Volume 45 — Mississippi Reports

The opinion of the court fully shows the facts of this case No memorandum of the arguments of counsel has come to the hands of the reporter.

McNair, J. The facts appear in the opinion of thie court. Cited on the insufficiency of the mandate as evidence to rebut the plea of nul tiel record, 1 Greenl. on Evi. 546, §§501, 502 ; 2 Saund. on Plead. & Evi. 755. He maintained that the judgment on the scire facias was void as to the administrator of Hemmingway, and, being void as to one joint defendant, it was void as to all, citing Pittman v. Planter’s Bank, 1 How. 527.

<p>Error to the probate court of Chickasaw county. Owen, J.</p> <p>A detailed statement of the facts of this case will be found in the opinion of the court.</p> <p>1. The probate court may, at any time within two years, allow a bill of review to any final order or decree of the court, in the same manner, and according to the same rules that courts of chancery entertain such bills. Rev. Code, 431, art. 33.</p> <p>2. A bill of review in chancery lies for error apparent on the record, or for material evidence not known and not discoverable by reasonable diligence, or for fraud, or for any thing which shows a valid excuse for not making the defense at the proper time. Gadsberry v. Perry, 27 Miss. 118; Persons v. Nevitt, 32 ib. 180-182; Denson v. Denson, 33 ib. 560 ; W ebster v. Skip with, 26 ib. 346-349 ; Edmondson v. Moseley’s Heirs, 4 J. J. Marsh. 500, 501.</p> <p>3. The bill of review should have been sustained for the errors of law apparent in the proceedings and decree for final settlement.</p> <p>The order of publication does not state the post-office address of the non-resident parties, nor does it state the same could not be ascertained after due and diligent inquiry, nor does it direct the clerk to send a copy of the notice to the non-residents. The decree of final settlement directs that appellant, administrator de bonis non of George Bowen, deceased, pay to appellees the sum of $548 25, for which an execution may issue as at law to be levied of the goods and chattels, lands and tenements of George Bowen in the hands of appellant to be administered. It was certainly error to direct that the execution against Bowen, administrator, etc., should be levied upon the lands and tenements to be administered, etc. Buckingham v. Nelson, opinion book.</p> <p>4. Error in the dismissal of a bill of review, as well as the errors in the decree sought to be reviewed by the bill, may be examined by one and the same writ of error. Den-son v. Denson, 33 Miss. 560.</p> <p>The decree sought to be reviewed is erroneous in the following particulars :</p> <p>1. In the order of publication as to the non-resident heirs of George Bowen.</p> <p>2. The given name of Mrs. Bailey is not stated.</p> <p>3. Process is not executed upon the residents. The recital in the final decree of notice to all the parties in interest is not sufficient. 29 Miss. 138, 139.</p> <p>4. The final decree directs that the execution be levied on the lands and tenements in the hands of Bowen, administrator, etc., to be administered.</p> <p>5. Counsel for appellees contend that the demurrer to the amended bill of review was properly sustained, because it does not show newly discovered testimony, etc. The ground of the bill of review is not for newly-discovered evidence, but the fraud of appellees in representing that the final account was just, all the credits proper to be allowed. It shows a valid excuse for not excepting to the final account.</p> <p>The executor obtained credit for $1,000, and $100 for so much cash paid himself, equivalent to saying, for so much “cash used by himself,” appropriated to Ms own use in Ms first annual account, and also in Ms final account. Whether this was done by oversight, mistake or fraud, it was against conscience, was unjust, and ought to have been corrected. See 2 Story’s Eq. Juris., § 885; Marine Insurance Co. v. Hodgson, 7 Cranck, 332.</p> <p>That it was alike the duty of the probate court to have considered the facts stated in the amended bill of review, and, on proof of them, to have granted the relief prayed for, is conclusively shown by the ruling of our own high court of errors and appeals in the case of Gfadsbury v. Perry et al., 27 Miss. 114-116. Even if the dissenting opinion of Justice Fisher, given in that case, should now be held to be the correct exposition of the law, the demurrer in the case at bar should have been overruled. In this case, the bill shows a good and sufficient reason why complainant, Bowen, did not contest the allowance of the final account. • By the false and fraudulent representations of the administrators of Seale, he was led to believe it was right and proper, and was induced to make no resistance at that time. Moreover, the bill shows that there is error of law apparent upon the face of the decree. These are good and sufficient reasons why a court of equity, even, should have overruled the demurrer to the bill. Person & Marye v. Nevitt, 32 Miss. 180-182; Webster v. Skipwith, 26 Miss. 341-346, etc.</p> <p>If this court should determine that, under the Bev. Code, 431, art. 33, the rule of the probate court is alike restricted to that of the chancery court, even then the demurrer to the amended bill in the case at bar was improperly sustained. As in the case of Webster et al. v. Skipwith, 26 Miss., found in the opinion of the court on page 348, “there can be no controversy in relation to the injustice of the judgment” allowing the final account. “There is sufficient in the record to show that the judgment” allowing the final account “was obtained through-mistake of fact,” and that mistake of fact was even fraudulently concealed from Bowen by Seale. Then apply the-rule as laid down by Judge Story, and quoted in the same opinion of our high court on the next succeeding page (349), and that laid down by Chief Justice Marshall on the following'page (350), and, when so applied to this case, the conclusion will be inevitable that the demurrer was improperly sustained in the court below.</p> <p>This, court, in the case of Denson v. Denson, 33 Miss. 560, amplify the rules which rightly govern our probate courts in their adjudications on bills of review. It will be there seen that it was not only the duty of the probate court, in this causé, to consider fully the bill of review, but also to consider, falsify and surcharge the final account; but that the error of the court below, in both cases, may be rightly brought to this court by the same writ of error.</p> <p>In the original bill it is said that “since the rendition of the final decree, etc., orator has discovered an error,” etc., therein, “prejudicial to the interest of” George Bowen’s estate, “in this, that in said final account the said Jesse Seale was allowed a credit for the sum of $1,100 improperly, and for which sum he was not legally entitled to credit.”</p> <p>1. Upon inspection of the record or decree no such error is apparent therein, and in order to support a bill of review for errors of law, the rule is too general to admit of doubt that they must be apparent upon the record or decree complained of. 2 Madd. Ch. marg. p. 537, 542 et ubique; 1 Harr. Ch., pp. 137, et seq.; Story’s Eq. PL, §§ 404, 405, 407, 411, 634 a; 13 Pet. 6; Iler v. Routh’s Heirs, 3 How. (Miss.) 276 ; Stark v. Mercer, ib. 377.</p> <p>2. If it is contended that the bill is based upon newly discovered matter, then it is deficient in not stating that the newly-discovered matter could not, with reasonable diligence, have been discovered and used at the time of the rendition of the decree sought to be reviewed. 2 Madd. Ch. 340, et seq.; Story’s Eq. PL, §§ 412, 413, 414, 415, 417.</p> <p>3. The amended bill’ of review recites, that “in 1¡he allowance of the final account, and in the rendition of the decree, ■manifest errors of law were committed,” and then goes on to specify the “manifest” errors. The allegations of this part of the bill are of errors of law apparent upon the face of the record or decree, or at least substantially so. The error complained of, upon examination, it will be ascertained, consists in the action of the court in allowing these credits without lawful vouchers. This is not error of law apparent upon the face of the record. Executors and administrators are warned (Rev. Code, 1857, p. 443, art. 82), that payment made by them upon claims, not proved according to the rules therein laid down, are made at their own risk. That is all. It merely shifts upon them the onus of proving the validity of the claim, when not thus proved, paid off by them. And, inasmuch as the court examined these claims and passed upon them, the presumption is, that proof was made of the validity of the claim, and the court duly satisfied of the propriety of the administrator’s or executor’s conduct as to payment of these claims before rendition of its decree justifying the executor in that behalf, hence we insist, that the condition of the vouchers affords no basis for the allegation that there is error of law apparent upon the face of the decree. It was competent for the executor to produce proof, showing that the payment of the claim was a proper disbursement of the money under his control, and it was the. duty of the court, under the circumstances, to hear it, and if satisfactory, its action in* allowing it was as thoroughly justified (nay more so) as if the claim had passed under its inspection with all the indicia of correctness flowing from the fullest conformity with the rules regulating vouchers.</p> <p>Nor will the facts detailed in the bill which are made the foundation of the charge of fraud afford grounds to set aside the judgment complained of under the general prayer of relief, viewing this not as a bill of review, but as a bill to set aside a decree obtained by fraud.</p> <p>It will appear from the bill itself that the annual account of Jesse Seale, as executor of Bowen, deceased, was on file, and that it was allowed by the court, and certainly, therefore, accessible to the complainant for a great while before the filing by appellees’ administrators of Jesse Seale, executor, etc., of a final account of Jesse’s actings and doings as executor of Bowen. It also appears from the biE that all parties at interest, complainant, therefore, among the number, were properly notified of the pendency of the final account filed by appellees, and to set aside the decree rendered thereon, because of his reliance upon their assurances, with the whole of the matters of which he now complains as open then for objection as they would be now if the prayer of the bill were allowed, would be, we respectfuEy submit, descending from that dignity of conduct and firmness of purpose which has always contributed so largely to enforcing respect for the action of tribunals whose deEberate decrees are not abrogated upon frivolous pretexts.</p> <p>1. It does not appear that reasonable dEigence was used to procure the testimony which was necessary, therefore the demurrer was properly sustained. Story’s Eq. Pl. (7th ed.) §§ 404, '413, 414 ; 2 Johns. Ch. 488 ; 3 ib. 124 ; 1 Jac. 243 ; 11 Sim. 456, 463 ; S. C., 1 Phill. Ch. 182.</p> <p>2. It was necessary to state in bill of review that leave of court was obtained to file it. Story’s Eq. PL, § 420; Mitford’s Eq. Pl. (by Jeremy) 88, 89; Cooper’s Eq. Pl. 95, et seq. As the fourth ground of demurrer was general, it reaches this defect, especially as the record shows no order of the court allowing filing.</p> <p>The grounds alleged in th& amended biE were, “error apparent upon the face of the record,” “ newly discovered matter,” and “fraud.”</p> <p>- 3. The “error” aEeged to be “apparent,” etc., is the terms used in making the entry touching the $1,000, the $100 and the $48 05, claimed as credits taken in connection with the absence of a “legal” voucher.</p> <p>The entry by. the executor 'shows the $1,000 to have been “upon allowance,” and it is inferential from its position, etc., that the $1,000 was the same. If so, no error appears on the face of the proceedings.</p> <p>4. The statements of the bill do not place the parties within the rule, allowing reviews upon the ground of “newly discovered matter.” The bill undertakes to show how and why this matter was not used at the time the original proceedings upon the final account were had, and so far from showing diligence to obtain all the testimony, or that the same “ could not have been used” in the proceedings upon which the decrees ought to be reviewed is based, discloses the most unusual laches. Story’s Eq. PL, § 414, and authorities cited.</p> <p>5. The circumstances stated in the bill do not amount to “fraud,” andaré, therefore, demurrable. Story’s Eq. PL, §§ 639, 645 ; Cooper’s Eq. Pl. 217,218.</p> <p>Where there is a general sufficient allegation of fraud, or where the circumstances upon which the charge is based are narrated in the bill, and upon examination are found to constitute fraud, a demurrer to the bill is improper, but where the charge is made, predicated upon facts detailed in the bill which do not make out a case of fraud, a demurrer may be taken.</p>

Smiley, J. The opinion of the court distinctly presents the features of this case. » As to the first ground of demurrer, this court has held that a married woman may give a note with her husband for her own use. See Bowman, et ux. v. Thos. E. Helm, (manuscript). Second cause is bad, because not true in fact. The notes were given for supplies furnished the defendant for her separate use.

