the plaintiffs were not entitled to maintain their action, because the title to the note was in Bessie Irion, a minor. The note on its face shows that the legal title was in Harriet E. Irion, who afterwards married John T. Hogan. The replication was a mere denial of the allegations of the plea, as to where the equitable interest lay, and not as to the legal title ; that was fixed by law, and not subject to be changed by parol proof. The affirmative allegations are in the plea, the negative in the replication. But defendants say their plea was sworn to, and that that threw the burden of proof on the plaintiffs. We think there is no such rule of law. If it were so, then every special plea, by being sworn to, would throw the burden of proof on the defendants, and thus an entire change in practice be effected. The 4th and 5th assignments, as well as the '6th and 7th, requires an examination of the whole record, especially of the testimony of the witnesses,</p> <p>There is nothing in the testimony showing that Bessie Irion was the equitable owner of the note. This case was prosecuted in a court of law, and the question arises, in whom was the legal title to the note? We say, in Harriet E. Hogan, in her life-time; and after her death, in her administrators. This suit might have been properly brought in the ñamó of Hogan & Christian, administrators of Harriet E. Hogan, deceased, for the use of Hogan & Christian, administrators of McKinney Irion, deceased. But it is noterror that it was not so brought. Upon these points, we cite the following authorities: Beard v. Griffin, 10 S. & M., 586, 590 ; Dowell v. Shepherd, 13 S. & M., 43 ; Field & Weir, 28 Miss., 56 ; Ackerman v. Cook, 34 Miss., 262; Cocke v. Rucks, guardian, 34 Miss., 105; Chambliss v. Vick, 34 Miss., ,109; see also Carter v. Saunders, 2 How., 351; Laughman v. Thompson, 6 S. & M., 259; Trotter v. White, 10 S. & M., 609; Falls v. Wilson, 24 Miss., 168.</p>

STEARNS, J. The facts appear in the opinion of the court. Assignment of error: The court below erred in sustaining the demurrer and dismissing the complainant’s bill. We insist that the remedy of appellants is in a court of chancery ; by.this remedy alone can the interest of the heirs of A. J. Rugby in this property be subjected to the payment of the debts of appellants.

Suackel-FORD, J. Plaintiff in error assigned the following errors : 1st. Because said check or draft sued on, had nine months from January 24th, 1861, to run, and was due October 28th, 1861, including three entire-days of grace, and was protested for non-payment (it being excepted) on October 26th, 1861, two days prematurely, as shown by the notary’s certificate of record, and hence plaintiff had no right of action against the drawer for non-payment, and the verdict and…

Campbell, J. P. O’Donnell & Oo. brought an action of assumpsit against John H. McCutchen, in the circuit court of Tazoo county, at the May term, 1861, founded on defendant’s promissory note for the sum of $1,088 44, with interest from date, at ten per cent., until paid ; and upon an open account against defendant, for $270 00.

Campbell, J. Plaintiff in error assigned the following error : That the judgment by default was rendered against them without a writ of inquiry, and made final and absolute without the intervention of a jury; whereas, this being an action for damages, the gist of which was negligence, no judgment final by default could be legally rendered against him.

Ellis, J. The facts are sufficiently stated in the opinion of the court. The appellant assigned the following error; The court erred in sustaining the demurrer of the defendant to complainants’ bill of complaint, and in dismissing said bill. This was a bill filed by creditors, on three notes and an open account, against the administrator of a decedent’s estate.

McMillan, J. The facts appear in the opinion of the court. Assignment of- errors: 1st. The court erred in sustaining the plea of coverture as to all the mortgaged land, when the plea itself only set up that the feme edbert owned a part of the land. 2d. The court erred in not having decreed a foreclosure as to the lands not set up in the plea of coverture, and in not having appointed a receiver to fake possession of the mortgaged premises claimed as the separate property of…

Campbell, J. This was an action of ejectment in the circuit court of Yazoo county, filed to the November term, 1859, of said court, by the defendants in error here, against the plaintiffs in error here, to recover the following lands, to-wit: east half of north-west quarter of section 28, township 13, range 1 west, in Yazoo county. The declaration is in statutory form.

<p>1. Attachment — INSuefictent affidavit. — An affidavit for attachment in form following, ££C. L. being duly sworn, says that 0. B. 0. is justly indebted to him, the 'saidC. L., in the sum of one hundred dollars, or thereabouts, onanote indorsed to said ■■■O. L., and one other note payable to R. N. A., and by him indorsed to said C. L., and 'that he is a non-resident of the State of Mississippi; he therefore prays,” etc., is fatally defective, as averring, whether construed grammatically or according to the ■common use of language, that the plaintiff himself, and not the defendant, was a non-resident. It is also defective in omitting to state either of the particulars speci~ -fied in Rev. Code, 372, art. % or the residence of the defendant, as required by the :act of January 15,1862.</p>

<p>1. Ebomissoby notes — Revenue stamps. — Notes not stamped in accordance with united States revenue laws, may, in the absence of fraud, be stamped at tho trial and then given in evidence.</p> <p>2. Same — Rule as to omissions to stamp. — Mere failure to stamp is not ovidonce of intention to evade the revenue law. Tho objector must show fraudulent intent.</p>

McNair, J. Plaintiff in error assigns the following error; That the judgment of said court was by default in an attachment suit, without levy of their establishment, or service of process on the defendant, and said judgment directs the sale of lands not levied on. In this case, there was a personal judgment by default? .against the defendant below, and a direction to sell the land attached, based on the following return: “ Executed September 22d, 1865, upon W. Y. Gustavus.

Leaohman, J. The facts appear in the opinion of the court. Assignment of errors: 1st. The court erred in overruling the motion for a new trial. 2d. The court erred in giving the 5th and 6th instructions asked for by the plaintiff below. The contract in this case was nothing but a mandate, and hence the plaintiff in error was responsible for gross negligence only. 2 Story on Contracts, 95, § 701, McKay v. Ham-blin, 40 Miss., 472. Particularly, Lampley V. Scott, 24 Miss., 528.

