Volume 46 — Mississippi Reports

Henderson, Chancellor. The facts of this case are stated in the opinion of the court. It will be found difficult to assign tbe bill in this cause to any ground of equity jurisdiction. The complainants are in possession under a purely legal title. The railroad company claim, under an award, which, though made in a proceeding in its nature judicial, cannot be enforced by process.. There is no writ of possession possible.

Drake, Chancellor. The hill charges that one Dearing and wife, on 17th September, 1863, sold and conveyed to Warren and M. F. Hyde, a feme covert, and the wife of A. J. Hyde, a tract of land in Clarke county, which is described in the deed exhibited with the bill, for $14,000 ; that, on the 10th day of August, 1866, Hyde and wife conveyed the same land to Warren for $5,000, but, by accident or design, misdescribed the land by impossible land office divisions, so as to…

Brown, J. It appeared from the record that Josephine Harrington and Ivy F. Harrington were the parents of James W., David and George Harrington. The condition of the bond executed by Wofford, the guardian, and approved by the court is, that said guardian “shall faithfully account for the proceeds of the sale of said land.” All the other facts are sufficiently stated in the opinion of the court.

<p>Appeal from tke ckancery court of Warren county. Hill, Chancellor.</p> <p>Tbe facts of tbis case are minutely stated in the opinion of the court.</p> <p>Filed an elaborate argument, contending that the demurrer to the bill of review was improperly overruled; that a demurrer was the approved mode of defense to a bill of review, and that it did not admit the several grounds stated in the bill of review as errors in the decree; because they were not well pleaded ; and, that the demurrer should have been sustained, if for no other cause, for the reason that Benjamin Sherry, a party to the original suit, was not made a party to the bill of review.</p> <p>On the 18th day of July, 1870, Jacob Sartorious and others filed their bill in the chancery court of Warren county,, to have a decree of that court rendered against them on the 7th day of February, 1870, confirming a tax title to certain lands described in the bill, opened and a rehearing granted them on the merits of the case.</p> <p>Knowland demurred to the bill. His demurrer was overruled and he appealed.</p> <p>By his demurrer he admits the following facts, all of which are distinctly stated in the bill, to wit: 1st. That the taxes for which the land was sold had actually been paid by the duly authorized agent of Sartorious, the then owner, before the sale. 2d. That the sheriff never called on Sarto-rious in person for the taxes, although he was residing in the county at the time. Bd. That there was on the land ample personal property of Sartorious to have paid the taxes many times over. 4th. That the taxes claimed to be due, and for which the land was sold, included a military relief tax levied in aid of the rebellion. 5th. That the sale was made on Tuesday the '5th day of May, 1863, and that the sale was not commenced on Monday and continued until Tuesday, because the sheriff could not complete the sale on Monday, or for any other reason. That there were, in fact, no sales made on Monday, the day fixed by law, at all. 6th.. That at the time of the sale, Vicksburg, where it was made, was under bombardment by the federal navy, and closely invested by the United States army; that most of the inhabitants of the place had fled for safety; and there were only four or five persons attending the sale; and that it was wholly impracticable, in consequence of the occupancy of the country by the United States forces, then, and for more than four months prior thereto, for Jacob Sartorious to have gone into the town. 7th. That land was worth $5,000, was sold for the. non-payment of $13 45, the amount of taxes claimed to be due. It seems to us these ought to be sufficient grounds to justify a court of equity in setting aside any tax sale. Indeed, it is not pretended that this tax title can be sustained according to law. But it is insisted that the defense ought to have been made to the bill filed by Know-land. That there is no error on the face of the record in that case, and that we state no new facts discovered since the rendition of his decree that might not have been ascertained by proper diligence before it was rendered ; and hence, no bill of review, or bill in the nature of a bill of review, or bill for a rehearing can now be entertained. The statute of this state (§ 6, art. 36, p. 546) is a full and sufficient answer to the views of appellant’s counsel on this subject.</p> <p>Jacob Sartorious was a non-resident. There was no service of process upon him. He did not appear and put in a plea, demurrer or answer, and, in fact, as he states in the bill, 'had no notice whatever of the suit by Knowland ; never heard of it until the decree had been rendered.. If we admit the publication against him had been regular, and the proof of it sufficient, the decree against him was rendered on “proof of publication only,” and the statute above referred to gives him a right to a rehearing, or to apply for a rehearing, at any time within five years. He was the owner of the land at the time of the sale for taxes, and he subsequently sold and conveyed it to Mrs. Sherry and her daughters by deeds, with covenants of general warranty of title, ,and it is Ms duty to defend them in their possession and enjoyment of it. But the decree against Sartorious is certainly void on the face of the record. It was rendered without any legal notice to him of the suit. The proof of publication was not sufficient, either under the act of 1862 or 1860. The counsel attempted to make the publication and proof under the former, but, by the very words of the act, it is not applicable to proceedings under the act of 1860 to confirm tax titles. That act requires that notice shall be posted before the court-house door, and published in a newspaper for thirty days before the commencement of the term, to which the parties are required to appear and answer. It is admitted that the only proof in the record, at the time the decree was rendered, showed a publication against Sartorious, in the newspaper, of twenty-three days only, from the day of its first publication, to the first day of court, both inclusive. And it is also conceded, that the justice’s certificate of even this publication is not sufficient, under the statute, to make it evidence. And it is attempted to cure these defects by introducing a new proof of publication on the hearing of the demurrers to our bill. • They insist on holding us strictly to the face of the record, but are not willing to be judged by it themselves. Now, we submit that this is no such case as entitles them to any special favor or indulgence of the court, and they will not be allowed to mend or strengthen their hold by introducing any kind of evidence on demurrer.</p> <p>We further submit, that the court ought to have taken • judicial notice of the condition of the country at the time of the tax sale; of the investment of Yicksburg, and also of the fact that a portion of the tax claimed was levied under a law passed for the relief of soldiers’ families and in aid of the rebellion, and should have refused, for these reasons, to render the decree confirming the tax title.</p> <p>And we also insist, that the chancery court had no jurisdiction of the case made by Knowland’s bill. His title was purely legal, if valid at all, and he bad a clear and complete remedy at law. The act of .1860 is simply an attempt to confer on the chancery court the right to try legal titles, and is, we submit, unconstitutional and void.</p> <p>In answer to the objection to our bill, that we did not make Benjamin Sherry a party to it, we will merely say, that he was dead at the time it was filed, and did not, when alive, have any interest in the land.</p>

Sim-mous, J. Appellant was appointed administrator for the estate of D. W. Brooks, by the probate court of De Soto county in November, 1862.

Ebbob to the circuit court of Panola county. Fishes, J. This is a suit upon an injunction bond to recover damages alleged to have been sustained by reason of the wrongful suing out of said injunction.

Falconer, J. The opinion of the court shows the state of the ease, which gave rise to the questions decided. Process from the probate court must be executed in the same manner as those issuing from the circuit court. Monday v. Calvert, 40 Miss. 181; Martin v. Wilburn, 42 ib. 210. That the returns of the sheriffs of Marshall and Be Soto counties are clearly defective and insufficient there can be no doubt. Wooley v. Bowie, 41 Miss. 553; Sawyers v. Smith, ib. 555.