Trimble, J. The opinion of the court minutely states the facts of this case. It is manifest that there was no sufficient ground for a judgment against plaintiffs in error. The evidence not only fails to establish the fact that Frazier, to whom the money was loaned by defendant in error, was a partner in the commercial firm of Toof, Phillips & Cirode, but establishes exactly the reverse.

The facts are sufficiently stated in the opinion of the court. As the record shows no bond by the executors, we are justified in presuming none was given. Was the sale void for want of such bond ? The high court has settled that question ; and this court, in just such a case, has recently adopted the same rule. The bond is required by law to be given, and when executed and approved, becomes part of the record. The absence of it is a fatal defect. Bucher v. Dyer, 44 Miss.

Magee, J. The facts of this case are distinctly stated in the opinion of the court. This was an application to rent real estate of intestate by his administrator long after the death of decedent, and after the land had gone into possession of the heirs. The record shows no evidence in the case, and that it was submitted on petition and answer, neither sworn to.

Mill-saps, J. The facts appear in the opinion of the court. The contract was signed by both parties, and the failure to stamp was as much the fault of one party as the other. If one party cannot avail himself of the contract because unstamped, on what ground can the other recover upon it ? The rule is, that if a contract is in writing, and inadmissible for want of a stamp; a party cannot recover by resorting to parol evidence.

Niles, J. This was a suit to recover the value of timber cut down and carried away from the land of plaintiff without his consent by the defendant.

Ekrob to the circuit court of Chickasaw county. Lov-EBING, J. The facts appear in the opinion- of the court. In support of the first assignment of error in this cause, submitted the following authorities: Rev. Code, 1857, art. 2, p. 355 ; Andrews v. Carr, 26 Miss. 577; Owen v. Moody, 29 ib. 79; Foil’s administrator,.etc., v. Wilson, 24 ib. 168; Bingham v. Sessions, 6 Smedes & Marsh. 13; 1 Lomax on Executors, p. 559, subd. 2, p. 560, subd. 4 and 7, p. 574, subd. 18.

<p>1. Partnership—authority ova member to bind the virm as surety. — One member of a commercial partnership has not implied authority to sign the joint name as surety for third persons, unless the partnership agreement permits it.</p> <p>2. SAME —AUTHORITY OVA PARTNER TO BIND THE VIRM IN GENERAL. — The right to sign the joint name is implied, where the business of the partnership is commercial trading. If a partner apply for a loan, and gire a note in the partnership name, the firm is bound, though he use the money to pay his own debts.</p> <p>3. Same—presumption where virm name on negotiable paper.—Whenever the name of a commercial partnership is on negotiable paper, the firm is prima facie bound, and it devolves upon the member contesting his liability, to show the special facts that exonerate him.</p> <p>A Same—liability ov the virm vor the acts ov a member.—Partners in general commercial business only hold each other out to the world as competent to transact joint business, within the scope of the partnership, and each engages to be bound for the other only that far.</p>

Bradford, J. Plaintiffs bring this suit to recover of defendant the price of a bill of goods sold by them to one Mrs. Mary E. Williams, with whom the defendant, John Grantham, afterward intermarried. There was a demurrer to the declaration, Because there was no averment that the wife had separate property under the married woman’s law of 1857, the demurrer was sustained.

Trimble, J. The opinion of the court fully presents the features of this case as made by the bill. Two points only are made by the demurrer. 1. Held: that expenses incurred in completing the crop were a charge upon the income and not upon other property. See Ward v. Harrington et ux., 29 Miss. 246 ; Hagan v. Barksdale, 43 ib.

Ekbor to tbe circuit court of Holmes county. Campbell, J. The facts appear iu tbe opinion of the court. Cited act of congress, April 20, 1832, 6 U. S. Stat., p. 484; 1 Brightley’s Dig. 462, § 1; ib., §§ 3 and 4; ib., § 8; ib., § 28, p. 465'; the treaty at Dancing Babbit Creek, between the Choctaws and the United States, art. 19; Hutch. Miss.

<p>Eeboe to the circuit court of Coahoma county. TbimBLE, J.</p> <p>Insisted that a new trial ought to be granted, because it does not appear that the indictment had been filed. Laura v. The State, 26 Miss. 174; Haynes v. The State, 34 ib. 616. The court erred in overruling the plea in abatement. Acts of 1866 and 1867, p. 238. The court ought to have sustained the objection to Jere McCorby as a juror. Burr’s Trial, vol.-1, p. 367; Heath v. Commonwealth, 1 Rob. 735; XI. S. v. Fries, 1 Wharton’s St. Tr. 606; 3 Wharton’s Am. Or. Law, § 2981; also, Sam v. The State, 13 Smedes & Marsh. 189 ; Nelson v. The State, ib. 500.</p> <p>The court ought to have excluded the evidence as to the confessions of the defendant. Peter v. The State, 4 Smedes & Marsh. 31; Yan Burén v. The State, 34 Miss. 512; Simon v. State, 37 ib. 288. It was error to draw the jury from box No. 2, instead of from box No. 1, as required by Rev. Code, art. 135, p. 499. The special venire was drawn from box No. 2, and the evidence of both the sheriff and the clerk goes to show that said box was filled with names taken from box No. 1. This fact is alone enough to justify a new trial.</p> <p>Again, a new trial ought to have been granted because of the improper influences to which the jury were exposed during the trial. Boles v. The State, 13 Smedes & Marsh. 398. The evidence in this case presents a stronger case than the -one cited. McCann v. The State, 9 ib. 465 ; Nelms v. The State, 13 ib. 500. See, also, 26 Miss. 83 ; 33 ib. 372 ; 36 ib. 121; Organ v. The State, 26 ib. 83 ; Haynes v. The State, 34 ib. 616.</p> <p>1. The first error assigned is, that it does not appear that the indictment was ever filed ; but it is stated in the record that on October 12, 1869, the grand jury “filed in our said court the indictment,” etc. To this there was a plea in abatement that the grand jury was composed in part of colored men. A demurrer to this was sustained, and the prisoner, being arraigned, pleaded not guilty. This objection to the indictment, first raised here, comes too late. But if this objection had been made in time, the authorities cited from, 26 Miss, and 34 ib., are inapplicable, and do not sustain counsel upon the point. See Rev. Code (1857), art. 7, p. 573 ; Bouvier’s Law Diet. tit. File.</p> <p>2. The legal disqualification of men of color to sit on juries was abrogated by the 14th amendment. This provision of the supreme law brings men of color within the purview of the statute defining competent jurors. See art. 131, Rev. Code (1857), 499. The objection to the juror McCorby, because he had formed and expressed an opinion in the case, ought not to have been sustained. The juror did not say to what his opinion related, or what was the subject-matter of it, and that opinion was formed from mere rumor, and had already vanished from his mind.</p> <p>4. The confession of the crime by the prisoner was not only voluntary, but was wholly unsolicited ; and in connection with the uncontradicted proof aliunde of the corpus delicti, and the dying declarations of deceased, could have warranted no other verdict. The jury having heard all the evidence, and being correctly and fully instructed upon the law applicable to the case, and having found a verdict of guilty, it ought not now to be disturbed.</p> <p>5. The objection to the manner of drawing the special venire is in the least decree artificial, and cannot be tolerated, except by giving an undue and disproportionate importance to mere forms, at the expense of substance. The names of persons qualified were in box No. 2, and not in box No. 1. They might certainly, with more propriety, have been in box No. 1. The statute directs this for the convenience of the court and its officers. But is its nonobservance in form, or its informal observance, as in this case, sufficient, without any pretense of fraud, to vitiate the trial % The depositing of all the names in one of the several boxes ipso facto made it No. 1 in contemplation of law.</p> <p>6. As to the exposure of the jury to improper influences, etc., the proof fails. The bailiff was absent “but for a moment,” during all which time the sheriff himself, the clerk, the district attorney, and both the prisoner’s counsel were part or all of them observers of all that occurred.</p>

Reynolds, Chancellor. The facts appear in the opinion of the conrt. 1. It was error to set the case for final hearing, without , having taken a pro confes so decree against Norton. 41 Miss. 517. 2. The evidence is not sufficient, under the rule applicable in the case, to support the final decree.

Ebbob to the circuit court of Choctaw county. Cothkan, J. Defendant in error, being plaintiff in the court below, declared on the joint note of George W. Pollen and S. A. Pollen, his wife, which note was given to defendant in error.

Chandler, J. 1. The demurrer to the declaration set forth, for cause, the exclusive jurisdiction in admiralty, and that the lien was barred by time. On the first canse we cite, 20 How. (U. S.) 393; 4 Wal. 556 ; 21 How. (U. S.) 248. There was, also, a plea of the limitation of six months (Code, 328, art. 6), and that the contract'was parol. 2.

<p>1. Chancery—appeal—power to grant supersedeas—case in judgment.—Injunction was dissolved on motion, and appeal prayed and granted, but not to operate as a supersedeas of the order of dissolution. On the same day the complainants set the case for final hearing, on which the bill was dismissed, and complainants prayed and obtained from the chancellor, in open court, an order for an appeal to the supreme court, upon giving bonds, etc., to operate as a supersedeas of the order of dissolution: Held, that the supersedeas was properly granted, and a motion to discharge it was denied.</p> <p>2. Same—interlocutory decrees—chancellor’s power over.—The chancellor has jurisdiction over all interlocutory decrees, to recall, modify or vacate, according to the changing phases and exigencies of the litigation, until termination by final decree.</p> <p>3. Same—same —appeal prom PINAL decree dismissing injunction bill. —A suspensive appeal from a final decree dismissing an injunction bill suspends the dissolution of the injunction.</p> <p>4. Same —power op this court to discharge supersedeas.—If the chancellor permits a supersedeas where the statute does not warrant it, this court will not hesitate to discharge it.</p>

Cabaniss, Chancellor. Writ of error to circuit court, Hinds county. Brown, J. These two cases were submitted together. The bill of Kimball, Raymond & Co., exhibited in the chancery court of Hinds county, was dismissed on final hearing, on bill and answer, and they appealed, and the mandamus they prayed was granted by the circuit court of Hinds, and James Lynch,.secretary of state, sued out a writ of error.

Ebbob to the circuit court of Panola county. Clayton, J. The facts are fully stated in the opinion of the court. We will consider but one'proposition of law involved in this case : Is the lending of money, knowing the borrower will make an illegal use of it, sufficient of itself to deprive the lender of the right to recover ?

Tbe opinion of tbe court fully states tbe facts of tbis case. Tbe point in this case, which will dispose not only of tbe appeal, but of tbe controversy, is tbis: whether or not there was an abandonment of tbe homestead by the widow; and tbis point involves a construction of tbe Code, art. 281, p. 529.. . Tbe homestead and other exemption laws are founded in benevolence, and in a public policy averse to the exaction of all a man possesses.