<p>Appeal from the chancery court of Marion county. Mo-MillaN, J.</p> <p>The facts appear in the opinion of the court.</p> <p>1st. It has always been held inequitable that a vendee should retain property without paying the purchase money; and this doctrine extends, by statute, so far as to forbid the retention of a homestead exemption in property not paid for, and declares the same to be subject to execution. Rev. Code of 1857, 530, art. 284.</p> <p>2d. But.this property was fraudulently assigned, hence this court will cancel the title.</p> <p>■ 3d. It is settled that a demurrer to a bill charging fraud, must be overruled*, the fraud must be answered, and the demurrer be interposed to other parts of the bill.</p> <p>4th. As to non-joinder of heirs-at-law, it is sufficient to say that the bill does not show that Jordan left any heirs-at-law, but it does show he left a will, and the court will presume if there had been heirs to inherit the land, that the defendant would have filed a plea, alleging that Jordan left heirs, who should have been made parties complainant; and if there were heirs, the demurrer, which raises only questions of law, could not set up such question of fact.</p> <p>5th. As to the point made by defendant, that complainant should have tendered to Mrs. Bullock her note, and thus have placed her in statu qico, it is sufficient to say that the note, under the facts alleged, is void, an absolute nullity as to her. Then why tender to her blank paper ? It is useless to do a foolish thing. And again, the court will not relieve her against her own fraud, but will leave her where it finds her.</p> <p>The only relief sought is against Mrs. Bullock. Can her bill, if she file one, setting out her own fraudulent procurance of the conveyance to her, and tendering back the property, and praying a cancellation of the note be sustained? We answer no! 1st, because in such a bill, alleging her own fraud, she shows, by reason of the fraud, she is not entitled to any relief. She would come into court with unclean hands ; and she would show that the note, as to her, is void and null, and, therefore, could never injure her, hence her bill would be dismissed on both grounds. Then, if she, in equity, is not entitled, on her own bill, to a re-delivery or cancella-' tion of the note, why should Jordan, administrator, in the present bill at bar, tender the note to her.</p> <p>As to the necessity of tendering back, in the bill, to her, the two hundred dollars cash paid by her, we answer, that the bill shows she has consumed, sold, etc., personal property of more value than two hundred dollars; besides, she has used the lands for several years; hence, she has a co-equitable right to demand the return of the two hundred dollars.</p> <p>Counsel for defendant agree that a parol agreement to recover the property, to vendor, is a nullity; to this I answer, that the agreement to recovery and redeliver the property, on default of payment, is good as to the personalty, does not come within the statute of frauds. If this parol agreement was void as to the land, under the statute of frauds, it was good as to the personalty; when a demurrer extends to the whole bill, which is good as to the personalty and bad as to the land, it must be overruled.</p> <p>Counsel for Mrs. Bullock say she has not plead coverture to a suit on the note at law; and until she pleads coverture we have no ground of relief in equity, by rescission of contract, etc.</p> <p>• To this we answer, 1st. We allege she refuses to pay; 2d. That she can plead coverture at law in bar of suit on the note. And when she refuses to pay, we presume she intends to plead coverture if sued at law. But why stultify ourself by bringing a suit when, by rule of law, no recovery can be had.</p> <p>The effect of defendant’s position is to the effect that “ she may sleep on her arms; ” that she may not make her defense at law; that her counsel may be ignorant of the fact that a plea of coverture in a court of law will bar a recovery on the note; but this court will not violently presume, in face of the facts alleged in the bill, that Mrs. Bullock is over conscientious, or her solicitor ignorant of the law regarding the rights of femes covert.</p> <p>The court will .only consider whether the holder of the note can legally recover at law a judgment against her, in the event that she should use and exercise her legal right to plead her coverture.</p> <p>In conclusion, can a married woman purchase lands on a credit, and retain the land without paying the purchase money ? Her coverture is intended to protect her against the scheming intrigues of others; not a weapon to aid her in the practices of fraud; coverture is no defense against charges of fraud. While coverture protects her against robbery and rapacity, it does not constitute to her a general license to rob the community. It does not, by common law or by statute, protect her title acquired by fraud or force, or give her any unfair advantage over others.</p> <p>If one principle is better settled than another, it is that neither coverture nor infancy is a fortress in which frauds are licensed and made lawful, and that it is only a protection against the overruling rapacity of others.</p> <p>Now, in conclusion, we say that, under the provisions of the Code of 1857, the title to the real and person'al estate acquired by Mrs. Bullock, by reason of her coverture, is absolutely void, she not being authorized by law to purchase the same on a credit, and the title, though passed to her in form, yet never passed in fact out of Jordan, and the admin.-istrator has both at law and equity a right to demand the immediate possession of the property; though this would be inequitable if she should pay for the same.</p> <p>We say her title is absolutely void, because it is contrary to, and in violation of the public policy of this state, as declared by the common law, and the statute of 1857. Any contract made in violation of the public policy of the state, is absolutely void, and if it be a penal violation of public policy, the courts leave them in the condition in which it finds them; but if not penal, then the courts will adjust and settle the equities between the parties to the contract. But no penalty is attached to the violation of this rule of public policy laid down by the statute, when they are not in pari delieto.</p> <p>I make no comment and cite no authority on that portion of the bill which sets up the cotemporaneous parol agreement that the acknowedged and recorded deed to the property should be treated as a nullity. The demurrer to the bill does not have the eifect of admitting such pleading, and no court would treat that part of the bill as confessed, even if the defendant failed and refused to answer.</p> <p>It would be a piece of presumption to argue that the chancery court was without jurisdiction or authority to invest the administrator or executor with the title to the lands of the deceased, even if they had the power to rescind the contract. The heirs are parties to the record and do not complain.</p> <p>There are several reasons why the court could not rescind the contract as to personalty, at the solicitation of the administrator: 1st. Because he applies too late. See Ayers v. Mitchell, 3 S. <fe M. 683 ; Fry on Specific Performance, 409, and authorities cited; 2d. Because the parties to whom she transférred the .personalty are not made parties here; 3d. Because the contract was entire and the rescisión must be entire, if at all; 4th. The complainant does not propose to put her in statu, quo, by tendering back the amount paid and surrendering up the note.</p> <p>The bill charges that Mrs. Bullock refuses "to pay. Why does she refuse to pay ? It is not pretended that she interposes the plea of coverture. Her objection to paying may be that she has already paid or that there is a failure of consideration. If these or either of them be her defense, this court has no power to try such issue. It will not be presumed that she objects to pay on account of her coverture, or interposes that defense in the absence of such allegation in the bill. Complainants have an unembarrassed remedy at l'aw, in the absence of such plea.</p> <p>But the view on which I rested this case in the court below, and the true view is, that Jordan made this contract with a full knowedge of the law that the married woman had no right to make such contract or to bind herself. That the husband and son are the principals and it is their debt; the consideration to them being, that Jordan should make her a deed to the property.</p> <p>There being nothing to prevent her acquisition and ownership of the property, the statute in fact having provided that she may acquire property in this way, she was invested with a good and complete title, and it cannot be taken from her to pay the debts of the husband and the son.</p> <p>In no possible aspect of the case can this bill stand, and that the judgment of the court below will be sustained I entertain no doubt.</p>

Booue, J. The facts appear in the opinion of the court. • The appellants assign the following causes of error: 1st. The jury found contrary to law and the charges of the court. 2d. The verdict was contrary .to the evidence. 3d. The court erred in refusing the 2d, 3d, 4th, 5th, and 8th charges asked by the appellants in the court below. 4th. The court erred in giving the 1st, 2d, 3d, 4th, 5th, and 6th charges asked by the appellee in the court below. 5th.