<p>Appeal from the chancery court of Be Soto county. Vakob, J.</p> <p>The facts of this case are clearly and fully shown by the arguments of counsel and the opinion of the court.</p> <p>The agreed record in this case, which will be found on file and which is very short, will be taken as the abstract of both parties.</p> <p>From this it will be perceived that this is a very ancient and protracted litigation, and that, after it had been definitively settled, as was supposed, and the rights of all parties finally adjudicated, defendant Gray was allowed, by the court below, to file an amended answer by which he set up new matter ; changed the whole basis of his defense ; made a new and different issue, and succeeded, finally, in reversing and overruling, in the court below, the decision of the high court of errors and appeals rendered in the same suit.</p> <p>We respectfully submit that this was a gross abuse of the discretion as to amendments with which the chancellor was clothed.</p> <p>It is a cardinal and primary rule of all systems of law that there must be some end of litigation, and that a party cannot be permitted to try his case by piece-meal.</p> <p>In the case at bar Gray had made an elaborate and protracted defense. The case had been tried by the high court, and, after it had • been finally decided against him in that tribunal, and was merely remanded to the court below to be wound up in accordance with, the principles established, he was permitted to go back and amend his original answer and set up an entirely new defense.</p> <p>The only reason alleged for this is, that the lawyer, who had been sent by him to Tennessee to procure some records, had failed to obtain complete transcripts. We respectfully submit that this was wholly insufficient. The act or omission of his lawyer was his act or omission, and binding on him as such. It constitutes no sort of excuse for his failure to set up Ms defense before. In support of his right to file his amended answer, the case of Wailes v. Johnson, 25 Miss., is urged. The case is very meagre and we doubt its soundness. We have taken the pains, however, to examine the old original papers in the case, as the same remain on file among the musty records of this court. By so doing it will be discovered that Cooper, the party who made the application in that case, stated, in his amended answer, that the ground of defense, which he then set up, was first discovered, and that he had before that time had no sort of clue to their existence nor suspicion of their truth.</p> <p>There is no such allegation in the case at bar. On the contrary, in the very nature of things, Gray must necessarily have known of the division of the negroes wMch had taken place in Tennessee, and which is the fact set up in the amended answer. It was almost impossible for him not to have known it. At all events he does not allege that he did not. His sole ground for his laches is the blunder of his lawyer. By this blunder he is of course bound.</p> <p>The case, then, does not stand upon the same footing as that of Wailes v. Johnson, but is a naked attempt to mend and set up a new defense after the case has been lost upon the original one. As such it was error to permit it, for wMch it must be reversed.</p> <p>The agreed record in this case is a slender one. It and the assignment of errors present just one single point. After this court bad reversed the decree of the court below and remanded the case for further proceedings in the court below, can the court below permit an amended answer to be filed? The amendment was permitted, and this is the case assigned for error.</p> <p>This court held in the case of Tanner v. Hicks, 4 Smedes & Marsh. 300, that the granting or refusing amendments is a matter resting in the sound discretion of the chancery court, with which this court never interferes. Amendments in chancery are allowed with great liberality. Coddington v. Mott, 1 McCarter (N. J.), 430. These amendments granted with great liberality in any stage of the proceedings. 17 Cal. 285. But the very point raised in this case was decided in the case of Wailes v. Johnson, 25 Miss. 421, and has also been decided in other similar cases in other states. See Lee v. Unger et al., 1 Tiawle, 22; Yan Dyke v. Yan Dyke, 4 How. (U. S.) 1; Insurance Co. v. Scott, 6 Cow. 606.</p> <p>In addition to the foregoing decisions, we refer the court to the remarks of Judge Story upon the subject of the amendment of answers, in which he lays down the rule that the amendment of answers, like all other pleadings in equity, is a matter addressed at all times to the sound discretion of the court. Where the amendment is intended to set up new facts dependent upon parol evidence entirely, the courts with reluctance admit amendments. “But where the new facts sought to be introduced are written papers or documents, which have been omitted by accident or mistake, there the same reason does not apply in its full force, for such papers and documents cannot be made to speak a different language from that which originally belonged to them. The whole matter rests in the sound discretion of the court. We should be sorry that it should be supposed that the court had no authority to grant leave to file an amended answer, wherever it was manifest that the purposes of substantial justice required it.” Again, he says, “Where the party relies upon new facts, which have come to Ms knowledge since the answer was pnt in, or where it is manifest that he has been taken by surprise, or where the mistake or omission is manifestly a mere inadvertence and oversight, there is less reason to object to the amendment than there is where the whole bearing of the facts and evidence must have been well known before the answer was pnt in.” Story’s Eq. PL, § 896, note 9 ; Smith v. Babcock, 3 Snmn. 583.</p> <p>In the present case the proposed amendment consists of matters of record. It is therefore free from the objection that it is dependent upon parol, and therefore liable to be established by proof manufactured for the occasion. The facts,'too, have come to the knowledge of defendant after the original answer was filed. He shows due diligence, too, in the whole case. Before filing his original answer, he sent an attorney to Tennessee to examine the records, and procure him a transcript; but, in consequence of the courthouse having been lately burned, the papers were scattered and lying loosely about, and he was consequently able to obtain what turned out to be only a partial transcript, and on this the original answer was prepared. Since that time the papers have been collected together and a full transcript has been obtained, showing not only the construction of the will in Tennessee, but also a distribution of the property by the chancery court of Tennessee, in accordance with that construction. Substantial justice requires that this amendment should be made. To refuse it would deprive a party of his unquestioned rights by a casualty over which he had no control, and from causes not in his power to prevent. The chancellor allowed the amendment, which was a matter resting in his sound discretion, and this court will not reverse, although it may be of opinion that he was not clearly right, unless it should also be of opinion that he was clearly wrong.</p>

Ellis, Chancellor. The opinion of the court contains the facts of this case. The main questions of controversy in this cause are settled against the complainant, by the decision of this court in the case of Coulson v. Harris, 43 Miss. 728. But we hold to the position that the chancery court did wrong in ordering the bill of complaint to be dismissed at the same time and by the same order that dissolved the injunction.

SimmoNS, Chancellor. The facts of this case are sufficiently stated in the opinion of the court. Held: and although the cases are numerous in which awards have been set aside in chancery, they are cases in which fraud, partiality or corruption, in greater or smaller portions, have infected the transaction of the party or of the arbitrators in procuring or making up the award.

IíENDUES ON, Chancellor. This is a bill to enforce a mortgage on real estate, executed to secure a note described in it. The mortgage was executed by Hamilton Taylor and his wife, Maria, and the bill shows that Taylor had died intestate, leaving his widow, the said Maria, and one child, and that no administration had been granted upon his estate.