<p>Appeal from tlie chancery court of Lincoln county. Peyton, Chancellor.</p> <p>The opinion of the court clearly shows the facts of this case.</p> <p>Cited Coulson v. Harris, 43 Miss. 728 ; Rev. Code, 1857, p. 362; Story’s Eq. PL, § 28; 11 Yesey, 240; 12 ib. 477 ; 3 Swanst. 472 ; 3 Yesey & Bear. 99; 5 Madd. 442 ; 6 Johns. Ch. 46; Story’s Eq. Pl. 227; Rev. Code, 1857, p. 540, art. 2; and made, in argument, the following points:</p> <p>1. Complainant has no legal right or demand against plaintiff in error.</p> <p>2. He has an adequate remedy at law against all possible danger.</p> <p>3. He is not threatened by the judgment creditors, but on the contrary, they refuse to revive against him.</p> <p>■ 4. There is nothing in the proof or pleading to show that the estate of Whitworth is solvent, and that complainant can be made to respond.</p> <p>5. Complainant seeks to subject equitable assets and has no return of execution nulla bona.</p> <p>6. There is no privity between complainant and Mrs. Bowen. She is not responsible to him, but to the judgment creditor if to any one.</p> <p>7. Complainant comes into equity with unclean hands ; a delinquent debtor, without excuse for his delinquency, pleading his laches as a ground for the intervention of a court of equity, demanding equity, yet not offering to do equity.</p> <p>8. Because against the only party (Mrs. Bowen) to be affected by the decree, there is no fraud shown or even charged.</p> <p>9. Because the prayer is inequitable and unconscientious.</p> <p>10. Because E. L. Bowen is not shown to be insolvent, nor charged with a refusal, on his part, to pay the debt.</p> <p>11. Because of the vague and uncertain amount in value of the property sought to be subjected for a vague and uncertain contingency anticipated.</p> <p>12. Because the amount in controversy, which is an essential jurisdictional fact, no where appears in the bill.</p> <p>13. The bill is multifarious. Story’s Eq. Plead. 274 and 280.</p> <p>The maxim in regard to co-sureties is ‘£ equality is equity among persons standing in the same situation.” Dening v. Earl of Winchelsea, 1 Lead. Cas. in Equity, 96 ; Sterling v. Forrester, 3 Bligh, 59; Craythorne v. Swinburne, 14 Yesey, 160-165; Meyhew v. Crickett, 2 Swanst. 189-192; McMahon v. Facocett, 2 Band. 514-529 ; Campbell v. Messieux, 4 Johns. Ch. 334.</p> <p>The object of this bill is to prevent such a disposal of real estate as would relieve it from liability and throw the whole burden of the debt on the co-surety, who is complainant. Bev. Code, 1857, p. 534, art. 261; Stevens v. Mangum, 27 Miss. 481; 2 Eden on Injunc. 339 and note ; 6 Madd. 10 ; 1 Story’s Equity Juris. 730 ; 2 ib. 825-827, and 872-841, and 905, 912, 954, 959.</p> <p>A surety, before be has paid any portion of the debt, may go into equity to restrain his principal from disposing of land so as to throw the whole burden of the debt upon him. McConnell v. Scott et al., 15 Ohio, 401.</p> <p>A surety may enforce payment out of the property of his insolvent principal in the hands of third persons before payment of the debt. Stamps v. Kogers, 4 Ohio, 533 ; Green et al. v. Crocket et ah, 2 Dev. & Batt. Eq. 390, 393.</p> <p>A surety can maintain a bill, quia timet, against his principal. Lee et al. v. Griffin et al., 31 Miss. 632.</p> <p>The question in this court is not, is the decree clearly right, but is it manifestly wrong? 2 Story’s Eq. Juris. 959 b ; Fox v. Matthews, 33 Miss. 433 ; Steadman v. Hollinan, ib. 550.</p>

Ebeob to the circuit court of Chickasaw county. Bbad-BOBD, J. The facts appear in the opinion of the court. The counsel on both sides filed lengthy written arguments, too long for insertion, and too complete and elaborate for any successful attempt at abbreviation by the reporter, therefore they are omitted.

Eeeoe to the circuit court of Holmes county. Campbell, J. The opinion of the court states the facts. Contended the service should have been personal, and the notice given was not sufficient, citing Rev. Code, 1857, p. 374, art. 61; ib. 375, § 7; Crizer et ux. v. Horren, 41 Miss. 563. Contended that constructive notice like that in the case at bar was sufficient, citing Rev. Code, 375, art. 7 ; ib. 380, art. 26 ; ib. 489, art. 64; 38 Miss. 97, 544 ; 37 ib. 438.

Clayton, J. The opinion of the' court contain a statement of the case. The only question in this case is, whether the plaintiff in error was bound to receive legal tender treasury notes of the United States upon a contract made 11th September, 1858. The supreme court of the United States has decided that he was not, and I file herein the opinion of the court delivered by Chief Justice Chase.

<p>1. Bill op exceptions showing certain testimony objected to and NOT CONTAINING THE WHOLE EVIDENCE INSUPPIOIENT TO PROCURE REVERSAL. — Certain testimony objected to and placed upon the record by a bill of exceptions, not being accompanied with the other testimonyin the cause, the assignment of error relating to its relevancy and competency will not be considered; for the evidence may have been rendered material and competent by the absent testimony.</p> <p>2. Statute op prauds—case in judgment—art. 1, p. 358, Rev. Code 1857. —M. was indebted to S., S. was indebted to O. In consideration of the promise of M., with the assent of S. and O., to pay his indebtedness to S. directly to O., the latter released S. from further liability to him: Held, the undertaking of M. was not a promise within the statute of frauds. Rev. Code, 1857, art. 1, p. 358.</p> <p>' 3. SAME —CONTINGENT LIABILITY — illustration op cases within and without the statute.—If the responsibility of A. is contingent upon the act of B., the case is within the statute; but if A., in consideration that C. will discharge B. of a debt owing to C. promises to pay that debt to C., the case is outside the statute; for the reason that A. has contracted an independent debt of his own, and his responsibility is not contingent upon the act of B.</p> <p>i. Same—receipt op consideration by the promisor not always the criterion—what is the test.—The receipt or non-receipt of the consideration by the party promising, does not determine, in every case, whether it is 'within the statute or not; but the inquiry still remains whether he entered into an independent obligation of his own, or whether his responsibility was contingent upon the act of another.</p>

Boone, J. Tlie facts of this case are so distinctly and minutely stated the opinion of the court, as to render any other statement unnecessary. Held: that judgment must be for the bankrupt, upon his certificate of discharge, and a judgment for the sale of the attached property to satisfy the debt. Peck v. Jenness, 7 How. 623. Other decisions sustain this view, but some of them do not seem to require revivor against the assignee.

Stearns, Chancellor. The facts of this case will be found in the opinion of the court. The vendor’s lien is superior to the judgment lien. Lindsey v. Bates, 42 Miss. 399 ; Walton v. Hargrove, ib. 19 ; 13 Yesey, 337, 339, 340, 350 ; 2 Story’s Eq., §§ 1225,1228 ; Mills v. Kelley, 40 Miss. ; Dodge v. Evans, 44 Miss.

Shackleford, J. A bill was filed in this case to foreclose a mortgage executed by B. K. Pickett in his life-time; His widow filed a plea in bar stating that her late husband, B. K. Pickett, had died “seized and possessed” of the land embraced in the mortgage. This plea was overruled and this appeal has been prosecuted to reverse the decision of the court below.