Vance, The facts are sufficiently stated in the opinion of the court. Plaintiffs assign for error, that the court below erred in not giving the plaintiffs a lien on the land for the sum of fifteen hundred dollars, the amount found by the jury. It is true that Rutland did have a lien for the payment of twelve thousand dollars. Six thousand dollars of the purchase money had been paid by Wimberly to Rutland.

CothRAít, J. The prominent facts in this case that invoke the aid of a court, are that the vendor has parted with his estate, and his grantees are in possession and withhold the purchase money. The sum due by the vendees is a charge on the lands, and a lien is raised by implication. 2 Story’s Eq. Jur., § 1219. The defendants insist that security was taken, and that the lien was thereby waived.

<p>1. Liens. — Possession, actual or constructive, or the right of possession, on thp part of a person asserting a lien, is necessary to the existence of a lion.</p> <p>2. Liens op attorney and solicitous fob fees. — The lion of attornoys aDd solicitors on judgments and decrees obtained by them for fees, is based mainly on possession of such judgments or decrees, but partially, also, on the merit and value of their services.</p> <p>8. Same. — The lien of attorneys- and solicitors on judgments and decrees obtained 'by them is recognised as being firmly engrafted on the common law, and one of the-family of implied liens-.</p> <p>4. Same. — It exists upon the money, papers, deeds, and writings- oí- the ciient iir-the attorney*» hands, and upon judgments' and their fruit» and incidents.</p> <p>5. Same. — {This doctrine, with its various limitations, Conditions, end incidents,illustrated by reference to authorities.</p> <p>6. Same — Case aS bas. — But Whore a solicitor commencectproceedings and devoted much labor and time and some expense of money in their prosecution, without express agreement as to hi» feos, and then, after repeated and fruitless solicitations-' for Compensation, abandoned the cause, and the cause Was afterwards successfully prosecuted by another solicitor, and the fruits'of the suit, which were lands, wore Sold to strangers, no1 lien on the purchaíse money exists in favor of the first solicitor for his fees.</p>

<p>Error to the chancery court of Panola county. Simmohs, J.</p>

Watts, J. The facts appear in the opinion of the court. The assignee of a promissory note, made payable to order and indorsed in blank, cannot enforce the vendor’s lien, as between the original vendor and vendee of the lands for which it was given, when the deed conveying the lands does not retain the vendor’s lien, and the note does not specify for what consideration it was made. 40 Miss., 780; 6 How.

Campbell, J. Plaintiff in error assigned the following errors : 1st. This is a judgment by default upon constructive notice to defendant, the return of process is not in accordance with the statute on that subject, and is insufficient. 2d. The writing sued upon is not set forth by proper aver-ments, and according to its- legal effect and operation, in declaration of plaintiff. 3d. The judgment of the court is erroneous in this, that it requires defendant to pay two per cent,…

<p>1. Public wae^Suseension of intebcoubse — Bill oe exchange — Pbotest.—Where a bill of exchange was drawn and indorsed by parties residing and doing business at Lexington, in this state, and accepted by parties residing and doing business in New Orleans, and transferred to parties in New York, dated 11th March, 1861, and due twelve months thereafter ; and the city of New Orleans was captured by the federal forces, in May, 1861, and held by them until the close of the war, and all intercourse between that place and Lexington, in this state, was prohibited by the fores of public law; and the bill was protested for non-payment, 24th February, 1883, nearly twelve months after it fell due ; the notary stated in his protest, that the offico of the acceptors was closed, and there was no person about the premises of whom demand couldbe made, and that notice of protest was sent on the next day, through the post-office, postage paid, to the drawer and indorsers, at Lexington, Miss., their place of residence. Held: That this protest was not, undor tho special circumstances, within reasonable time, and it is not sufficient to fix the liability oí the drawer and indorsers.</p> <p>2. Same. — The holders of tho bill residing in Now York wore not required to transmit it to New Orleans, so long as civil war, military operations, or public authority suspended business intercourse between the two cities ; and the right of the plaintiffs to hold any communication in reference to the bill of exchange with the acceptors, so long as New Orleans was occupied and controlled by confederate authority, was cut-off and wholly suspended. So, after the capture of New Orleans by tho federal forces, allintereourse of whatever nature, between it and Lexington, Miss., was prohibited by force of public law, an.dthaprodamation.of the president of the United States.</p> <p>3. Same. — war puts an end to all dealings and communications botween people of belligerent nations; and they cannot commence or carry on any correspondence or business together, and partnership oxisting at the commencement of the war, between persons residing in the respective belligerent countries, are dissolved by the mere force and act of war. The Hoop, 1 Bob., 196; the Bapid, 8 Cranch, 155; the Joseph, ib., 455; 2 Wallace, 417.</p> <p>4. Nesotiable paper — Dhugehoe op holder. — The holder of negotiable paper is under a perpetual duty of diligence to mate demand of the acceptor or drawer in order to hold the drawer or indorser liable; and although the prevalence of war, or other political causes may render a demand impracticable at maturity; yet, whenever the hindering cause ceases, he must act promptly and with reasonable diligence, otherwise such secondary parties will be discharged. Dunbar v. Tyler, supra.</p> <p>5. Same. — By the president’s proclamation of 12th August, 1862, business and commercial relations between the cities of New Fork and Now Orleans, were fully opened, after which time, said bill might have boon presented for payment, and to hold up the same from that time until the 24th February, 1863, without an effort to collect it of the acceptors, was such gross laches as to discharge them from liability.</p>

Error from chancery court of Yalobusha county. Hooxíek, J. It appears by the pleadings and exhibits, that about the year 1844, Archibald Wilson, ancestor of the complainants of that name, and of some of the defendants, bought and paid for a tract of land in Grenada county, and had the deed executed to his wife Nancy Wilson, one of the defendants ; that at the time, it was agreed verbally, and in writing, signed by said Nancy, as follows : “State of Mississippi, June 20,1844.…

Smiley, J. On the 5th day of October, 1867, Frederick Crone filed his bill of complaint against Ellen Price, administratrix of the estate of Joseph Price, deceased, to foreclose a mortgage given by her intestate to secure the joayment of a note of said intestate for $672 00, payable twelve months after date to (Jrone & Schwartz, and dated April 4th, 1853.