<p>Ekrob to the circuit court of Carroll county. Niles, J.</p> <p>The indorser of the instrument sued on had died, and his administrator was one of the defendants. He objected to Aydelott, the nominal plaintiff, when offered 4as a witness to establish the claim sued on, against the intestate, but his objection was overruled, and Aydelott was permitted to testify, and this was assigned for error. There were other errors assigned and argued in the briefs of counsel, but as the court regarded the question of the competency of Ayde-lott as a witness, as the main one, and devoted its opinion to that, only so much of the briefs as pertains to that question is inserted.</p> <p>The first point is, that the court erred in admitting the nominal plaintiff, as a witness to establish his claim against a deceased person’s estate in violation of the statute. By the common law, as it existed in this state till 1851, no party or person interested to the amount of one dollar, or liable for costs, could be a witness in any case. The legislature, in repealing this rule, when both parties were aliye, and therefore able to meet each other face to face, saw proper, for obvious reasons, to keep it in full force when one party was dead, so as not to permit a dead man’s estate to be affected at all by the testimony of his living adversary. Audi al ter a/m portera was applied inflexibly, it being manifest, if any other rule were established, that the greatest injustice would be done. This court has given this statute in favor of exclusion a liberal construction to carry out this policy, in holding that it excluded a party from being a witness to defeat a claim of a decedent against him, when the language of the statute only excludes him to establish his own claim. See Locker v. Gorren, 37 Miss. 458. This decision leaves the common law on the subject of the incompetency of a witness in full force in all cases where the party adverse to the witness’ interest is dead.</p> <p>Is a nominal plaintiff a competent witness in his own favor at common law ? The answer to this is the answer to the. question under discussion. Starkie says a mere nominal party is not a competent witness. 1 Starkie’s Ev. 119. Phillipps says the same. 1 Phil. Ev. 69. Greenleaf sustains the same rule. 1 Greenl. Ev., § 347, et seg. The American decisions are to the same effect. Knight v. Packard, 3 McCord, 71; Be Wolf v. Johnson, 10 Wheat. 367; Pox v. Whitney, 16 Mass. 161; 4 Wend. 457. The decisions are the same in our state.</p> <p>Is one who brings a snit for the nse of another a party to the snit? In Lee v. Gardner, 26 Miss. 540, snit had been bronght for the nse of a person who died before jndgment, which was rendered in favor of the nominal plaintiff, with-ent amendment of the declaration or review in favor of the usee’s representatives, and it was suggested that the jndgment was void. The court say:</p> <p>“The statute on this point provides that, in case of a snit commenced in the name of a person for the nse of another, the same shall not abate by the death of the nominal plaintiff, but shall progress to final jndgment, etc., in like manner as if bronght in the name of the person for whose nse such snit was instituted, who shall be liable for the costs of the suit, as in other cases. And in case of the death of the usee before final jndgment, it shall be lawful for the party representing such deceased person, or executor or trustee to be entered on the records, in the place of such deceased person.” Hutch. Code, 842.</p> <p>The court continues : “ By strictly legal rules the usee is not a party to the action. He is only treated as such by virtue and to the extent of the provisions of this statute. It has reference to two states of case: 1st. Where the nominal plaintiff dies ; 2d. Where the usee dies the nominal plaintiff surviving. The first has no application here. The action survived to the surviving partner of Hart, who continued nominal plaintiff. But, in case of the death of the usee, the nominal plaintiff surviving, does the suit abate ? The statute does not so declare. It merely makes it lawful for the administrator to be entered of record in place of the deceased. * * * It has been held by the court that the name of the usee may be stricken out on motion. 4. Smedes & Marsh. 352. If he were the legal plaintiff, and a necessary party, this could not be done, for it would have the effect to dismiss the suit.” And the judgment was held good.</p> <p>In Archer v. Stamp, 4 Smedes & Marsh. 357, above cited, the court allowed the usee’s name to be stricken out. In Duncan v. Wilson, 2 Smedes & Marsh. 136, an administrator was sued, and the plaintiff offered in evidence his declaration admitting that he had received notice of protest. This was objected to on the ground that the administrator was a competent witness. The court held that the declarations were admissible, unless the defendant was prepared to offer himself as a witness ; he could not be compelled to testify.</p> <p>In Smith v. Elder, 7 Smedes & Marsh. 511, the nominal plaintiff was permitted to testify, though objected to by the usee. The court says •. “ His testimony told against himself, and, if he did not object to testify, he was a competent witness.” Citing Duncan v. Watson, 2 Smedes & Marsh. 136, supra. In Coopwood v. Poster the nominal plaintiff was admitted to testify on the same ground: ‘ ‘ that if he did not object he could testify against his interest, if not objected to by the other party.” Citing Duncan v. Watson, supra, where the rule announced is, “That a party to the record who is uninterested in the event of the suit, may be admitted to testify for himself, if not objected to by the other party, and against himself if he do not object.” These are all the cases on which the nominal plaintiff was admitted as a witness, that is, when called on by the other party, and when he did not himself object.</p> <p>InMunn v. McGraw, 11 Smedes & Marsh. 322, the nominal plaintiff was permitted to file a bill of discovery against the defendant. This conclusively settles the question that he is incompetent in his own behalf, for, first he was not entitled to the discovery except upon inability to prove the same facts by witnesses, and, if he were competent, he would be a witness to prove the fact sought to be discovered; second, the statute only allows the petition to parties and against parties to the suit, and if he were really not a party, and not interested in the suit, he could not be heard to intervene in the proceedings between strangers. See Hutch. Code, 865-871. In Watts v. Smith, .2 C. 77, a petition of discovery by the defendant was allowed against the nominal plaintiff. If he were competent this could not be done. The court held, that he, like all other parties, could testify when neither he nor his adversary objected. The usee had no right to make the objection. These cases seem to settle conclusively the question of the competency of Ayde-lott, and that he cannot be heard to testify in his own favor at common law, against the defendant’s objection, nor under the statute can he testify for himself against an adminis-. trator.