<p>Appeal from the chancery court of Pike county. Peyton, Chancellor.</p> <p>The town of Summit in which the land was sold under execution, was not the county seat of the county. The other facts of the case are distinctly stated in the opinion of the court.</p> <p>The single question presented is, whether this sale was absolutely void, not merely irregular.</p> <p>The advertisement, the appointment of clays of sale by the statute, and the fixing of the place of sale, at the courthouse of the county, are directions as to the manner of sale, intended to secure publicity and competition. All these directions have the same object, and there is nothing to indicate that the framers of the statute attached more importance to one of these directions than to any other. They all combine to make the sale public and notorious. They are all in the nature of the notice of the sale.</p> <p>The judgment fixes the liability of the debtor and authorizes the sale, and the execution commends it. These are indispensable, because they alone confer the power to sell. Their absence renders the sale void. The notice and the place of sale relate to the manner of the sale, and the omission of any one of the directions how to sell is an irregularity in the execution of the power, which does not render the sale void.</p> <p>It will be observed that all the directions are enforced by the word “shall,” and if by reason of this word one direction is mandatory, all the directions are mandatory. Every argument founded on the reasons for selling at the courthouse door apply equally to the advertisement, the day and hours of sale. Code, 528.</p> <p>The argument that the specification of a particular place of sale by the statute is an implied prohibition of the sale at any other place is applicable to all directory statutes. The specification of the mode of advertising the length of time, the days of sale, and the hours of sale, because it may with'equal propriety be said any other mode of advertising, any other day or any other hour of sale than that specified is impliedly prohibited, and we trust that the court will not venture upon the dangerous ground of reasoning on a conjectural hypothesis of legislative intent investing one of a series of directions as to the manner of executing final process with paramount importance, when so far as the statute itself is concerned, no distinctions is made, and all the directions are placed on the same footing, and all have a common object.</p> <p>In Wheaton v. Sexton, 4 Wheat. 503, the supreme court of the United States said the purchaser depends upon the judgment, the levy and the deed. All other questions are between “the parties to the judgment and the marshal,” under the old law, in all essential particulars, like the Code. In perhaps the very best-reasoned judgment of the very ablest of our judges, the case of Minor v. Selectmen of Natchez, 4 Smedes & Marsh. 631, the doctrine of the case of Wheaton v. Sexton is distinctly announced as applicable to the statute of this state regulating sheriff’s sales. In the case of Minor v. Natchez, the question was examined by both the able counsel and the court with comprehensive and searching scrutiny, and it was held that a departure from the directions of the statute did not vitiate the sale, and this case has been followed. 10 Smedes & Marsh. 258. Certainly never over-ruled, and cannot be shaken. It is contended that where irregularities occur in the mode of sale, the doctrine of that case applies only to purchasers without notice of such irregularity. It is manifest, however, that the decision does not rest on such grounds. It is placed on the ground that purchasers are not bound to take notice of any thing but the judgment and execution, and are not affected by irregularities in them. The purchaser is bound to see there is a judgment, an execution and a levy ; but whether these be regular or not is no concern of his. They are matters for the parties to the judgment.</p> <p>It is sufficient for us that the admission, that the sale is not necessarily and absolutely void by reason of a departure from the prescribed manner of the sale, is decisive of this case, because the validity of the sale depends, not upon following implicitly the statute, but upon other circumstances not therein enumerated, affecting the purchaser and the sale; then the sale cannot be collaterally impeached because it is not necessarily void. The parties to the judgment with whom the matter rests to make objection may have requested the sale to be made at Summit. For aught that appears, the sale was fair and for a full ' price, and satisfactory to those parties ; at all events, they are not objecting. The sale there may have tended to sub-serve the prime object of the statute, greater publicity and the better prospect of active competition. Indeed, we see that the parties objecting to the sale preferred to sell under their decree of foreclosure at this same market-house in Summit. There is every reason to infer that in the view of the parties to the judgment a sale of a town lot in the town in which it is situated was more likely to be fruitful than one at a point distant from the locality. A court of chancery would not set aside the sale except that on the proof that it was unfair, and at an under value; certainly not unless in a direct proceeding by a party having the right to object, and on the ground that the sale was a sacrifice of the property.</p> <p>In Cook v. Toombs, 36 Miss. 689, the court decided that such sales, that is, sales affected by irregularities, can be set aside by direct proceeding. This is the sound, conservative doctrine.</p> <p>If we set the precedent that the place of sale is of that importance that a sale elsewhere, though not objected to by the parties to the judgment, is an absolute nullity, because the purchaser must know it is not the place prescribed by law, we must go farther, and say that he must also know the time of day, and, if it be shown that the sale was at ten o’clock instead of eleven, it is a nullity.</p> <p>The proposition for which we contend is, that the departure from the prescribed mode of sale does not, ipso facto, render the sale a nullity, and that it follows that the sale is only voidable at the instance of those injuriously affected by the departure, in a direct proceeding to set aside the sale, and that the objection cannot be raised by a demurrer to a bill seeking relief founded on the title aquired at such sale, nor by an objection to its introduction as evidence of title in an action of ejectment. This direct proceeding would be by bill in equity, and it would be essential to such a title that it should aver that-the property did not bring a fair price, and that a resale would realize more money, and an offer to refund the purchase-money. To hold the deed void on demurrer, or to exclude it as evidence, involves the idea that under no conceivable state of case could the title be upheld.</p> <p>Whether the defendants below can, by a cross-bill, bring the point in contest by offering to refund the purchase-money, and by averring a sacrifice of the property by the departure from the statute, is not involved in the question before this court. A direct proceeding gives to the purchaser the opportunity to vindicate the sale, and obtain justice by the return of his money.</p> <p>In conclusion, we advert to the circumstance, in considering the effect of the statute, that one of the codifiers was the learned judge who decided the case of Miner v. City of Natchez. In framing the act in the Code, it is quite impossible that this case was not present to Ms mind, and, indeed, to the minds of his associates. In the opinion in that case, a distinction is drawn between a statute which (as in Tennessee) declares that a “salemade otherwise than in the manner prescribed' shall be void” and our statute, which contains no such declaration, and on this the argument is made that the legislature did not intend that the sale should be rendered null by the omission to follow the directions of the statute. The Code omits this declaration, and it is fair to presume that they adopted it with the exposition of a similar .statute which had been accepted by the high court of errors and appeals. It is an old rule, that when we borrow a statute from another state, we are to be understood to take it with the interpretation given to it by the court of last resort of the state from which we borrow it. If, therefore, we find in the Code an old statute which had received a judicial construction, embodied without material change in the Code, it will continue to be interpreted as heretofore, on the idea that it was adopted or continued as interpreted, otherwise it would have been altered so as to give a different meaning. When the case of Miner v. City of Natchez was again before the court, 10 Smedes & Marsh. 25, Judge Clayton, who had reserved Ms opinion on the point of defective notice, yields his opinion in support of the cMef justice on the ground that the statute did not declare the sale void.</p> <p>The bill is founded upon a sale and deed of land under fieri facias by the sheriff of Pike county, and alleges that the sale was made “at the market house, in the town of Summit.” Holmesville is the county seat of Pike county, and Summit is an incorporated town, eleven miles from Holmesville. That the sale Avas not made at the courthouse, is a fact of which the court will judicially take notice without further proof. 1 Greenl. on Ev., ch. 2, § 5, 6.</p> <p>The statute on the subject of sheriff’s sales (see Bev. Code, p. 528, art. 277), declares, that “ all sales by any sheriff,” etc., by virtue of any execution, etc., “ shall be made at the court-house of the county, except personal property too cumbersome,” etc. The word “shall” is mandatory in its common and ordinary acceptation and meaning, and therefore must be so regarded in construing it. Rev. Code, p. 643, art. 1. The naming of the court-house excludes all other places. Expressio unius est exclusio alterius. It was not necessary that the statute should in terms declare that sales of real estate should not be made elsewhere than at the court-house, for such is the legal effect of the language used, according to the maxim just cited, and which is recognized as a sound rule for construction of statutes. By this rule of construction such sales are in effect forbidden to be made elsewhere than at the court-house ; as if the statute had expressly added after the word “court-house” the words, “and not elsewhere.” Reasons of public policy undoubtedly influenced the minds of the legislature in making this law. The evil sought to be prevented was the making of sales of real estate at private places, and on days and at hours unfavorable to competition in bidding. The court-house is generally the most public place in the county. The days selected are more frequently than others publie days, and the hours designated, those in which there is generally the largest attendance, especially of persons residing away from the county seat. We therefore conclude that such sales are to be limited as to place and time, to the place and times specified in the statute.</p> <p>A further argument in support of this view of the question may be drawn from the exception in the statute to wit: “Except personal property, too cumbersome to be removed.” It seems that even such personal property can only be sold elsewhere than at the' court-house by express statutory permission. We here call attention again to the maxim above cited, and insist that it applies to this branch of our argument. The naming of cumbersome personal property alone, and granting permission to sell it where it may be found, is of itself a constructive prohibition of a sale of any other kind of property elsewhere than at the courthouse.</p> <p>It is contended, however, by appellants that the statute is merely directory, and that this sale, made at Summit, although irregular, is still valid; and, in support of this' position the cases of Minor v. President and Selectmen of Natchez, reported in 4 Smedes & Marsh. 602, and 10 ib. 246, are cited as authority for appellants. We propose briefly to examine these cases.</p> <p>In the cases cited, the irregularity in question was the failure of the marshal to give the requisite legal notice of sale. The manner of giving notice of the sale, or whether notice was given at all, was a fact of which the purchaser was not necessarily cognizant; and, indeed, in the very nature of the case he could not know just how the notice was given, or that it was given at all. Nor does it appear from the case cited, that the purchaser at the marshal’s sale had any knowledge or notice of the alleged irregularity. He purchased, at what appeared to him a regular sale, and being thus a bona fide purchaser, the court held the purchase valid. It should here be particularly observed that the court limits this protecting rule to bona fide purchasers. See 10 Smedes & Marsh. 258, tenth line from the bottom of page; also, 4 ib. 623, 624, 625, 626, 630. The decisions in other states, cited by the high court at the pages just referred to, the high court adopting the same view, confine the principle to cases of bona fide purchasers.</p> <p>Can it be said that a purchaser at sheriff’s sale, under fieri facias at the market house, in the town of Summit, was a bona fide purchaser in the sense in which that term is used in the cases cited? We think not. The purchaser had knowledge (as every man is supposed to have) of the law which limits such sales to the court-house. The statute is too plain to be-misunderstood, and the purchaser is bound by it. The sale being made, as he knew, at a place not only not allowed, but constructively prohibited by law, he acquired no title by his purchase. Such a sale is void.</p> <p>Keeping in mind the limitation of the rule to bona fide purchasers, if it be contended that appellants were such purchasers, let us test that question by one or two hypothetical cases, involving the principle contended for. Suppose a sheriff about to sell land under a fieri facias, of which sale no notice has been given, commences his public cry by this announcement: “ Gentlemen, -I am now about to sell this land under this execution, but I give you all notice that the sale has not been advertised at all.” Would the purchaser at such a sale be regarded as a bona fide purchaser, and be protected in his purchase ? Is not such a sale void ? Again, suppose a sheriff advertise a sale to take place at midnight, and makes it at that hour. Would such a sale be valid ? Most assuredly not.</p> <p>We contend that the sale is void for another reason, applicable to the facts of the case. The statute, under the construction that we contend for, and in view of the reasons of public policy above suggested, constructively prohibits a sale of real estate elsewhere than at the courthouse. This being so, the sale is void. “If the sheriff do a thing which he is prohibited from doing, his acts are void.” See, again, 10 Smedes & Marsh. 258.</p>

The facts appear in the opinion of the court. Held: that this is not restricted to any particular class of debts, but is general, covering debts of all kinds and classes provable against the estate of the bankrupt. Buckner v. Calcóte, 28 Miss. 432. The provision of the Bankrupt Law of March 2, 1867, is identical with that of the law of 1841. Bankrupt Law of 1867, § 21; ib. 1841, § 5.

Shackle-ford, J. This was an action of assumpsit by the executrix of a deceased lawyer, to recover his fee for conducting, to a final decree, a suit in chancery in… Held: that an attorney is entitled to his fees as soon as he obtains judgment, and that the fee is then due, and the statute of lipiitations commences running from the date of the judgment. Then, as in this case, a lawyer recovered judgment for his clients and died. The collection of the judgments were enjoined.

Gifford, J. The following are the errors assigned : 1. The court erred in sustaining the plea to the bill of complaint. 2. The court erred in dismissing the bill of appellant. The only question involved is, did the tax collector of Tallahatchie county, on the 9th April, 1860, have power under the Act of December 2, 1858, to sell the land in question, for delinquent taxes for the year 1859.

<p>1. Process—return of service of summons on foreign insurance company. — A return by a sheriff on a summons commanding him to summon “The Continental Insurance Company of the city of New York,” in these words, “ Received and executed on D. N. Barrows and George A. Smythe, agents, personaUy, and copy delivered October 30,1867,” is not a good return of service, and did not authorize judgment by default against defendant, it not appearing in the declaration that defendant -is a foreign insurance company and a corporation, nor that D. N. Barrows, the agent of defendant named in the policy of insurance, is the duly authorized agent of the company, as required by sec. 11, p. 303, Rev. Code of 1857, and the record showing no proof of the jurisdictional facts, either by return of the sheriff, or the certificate of the auditor under art. 62, p. 305, Rev. Code of 1857, which facts or their equivEtlent are necessary to a valid judgment by default in such case.</p> <p>2. Same —what declaration should show as to the character of defendant and its agent. — In a'suit against a foreign insurance company, in order to obtaixr jurisdiction to render judgment by default, upon service of summons on an agent, according to art. 57, p. 303, Rev. Code of 1857, tlxe declaration should distinctly aver-that the defendant is a foreign insurance company and a corporation, and that a certain person is its agent duly appointed, according to the above-mentioned statute, and authorized to be served, with process, for the company.</p> <p>3. Same —what the summons should contain.—The summons should conform in such case to the declaration, in describing the defendant and agent to be served.</p> <p>i. Same—requisites to a valid judgment by default.—A full return by the sheriff and the auditor’s certificate in the record of a judgment by default, would seem to be the dictate of prudence, if not absolutely necessary in this class of cases.</p>

Ebeob to the circuit court of Jones county. Hancock, J. The defendants in error sued out a writ of replevin against the plaintiff in error, who was defendant below, for negroes, alleged to be Mrs. Kelly’s separate property. The defendant gave bond, and kept the negroes.

Vanoe, J. The facts of this case are fully stated in the opinion of the court. Piled an elaborate argument discussing all the questions involved in the case. It is too long for insertion and the reporter is unwilling to attempt to abridge it lest he destroy its completeness. Also filed an elaborate argument, which is omitted for the same reason.

Hooker, Chancellor. The opinion of the court exhibits the features of tliis case so plainly as to relieve from the necessity of any further statement of it. It is admitted by the answer of the trustee, Hightower, that he did not in person perform the mere ministerial act of selling the trust property, and that he did not make the bale or have the property auctioned off by an agent. We insist that the sale was not void or voidable on this account.

Ebbob to the chancery court of Lawrence county. Mill-saps, J. The facts appear in the opinion of the court. The Devised Code of 1857, p. 308, art. 12, provides that “ estates of any kind, etc., may be sold under execution at law, so as pass whatever interest the cestui que trust may have.” “An estate in lands, tenements and hereditaments signifies such interest as the tenant has therein.” 2 Black. 104.