Hooker,, J. The facts are clearly apparent in the assignment of errors, briefs of counsel, and opinion of the court.

<p>Assignment of errors:</p> <p>1st. The order or judgment for the sale of the lands, did .not require the administrator to give bond and security, as required by the law of November 30, 1858, (Acts, 187, § 1,) and was illegal and void.</p> <p>2d. The administrator did not give the bond and security before the sale of the land, as required in such case, by the law of November 30,1858 (Acts, 187, § 1), and the sale was, therefore, illegal and void.</p> <p>3d. The administrator did not advertise, by posting the sale of the lands, as required by the order of the court, in that behalf, nor as required by the law in such case, and the sale was illegal and void.</p> <p>4th. The administrator sold the entire lands of decedent, including the homestead decreed to the minor children of decedent, under one general sale.</p> <p>On 1st and 2d assignments of error, cited Acts 1858, 187 ; 26 Miss., 646; S. 0. 27, 52 ; 26 Miss., 206 ; 7 S. & M., 454; 1 ib., 351; 41 Miss., 460; 2 S. & M., 326; 12 ib., 9;’34 Miss., 304; Rev. Code, 1857,438, art. 63; ib.,440, art. 68; 37 Miss., 17; 26 Peters, 25; 4 Wheaton, 77; Hamilton & Young v. Lockhart et al.; Hare et al. v. Houghton et al, Opinion Book, June term, j.866.</p> <p>On 3rd assignment of error, cited 26 Miss., 645; S. 0., 27,52. 26 ib., 206; 12 S. & >M., 9; 34 Miss., 304; Rev. Code, 1857, 446, art. 90; 2 Hamr., 231; 1 Leigh, 231; 12 Ala., 617;-2 Carter, 649; 2 N. H„, 194; 40 Miss., 211; 6 N. H., 194; 7 Conn., 505; 6 N. IT., 271 (3d ed., 178); 40 Miss., 239.</p> <p>On the 4th assignment of error, cited 28 Miss., 113 ; 27 ib., 71; 38 ib., 200; 40 ib,, 718; 34 ib., 304; 24 ib., 283; Blackwell on Tax Titles, 328; 13 Ill., 253; 9 Ohio, 43 ; 32 Maine, 394; 37 Miss., 71; 38 Miss., 113; 37 ib., 17 ; 39 ib.,467.</p> <p>The principal question in this cause arises on the construetion of our laws, on the subject of administration of estates. In this case, the sheriff of the county as administrator, by order of the probate' court, sold the realty of the intestate to pay debts, and the sale was made without giving the bond required by the act of 1858. Acts 1858, p. 187. The order-directing the sale did not require the bond to be given, and obviously proceeded on the hypothesis that the sheriff, acting as administrator, was not required to give bond.</p> <p>The code provides, generally, that administrators shall give bond for the performance of their ordinary duties. This bond is measured by the amount of the personalty, as the administrator has sought to do with the realty, except as he may be ordered by the probate court in the exercise of a limited jurisdiction. The same statute dispensed with bond, on the sale of real estate, which aforetime was required, and at p. 440, providing for the appointment of the sheriff to administer estates, declares that' he shall not give security for his faithful administration. These words, of course, are not more comprehensive than the words, “ shall faithfully, truly, and promptly perform all the duties required by law,” as found in the form of the bond required by the statute, Kev. Code, 438.</p> <p>Now,itis manifest, that unless the sheriff had been excepted from the general law, by express words, he would be required to give security as other administrators. lie is bound to take the oath of office prescribed (p. 438), because the execution of the bond would include the oath.</p> <p>All that relates to administrators generally, will, therefore, on obvious rules of construction, apply to tile sheriff except where he is expressly excluded, or a different rule is plainly marked out for him. He is allowed'ten per Cent., and is taxed with no costs. But it. is plain he must return an inventory and render accounts.</p> <p>There is, therefore, no ground for controverting the proposition that all general laws relating to the administrator of estates apply to sheriffs, unless they are expressly excepted from their operation with this principle, in operation, the matter stood under the Code of 1857. No administrator being required to give bond on the sale of real state, the' sheriff oí course, was included.</p> <p>The act of 1858, however, changed the law in this respect In terms it applies to all administrators and executors, and directs that in sales of land by them under Rev. Code, 446, art 89, bond before sale, shall be required of the administrator. There can be no doubt, that in sales under that particular article, sheriffs are included,, unless we hold that the term administrator doe3 not embrace him.</p> <p>It may be said, however, that the act of 1858 does not alter the law as to sales under art. 99, p. 449, relating to sales of lands of insolvent estates, and that no administrator is required to give bond under that article, and of course the sheriff would likewise be exempt.</p> <p>The answer to this proposition is, that art. 89 governs art, 99. Art, 89 refers, it is true, to sales of lands on a reported deficiency of personalty; but this is substantially the same thing as total insolvency, and the legislature obviously meant, In modifying art. 89, to intend the modification of all parts of the law, which it plainly controls. There can be no difference between the case of a partial and total insolvency, as the principle which shall govern the sale of the land. Ira both cases it is sold for the same purpose, and the proceeds go to the same parties. It is a sale of lands to pay debts in both cases, and we must suppose that the legislature designed to include both in the act of 1858.</p> <p>The proceedings in case of insolvent estates demanded a separate section of the chapter, because the mode of distribution of the estate was different; but where the section comes to speak of the sale of lands, it refers to the art. 89, merely to indicate that there is no difference in the proceed - ing in that respect. It is impossible to conceive that the legislature deemed a bond necessary as to estates partially insolvent, and not necessary as to those where there was an insolvency. In one case the creditor gets his whole debt; in the latter he gets less; but this seems to be no reason for not equiring a bond in the latter case.</p> <p>There is no sound argument to be based on the idea that the code designed by the exemption from the general and ordinary administration bond, to exempt the sheriff from anything else which might then be required or might thereafter be required of administrators ; and though we might say that the same reason which induced the legislature to exempt him from the ordinary bond, ought to have induced his exemption from the real estate sale bond., yet the legislature has not seen fit to make any exception in the act of 1858. We might with equal propriety urge that, as he was forced to take the administration, he ought not to be required to account.</p> <p>The first, second, third, fourth, and fifth assignments of error (and perhaps the seventh and eighth, which are exceedingly vague), in effect, present but two questions, and they will be considered first:</p> <p>1st. Does the act of November 30th, 1858, making it the duty of the probate court to require bond of executors and administrators, prior to the sale of real estate, conditioned for the faithful application of the proceeds of such sale (sheet acts of 1858, p. 187), apply to sheriffs who have been appointed administrators by virtue of article 68, p. 440 of Code ?</p> <p>2d. Was there such a failure on the part of the administrator, to publish the sale, by posting notices, as to render, the sale null and void ?</p> <p>As to the first point, the acts of 1858, and the provisions of the code relating to executors and administrators, are in pari materia, and are to be construed in harmony with each other, if possible. The article of the code referred to, says: “ No sheriff shall be required to give security for his faithful administrationand we do not believe the general words of the later act were intended to- repeal the special exemption or exception of the first; but to require the administrator to comply with the act of 1858, would be compelling him to give security for his “ faithful administration,” if the sale of realty, by bim, be a matter of administration. That it is a matter of administration, is put beyond question by the decisions of this court. Lee v. Gardiner, 26 Miss., 542; Forni-quet v. Forstall, 34 ib., 978; Servis v. Beatty, 32 ib., 87.