</p> <p>The effect of the decisions is to treat him as the real party to the record, in whose favor a judgment can be rendered in case the usee is dead, or his name is stricken out. The decision in Lee v. Gardner also recites, that he is the party plaintiff and liable as such, in all cases, except where the statute has made different provisions, and that the usee is not a party except to the extent and in the mode stated in the statute. The nominal plaintiff is liable for costs. Anderson v. Miller, 7 Smedes & Max-sh. 590. Whether the usee be also liable for costs does not affect the question. The plaintiff is always liable for his costs. The nominal plaintiff is the plaintiff, and in his name judgment can be entered. In Lee v. Gardner, where the usee was dead, suppose the verdict had been for defendant, then against whom would the judgment be for costs % Not against the usee, for he was dead. Then against the nominal plaintiff, unless it be that he was competent to maintain a suit, yet, not responsible for the consequences of failure, and unless the defendant is compelable to submit to a litigation with a party who fights him with an exemption from costs. The statute only makes the usee liable for costs; it does not exempt the nominal plaintiff from liability. See Hev. Code of 1857, p. 486, art. 50, and in the same chapter, p. 488, art. 57; the statute proceeding on the idea that the nominal plaintiff is.liable, provides that “in suits brought in the name of the state, or in any ofiicer thereof, for the use and benefit of another person; such usee may be required to give security for costs in the same manner as plaintiffs in other cases.”</p> <p>But it will be argued, that there will be no reversal, because Peacock’s testimony is sufficient to sustain the verdict. It is admitted that the rule of law is, that a new trial will not be granted for the admission of illegal evidence, when, abstracting it, the verdict is clearly right and fully sustained by the other evidence. But is that the case here? There is no other testimony but Peacock’s. He contradicts himself, and lies the suspicion of being intentional. Can the court rely implicitly either on the credit or competency of his evidence ? The testimony of a single witness is the lowest order and degree of testimony, even when it is unsuspicious; but in this case to say nothing more, the mind is not satisfied; nor can it be said that the jury would have found the verdict they did if the other witness had been rejected.</p> <p>The rule is universal and without exception, that, when error has intervened, judgment will be reversed, except only when it is clear and manifest that the error was immaterial and had no effect on the verdict produced. He who, admitting error in the admission of illegal evidence, insists that the verdict must stand, must show, not only that the verdict might have been rendered without it, but also that it must have been so rendered. The witness Peacock showed himself interested, and utterly unreliable. He was inconsistent with himself, and his explanations were not only unsatisfactory but absolutely absurd. It is incredible that all his statements could be true, and his bias was clearly shown by his testimony. His manner, which cannot be transferred in the record nor shown to the court, might have been against him. At all events it is impossible to affirm that if he had been the only witness the jury would have found a verdict on his testimony.</p> <p>But it is argued, that the the statute only excludes as witnesses, parties who attempt to assert their own claims against dead persons, and further, that the claim is the property of the usee, and not the “ claim” of the plaintiff.</p> <p>The answer to this will be found in the foregoing argument and authorities, and even in the very language of the declaration itself. The nominal plaintiff is tlie plaintiff, he must have the legal title and the legal right, and unless he shows this he cannot succeed. The declaration is in his name as plaintiff, and seeks to enforce his right. It avers a contract with a promise to the nominal plaintiff, it avers a right and claim in him, it complains of a breach with him, and, finally, says he is damaged by the breach, and asks for reparation to and judgment for him. And, unless all these averments be true, there can be no recovery. 7 Yerger, 297.</p> <p>The provision of the statute under which it is alleged that Samuel L. Aydelott should have been excluded as a witness, is clothed in the following language: “Provided that no person shall be a witness in any suit by or against himself, to establish his own claim to an amount exceeding $50, against the estate of a deceased person.” Rev. Code, § 18, art. 190. This provision of the statute excludes a person as a witness in a suit against the estate of a deceased person, when ‘the amount sued upon exceeds $50, not upon the ground that such witness is a party to the suit, but for the reason that the suit is instituted to establish his own claim. Daniel S. Perkins, who is one of the defendants to this suit, was a deceased person at the time of the trial; yet, Samuel L., Aydelott, though he be the nominal plaintiff, was admissible under this statute, as a witness against the estate of the deceased defendant, if it appear that the claim which is the subject-matter of the suit, is not his claim, but is the property of the person for whose use and benefit the suit was instituted.</p> <p>Upon an investigation of the evidence, we discover that Simeon Peacock was, at one time, indebted to May Aydelott, and that previous to the month of August, 1865, he made a settlement of this indebtedness with her, in which settlement he transferred to her, as a part payment of his debt, a note which he held against the defendants, Owens, Perkins & Robinson; and that May Aydelott, subsequent to her reception of this note, intrusted it to her son, Samuel L. Aydelott, and instructed him, as her agent, to collect or adjust it. That Samuel Aydelott, as his mother’s agent, on the 16th day of August, 1865, in the county of Bolivar, Miss., made an adjustment of this claim with Owens, Perkins & Robinson; and that, in compliance with the terms of this adjustment, he surrendered to Owens, Perkins & Robinson their note in favor of Simeon Peacock, and received from them in return a claim payable in cotton, which they held against R. T. Jones, which claim they indorsed, not to May Aydelott, to whom the indorsement properly should have been made, but to her agent, Samuel' Aydelott.</p> <p>This last-mentioned claim, which is the subject matter of the suit, though it be indorsed to Samuel Aydelott, is legally and equitably the property of May Aydelott; inasmuch as the evidence shows that, at the time when Samuel Aydelott obtained it, he acted as an agent for his mother, and that he exchanged for it a note which belonged to her. To substantiate this ownership of Mrs. Aydelott, Samuel Aydelott, in his evidence, stated to the court that the claim belonged to his mother and that he had no interest in it or in the result of the trial. These facts afford an explanation of the reason why the suit is in the name of Samuel L. AjMelott for the use of May Aydelott. The only method by which May Aydelott could enforce the collection of this her claim before a court of justice was, to make her son the nominal plaintiff to the suit; yet she being compelled to institute her suit in this manner cannot deprive her of the benefit of her son’s testimony, the exclusion of which might be the means of defeating the suit, and thereby deprive her of these rights, to which she is justly entitled.1 The object of the suit is to establish the claim of May Aydelott, and not the one of Samuel Aydelott; hence there can be no good reason why the latter is not admissible under the statute as a witness on behalf of his mother.</p> <p>Admit, however, for the sake of an argument, that Aydelott was an incompetent witness ; yet in this particular case the admission of his testimony affords no reason why the judgment of the corrrt below should be reversed and a new trial granted. Where improper testimony has been admitted, if there be also sufficient legal testimony to justify the verdict, outside of that which is exceptionable, a new trial will not be granted. Barringer v. Nesbit, 1 Smedes & Marsh. 22; Hand v. Grant, 5 ib. 508; Mary Washington v. McIntosh, 38 Miss. 671. A legal demand and notice were the only material facts in this case which the plaintiff had to establish in order that she might be entitled to a verdict. The testimony, united or separate, both of Peacock and Aydelott, prove these facts beyond a doubt. Upon this point the evidence of the one is similar to that of the other.</p>