Brown, J. The facts appear in the opinion of the court. The defendant cannot plead nil debet to an action of debt on a bond, with collateral condition, and breaches specially assigned in the declaration. Walker, 504; William v. Guiquard, 2 How. (Miss.) 722, 723 ; Mills v. Duryee, 7 Cranch, 481; 2 Tucker’s Com. 103 ; Bagget et al. v. Beard, 43 Miss. The demurrer should not have been extended back to the • declaration.

Campbell, J. Defendant sued out an attachment against the estate of Leggett for $102 81 due on open account, with interest from 1st January, 1857. T. C. Tupper, garnishee, was summoned and admitted he gave Leggett a note for about $100, muds about 1st January, 1858, due at twelve months; has been informed that it has been transferred to Thornhill & Co. At a subsequent term, judgment by default was taken against Leggett for $120 03, October 13, 1859.

Ekror to the chancery court of Clarke county. Deane, Chancellor. The substance of the bill to sequester and sell the personal property, under the deed of trust, is stated in the opinion of the court. Fort, who had executed the deed of trust to the complainants, and Haynie who had afterward purchased from Fort the property bound by the lien so created, joined in a demurrer to the bill, and assigned the following special causes of demurrer: 1. Want of equity. 2.

Shackleford, J. The facts appear in the opinion of the court. The weight of the testimony as to the title of the slave is against the plaintiff in the court below, and by his own acts he has induced Nicks to purchase the slave, as free of all claim by him, 1 Story’s Eq. Jur., § 385; 36 Miss. 174; 24 ib. 612.

Campbell, J. The summons was for (among others) Mary A. Exum and her children, Kinchen W. Exum, Robert D. Exum, and E. W. Exum, Lucy O. Exum and her children, Grlenn Exum, Claud K. Exum, and Benjamin Exum, and the return of service was in these words, viz. : “Executed Nov. 16, 1866, by delivering true copies of the within process to” (Here follows the names of all the defendants, as named in the summons). There was no evidence to sustain the allegations of the bill.

Cothran, J. The plaintiffs, as school trustees, brought ejectment for the sixteenth section in township No. 2. north of range 1 west, in Sunflower county, against the defendant, Adeline Shirley; and also for the mesne profits of the same. Defendant had occupied the land ever since 1844, claiming it under the title of Robert Jones.

Franklin, J. During tbe administration of Dement, tbe estate bas been formally declared insolvent. The other facts necessary to an understanding of the opinion of the court will be found stated in it. Several questions were discussed by counsel, but only so much of their briefs is inserted, as relates to the questions considered and decided by the court.

<p>1. Administratrix marrying—order requiring her to join her husBAND IN A NEW BOND DOES NOT VITIATE HER ORIGINAL APPOINTMENT. —Where an administratrix married and the probate court passed an order requiring her husband and herself to execute a new bond, the error of the court, in requiring her to join in the bond, did not affect her rights as administratrix, by virtue of her original appointment, nor deprive her of authority, in conjunction with her husband, to prosecute a suit on a cause of action due to her intestate.</p> <p>2. Practice—error to try issue op pact with demurrer undisposed OE. —It is error to proceed to the trial of issues of fact without making disposition of a demurrer.</p> <p>3. Maintenance—art. 1, p. 306, Code oe 1857 —disseizee may convey any interest in or claim to land. —The common law as to the effect of adverse possession upon conveyance of real estate is not in force in this state. Art. 1, p. 308, Rev. Code of 1857, changes the rule of the common law upon this subj ect, and removes all restraints upon the alienation and transfer of real estate, so as to enable any one, having an interest in or claim to land, to convey the same, notwithstanding the land may be in the adverse possession of a third person claiming it under A color of title.</p>