</p> <p>The legislature, beyond question, by the plain words of the statute, require no bond of the sheriff, as administrator of personalty. Is there any reason why he should not be trusted with the proceeds of land sales more than with other funds ? He is no more liable to waste the one than the other. Indeed, the land of an insolvent estate, to all intents and purposes, is personalty; the law expressly makes its assets. Code, 443, art. 80. Nay, more than that, this court holds, in the case of Lee v. Gardner, 26 Miss., 542, that it is assets on hand at the time of the death of the testator. That case was an action of debt in judgment against the defendant as administratrix, suggesting a devastavit, and the declaration averred that the said administratrix had of the goods and chattels, credits, etc., which were of the estate of the deceased at the time of his death, in her hands to be administered, to the amount of plaintiffs’ judgment, of which she distributed the sum ‘of $13,395 00 to the heirs, and thereby committed a devastavit/ to which one of' the pleas answered, “ that no money or credits which were of the deceased at the time of his death came to her hands, and that all such goods and chattels as were of the deceased at the time of his death, which came to her hands, were duly sold by order of the probate court, and the proceeds paid to creditors, and that no part thereof was wasted or misapplied; ” to which the plaintiff replied, in subí stance, that the administratrix represented the personal estate to the probate court to be insufficient to pay the debts; obtained an order to sell the realty, which she sold for the purpose, for $20,092 50, and received the money, but did not apply it to the payment of the debts of the estate; to which replication defendant demurred, and urged, among other causes, that the replication was a departure from the declaration, which avers a devastavit of goods, chattels, etc., which were of the deceased at the time of his death, while the replication alleges waste and misapplication of the proceeds of land sold after intestate’s death. Considering this objection, with another of a similar character, the court says (p-543): “ The main point involved in both these objections, is whether the real estate of a deceased person, administered by the probate court, or under its jurisdiction, for the payment of the debts of the deceased, in case of the insufficiency of the personal estate properly shown, is assets subject to such administration as of the time of the death of the intestate, and whether the administrator is responsible to creditors for the proceeds,, as for assets of the deceased at 'the time of his death.”'</p> <p>“By the statute,” (Hutch. 668, § 98, which is substantially the same as the provision of our present Code on this subject) the court continues to say, “ the probate court is required to direct a sale of the lands of the deceased for the payment of debts, in case of insufficiency of personalty. Its jurisdiction over the lands is as ample as over the personalty. They are equally liable for the payment of debts of the deceased, the personalty being only required to be first exhausted, and both appertain to the regular and exclusive jurisdiction of the probate court in “ matters of administration.</p> <p>“ It may be said that the lands are not assets until they are sold and the proceeds received ; and this is true, so far as the actual administration of them is concerned. Yet they are nevertheless assets, subject to the payment of debts before the actual appropriation of them to that purpose. Nor are they the less assets, because their liability as such depends upon the contingency of the deficiency of personalty. When that contingency occurs, they become as completely subject to the payment of debts as the personalty, their liability as such having relation back to the death of the deceased.”</p> <p>Here is an emphatic recognition of the principle that the proceeds of land in such cases are to be regarded as assets, subject to administration and subject to come into the administrator’s bands, as of the time of intestate’s death, and of course, as , existing at the time of the grant of administration ; and this ruling has been repeatedly re-affirmed. Ser-vís v. Beatty, 82 Miss., 87; Evans v. Fisher, 40 Miss., 644. Now, this meaning of the law was declared in 1853, and it follows, as a natural consequence, that, when the legislature, four years afterwards, in the Revised Code, saw proper to commit the estates referred to in art. 68, p. 440, to the sheriff, it of course, contemplated that he should administer proceeds of realty (in a proper case) as well as personalty, and that no security should be required for either. Had they contemplated otherwise, they would have passed a declaratory or amendatory statute to correct this construction of the same law, as it stood in Hutchinson’s Code.</p> <p>It may be argued that, from the reading of article 68, page 440, of the Code, the legislature contemplated an administration of personalty only, because it says, if any person has died, etc., “ and has left personal property in the county of such judge, and no one will qualify,” etc. But we think the Avords were used only to designate in what particular county the letters should be granted; and the court having once obtained jurisdiction of the estate, by a grant of letters, the whole law of administration would at once attach to the estate, both real and personal. The court would thus (by the grant as to personalty) acquire jurisdiction of the whole subject matter of administration, land included; because it would be, in the words of the constitutional grant of jurisdiction (which have been too often explained by this court to need mention), a “matter of administration.” If the reading of the. statute in this respect, is tortured into an objection, it will apply with equal force to all administrations; for article 61, page 438, of the Code, directs that the granting of administration, in ordinary cases, shall pertain to the probate court of the county (1st.) in which the intestate had, at the time of his death, a mansion-house or known place of residence, but if he had no mansion-house or known place of residence, then, (2d) to the probate court of the 'county where be died, or (3d) that in which his personal property, or the greater part of it, may be. Suppose a grant of administration should be made to' one of 'the next of kin, or a creditor, on his own application, in the 3d case above, namely, where the deceased had no mansion-house, or place of residence, and the letters are issued by the court of the county in which “ his personal property, or a greater part of it, may be ; ” and suppose the deceased should have left real ■estate in another county, or in the same county, will it be contended that the law relative to selling land for debts, would not apply under such circumstances? Of course not, and yet the same facts decide the jurisdiction in such an instance, that deeide them in article @8. Or suppose that the grant should be in the county where the testator had a mansion-house or residence; His mansion-house may he on a sixteenth (school) section, or he may hold it under any •other terms, for years or lease ; still, that would not be real estate; but concede that the mansion-house should stand on the decedent’s own freehold, would that give the administrator any power over the freehold ? Clearly not. It must be borne in mind that the grant of administration never applies to real estate ; it is always of goods and chattels, and the question of realty has nothing to do with it. Thus, it is evident, to what an absurdity such a construction of article t>8 would lead. The designation of the county in which the intestate “ left personal property,” is used in that article only to point out what court shall grant the letters; just as it is made the criterion in the third instance in article 61. It could not more properly he made to depend upon the county in which he owned land, because there cannot be an original grant of administration of real estate; such property can only be administered as an incident, in the single exceptional case of ?a deficiency of assets.</p> <p>But to hold that a sheriff ■ administrator must give the bond required in the act of 1858, would often be to require an impossibility; would lead to an absurdity; would not only defeat the ends of justice and aim of the law, but would defeat the very operation of article 68 itself. That article is a wise provision of the law for the protection and management of estates, which can find administration in no other way, when, for reasons that very often happen, even with large estates like the one now before the court, and where helpless minors are concerned, the persons to whom the law naturally confides them (the estates), either will not, or cannot qualify, or, in the expressive language of the article itself, when “no one will qualify.” In such events, it is made the duty of the sheriff to receive, the property thus committed to his care. It often happens in our large counties that many estates, comprising immense landed interests, are thrown into the hands of a sheriff in this way. Most of them, too, are insolvent (for this court knows judicially the bankrupt condition of the country), and the lands have to be sold. Where is the sheriff, where is any citizen of Mississippi, who could find bondsmen for such enormous sums, especially in addition to the heavy penalties of sheriff bonds ? Who could • find security for the application of proceeds of land of half a dozen estates like this very Simmons estate, here in litigation? Indeed, the men eould not be found who would be worth the penalties of so many bonds, if willing to execute them. The' almost countless number of insolvent estates shows the pitiable condition of the country in this respect, and those who live, are, too generally, as insolvent as the dead. Yet it is the sheriff’s duty-to take all the estates thus referred to him; he had no choice; and if he cannot give the bonds, must justice fail; must the estates go to waste ?