Smiley, J. The facts of this case, which exhibit the precise point on which its decision was made to turn, are minutely and clearly stated in the opinion of the court. It was objected in the court below that the bill was multifarious, both as to subject-matter and to parties defendant.

.Error to the circuit court of Copiah county. Mill-saps, J. The features of this case are plainly presented by the opinion of the court. 1st. The judgment awards distringas and execution for the property, and the alternate value thereof, and a separate execution for damages and costs, which is not authorized by the statute. 2d. Said judgment is informal. Citing Eev. Code, 1857, p. 896, arts. 5 and 7. The supposed error in the judgment does not exist.

Ellis, Chancellor. This is an appeal from an interlocutory decree of the chancery court of Jefferson county appointing a receiver in the above case, now pending. The motion was heard by the chancellor in vacation upon bill and amended bill, answers, depositions and proofs. The history of the case is briefly this: Ephraim Woods (the appellee), as administrator of David M. Woods, brought suit, in the Jefferson circuit court, against William Gr.

<p>Ekkok to tlie circuit court of Adams county. Smiley, J.</p> <p>The facts of this case distinctly appear in the opinion of the court. Although there was no bill of exceptions, and the errors assigned were alleged to arise out of the action of the circuit court on the pleadings, this court considered and decided the case upon the principles of law involved in the substance of the pleadings, without reference to their structure, and any further statement of the case than is contained in the arguments of counsel and the opinion of the court is deemed to be unnecessary.</p> <p>The special pleas filed by the defendant in this case constitute no defense whatever to the plaintiff’s action.</p> <p>The United States authorities have uniformly and persistently refused to recognize the government of the Confederate States or even the government of the states in rebellion as governments defacto. It was recognized as a belligerent, and as such the rights and duties of a belligerent were accorded to it. In the case of the United States v. Kelsler, 9 Wall. 83, the court uses this language: “The whole Confederate power must be regarded by us as a usurpation of unlawful authority, incapable of passing any valid laws, and certainly incapable of divesting, by an act of its congress or an order of one of its departments, any right or property of the United States. Whatever weight may be given under some circumstances to its acts of force, or on the ground of irresistible power, or whatever effect may be allowed in proper cases to the legislation of the states while in insurrection, are questions which we propose to discuss only when they arise. The acts of the Confederate congress can have no force or law in divesting or transferring rights, or an authority for an act opposed to the just authority of the federal government.” See, also, Hickman v. Jones, 9 Wall. 197, where this doctrine is more distinctly and clearly stated, and also that belligerent rights were never extended to the pretended government of the confederacy, but only to the belligerent in arms. This case determines the question very clearly that the law of the Confederate congress, authorizing or directing the burning of cotton, in certain cases, had no authority as a law under which the defendant can justify his action destroying the cotton of plaintiff. Nor does the order of the provost marshal at Natchez, issued under the directions of (Jen. Beauregard, make any more valid defense for the conduct of defendant.</p> <p>The plea does not aver that the defendant was a soldier in the Confederate army, or subject to the military control and direction of the provost marshal, or Gen. Beauregard, or subject to punishment for disobedience to their orders, and should it be conceded that an order by a military superior to his inferior, or to a soldier under his command,, might justify or excuse the destruction of the private property of a third person, destroyed in obedience to such order, yet it is very clear that such order will not justify or excuse a third party, not a soldier nor amenable to military authority, for a trespass upon the person or property of another. See Smith v. Stuart, 21 La. Ann. 67; Law Review for October, 1870; Echols v. Stanton, 3 W. Ya. 574. If it were conceded that fear of personal danger or overpowering force might absolve him from liability, yet the plea does not aver or set forth that the acts were done under such circumstances as on these grounds would excuse.</p> <p>But it is not admitted that fear of personal violence or injury apprehended will justify or absolve from liability for wrongs or injuries done to the property of another. It is true that the fear of personal injury, where the danger is imminent and impending, will excuse a party from punishment for the commission of an act which would otherwise be criminal; but there is .no rule of law which excuses or absolves a party from making compensation to another for the destruction or injury of his property. Where such destruction or injury has taken place, in order to protect one’s own property or person from serious or irreparable injury, no blame or crime will be imputed to a party who, under the apprehension of serious and immediate danger to his own person and for the purpose of protecting himself against it, uses or destroys the property of another ; but, at the same time, as he has used for his own protection that which did not belong to him, and converted or destroyed the property of another, there is no reason in law or morals that he should not compensate for what he has destroyed, or pay for what he has used. A starving man may take y onr food to save his own life. A sick man may seize the drug which will restore him to health and arrest the progress of a mortal distemper if he cannot otherwise procure it; but, in either case, he must make compensation to the owner. So, to save one’s self from freezing to death, you may burn the fence of another, but you must pay for it; and it may be true that the defendant feared that he would be subjected to personal injury or violence, or to pecuniary loss or to public obloquy if he did not obey the order of the provost marshal in this case, but he was under no legal obligation to obey the order, no duty required him to do so, and no law rendered it imperative upon him; and if, to protect himself or his property from violence or apprehended violence, he destroyed the cotton of plaintiff, while we impute no blame or moral turpitude for the act and excuse him from punishment for crime, there is no law, either moral or social, statutory or common, which will exonerate him from paying the just value of the property of another which he used to protect himself.</p> <p>The declaration charges against the defendant a grievous wrong that he would not have consented to commit under any ordinary circumstances. For justification, he pleads that the act was done in aid of the rebellion against the United States; and thus his plea admits the cause of action. He pleads the authority of an alleged government persistently ignored by the United States, and asserts the orders of persons whose alleged commissions were not issued by any authority, whatever. Like the ordinances of secession, they were illegal and null. Again, it is urged in argument, in his behalf, that the act was done by direction of one acting as an officer in a host of belligerents, but it is not pretended that defendant was a soldier, nor in any way constrained, save by zeal in aid of rebellion, to do the wrong. Nor is it pretended that he was in any sense loyal or unwilling. It is said ■ there was • an actual government of force, in these southern states, to which defendant owed duty and obedience ; but the settled rule is, that obedience to such a wrongful domination may not extend to acts of hostility against the rightful government, while it may be excusable if limited to submission in matters of civil life. 8 Wall. 9, 10,11. Such a government may have its courts and other formal civil institutions, supported by force. Ib. 9. But those apparent courts cannot try persons for alleged acts of hostility to such a government (9 ib. 200), and such seeming courts are in law, “ nullities.” Ib. 201. It is not in law a government, but a mere illegal domination, made potent by the multitude banded together for an illegal purpose, and can never be regarded as the source of authority. Its apparent orders may serve for excuses only in some matters; but never where the thing done or attempted is in hostility to the rightful government. 8 Wall. 9, 11. For this reason the sale of the Texas bonds was inoperative, although they were in actual possession of the insurgent belligerents and were actually delivered over to the purchaser. Texas v. White. For this reason, the seizure and trial of a citizen for treason, as a friend of the United States, was held illegal and a trespass. 9 ib. 200. And on the same ground, a debtor of the United States was held liable, after full payment made under “ Confederate authority.” United States v. Kuhler, 9 ib. 33.</p> <p>It is vain to claim that the magnitude of the controversy of armies, of itself, changed the legal character of the strife, or converted acts of treason into legitimate warfare. 9 Wall. 200. Alike vain is it, to attempt justification under any claim of “belligerent rights.” All that matter was dependent on the grace of the United States, and carefully limited to the customary treatment of prisoners of war; while, during all the time, the law denounced the Confederate “belligerents” as simply “rebels, enemies and traitors.” 2 Black, 669 ; Halleck’s Int. Law, 344, 345; 2 Wall. 420. Every act, legislative or otherwise, done in the name of a state located in this “ enemy’s territory,” has been held file-gal and void, if done “in aid of tie rebellion.” Thomas v. Taylor, 42 Miss. Every act of attempted seizure, or confiscation, done by the Confederate “belligerent,” hás been held inoperative and void. If acts done by or under authority of this “belligerent” were valid, why were not the seizure and sale of the Texas bonds, and the seizure of the post-office funds, and the seizure for treason, sanctioned by the federal courts ? If the argument for defendant be correct in law, all those decisions are erroneous. The fact is, that “martial law ” has not, within this union, subverted the good old laws, constitutional and common, as gentlemen-assume. See the case Ex parte Milligan. The Tennessee' decisions, relied on by counsel, rest on the erroneous assumption that the Confederate government existed, and that its warrant was a justification of a like character is the fallacy touching the alleged “full belligerent rights” of the Confederates. It is to be further noted, that the act complained of was done within the lines of actual military occupation held by the Confederates, and that, although done in aid of the rebellion, it was also a wrong to the property of the plaintiff. It is vain to claim from any act of the United States, an authority or excuse for this private wrong. The government might have waived prosecutions for all offenses against itself, and yet, such waiver would not preclude recovery for private injuries. The pleas do not charge complicity in the rebellion, against the plaintiff, nor would such a charge be relevant to the case. 9 Wall. 202, 208. Upon the general questions involved, see, in addition to cases cited, 2 W. Ya. 192, 306; 4 ib. 138, 170, 173, 176, 356, 420.</p> <p>The case cited from 10 Wall. 480 is not relevant. It involved the construction of the acts of congress in relation to sales and transfers by southern citizens during the war, which enactments were intended to prevent conveyance made to defeat proceedings for confiscation. If the opinion in 8 Wall, can be construed as counsel read it, the same court corrected the error in 9 Wall. 200, 201.</p> <p>We- invite special attention to the very able decision of the points in this case made by the court of West "Virginia. It is full of conclusive argument against the propositions of counsel. 2 W. Va. 192.</p> <p>It is vain to argue that Provost Farrar “made soldiers” of the persons to whom his advertisement, was directed. It. was addressed “ To the citizens of Adams, county.”</p> <p>The logic of the late war has. demonstrated what the commentators on the- constitution,, statesmen and jurists, did not seem before to understand, that the constitution of the-United States has within itself provided for two separate and distinct governments, the one to rule- in the time of peace, the other in the time of war; each sovereign and supreme in their separate spheres.