<p>Appeal from the chancery court of Madison county. Young, Chancellor.</p> <p>On the 5th of September, 1870, the bill of complaint was filed by A. N. Parker against David Dean for an injunction, and sets forth that David Dean recovered a decree in the chancery court against N. M. Latimer, M. J. McKie and S. L. Mosby, for the sum of $497 12 and costs, on the 15th day of April, 1867; that execution issued on said decree on the 18th day of April, 1867, and that the then sheriff of Madison county, by virtue of said execution, did on the same day levy upon and take into his possession seven barrels of whisky, the property of said S. L. Mosby, and that the seven barrels of whisky so levied upon was worth the sum of $700, and amply suificient to pay said decree. That on said 18th day of April, 1867; a petition for writ of error to the high court was filed by said Latimer, McKie and Mosby, to operate as a supersedeas, and bond given and approved according to the statute and supersedeas issued on the 25th April, 1867. That, at the December term, 1867, of the high court, said Dean’s decree against Latimer, McKie and Mosby was affirmed by the high court of errors and appeals. That on the 11th day of May, 1868, upon the affirmance of said decree, a writ of fieri facias issued out of said chancery court against Latimer, McKie and Mosby’s property, and on the same day, to wit, the said 11th day of May, 1868, was levied by the then sheriff of Madison county on a certain lot of parcel of ground situate in the county and state, aforesaid as the property of said S. L. Mosby. That said writ of fieri facias was made returnable to the-September term, 1868, of the chancery court, and that said David Dean caused a writ of venditioni exponas to issue upon his said decree on the — day of August, 1870, returnable to the October term, 1870. That the sheriff has advertised said lot or parcel of ground to be sold on the 5th day of September, 1870, as the property of said S. L. Mosby, to satisfy said decree,.and that the said sheriff will sell the same unless restrained by the said chancery court. That said S. L. Mosby was on the 15th day of April, 1867, and is now a free white citizen, housekeeper, householder and the head of a family, having a wife and several children, and sometime before the said 15th of April, 1867, he owned and occupied as such, as a place of residence for himself and family, a tract of land containing less than one hundred and sixty acres; that said tract is situate in said county, and does not lie in whole or in part in any city, town or village incorporated ; that he lived on said place continuously with his wife and children from some time before the 15th day of April, 1867, to the 4th day of May, 1867. That said tract was an entire tract and was not in detached parcels ; that he had no other residence, and the number of acres much less than one hundred and sixty. That on the 4th day of May, 1867, the said S. L. Mosby for a good and valuable consideration sold and conveyed to said A. N. Parker (the complainant) the said lot or parcel of ground so levied on and described as aforesaid, and which is advertised to be sold by the sheriff under said writ of venditioni exponas, and on the 5th day of September, 1870, beingaportion of said tract so used and occupied by the said S. L. Mosby at his residence, at the time of the sale of the same to the said Parker. That at the time of the rendition of said decree in favor of Dean, and at the time of the sale as aforesaid to said Parker, said S. L. Mosby lived on said place with his family as his homestead. That the land so purchased by complainant was a small portion of the said entire tract, so owned and used by the said Mosby as his place of residence and as his homestead. The complainant prayed and obtained an injunction. Defendant Dean demurred to the bill. The demurrer was sustained and the bill dismissed and an appeal prosecuted by complainant.</p> <p>The bill presents two grounds of relief: 1st. That previous to the sale of the real estate in controversy to appellant by Mosby, a levy was made upon personal property sufficient to satisfy the debt of appellee; 2d. That said real estate, at the time of said sale to appellant, was owned and occupied by said Mosby as a homestead, and was, therefore, exempt from levy and sale under execution.</p> <p>As to the first ground, it is insisted by adverse counsel that the satisfaction is only prima facie, and that the bill is defective in not showing what went with the personal property, and in not averring that the same was actually lost to Mosby, or was not returned to him or remained with him, at his request, after the writ of error was taken, or that it was misapplied, wasted or lost by the sheriff.</p> <p>These objections are purely matters of defense, which may be set up against the averments of the bill, and the rules of pleading do not require them to be anticipated. It is only necessary that a prima facie case should be stated.</p> <p>As between the plaintiff in execution and a third person, a levy upon personal property, sufficient to satisfy the debt, is absolutely a satisfaction in so far as he is concerned.</p> <p>It will be borne in mind that the sale of the real estate by Mosby to appellant was made after the levy upon personal property. Duncan v. Harris, 17 S. & It. 438.</p> <p>What is the effect of a supersedeas after levy made? Does it or not operate as a removal of the levy ? We say not. At common law a supersedeas must come before a levy, otherwise the sheriff must proceed to sell. Boyle v. Zackarie, 6 Pet. 642. The levy places the property in the custody of the law, so that it cannot even be reached by the process of another court. 10 Pet. 400. By the levy, the debtor is deprived of his property, which, in law, is the essential thing operating to satisfy the execution; the sale of it is a mere incident, and an execution being entire in its nature, and, once begun, cannot be superseded, but must go on to completion. Beaty v. Chapline, 2 Harr. 6 Johns. 15; 7 Bac. Abr. title Supersedeas, Gf; Watts on Sheriffs, 200 ; 1 W. Black. 57; 1 Cow. 15 ; 7 ib. 417; ib. 418. The law then presumes the personal property, in this case, levied upon, or the proceeds thereof, to be now in the hands of the sheriff; and so long as said levy remains undisposed of it is a satisfaction of appellee’s judgment, and a second execution cannot issue. McGhee v. Hanly, 5 How. 629; 7 ib. 393. Appellee’s remedy was to have issued a venditioni exponas in order to ascertain where the property was.</p> <p>As to the second ground of relief, we assert that the real estate in controversy never was subject to the lien of appellee’ s judgment. The property, when sold—-which sale took place on the 4th day of May, 1867—was a part of the homestead of Mosby, and the transaction is governed by the exemption laws in force at that date. But it is objected by opposing counsel that, although the bill avers that said Mosby sold a portion of his exempt lands to appellant, it does not aver that he paid any of his creditors with the proceeds of the sale, or re-invested it in any other lands or personal property for a homestead. Thus advancing the doctrine, that, in order to protect the purchaser of exempt property, the proceeds of the sale must be applied to the payment of the vendor’s debts, or re-invested in other exempt property for a homestead.</p> <p>In answering this we premise by suggesting, that this is not embraced in that class of cases, which are well defined, where the purchaser is required to see to the application of the proceeds of sale. Elliott v. Merryman, 1 Lead. Cas. Eq. 97. But we apprehend that a fair construction of the act amendatory of the exemption laws of this state, approved February 16, 1867, will not warrant the doctrine contended for by adverse counsel, we quote the first section of said act—Acts of 1867, page 221:</p> <p>“Sec. 1. Be it enacted by the legislature of the state of Mississippi: That the exemption laws of this state be and the same are so hereby amended, that the head of every family shall have full power and authority to sell and c'onvey the land and personal property that is by law exempt from sale under execution, attachment or garnishment, and to re-invest the proceeds of the sale in other lands for a. homestead, and that the land and personal property so sold shall be exempt from execution, attachment or garnishment for the debts of the vendor, and the proceeds of the sale shall be exempt from execution, attachment or garnishment: Provided, they are invested in other land or personal property for a homestead, within one year from the reception of the purchase-money: Provided, that only so much of the land and personal property into which such proceeds may be invested shall be exempt from execution as is exempted by law.”</p> <p>How stood the law previous to the passage of this act ? This court, in Whitworth v. Lyon, decided in effect that, so long as the head of a family owned and occupied a homestead, it was exempt from execution, but the moment he ceased to be the owner and the title passed from him, his judgment creditor could subject it to the payment of his debt in the hands of the vendee. What was the eifect of this law % It was simply to root him to the soil; he could not sell his homestead and purchase another more suitable, or make an exchange with some other person, however advantageous this might be. This law was felt to be a hardship, and the present act was simply, and we think wisely, passed as a relief against the harshness of the law as it then Stood.</p> <p>The construction of the act as contended for by appellee’s counsel would certainly defeat this object. No prudent man would risk his means in the purchase of property when his title to it depended upon the contingency of his vendor’s applying the proceeds to the payment of his debts or to the purchase of other exempt property.</p> <p>Again, we think such a construction is a violation of the propriety of language. The first proviso is intended to qualify the clause immediately preceding it, to wit: “ And the proceeds of the sale shall be exempt from execution, etc. Provided, they (the proceeds) are re-invested,” etc. It does not qualfy the clause immediately preceding said last-mentioned clause, to wit, “that the lands, etc., so sold, shall be exempt,’ ’ etc. To do so is to give the word ‘£ invest’ a meaning which good usage does not warrant. To invest implies the use of money or something of the nature of money.</p> <p>The main question in this case, and which must be decisive of it, is whether since the date of “ An act to amend the exemption laws of this state,” approved Feb. 16, 1867, the laud exempted by law from execution, as a homestead, when sold, is liable, in the hands of the purchaser, to execution against his vendor, because the vendor does not, within one year, invest the proceeds in other land for a homestead. Is the right of the purchaser of exempt property to continued protection in the subject of his purchase dependent on the investment by his vendor of the purchase-money paid him within one year in other exempt property ? The decree of the chancellor was an affirmative response to this question and was clearly wrong. The manifest object and effect, of the act before recited by its title, and which maybe found on page 221, Pamphlet Acts 1867, were threefold.' 1st. To meet and obviate the effect of the decision of Whitworth v. Lyon, 39 Miss. 467, by conferring on every head of a family full power and authority to seíl and convey his exempt property; 2d. To protect the purchaser in his purchase free from liability to the debts of his vendor, and thus to render available the right of the debtor to sell his exemption (for without security to the purchaser the right to sell would be practically useless); and 3d. To protect the proceeds of such sale for one year, a time deemed long enough to buy other exempt property, failing in which the protection of the exemption law is to be withdrawn, not from the property sold and paid for, no longer the property of the debtor, but of another, but from the proceeds belonging to the debtor. The language of the statute is, “And the proceeds of the sale shall be exempt from execution attachment or garnishment. Provided, they (manifestly the proceeds) are invested in other land,” etc. It is from the “ proceeds ” the protection of the exemption is to be withdrawn after one year. It is never to be withdrawn from the right of the purchaser who bought from him, who at the time of sale had the legal right to sell, and whose subsequent dealings with the purchase-money cannot in any manner affect the rights of his vendee, who is not responsible for the application of the purchase-money by his vendor. I forbear to discuss the other questions involved, as the foregoing must be decisive of the case, both here and when remanded.</p> <p>The second cause of demurrer presents the point, that the levy being made on the 18th day of April, 1867, on the seven barrels of whisky, and the petition for writ of error, and writ of error bond being filed same day, by Latimer, McKie and Mosby, shows that the sale of the whisky was prevented by the act of Latimer, McKie and Mosby, and that it was impossible for the sheriff to sell it.</p> <p>The bill shows that the writ of supersedeas issued on the 25th day of April, 1867, and was served on the attorney of record for Dean, on the 26th of April, 1867. Now, by the law, Code of 1857, p. 528, art. 277, the sheriff, before he can sell personal property levied on under an execution in his hands, must give ten days’ notice of the day of sale.</p> <p>All the other causes of demurrer, except the sixth, may be ranged under the first cause of demurrer, to wit: “That said bill contains no matter of equity whereon this court can ground a decree, or give said complainant any relief, as against this defendant.”</p> <p>If a prior levy is relied on, showing a levy and seizure by the sheriff falls short, the bill must go further to satisfy the conscience of the chancellor to suspend the due course of law; it must show affirmatively, as a matter of equity, that a wrong would be perpetrated unless he interposed, by averring that the property levied on was “ actually” “ taken out of the possession of the defendant;” that it was sold by the sheriff, or “actually lost” to the defendant, by the misconduct of the plaintiff in execution, or the sheriff as his agent.” According to well-considered authorities, in no other way can a levy be interposed in equity, of at law, as “a satisfaction,” or “discharge of a debt.” Alexander v. Polk, 39 Miss. 752; Wade et al. v. Watt, Noble & Mobley, 41 ib. 248, 255; Evans v. Eisher, 40 ib. 676.</p> <p>In the sixth cause of demurrer, formerly the law required the debtor to devote the whole of his property, with some trivial exceptions, fairly to the payment of his debts, and would not tolerate any subterfuge or device which was intended to divert it from that purpose. Trimble v. Turner, 13 Smedes & Marsh. 348, 362; Stanton et al. v. Green et al., 34 Miss. 577, 585, 591.</p> <p>Nor could any “feeling of sympathy,” nor any “considerations on account of hardship” or of “family,” nor “ any pretexts and shifts” save “ from the condemnation of the law.” Trimble v. Turner et al., 13 Smedes & Marsh. 348, 362 ; Burke v. Murphy et al., 27 Miss. 168, 187; Stanton et al. v. Green et ah, 34 Miss. 591.</p> <p>The legislature, in 1857, Code, 529, listening to the voice of humanity, to encourage marriage and to secure to helpless women and children a “ home and the means of support.” Trotter v. Dobbs et ux., 38 Miss. 199 ; Whitworth v. Lyon, 39 Miss. 468, 469, gave to debtors having families one hundred and sixty acres of land, so long as the debtor “owned and occupied the land and buildings as a residence,” and at his death gave it to his family as a homestead, so long as one of them continued to occupy it, until the youngest child arrived at age and until the death of the widow. The condition annexed to the grant was residence and continued occupancy. The legislature of 1865 (ch. 9, p. 137,138) converted “humanit}7” into “injustice” by securing to the once wealthy families of the state “a fortune,” despite the ravages of war, and to “the majesty of buried Denmark ” the privilege of being ‘£ in complete steel ” against their betrayed and suffering creditors !</p> <p>The legislature of 1867 (Laws of 1867, ch. 177, p. 221) followed up this “so-called humanity” by breaking the force (to a certain extent) of the rule of Whitworth v. Lyons, by allowing the fortunate unfortunate to sell his exempt property as a whole, on condition of his re-investing the proceeds of the sale in other property, real and personal, for a homestead. The legislature of 1870 (Laws of 1870, ch. 25, p. 98, 99) has stripped meretricious “humanity” of her false garb and given her “ modest attire ” by supplying the family of an unprincipled head with a sufficiency of property, real and personal, to furnish-a home and the necessaries of life. And though reiterating the privilege to the debtor having a family to sell property exempted, yet, pays the tribute to justice, by declaring that the judgment creditor’s lien, obtained before the sale, shall continue to attach to the property sold, “ so long as the judgment shall remain unsatisfied and in force.” Laws of 1870, § 3, p. 99.</p> <p>This is a case in equity and the doctrine of the application of purchase-money bears upon it. “One of the rules laid down in the principal case, and which is invariably followed, is, that if the trust directs lands to be sold for the payment of certain debts, mentioned in particular to whom the debts are owing, the purchaser is bound to see that the money is applied for the payment of those debts.” 1 Lead. Cas. in Eq. (Hare & Wall’s Notes), top p. 102, last of marginal p. 51.</p> <p>Parker knew from the records of the courts that there were certain judgments binding on the property which he purchased, and that the proceeds of the sale, according to Whitworth v. Lyons and the policy of the exemption laws, had to go as a duty, on the part of Mosby, either toward the payment of those judgments, or to be re-invested in other homestead property for the maintenance of his wife and children ; to raise an equity in his favor he ought to have averred that he saw to the performance of that duty, or that he was misled by the promises and avowed intentions of Mosby in reference thereto. The American doctrine is not so strong, perhaps, but it is comprehensive enough to cover this case. 1st and 2d columns of Hare & Wall’s Notes to 1 Lead. Oas. in Eq. top p. 123-125, 126 ; 8 Wheat. 422-442 ; 1 Lead. Gas. in Eq. 130, 131. And Wormly v. Wormly, 8 Wheat. 422-442, establishes the principle, that if a trustee in a marriage settlement under a power to sell and re-invest, sells under circumstances that constitute a breach of trust, namely: not. for the purpose of re-investment, but for the purpose of paying his own debts, and the purchaser has notice of this, the land in his hands is affected with the trusts which previously attached to it. 1 Lead. Gas. in Ec[. (Am. notes), top p. 130, 131.</p> <p>1. The statement as to the levy on the whisky shows no ground for an injunction, and does not seem to be relied on by complainant. After that levy, a writ of error, with supersedeas, was sued out, and the decree was affirmed. On such supersedeas the levy becomes inoperative, and the property is restored to the defendant.</p> <p>The pleader did not attempt to state a case proper for an injunction based on that levy. He did not attempt to show that the sheriff still had the whisky, or that any facts existed to preclude Dean from enforcing his execution against the property of Mosby.</p> <p>2. The evident purpose of the bill was to prevent a sale of the land, because of supposed rights under the homestead laws ; but the bill fails to show a proper case.</p> <p>What are the facts % Mosby, entitled to an exemption, owned and occupied a tract of land (less than 160 acres), as his family residence. On the 15th April, 1867, appellee, Dean, obtained a decree against him and others. On the 4th May, 1867, Mosby, for a good and valuable consideration, sold and conveyed part of his homestead tract to complainant ; but, as the bill leaves us to infer, still retains the balance as his homestead. On the 11th May, 1868, execution on the decree was levied on that part of the iand thus conveyed to appellant, and this bill was filed September 5, 1870.</p>

Trimble, J. The facts of this case are so fully set forth in the opinion of the court as to relieve from any further statement. 1st. The court below erred in sustaining the demurrer of the defendants, Samuel Templeton and John and Thomas Cochran. The error originated, we conceive, in the court applying to the case, article 30 of section 3, statute of limitations, Rev. Code, 403.

Bradford, J. The facts of this case are fully and distinctly stated in the opinion of the court. The question presented involves the validity of the judgment of the court in dismissing the appeal of Coopwood, after his death, and without making his administrator a party, or without the administrator having made himself a party.

<p>Error to the criminal court of Warren county. Osgood, J.</p> <p>Cited 3 How. 27 ; 25 Miss. 589 ; 2 Ga. 421; 26 Miss. 362 ; 1 Bish. Cr. Proc. 684; 8 S. & S. 722 ; 6 Barr, 384; 9 Leigh, 623; 4 Black. Com. 375 ; 1 Chit. Cr. Law, 699, 701, 720; Arch. Cr. Pr. and PI. 180 ; 1 Bish. Cr. Proc. 865; 3 Mod. 265; 2 Zab. 212; 4 ib. 455 ; 1 Harris, 129; 1 Park. Cr. R. 474 ; 43 Ala. 21, 53, in support of tile same views contained in the opinion of the court.</p> <p>As to the organization of the grand jury, see Rev. Code of 1857, p. 499, art. 131; ib. 613, art. 250 ; Easterling v. State, 35 Miss. 210.</p> <p>There is a recital in the record that “the grand jury were impaneled and sworn.” See Prank v. State, 39 Miss. 705 ; 9 Ga. 58 ; Whart. Am. Cr. Law (6th ed.), §§ 3043-4-5.</p>

Henderson, Chancellor. The opinion of the court contains a full statement of the allegations of the bill, which was the subject of review, and of the charter of Biloxi, which was the subject of construction, leaving no statement of facts for the reporter to make. This is a bill filed to enjoin the forcible collection of the privilege tax of 1870, described in sec. 4, p. 28, Laws of 1870.