</p> <p>But even if a sheriff could give the bonds, he might refuse ; and where is the power to compel him ? You cannot force a man to give a bond, and if you could, the bond would be void for duress ; much less can you force him to get others to sign a bond.</p> <p>The view contended for by appellants leads to absurdities which increase in number and enormity, the further we follow the argument. The act of 1867 (pamphlet acts, p. 43'2? section 5), creating the office of county administrator, repeals section 68 of the Code under consideration,” except in such cases where no person will accept the office of county administrator and qualify as such.” , Suppose, under this exception, a sheriff should be appointed administrator, will the argument go the preposterous length of saying that the sheriff must undertake the responsibilities or impossibilities which the whole world, including the regular officer, now contemplated by law, refuses ?'</p> <p>This act of 1867, contains further evidence that the legislature did not intend the sheriff to give such bonds, for it in pari materia with the provision of the code, on the subject, and section 2, of the act of 1867 (page 430), says; “Then it shall be the duty of the probate judge- to grant letters of administration, etc., to the said county administrator, whose duty it shall be to proceed to administer the estate according to law, and under the direction of the court, without giving any other bond than the bond hereinafter provided for.” The words “ proceed to administer the estate,” include the selling of realty, which we have already shown to be a “ matter of administration.”</p> <p>We will now demonstrate that there is no hardship or inconsistency in the view contended for by the appellee; but that, on the contrary, the legislature, foreseeing the difficulties above-mentioned, placed these administrations just where they would be safest. The very difficulties we have mentioned, must have occurred to the law-makers, or they would not have exempted the sheriff from giving the general administration bond, as they do in article 68; and those difficulties would be as fatal, if the sheriff were required to give the bond of the- act of 1867, as if he were required to give the former. •</p> <p>But why did the legislature, foreseeing these difficulties, select the sheriffs, above all others, to administer in such cases? .It is plain. In the first place, their official bonds as sheriffs, which are- very large (in Yazoo county, whence this case comes, being twenty thousand dollars, Eev. Code, 122, art. 113), make provision for the circumstance, and a sheriff would be liable, on such bond, for mal-administration. The condition of the bond is, “ that if the said A. B. shall faithfully perform and discharge the duties of the office of sheriff, and all the acts and things required by law, or incident to his said office, during his continuance therein, then,” etc. No one will dispute that such administrations were (and still are, under the said 5th section of the county administrator law) “ incident to ” the office of sheriff.</p> <p>Again, the law reposes particular trust and confidence in the integrity, honor and ability of the sheriff He is a high officer of the law, and the law presumes that he will discharge all incidents pertaining to his office, faithfully. He is elected by the choice of the people themselves, who, when they vote for him, are presumed to know that, in the course of events, he may be called on to administer their estates, without further security than his official bond, and they select him with this object in view. It is a necessity of society, that estates like these under discussion, whom nobody will administer, should be committed to the 'care of some one, and to whom could they be so well confided as to a man chosen by the people themselves — a man, it must be presumed, of honor and responsibility, or he could not obtain an office of so great importance and trust. But if onerous burdens and conditions are annexed to such a duty (and the giving of large bonds is an onerous condition), who could be found to answer this great need of society ?</p> <p>Thus, it seems clear that the act of 1858, does not apply to sheriffs.</p> <p>2d. We come now to the next question proposed in the commencement of this brief, namely: Was the posting of notices by the administrator, in compliance with the law and order of the court, or was the sale void for want of proper posting ?</p> <p>3d. Appellant’s 6th assignment of errors, state that u the administrator erred in selling the homestead and exemptions of the children of decedent, as shown by the evidence, and no title thereto passed by such sale to J. M. Rucker.” To which we reply, as we argued in the court below, that the courirhas no jurisdiction of the question of the sale of the homestead exemptions. ' That matter is not before the court.</p> <p>4th. The 9th assignment of errors is, that u the report of sale was made after the lapse of several terms of the court after sale, say one year, and without notice to any one, and by John T. Heth, deputy sheriff.”</p> <p>We beg the court not to be mislead here, by an assignment which states only half the facts, as they appear on the record. It will be sufficient to observe, that there are two petitions and two orders of confirmation, the first of which petitions and orders were at November term, 1867, of the court below. The administrator himself, not being satisfied as to their legality, afterwards filed a second petition to confirm the sale, setting forth, in this second petition, to which we-particularly refer, the insufficiency of the first decree of confirmation, and praying for citations (which were issued and served) upon all parties interested, to show cause why a new decree of confirmation should not be granted. The second order of confirmation was accordingly founded on this second petition. And this last petition and order, and the proceedings relating to them, make the case now before the court. The first have never been regarded as valid, by either side, at least for the purposes of this case; and this exception is made in this court, for the first time. It was not heard of in the court below. It is to the last petition and order that we desire to call the attention of the court, in order that they may not be mislead by the partial and erroneous statement of facts in the 9th assignment, which we believe must have been made by inadvertence, and not with the intention to mislead — a thing of which we know opposing counsel are incaple.</p> <p>5th. The tenth assignment of error is because “ the estate of decedent was reported insolvent by Jno. T. Heth, deputy sheriff, and order of sale made thereon of the real estate and upon his petition.”</p> <p>If the court will turn to the petition itself, it will see that upon its face, at its commencement, it is in plain words said to be the petition of Samuel M. Dyer “ as administrator of the estate of W. H. Simmons, deceased.” It purports to be the petition of S. M. Dyer, and his name is signed thereto by Jno. T. Heth, deputy sheriff. An administrator, as well as another person, may employ the hand of a third party to sign his name. There is nothing in principle against it. Suppose he were palsied, blind or illiterate, will it be said he could not thus write his name ? Besides, it is a mere ministerial act, and such acts all trustees may do through agents. Iiill on Trustees, 540, 541. Eldridge v. McMakin, 37 Miss., 72; Learned v. Matthews, 40 Miss., 224, and Cason v. Cason, 31 Miss., 578; 39 Miss., 174, 324, 374; 40 Miss., 775, and references. Eldridge v. McMakin, 37 Miss., 72, and Learned v.. Matthews, 40 ib., 224.</p> <p>6fch. To plaintiff’s 5fch, 6th, 7th, and 8th assignments we object, and say the court should not consider them, because they are too vague and general. 39 Miss., 224, ib. 374; ib. 419.</p> <p>7th. We object to appellant’s 9th, 10th, and 11th assignments, because they are objections which were not made on trial, but are raised here for the first time. See 39fch Miss., 174, 324, 374; 40 Miss., 775, and references.</p>