</p> <p>The declaration of martial law supersedes and subordinates the civil, and substitutes military rule over a particular district not of the country, while the declaration of a public war subordinates the whole territory and all its inhabitants to military rule, and the law of peace is suspended. Halleck on Int. Law, 371, §§ 24, 25, 26, 27, 28.</p> <p>A second question, also, which seems not to have been properly, understood before, has been conclusively settled by the late war, viz., that a war can legally be commenced and carried on by the military authority and government of the United States, as provided for in the constitution, without a previous act of congress to sustain it. The constitution has carefully provided that the military rule shall not step in and assume the absolute sway over the country unless by the will of the society itself being first ascertained. Therefore, when a war originates with and flows from the will of the government, an act of congress is required in order to identify it with the will of the people. But, where a war arises from the will of the people themselves, no such act is required. It is the people themselves who invite military rule. Prize.' Cas., 2 Black, 666. The late war was commenced and conducted on the part of the United States upon these two principles, and all the decisions of the United States supreme court, rendered upon the conduct of the war, have'fully sustained them.</p> <p>It is true that many of the decisions of the state and local courts seem to conflict with these views ; hut it is evident they do not understand the principles upon which the late war is fully justified by the supreme court of the United States, viz. : that the constitution has provided a rule of government for the people in time of peace and another for war, each distinct and supreme in their separate spheres.</p> <p>. Justice Gtreer, in the prize cases, after showing that a war may arise from the will of the society itself, and when it. becomes of such proportions as to interrupt “ the regular course of justice” it requires no act of “ congress to baptise it with a name,” says: “By the constitution congress alone has the power to declare a national or foreign war. He cannot declare war against a state or any number of states by virtue of any clause in the constitution.” Again, ‘ ‘ he (the president) has no power to initiate or declare a. war either against a foreign nation or a domestic state.” 2-Black, 666. This case justifies the president in the course he pursued upon the ground: 1st. That the war originated with the people themselves, and not with or by the government ; and 2d. That the civil rule, as provided for in the constitution, had been suspended by the act of war, and it. became necessary for the president to resort to the war power vested in him.</p> <p>The declaration of war then was a proclamation of martial law, subordinating civil to military rule, in all the-states not in rebellion. How far the military power could suspend the civil law in different localities would depend upon the state and condition of the- district. If the district be in a state of siege, the civil law is suspended altogether, but, under almost any other condition, the civil acts in concert with, but in subordination to, the military. See Halleck on Law, 374, § 26, title Martial Law.</p> <p>The pleas show that the place, Adams county, at the time of the alleged burning, was in a state of siege, or about to be invaded and about to fall into the possession of the enemy. What was the duty of the inhabitants of that district under the circumstances % International law writers tell us what that duty is in public wars. “Every member of a society is obliged to serve and defend the state as far as he is capable.” Vattel, book III, ch. 2, § 8. “No person is naturally exempt from taking up arms in defense of the state.” Ib. § 10. “In the declaration of war the ancient form is still retained by which all the subjects are ordered, not only to break off all intercourse with the enemy, but to attack, ■them. Custom interprets this general order. It actually authorizes, nay even obliges, all subjects, of whatever rank, to seize the persons and things belonging to the enemy, when they fall into their hands, but does not invite them to undertake any offensive expeditions without a commission or particular order. Vattel, book III, ch. 15, §§ 223,227.</p> <p>Halleck, after stating the general rule that “ every citizen is bound to serve and defend the state of which he is a member as far as he is capable,” shows that many persons are now excused from military service, and these are accounted non-combatants, and should not engage in offensive hostilities. “ Nevertheless, it often happens, in case of invasions and in the siege of fortified towns, that not only merchants, mechanics and the common peasantry, but also the clergy, magistrates, old men, women and even children take up arms and render good service in the common defense. In doing this they lose the character of non-combatants and become subject to the ordinary rules of war. Those who lay aside their peaceful avocations, and engage, either directly or indirectly, in hostile acts toward the enemy, whether by the orders of their government or their own free will, are liable to the consequences which lawfully result from such acts, but to none other. Halleck on Mil. Law, 383, § 3.</p> <p>“Although a state of war puts all the subjects of one nation in a state of hostility with those of the other, yet, by the customary laws of Europe, every individual. is not allowed to fall upon the enemy. If subjects confine themselves to simple defense, they are to be considered as acting under the personal order of the state, and are entitled to be treated by the adversary as lawful enemies, and the captures which they make in such a case are allowed to be lawful prizes. But they cannot engage in offensive hostilities without the express permission of the sovereign. 1 Kent’s Com. 94, 96. The above maxims govern in public or national wars, and Vattel says they “ ought to be observed by both parties in every civil war.”</p> <p>s ‘ The laws of war as established among nations have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights.” Prize Cases, 2 Black. 667. The same is asserted by that court in the cases of Mrs. Alexander, 2 Wall.; Thór-ington v. Smith, ■! ib. 554.</p> <p>In Thorington v. Smith, the chief justice says : “To the extent, then, of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government cannot be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the re-establishment of its authority. ■ But it made obedience to its authority in civil and local matters, not only as a necessity but as a duty; without such obedience civil order was impossible.” The case before the court was a transaction of a private character, between individuals, who were non-com batants, and while the court holds that non-combatants must necessarily obey that authority in civil and local matters, yet it will not justify acts of hostility on their part to the United States. The distinction between acts of hostility done by persons in obedience to military orders and mere civilians, who are bound to obey in ‘ ‘ civil and local matters” only, is plainly drawn, the former may justify and the latter not. The cases cited in 9 Wallace, by plaintiff’s counsel, are cases where the parties attempt to justify their acts of hostility under the civil and not the military government of the Confederate States of America.</p> <p>If plaintiff in that case had been arrested by the military authorities and tried by court martial, the case would have been different. Is there any doubt that the court would have justified the act of the officer making the arrest, as well as the officers composing the court martial ? The belligerent rights conceded to the Confederate States of America cannot be confined to the mere exchange of prisoners of war, and their lives be prolonged to the end of the war, when they should be punished as traitors and hung.</p> <p>The question in the Prize Case was one of belligerent rights over property of the enemy. So in Mrs. Alexander’s Case. All the authorities in the United States supreme court, upon the subject of the late civil commotion, draw the distinction between acts of hostility, done by individuals in obedience to the orders of the military authorities, while they were recognized as belligerents, and acts done either before the recognition or during the recognition, but without orders, or since. The former were imputed to the government, for which the individuals are not liable, either criminally or in private suit. Acts of the latter description the individuals are personally liable for, either at the suit of the government for crime or of private persons in suit for damages. The decisions of the state, courts to the con-tary are not law.</p> <p>If we consider the conduct of the Confederate government and .the United States government in relation to-the article, cotton, during the late war, we will discover that it. possessed, in the opinion of the belligerents, peculiar importance. It was the subject of express legislation by the congress of each belligerent. It was treated by the officers of each army, navy and government, not as other property, but as possessing extraordinary qualities and power, and to be treated, even in the hands of non-combatant individuals, as different from ordinary private property. It formed the basis of the credit which the Confederate government was laboring to establish in Europe. Its retention in the southern states, and withdrawal from market, except when used by the Confederate government for war purposes, was considered of vital importance ; for it was hoped that its withdrawal from foreign markets would compel a recognition of the independence of the states in rebellion, and a raising of the blockade, which was destroying the resources of the Confederates and crippling their armies. Its destruction or retention in the south was operating injuriously to the northern states, by injuring their manufacturers, and thus weakening their resources. The congress of the Confederate States, prior to the' burning of the cotton in question, had directed by law that the cotton, sugar and tobacco, liable to fall into the hands of the federal army or navy, should everywhere be destroyed, and it is matter of history that millions of dollars’ worth of these articles was destroyed in consequence of this act and of orders from that government.</p> <p>How was cotton treated and regarded by the federal government? In the Alexander cotton case, the chief justice points out precisely how the federal government would dispose of cotton found in the hands of a resident of a state in rebellion. In treating of the rule which, in general, exempts from seizure in war private property not used in warfare, he says: “ It may now be regarded as substantially restricted, in special cases, dictated by the necessary operation of the war,” and as excluding in general “the seizure of the private property of pacific persons for the sake of gain,” and cites 1 Kent, 92, 93. 2 Wall. 419. And while recognizing this humane rule, the chief justice proceeds to decide in the case referred to, in which cotton was the subject of litigation: “The capture seems to have been justified by the peculiar character of the property, and by legislation. It is well known that cotton has constituted the chief reliance of the rebels, for means to purchase the munitions of war in Europe. Jt is matter of history that, rather than permit it to come into possession of the national troops, the rebel government has everywhere devoted it, however owned, to destruction.” 2 Wall. 420.</p> <p>So then, the supreme court of the United States affixed a peculiar character to cotton during the war, and recognized the character accorded to it by the rebel government. It was treated by both belligerents rather as contraband of war, as having lost its character as private property merely, but as having become the subject of especial governmental action and control, whether for preservation, seizure, confiscation or destruction.