Orb, J. The facts appear in the opinion of the court. 1. We admit that it is a general and invariable rule that on a demurrer the court will consider the whole record and give judgment for the party who, on the whole, appears to be entitled to it. Le Buch v. Papillon, 4 East, 502; 1 Saund. n. s. 285, and decisions innumerable that we might cite, coming down to the present time.

Watts, J. The court erred in disregarding Bowman’s and H. Hilzheim’s two pleas and plaintiff’s demurrer thereto, all filed after erasure of the names of some of defendants from the petition, and forcing a trial without disposing of those pleas on the demurrer, or requiring defendants to refile their original answers, withdrawn by leave of the court.

<p>Appeal from the chancery court of Holmes county. Campbell, J.</p> <p>The facts appear in opinion of the court.</p> <p>After Belcher had withdrawn from the firm he could not create obligations binding upon his former partners. Story on Part., § 322 and note ; Bank of Port Gibson v. Bougie et ah, 9 Smedes & Marsh. 290; Scott v. Tapper, 8 ib. 280. This being not a general trading partnership, but one formed for a specific purpose, farming, Belcher, even if he had not withdrawn, had no right to bind the firm by a contract for money borrowed. Story on Paid., § 94 ; ib. § 202 a; 3 Ad. & Ell. 316, 321. The lien was under seal, in the partnership name, but executed and acknowledged by Belcher alone. One partner has no implied authority to bind his copartners, by deed. Collyer on Part. 256, 257; 7 Tenn. 207; Doe ex dem. Smith v. Tupper, 4 Smedes & Marsh. 261. As the deed was not stamped it could not be read as evidence to the court.</p> <p>The stamp acts do not apply to agricultural lien contracts. The congress of the United States has not constitutional power to prescribe what shall be necessary to render written instruments competent evidence in the state court. Sayly v. Davis, 22 Wis. 225; Carpenter v. Duelling, 97 Mass. 452 ; 45 El. 29 ; 48 ib. ; 19 Wis. 369 ; 3 Caldwell, 325; 35 Conn. 239; 4 Curtiss, 415; 6 ib. 251; 8 ib. 171 ; 5 Wall. 462. We ask to apply the stamp now, this court having decided that it may be applied at any time. The proof shows that the transaction of Belcher was substantially ratified by the Davises. Where the evidence is equally balanced a reversal will not take place. In cases where the evidence is conflicting, the decree will be affirmed unless manifestly wrong. The question is not, is it right, but is it clearly wrong ?</p>

Ebbob to the circuit court of Hinds county, 1st district. Bbown, J. The opinion of the court so fully presents the facts of this case as to relieve from the necessity of any other statement of it.

1. The record shows that complainant has no legal or equitable title to the land in dispute. The bill itself alleges the sale to be void, and a void order of the probate court can confer no title whatever.

Ebbob to the circuit court of Lowndes county. Obb, J. The facts appear in the opinion of the court. Cited on the insufficiency of the sheriff's return 37 Miss. 438 ; Rankin v. Dulaney, 43 ib. 197; Rev. Code, 489, arts. 63 and 64 ; 42 Miss. 508 ; 41 ib. 563.

<p>1. Circuit court—death or co-plaintirr.—A valid judgment cannot be rendered in favor of co-plaintiffs, one of whom, at the time, is dead. 1 Such judgment is void.</p> <p>2. Attachment—liability or surety on replevin bond — verdict to assess value or the property.—The surety on a replevin bond, executed under art. 8, Code, 375, is only liable to the extent of the value of the property replevied, and the jury, in finding against the defendant in attachment, should assess the value of the property as well as the debt due the plaintiff.</p> <p>3. Liability op suket y on bond to have slaves pobthcoming — as appected by emancipation op the slaves. —The surety on a bond, given by the defendant, in an attachment to replevy slaves, is.liable only to damages for the detention of the property, he being exonerated from all liability beyond this, by the emancipation of the slaves.</p>

Harmon, Chancellor. The facts appear in the opinion of the court. 1st. The bill shows that Y. B. Waddell was but a guar dian of the minor heirs of W. W. Kerr, and as such he had no authority to mortgage their property for any purpose without an order of the court. The bill does not allege any such order and there was none.

Shackleeokd, J. The opinion of the court contains a sufficient statement of the facts of this case, with the single exception that it appears but inferentially from the opinion that the mortgage to complainants below was senior to that to appellant, while the record shows this fact distinctly.

<p>Sheriffs’ commissions on monet made under process—not entitled unless he mames the monet. — A sheriff is entitled to the commissions provided by Bev. Code of 1857, p. 115, “ on all money made by virtue of any decree, execution, attachment or other process,” only when he collects the money, and therefore, when the defendant, after a levy by the sheriff of an execution on property ample to satisfy it, and advertisement of a sale, paid the judgment directly to the plaintiff, the sheriff was not entitled to commissions.</p>

<p>Error to circuit court of Warren county. Brown, J.</p> <p>The facts are minutely stated in the opinion of the court, rendering any statement here unnecessary.</p> <p>1st. The value of circumstantial evidence, as a theme for refined discussion and subtle reasoning, has long engaged the attention of legal writers. Their labors establish the principle, that circumstantial evidence, so seldom of a conclusive nature, is of secondary value when direct evidence is attainable; by the latter the former is to be tested and measured. It may be assumed, as a correct principle, that, if the force of circumstantial evidence in any given case be inferior to that which springs from the lowest degree of positive or direct evidence, that is, from the testimony of a single witness, a conviction, certainly in a capital case, will not be sustained. Starkie on Ev. 865. With confessions excluded, the defendant stands convicted of murder on circumstantial evidence alone, the legal effect of which would be far inferior to the testimony of one person present, whom opportunity permitted to witness, directly, the criminal transaction. From the record it could not be affirmed, that the circumstantial evidence there presented warrants a conviction in the mind equal to that which the lowest degree of direct evidence would afford.</p> <p>The circumstances, in this case, are inconsistent, and do not support the verdict, nor do they exclude every reasonable hypothesis but the one proposed to be established. Nor is this all; the testimony is of a conflicting character. * * * It is evident from both principle and analogy that the law favors the utmost vigilance in the examination of all cases resting purely on circumstantial evidence; nor is the history of criminal jurisprudence, showing so many improper convictions, based on circumstantial evidence alone, wanting in examples tending to support this view, x x x Assuming all to be true which the evidence tends to establish, it is insufficient if some other hypothesis may still be true. Algheri v. State, 25 Miss. 584; 1 Starkie on Ev. 572; Cicely v. State, 13 Smedes & Marsh. 211; McCann v. State, ib. 440. The verdict is not warranted by the evidence. Caleb v. State, 39 Miss. 721; 2 Phil, on Ev. 386. x x x Anxiety for the detection of great crimes leads witnesses to exaggeration, and juries to draw rash inferences. Presumptions often arise from circumstances which would not have been noticed butfor the accusation itself. John Pitts v. State, 43 Miss. 472. 2d. The confessions of the prisoner were incompetent, and should have been rejected; they were not voluntary. 3d. In all capital cases, where the jury have returned a verdict of guilty, in the presence of the prisoner, he is, either immediately or at a convenient time soon after, asked by the court if he has any thing to offer why judgment should not be awarded against him. 4 Black. Com. 375 ; 1 Chitty’s Crim. Law, 699,701,720; 3 Salk. 358 ; Grady v. State, 11 Ga. 253 ; 4 Harr. (Penn.) 129 ; 1 Parker’s Crim. Cas. 474, 476; 2 Hale’s P. C. 217; Perry v' State, 43 Ala. 21, 24, and cases cited; Bishop’s Crim. Procedure, § 865. The reason of the rule seems to be founded in natural justice, and upon the right of the defendant to urge, before sentence is pronounced, grounds in arrest of the judgment, to plead a pardon, or to address the court and ask for leniency. New trials have been granted upon the statements and explanations of prisoners. They have an absolute right to be heard before sentence in capital cases, and, as nothing can be presumed for or against a record except what appears upon its face, the right in this case was not accorded. ■</p> <p>It has been held in New Jersey that the inquiry men tioned, and the record of it, are necessary to capital cases. West v. State, 2 Zab. 212. "In State v. Ball, 27 Mo. 324, a kindred decision has been made, the court holding that an omission of the inquiry in the record, in a case not capital, is not a fatal error. The logical and legal inference from this view is, that the converse theory would have been entertained had the case in hand been considered capital. In Pennsylvania the omission was held to be fatal. 4 Harr. 129. If it be conceded, for the sake of the argument alone, that the defendant had no plea in bar to present, and no ground in arrest of judgment to offer, still his right to address the court, in explanation of his case, remained unimpaired. The reason and spirit of the law in such cases are apparent.</p>

Watts, J. The facts appear in the opinion of the court. Held: that conditions : are void and cannot be insisted upon, if they be impossible ! at the time of their creation, or afterward become impossi- ; ble by the act of God or of the law or of the party who is entitled to the benefit of them, or if they are contrary to law, or if they are repugnant to the nature of the estate or grant.

Boone, J. The facts of this case are minutely stated in the opinion of the court. The indictment does not follow the language of the article of the Bev. Code, p. 197,' entitled “an act to regulate the sale of vinous and spirituous liquors,” which creates the offense but omits the exceptions contained in the enacting clause of said act, and by that omission fails to describe an offense at all.

Ebbob to the circuit court of Copiah county. Mihlsaps, J. On the 12th of August, 1870, defendant in error recovered a judgment in replevin against the plaintiffs in error for three hundred and eighty-two pounds seed cotton, valued at $24 83, also the sum of $34 damages.

<p>Appeal from the chancery court of Madison county. Henry, J.</p> <p>The case decided is fairly presented by the opinion of the court.</p> <p>The counsel on both sides reviewed, in lengthy written arguments, the facts and law of this case, but, as the decision was made to turn chiefly upon a question of fact, the reporter has not thought proper to attempt to abridge their arguments for insertion here.</p>

Cothran, J. The facts are minutely stated in the .opinion of the court, leaving nothing for the reporter to add.

<p>Appeal from the chancery court of Lowndes county. Brown, J.</p> <p>The facts appear in the opinion of the court.</p>

Smiley, J. The bill presents this case. On the 2d November, 1855,. the appellant, then residing here, was possessed of a considerable estate, consisting of lands and slaves.

<p>1. Mandamus—what not a good return by a county treasurer.— A statement in the return of a county treasurer to the alternative writ of man damns, as an excuse for his refusal to pay a warrant drawn on him, as treasurer by order of the board of police, which had authority to order such a warrant, that he declined to pay it because it was issued by fraud and misrepresentation, and without authority, and that, at the time of the service of the writ upon him, and since, he has not had in his possession any funds with which to pay where the petition for mandamus alleged frequent demands on the treasurer for payment before its being filed, is not a sufficient answer, and the peremptory mandamus was properly ordered on such return.</p> <p>2. County treasurer has no authority to suspend or refuse payment except in single case .—The county treasurer has no authority to suspend 3t refuse the payment of warrants, properly drawn upon him by the clerk, in obedience to the orders of the board of police, except in the single instance provided for in art. 161, p. 132, Rev. Code of 1857.</p>

Davis, J. The facts of this case are fully shown by the opinion of the court. Two errors are assigned in this case: 1st. The indictment does not allege the value of the property charged to have been stolen ; 2d. The jury did not assess the value of the property stolen, but returned a general verdict of guilty as charged. And from these assignments the conclusion necessarily follows, if they are well taken, that the court erred in overruling the motion in arrest of judgment.