Thigpen, J. Assignment of error: The court erred in not.sustaining the motion to quash the execution, 1st. Because the judgment, on which it is based, is absolutely void. An executor cannot make an official confession of judgment. 2d. There is a misjoinder of parties, as the record shows that Wm. V. McKnight was not the executor of John 0.

Cunningham, J. Plaintiff in error assigned the following errors : 1st. The court below erred in overruling the plaintiff’s demurrer to defendant’s second plea. 2d. The court erred in granting defendant’s instructions. 3d. The court erred in overruling plaintiff’s motion for a new trial in the cause.

Smiley, J., The facts appear in the opinion of the court. The following are the errors assigned: 1st. The chancellor erred in dissolving the injunction for want of equity on the face of the hill. 2d. Hopkins, not being a party defendant to Drake’s re-plevin suit, could not get into court to defend and protect the levy of his attachment; could not compel Smith to defend the replevin suit, and being without remedy at law, was forced into equity to preserve his rights, and the…

<p>1. Bilí, ox? EXCEraosrs — Yebdict—New tbial — Pbesumpiions—Record.—Itr an action of assumpsit founded oil two sealed notes, one for $101 00, dated 1st November, 1880, and payable twelve months after date, the other, for $46 75, dated 4th October, 1860, payable twelve- months after date, and the jury returned a verdict for $142 21, a sum loss than that of the two notes without interest, upon which judgment was rendered and for costs ; and the record contains no bill of exceptions— shows no motion for a new trial, no motion to correct or amend the vei’dict for error in calculation, the verdict will Dot he set aside, nor a now trial granted — but, it and the judgment will be presumed to be correct,</p>

TaRbell, J. On 17th day of November, A. D. 1868, in the county of Rankin, plaintiff in error, as syndic of the insolvent firm of A. J. Tully & Co., doing business in New Orleans, La., sued out an attachment at law, founded upon a claim of said firm of A. J. Tully & Go. against defendant in error, for the sum of $1,806 91 due by open account. Affidavit was duly made by the agent of said H. Tully, syndic, and bond given in substantial pursuance of the statute.

Pov LARD, J. The appellants filed the following assignment of errors: 1st. The chancery court erred in overruling the exception filed by appellant, Wilson, to the report of E. C. Bell, commissioner. 2cl. The chancery court erred in overruling the second exception filed by appellant, E. 0. Jones, as guardian. No court has jurisdiction to sell infants’ lands, unless conferred upon it by the legislature. Tyler on Infancy and Coverture, 296, et seq'.;.

Appeal fi'om the chancery court of Leake county. Campbell, J. The facts appear in the opinion of the court.

<p>1. OeiMihal law — Oosttisuanoe.—Tho rule in regard to granting or refusing a continuance, is, that such application is addressed to tho sound discretion of the court - and it is only when this discretion has boen manifestly abused, that the action of the court helow can bo assigned for error.</p> <p>2. Same — Same.—The application for a continuance, was based in legal effect upon the absence of a witness, who was desired only for the purpose of impeaching a witness for the state, in this, that the latter had said that, if he could not convict the accused by telling the truth, he would do it otherwise. JBeld: A continuance was properly refused.</p> <p>8. Same — Motion job new tkiax, — Suikpbise—Case at bab, — A motion for a new trial was based upon the following affidavit of counsel: “ When the case was called, ho understood the sheriff to report that all the witnesses for tho defense, for whom he held subpoenas were presont, but one, and thereupon wont into the trial of said cause. After the testimony had heen adduced on the part of the state, affiadavit was . made, that the prisoner was informed hy tho sheriff, that only two witnesses were present, and they wero unimportant. The counsel was thus surprised, and not prepared with the expected testimony in said cause.” Held: The motion for a new trial was properly -overruled. ■ . - '</p>

Thimble, J. The facts are stated in the opinion of the court. The appellant assigned as error: That the court erred in overruling the demurrer filed by him in the court below. 1st. The complainant’s affidavit to the bill was necessary, and particularly, as he charges Buckner with the unlawful seizure of Wilkin’s papers at the time the latter died. Without an affidavit the bill is a mere fishing bill. Story’s Eq. PL, §§ 288, 313, 477. 2d. The bill shows no equity on its face.

COTHRAN, J. 'The facts are fully set out in the opinion of the court.

Campbell, J. Plaintiff in error assigns the following errors: 1st. The suit was prematurely brought on the 28th February, 1866, upon a writing shown by the declaration to have been dated the 16th January, 1866, and payable, on the 1st day of January nest thereafter. 2d. The declaration is on a writing described as due at date o'f suit, and thus shows there was then no cause of action. 3d. The action is misconceived, it being trespass on the case upon promises, and the…

Shackel-eoed, J. The plaintiff in error assigned the following errors: 1st. There was no bond upon which the second attachment in this case could properly be predicated, and as the property .had been replevied, no alias attachment could issue. 2d. There was no notice given to the plaintiff in error of the pending of the second attachment against her. The proceedings under the first writ seem to have been ignored.