</p> <p>Who were the parties, the owner and the destroyer of the cotton in question, at the time of its destruction in 1862 %</p> <p>A war was then in progress between certain states styling themselves the Confederate States and the general government/ Foreign governments had recognized the belligerent character of the people in rebellion. The United States government had, by its acts, done the same thing. A blockade had been established; the exchange of prisoners made; large armies were in the field contending with varied success; the state of Mississippi had undertaken to sever her connection with the general government; a Confederate government was in full vigor with all the appropriate forms, officers and characteristics of a government ; Ford and Surget were citizens resident in Mississippi. They were alike held, according to well-known principles, to own allegiance to the power or government then holding the territory where they resided. Its orders they could not evade ; they did not attempt to evade them.</p> <p>By the rules of law now indisputable, they were enemies for the time of the general government. So, in the Alexander- cotton case, the chief justice decides them to have been. He says: “We must be governed by the principle of public law, so often announced .from this bench, as applicable alike to civil and international wars, that all the people of each, state or district in insurrection against the United States must be regarded as enemies until, by action of the legislature and the executive or otherwise, the relation is thoroughly and permanently changed.” 2 Wall. 419.</p> <p>On page 488 of the same case (Alexander’s) the court further decides as to Mrs. Alexander’s cotton : “ There can be no doubt, we think, that it was enemy’s property. The military occupation by the national military forces was too limited, too imperfect, too brief and too precarious to change the enemy relation created for the country and its inhabitants by three years of continuous rebellion ; interrupted, at last, for a few weeks, but immediately renewed and ever since maintained.”</p> <p>In the prize cases decided in December, 1862, upon captures which were made in 1861, the court says : “Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared, it becomes such by its accidents, the number, power and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold, in a hostile manner, a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest as war.” 2 Black, 666, 667. In the same case, after referring to the recognition of the belligerent character of the people in rebellion by Great Britain, the court farther say: “After such an official recognition by the sovereign, a citizen of a foreign state is estopped to deny the existence of a war, with all its consequences as regards neutrals. They cannot ask a court to affect a technical ignorance of the existence of a war which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the government and paralyze its power by subtle definitions and ingenious sophisms.” Prize Cases, 2 Black. 669, 670. And again, in the same cases, pages 673 and 674, the court say of the rebellion : “ It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemies’ territory, because it is claimed and held in possession by an organized, hostile, belligerent power.” In a late case, not yet reported, of Thorington v. Smith, Chief Justice Chase, laboring very diligently to avoid calling the Confederate government a “defacto” government, yet doing it, and indulging in some wire-drawn distinctions on the subject, says that a “ de facto” government exists “when the usurping government expels the regular authorities from their customary seats and functions, and establishes itself in their place, and so becomes the actual government of a country;” and again, of another sort of “defacto” government, which he seemed to think the Confederate government to have been: “Its distinguishing characteristics are, first, that its existence is maintained by active military power within the territories, against the rightful authority of an established and lawful government; and, second, that while it exists, it must necessarily be obeyed in civil” (why civil only?) “matters by private citizens, who, by acts of obedience, rendered in submission to such force, do not become responsible as wrong-doers for these acts, though not warranted by the laws of the rightful government.” He refers to the case of Castine, 4 Wheat. 253, and of Tam-pico, 9 How. 614.</p> <p>In the same case occurs the following in regard to the Confederate government: “The whole territory governed by it was thereafter (i. e., after the war began) held to be enemy’s territory, and the inhabitants of that territory were held, in most respects, as enemies. To the extent then of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government cannot be questioned. That supremacy would not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the re-establishment of its authority.”</p> <p>Then at the time of the burning of Ford’s cotton, a war was in progress. He and Surget alike were to be treated and regarded for the time being as subjects of the Confederate government, alike in rebellion, alike having risked property and life in the cause of the rebellion. Now, from the authorities cited, it is clear that a war existed; that, except so far as questions might arise as between the regular national government of the United States and the persons engaged in rebellion, the people of the states in insurrection must be held, as between themselves, and between the Confederate government and themselves, to have been, with their persons and property, under the control and authority of the insurrectionary government.</p> <p>That government had, for the time, absolute and sovereign control over them; a right by the law of nations to enforce obedience and to punish failures to obey. But, “when war is duly declared, it is not merely a war between this and the adverse government in their political characters. Every man is, in judgment of law, a party to the acts of his own government, and a war between the government of two nations is a war between all the individuals of the one and of all the individuals of which the other nation is composed.” 1 Kent, 63. “Although a state of war puts all the subjects of the one nation in a state of hostility with those of the other, yet, by the customary law of Europe,, every individual is not allowed to fall upon the enemy.. If subjects confine themselves to simple defense, they are to-be considered as acting under the presumed order of the state.” “ But they cannot engage in offensive hostilities.” Ib. 102.</p> <p>Ford, as to the destruction of this cotton, was “a party to the acts of his own government.” He cannot question them now. If the rebellion had been successful he might have claimed recompense for property destroyed to keep it from benefiting the enemy, and his government, thus successful by law, would have been liable to recompense him; but not the instrument, not the individual used by his government, could have been held responsible for obeying the orders of their common government. Ford, Surget and thousands of others engage in rebellion and form an insur-rectionary government and recognize its authority; the whole scheme fails, and Ford asks that Surget may be compelled to pay him for the losses he has sustained in the rebellion in which they were participants. Will a court now interfere for such an unreasonable and unjust purpose ? See Yattel (ed. of 1855), 402, § 232.</p> <p>Surget does not claim to have been in the military service of the Confederate government; but then he engaged in no offensive acts of war. His act was only defensive. Besides, to him directly through the regular channels, came the order of the government to destroy Ford’s cotton as well as his own. He is innocent and should be held harmless. Yattel properly lays down the law that should govern, in considering the liability of Surget, as follows: “On all occasions susceptible of doubt, the whole nation, the individuals and especially the military, are to submit their judgment to those who hold the reins of government — to the sovereign; this they are bound to do by the essential principles of political society and of government. What would be the consequences if, at every step of the sovereign, the subjects were at liberty to weigh the justice of his reasons and refuse to march to a war which might to them appear unjust? It often happens that prudence will not permit a sovereign to disclose all his reasons. It is the duty of subjects to suppose them just and wise until clear and absolute evidence tells them the contrary. When, therefore, under the impression of such an idea, they have lent their assistance in a war which is afterward found to be unjust, the sovereign alone is guilty. He alone is bound to repair the injuries ; the subjects, and particularly the military, are innocent. They have acted only from a necessary obedience.’ ’ Vattel, p 380, § 187.</p> <p>As to Ford and Surget, who was, in 1862, the sovereign, as between themselves and the rebel government ? Why, the people of the insurrectionary states, of which both appellant and appellee were units, represented by the rebel officers. Will this court hold that Surget should have disobeyed his orders ? He was specially ordered to do a certain act, by the officers of the government in rebellion, carrying out the policy of that government, destroying cotton to prevent it from falling into the enemy’s hands. Quoad hoc, he was a soldier. He was bound to obey and could not have resisted. There was no one, no government de jure to protect him from the consequences. What inhumanity it would be, under such circumstances, to require him to disobey. Let it be remembered that no question arises as to the character of Surget’s act, in view of the claims of the government de jure upon him. It is a question between individuals as to who shall bear the loss of a common attempt to throw off allegiance to the United States government. Shall the courts protect the property of one rebel to the detriment of another, and undertake to fasten upon one the consequences of obedience to the potential government which claimed and exercised, by common consent of the governed, full sovereign power over life, limb and property?</p> <p>Does the failure of the insurrection or rebellion change the principles which should govern this case? If it had been successful Surget would not have been liable to Ford. Why should he be now ? The government of the United States is not asking for punishment in this case. A disappointed rebel is. The Alexander Cotton case fixes his status. He could not divest himself of the character which the laws of war gave him when the war began. Both governments held him to this. Both governments held Surget to the same status while the war lasted.</p> <p>The supreme court of the United States in the Peterhoff case decide, “that persons residing in the rebel states, at any time during the civil war, must be considered as enemies during such residence, without regard to their personal sentiments or dispositions.” 5 Wall. 60, and cases above cited. Why is this so % Can any other reason be conceived than that by the law of nations the resident of a country at war is bound to obey the laws of the government under which he resides, irrespective of his sentiments, and is subject at all times to be called upon to make war for that government? Can any other reason be assigned for the rule % It is important in its character. It is ancient and well established, and this upon the ground that the belligerent government was able and had a right to compel the services of residents, and to cripple the arm of its adversary, each belligerent must needs act upon this rule.</p> <p>N or does the law ever undertake to punish by damages awarded to individual suitors, acts that are done by reason not of willfullness, wantonness, malice or neglect % Here an overpowering necessity, a present irresistible foree, that is, a strong government with armies and officers in full possession of means to compel obedience, operated upon Surget. He could not have avoided obedience. He could not know how the war would result. As Yattel well says, it was not his province to sit in judgment upon the orders of his government, for it was then his government, no matter how forcibly or unlawfully established, or how disastrously overthrown..</p> <p>The law does not ask that impossible things should be done. It is not blind to the motives that influence men; it deals with men as responsible beings; responsible because they have liberty of thought and of action. Destroy this liberty of thought and action and responsibility at once ceases.</p> <p>All governments must needs punish insurrection; self preservation requires it. But no government, and no court-will ever require citizens of an organized government, though in rebellion, to risk life, limb and property in resistance to it. It would be cruel beyond .measure to do so. Instead of checking a disposition to rebellion, which all good governments should do, it would be encouraging it, and be breaking down one of the strongest props of government.</p>