Leach-man, J. The minute detail with which the court has, in its opinion, presented the points it has considered, leaves nothing for the reporter to state. I. The indictment was fatally defective. As it was returned by the grand jury, it charges no offense. The word in the statute that defines the act denounced by the legislature is omitted.

Cothran, J. The facts set forth in the bill are these: In 1859, the executors of Jesse Hughes sold the real estate of the testator, to one Gore, for $2,600, under proceedings which, as it appears,… Held: that the original creditor being paid ought to yield to the surety all the rights which he had, all the securities and liens, and the debtor had no right to complain. The principle was carried further and was made to apply to all persons and funds secondarily liable.

<p>1. New trial—when granted upon the pacts.—This court will set aside tbe verdict of a jury which, upon a review of the testimony, is found to be manifestly wrong, where the circuit court refused a new trial and a bill of exceptions embodying all the evidence was tendered.</p> <p>2. Evidence—declarations incompetent, when.—Declarations and representations made against the interest of a party, in his absence, and without his authority, knowledge or sanction, are not binding on him, and cannot affect his interest.</p> <p>3. Case in judgment. — In this case the verdict was set aside upon a review of the evidence.</p> <p>■ 4. Veedici — coeeection oe, by ciecuit couet. — To correct or change in any manner the verdict of a jury, as the result of interrogating them on presentation of their verdict, is a power, which should be exercised by a circuit court with the greatest caution, and only in the clearest cases, when no possible question of the propriety or regularity of such proceeding can be raised.</p>

Whitfield, J. The facts appear in the opinion of the court. Assignment of errors: 1st. The probate court erred by its action at the May term thereof, 1869, in setting aside and vacating the final decree of the said court made at the April term, 1869, previous. 2d. The chancery court erred in sustaining defendant’s demurrer to complainants’ bill. 3d. The said court erred in dismissing complainants’ bill on sustaining the demurrer to the said bill.

<p>Error to the circuit court of Pontotoc county. Bradford, J.</p> <p>The facts appear in the opinion of the court.</p> <p>Cited Peal v. Henderson, 24 Miss. 106; Code, 317, 388.</p> <p>Cited Mooney v. Dorsey et al., 7 Smedes & Marsh. 15; Kelly v. Mills, 42 Miss. 267.</p>

Bradford, Chancellor. Appellant filed his bill in the chancery court of Monroe county to set off a note held by him against Cozart against a judgment recovered by Cozart against appellant. An injunction was issued, without bond and without affidavit to the bill, restraining all proceedings under the judgment; Harrison Johnson, alleging that the judgment had been transferred to him, filed his petition to be admitted as a party defendant, which was granted.

<p>1. Partnership—bankruptcy — effect on partnership property.— The effect of the bankruptcy of one copartner is to dissolve the copartnership and render the solvent members of the firm and the assignee of the bankrupt tenants in common of the partnership effects.</p> <p>2. Same — suit for property after dissolution.—In a suit brought for partnership property, the solvent partner must be joined with the assignee of the bankrupt as co-plaintiff.</p> <p>3. Circuit court—pleading and practice—non-joinder, how taken advantage of.—A non-joinder, if it appear on the face of the declaration, must be taken advantage of by demurrer; if not, it may be taken advantage of by plea, or if it appear from the evidence adduced at the trial, then by nonsuit.</p> <p>4. Supreme court — objections not arising on the record will not be considered. — A firm name is not evidence of who the partners are; and. therefore, where the only ground for supposing a non-joinder, which appears on the record is, that the plaintiffs in the declaration do not comprise all the names included in the style of the firm, this court will not consider the objection.</p>

Goulet, Chancellor. The tax sought to be enjoined in this case was one levied in aid of a railroad. All of the other facts, out of which arose the question decided by the court, are contained in its opinion.

Steaens, Chancellor. The facts of this case will be found fully presented in the arguments of counsel, and the opinion of the court. 1. All canses and proceedings remaining undisposed of in the probate courts are required to be determined in the chancery courts. Act of 1870, p. 54. But the administration of appellant was completed and concluded by Ms final settlement. There was nothing left undisposed of by the probate court.

Davis, J. The opinion of the court contains a full statement of the case. The return of the sheriff on the original process in this cause is not sufficient to warrant a judgment by default.

<p>Appeal from tlie chancery court of Chickasaw county. Pollard, Chancellor.</p> <p>The opinion contains a full statement of the facts.</p> <p>By the provisions of our statute (Rev. Code, 409, § 23) a defendant has the right, after judgment has been rendered against him in a justice’s court, to have the cause taken to the circuit court and tried again on its merits. It is not tried by the circuit court on error, but it is in effect granting a new trial in another forum, on certain conditions. The defendant may choose to make no defense at all in the justice’s court. He may desire not to disclose his defense in an inferior tribunal, but to reserve it for the higher court, and he may therefore allow judgment to go by default, before the justice, and rely on his right to a new trial in the court which he prefers. This right the law gives to him on his complying with certain conditions. With these conditions the bill shows he has complied as far as in his power. He has therefore been deprived of his right to a new trial in the circuit court, without fault or negligence on his part, through the oversight of the justice in the discharge of his duty. This is a ground of equity jurisdiction. 1 Story’s Eq. Jur., §§ 78, 109; 2 ib. 876, 887, note a; Herring v. Winans et ah, Smedes & Marsh. Ch. 466; Webster v. Skip-with, 26 Miss. 341. The appellees cannot say that appellant had an adequate remedy at law, and should have made his defense in the justice’s court. This might be urged if the appeal from the justice to the circuit court were for the correction of errors in the justice’s court, but it being merely a new trial in a higher court, he can, as we have before stated, decline to appear before the justice, and choose to reserve all defenses for the circuit court.</p> <p>. The second ground of demurrer states that the bill shows no sufficient reason why appellant did not avail himself of the defense at law, when he was impleaded in a court of law. We think the bill shows a very “ sufficient reason ” why he did not avail himself of the defense at law, not, it is true, in the justice’s court, but he had a perfect right-to decline making any defense there, without prejudicing his right to make it in the circuit court, but he shows the reason why he did not make the defense in the circuit court, to wit: the failure of the officer in the discharge of his duty, without fault on his own part.</p> <p>The case is briefly thus : Weddell had a right to have a new trial in the circuit court. This right he has lost. How ? By the oversight of the justice whose duty it was to take the affidavit for appeal. This oversight in the officer has deprived him of his right. Has he any remedy at law ? None. The five days limited for appeals was past when the former appeal was dismissed in the circuit court. A certiorari, which may be had at any time within one year, is only for the correction of errors. His only remedy, therefore, is in equity. Eobb v. Halsey, 11 Smedes & Marsh. 140.</p> <p>The third ground of demurrer is that the bill seeks for a court of chancery to review and correct the judgment of a court of law.. This is not the fact. The bill does not seek to set aside the judgment of the justice of the peace. That was perfectly correct and legal. Having entered no appearance and made no defense, the justice was bound to render judgment by default. Neither does the bill seek to set aside the judgment of the . circuit court dismissing the appeal. That was also perfectly right. There was a fatal defect in the affidavit which rendered the proceedings for appeal invalid, and the circuit court was bound to notice the defect and dismiss the appeal.</p> <p>The object of the bill, therefore, is not to set aside or vacate either judgment, but merely to obtain a new trial, to which appeEant was entitled, and of which he was deprived by accident, mistake or oversight of the officer, and through no fault of his own.</p> <p>The fourth ground of demurrer is certainly untrue in point of fact, as will be seen by reference to the bill. It •says plainly, “complainant never executed the due-bill sued on, nor authorized any one else to make or execute the same.” .These words, in a court of law, when sworn to, would amount to a plea of non estfactum. The bill, therefore, does show that appellant had a good defense, which he desired to make in the circuit court, but was prevented from making.</p> <p>As to the fifth ground of demurrer, even if it were good .and well taken, it is clearly the subject of amendment, and the bill ought not to have been dismissed or the injunction dissolved. It is certainly not such an amendment (in a material point) as would operate to dissolve the injunction.</p> <p>The sixth ground of demurrer is merely a repetition of the second: What remedy has appellant in the courts of law? Is it in the justice’s court? Surely not. The case there is at an end, and there is no way of re-instating it. Is it in the circuit court? No; the appeal there has. been dismissed, and the time has passed for another appeal. Then there is no appeal from the circuit court to the supreme court on the judgment dismissing the appeal. The judgment of the circuit on such appeals is final. Rev. Code, 410, § 25. Even if there were an appeal to the supreme court, it would not constitute any remedy in this case, as there was no error in the judgment of the circuit court.</p> <p>We desire, again, to call the attention of the court to the fact that, by allowing judgment to go by default in the justice’s court, appellant did not preclude himself from making any defense in the circuit court; that the appeal allowed by the statute is merely a new trial in a higher forum, granted, as of course, without regard to the proceedings in the justice’s court; that appellant did all that was required of him to get this appeal or new trial, the bill alleging that “all the proceedings touching said appeal, except the affidavit, were regular and in conformity with law,” and that he has been deprived of this new trial through the negligence or oversight of the officer in the performance of his duty.</p> <p>We respectfully submit to the court that if this be not a fit case for the interposition of a court of equity, 'then we are unable to conceive one.</p> <p>All the authorities cited by counsel for defendants in the chancery court only went to establish the general principle, which is not here controverted, that where a party fails to make his defense at law, having an opportunity of so doing, equity will not interpose to grant a new trial. But in this case he had no such opportunity of making his defense at law. Leaving the justice’s court out of the question (he having the right to decline making any defense there without prejudicing his right to make it in the circuit court), we see he was prevented from making his defense in the circuit court, and, if this was without any fault or laches of his own, equity will interfere and give him a new trial: But the bill, as confessed by the demurrer, states that it was by the mistake or oversight of the justice of the peace that appellant was prevented from making his defense at law. Therefore, equity must interpose and grant him the right of which, without fault on his part, he has been deprived.</p> <p>The demurrer to the bill in this case was properly sustained. The appellant, if he had any remedy at all was in a court of law, his only remedy was at law. A judgment was rendered against him in the magistrate’s court, and if he had any defense he could have easily availed himself of it before that tribunal. He failed to make any defense, and, when judgment was rendered against him, appealed to the circuit court; that appeal was dismissed by the circuit court, as the bill alleges, for a defect in the affidavit. If the affidavit was defective he could have amended the same in the circuit court, and if that court refused the amendment or gave an improper judgment, his remedy was by appeal to this court. Had the appellant any defense to the action he certainly should have availed himself of it in the justice’s court. He failed to do so, and after judgment against him appealed to the circuit court. He insists that the circuit court dismissed his appeal because the affidavit was not dated. Even if the appeal had been so defective as to have been dismissed for that reason, then the appellant would have no remedy in a court of chancery ; but if the affidavit was defective only as to date, the circuit court would have permitted the same to be amended in accordance with the facts, and its refusal so to do would have been corrected by appeal to this court. The demurrer was well taken and the bill properly dismissed by the chancery court.</p>