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

Plaintiffs in error assigned the following errors : 1st. The court below erred in deciding that Eugene A. Selser, by the 4th paragraph of the will of Isaac N. Selser, took only a life estate in the lands in controversy. 2d. The court erred in deciding that the defendant, Jas. M. Selser, took either for himself or his children, the estate of Eugene A. Selser. 3d. The court erred in dismissing the petition of the plaintiffs in error.

Shackelford, J. The error assigned is the overruling of the demurrer. The grounds of demurrer are, 1st. That the circuit court had no jurisdiction of this bill in equity.

<p>1. Pleading — Duplicity.—Duplicity in ft plea is embracing in it two or more distinct separate answers to the preceding pleading where one would be complete and sufficient.</p> <p>2. Same — Same—But matters, however multifarious, will not make the pleading double that together constitute but one connected provision.</p> <p>3. Same — Replications—Common daw as to double. — At common law, the plaintiff cannot reply two distinct replications to the defendant’s plea.</p> <p>4. Same — Same—Statutoby bule as to numbek. — By Rev. Code, 495, art. 105, the plaintiff may reply in answer to the plea, as many several matters as he shall think necessary to maintain his action, on condition of the leave of the court, upon affida. vit setting forth the truth of the new matter ; and the court has no discretion to waive the affidavit or mitigate the terms.</p> <p>5. Same — Void pleading steicken out on- motion. — If, without malting the affidavit, the plaintiff files a second replication to the defendant’s plea, it is a nullity, and should be reached, not by a demurrer, but by a motion to remove it from the files.</p> <p>6. Evidence — Books oe account — Evidence to impeach must be geemain to the issue_In an action of indebitatus assumpsit, by a physician to recover the price of services rendered, he introduced his books of account. There was no plea of payment or set-off. But the defendant sought to prove that the plaintiff had been known to receive money payment in other people’s accounts, which he never entored on the books. Eeld: The evidence was not gormain to the issue.</p> <p>7. Statute oe limitations — Open accounts. — Rev. Code, Í01, art. 20, embraces two classes of accounts. 1st. Mutual; 2d. All other open acoounts. As to the former, the cause of action shall be deemed to have accrued from the true date of the last item proved. As to the latter, from the date the several items thereof bocamo due.</p> <p>8. Same — Same—Local usage — Special contract. — Parties may contract as to the time when such debts shall become due, or thoro may be a local usage, so well known and universally acquiesced in as to the time of payment, that it will be implied that they were due at that time, unless it is shown a different time was agreed upon.</p> <p>9. Same — Same—Statute suspension dubing late wab — Case at bab. — Where an action was brought on the 5th day of December, 1867, on an open account (not mutual), the first item of which was 13th of May, 1860, and thelast on 26th of January, 1861, subtracting the time the statute was suspended during the war, the action was not barred by three years’ limitation.</p>

Leacii-man, J. At the August term, 1870, of the circuit court of Lauder-dale county, the prisoner, Head, was jointly indicted as principal, with one Smith as accessory, for the murder of Benjamin Doak.

Campbell, J. The case is fully stated in the opinion of the court. Appellants assign the following errors: 1st. The court below erred in decreeing relief against appellant, Mrs. Gordon. ITer plea of coverture was a valid defense to said action, and was fully sustained by the proofs. 2d. The note of Mrs. Gordon, made during coverture, was void, and hence could not become the basis of a decree against her.

EisheR, J. The testimony sufficiently appears in the opinion of the court.

<p>1. Agency — Unauthorized acts — Third pasties. — 0. consigned five barrels of ■whisky to P., who transferred them to E., to secure a debt owing to P. & R., a firm infailing circumstances, of which P. was a member, asserting that 0. had authorized him to use the whisky, or its proceeds in his business. 0. hadnot so authorized him, and had no knowledge of the representations made by P. toE. E. knew the relations of consignors and consignee or principal and agent between O. and P. Reid: The transfer convoyed no title to E., and trover may be brought by C. to recover the whisky from E.</p> <p>2. Instructions — May be too numerous. — Instructions given in groat numbers cannot be injurious, but are objectionable in practice.</p> <p>3. Same — Unwarranted hypothesis_Instructions which present hypothetical casos unwarranted by the evidence are erroneous.</p>

Error.to the ^circuit .court of Noxubee- comity. ‘ Ore. J. : The deféñdaiít was indicted’ at the June term1 of - the, circuit,} court of Noxubee county, 1§70,' for flip murder of one tiewis.'Jy Nichols. To’this’indictment he pleaded not , guilty, ,at the . .. August'term, 1870,' The special venire facias . was 'returned on the 10th of August, and a copy thereof was delivered to defendant’s counsel, on the 8th.

... The facts’of'the case appear in the opinion of the court. ■ The legal title to a promissory note payable to bearer, passes by delivery, and suit should be brought in’the beárer’é name.

Peyton, J. Plaintiff in error made the following assignment of error: The court below erred in sustaining the demurrer to the cross-bill filed with the answer.

<p>1. Constitutional law — Pbovisional appointment by governob — Vacancies._ The governor’s power of appointment of elective officers under see. 62, art. xii, of the state constitution was exhausted in such case when once exercised. And if he had the power to fill vacancies occurring by the death of one of his appointees, it must have arisen by act of the legislature. The constitution, by sec. 13, art, v, and sec. 7, art. xri, has authorized the legislature to provide for all vacancies. And this authority was acted upon by the act of May 20, 1870, requiring the governor to fill such vacancies.</p> <p>2. Executive power oe beiioval_The executive power of removal is limited to his power of appointment.</p> <p>3. Statutes — Repeal by implication. — If a later and earlier statute conflict, the rule is that the later repeals the earlier, by necessary implication. Leges posteriores priores abrogant. 1 Steph. Comm., 76.</p> <p>i. Case at bab. — Under the act of April 20, 1870, the governor had power to fill vacancies in the office of the chancery cleric, occasioned by death of an incumbent appointed by him. But the 13th section of the chancery act of May Í, 1870., repealed that power and gave it to the chancellor.</p>

Brown, J. Comes the plaintiff in error and says there is manifest error in the record and proceedings in the cause aforesaid, and assigns error as follows : ■ 1st. The court erred in its judgment overruling petitioner’s demurrer, refusing the mandamus and dismissing the petition. In their answer to the petition, the auditor and treasurer set up no other reason against the peremptory mandamus except the constitutional prohibition and the aid of the legislature.