Young, Chancellor. The facts of the case will be found in the opinion of the court, as far as is necessary to fully understand the view of the court. Held: in that case, that the government of the state of Mississippi, as one of the Confederate states, was not identical with the government of Mississippi, as one of the United States, and that the acts of the former were not, ipso facto, binding on the subsequent government of Mississippi.

Walker, Chancellor. The opinion of the court states the facts.

Walker, Chancellor. The facts of this case appear clearly from the opinion. The questions discussed and decided arose upon a cross-bill to which a demurrer was sustained in the chancery court, and the opinion of the court plainly exhibits so much of the allegations of the cross-bill as present the questions decided. A condensed statement of the mistake complained of by the cross-bill is contained in the fourth paragraph of the syllabus of this case.

<p>Appeal from the probate court of Jasper county. Eastland, J.</p> <p>The facts of this case, as viewed by the court, will be found stated in the .opinion.</p> <p>The failure to name the parties known in the publication, and the failure of the court by order to fix a day for the appearance of the parties, render the order of sale void. Until the debts were paid, it was money for the administrators to distribute to the heirs; and it was at their peril, if they did so without the order of the court. Code, p. 454, § 118. Distribution is not a matter of course ; and should never be made without reserving enough to pay known debts. This is shown by the prescribed condition of the bond to “ refund a due proportion of any debts or demands which may afterward appear against the estate,” etc. Ib. ' The fact that the slaves distributed were afterward emancipated would not release the parties from liability, in a proper case, to refund after such distribution, such slaves were held at the risk of the distributees. As the administrators reported, in their account, the receipt of so many “ dollars,” they are bound for good money; and it was error to admit proof to excuse them as having received Confederate money. 42 Miss. 194. As the administrators received, and were liable for, a much larger sum than the whole indebtedness of the estate, it was contrary to the statute to decree a sale of the land, until the administrators and their sureties had been pursued to insolvency. 42 Miss. 449-465. The amounts for which, the administrators were liable to the estate, as for moneys received, were as much part of the “ personal estate” as any other money due to it; and that personalty was more than sufficient to pay the debts. The decrees should be reversed, and petitions dismissed.</p> <p>Publication was made as to the non-resident defendants; and citations were served upon David McDonald (one of the defendants), and the appellants. The second assignment of error presents the question whether the heirs are entitled to resist the sale of the lands of the intestate, upon the ground that, but for a distribution of moneys to them, there would be a sufficiency of assets for the payment of debts.</p> <p>The facts are as follows: During the late war, in the years 1863 and 1864, the administrators sold certain personal property of the intestate under proper orders of court, and received the proceeds of these sales in ‘ ‘ Confederate money, ’ ’ or “Confederate treasury notes,” this being the only circulating medium in the country at the time. After paying a few debts, the administrators found that these funds could not be used any further in discharging debts, and they, therefore, distributed the whole amount on hand, equitably and fairly, among the heirs, taking their receipt, but not taking any refunding bonds. At the time of filing the petitions, the administrators had no assets in hand with which to pay the debts. The heirs objected to a sale of the land, for the reason that the administrators distributed this money as above stated, claiming that it should have been applied to the payment of debts.</p> <p>It appears that the Confederate money could not be used in discharging the debts of the testator, except to a limited extent, and in fact was thus appropriated by the administrators as far as it would be accepted by creditors. If this money had not been distributed to the heirs it would have perished in the hands of the administrators, and thus have been lost to all the parties in interest. Under the circumstances the money was used for the best possible advantage of all parties in interest.</p> <p>It is no answer to the petition to say that the lands cannot be sold, because the money has been distributed to the heirs, and that they, the heirs, have not been forced to refund. It was their duty to refund without any legal proceedings, and they thus reply their own failure to fulfill a moral and legal obligation. It is inequitable that the heirs should hold the lands and retain the moneys distributed. And yet they claim that the land is discharged, and insist that a sale must be refused. And, indeed, their proposition goes to this in effect, that the land is discharged by reason of the distribution (termed by the heirs a devastavit), and as no refunding bonds were taken, the money distributed cannot be recovered by the administrators. In other words, that the administrators are liable for the money distributed to them.</p> <p>Is this distribution such a devastavit as would entitle the heirs to the position assumed by them ? The principle might be invoked by a creditor in a proper case. And in the decisions in this state the question has arisen in cases between creditors and administrators and executors, and in cases where the assets of the estate had been actually wasted, squandered or appropriated by the administrators; and where the heirs claimed that creditors must resort, in the first instance, to the bonds of the administrators before subjecting the lands. But these cases do not apply to the case now presented where the only devastavit alleged is a distribution to the heirs. They cannot complain that assets have been wasted when they have been the sole beneficiaries. They cannot be heard to say there has been a devastavit when they have received all the personal assets. Their failure to refund has made it necessary for the administrators to apply for a sale of the lands.</p> <p>In the case cited by counsel for appellants, Webster v. Parker, the court merely affirms the principle announced in former cases, that where the administrator wasted assets, creditors must, in the first instance, resort to the bond of the administrator before subjecting the lands. In the case now before the court, funds that could not be applied to the debts, and which, if kept, would have perished in the hands of the appellees, were distributed among, and willingly received by, the heirs at law.</p> <p>A devastavit implies in its nature a loss, a waste of assets, and in cases where it involves no willful perversion or waste of assets, and where there is a technical devastavit, there must be, in order to bind the administrators, a consequent loss to parties in interest. In this case there has been no loss of assets to the heirs, but, on the contrary, the assets, if not disturbed, would have perished in the hands of the appellees. If the money had thus perished without any fault on their part, and if it had been held, it would have become worthless, nevertheless, from causes beyond the control of appellees; in that event the heirs would not be permitted to complain. With less reason, then, can they complain that the money has been paid to them, where otherwise it would have perished. But it is insisted that the sums received by the appellees, here accounted for by them as dollars and cents, and they cannot now be heard to correct their accounts.</p> <p>The evidence was not introduced for the purpose of reducing in amount the sums received by the administrators, or for the purpose of discharging the administrators from any supposed liability, and this is patent -from the fact that the-value of the funds was not proved. If it had been introduced with this object, the value of the money would have-been proved in order that the court might allow the administrators credit for its depreciation.</p> <p>The evidence was introduced for the sole purpose of explaining to the court why the disposition had been made-; namely, that the funds could not be used in paying debts, would have perished if it had been held, and, therefore, the payment to the heirs. It was not competent evidence to reduce the debts against appellees, but it was clearly competent for the purpose stated in explanation of the distinction and as illustrative of the circumstances under which the administrator acted in making this disposition of the money.</p>

Boone, J. The facts are distinctly stated in the opinion of the court. The first ground for quashing assigned in the motion is, that “it appears from said writ it was not issued on any ground known at the time to the laws of Mississippi.

Bradford, J. Henderson, Terry & Co., A. E. & W. J. Ledyard, and McRae & Boykin sued out attachments against an absconding debtor, Joseph Brown. Judgments were rendered in all the attachment suits, and the property attached ordered to be sold.

Smiley, J. ' The opinion of the court states all the facts upon which it is expressed. Contended that the indictment is defective, charging no offense, and that it should be quashed and the prisoner discharged. The indictment in this case is based on the Revised Code of 1857, p. 575, art. 18 (Rev. Code of 1871, §2497), and charges the offense in the exact words of the statute.

<p>EkRok to the circuit court of Wayne county. Hancock, J.</p> <p>The facts of this case are detailed in the opinion of the court, as far as necessary to the understanding of the view of the court, and the instructions which were criticised by the court are set out at length in the opinion.</p> <p>The jury found contrary to the evidence, and, on this ground, the motion for a new trial ought to have been granted. The first instruction asked for by defendant in the court below, and refused by the court, is good law. It .-asserts the undeniable principle that the testimony of the •complaining party, in a prosecution for rape, should be received with, great caution ; that her omission promptly to complain of the injury is a strong circumstance against her evidence; and that the jury may disregard her evidence altogether. The refusal of this instruction ought to reverse the case here. Equally erroneous was the refusal of the court to give the third instruction asked for by defendant’s counsel. It asserts a true principle, viz. : That if the evidence of the prosecutrix be unsupported; if she conceal the offense for a time ; if no outcry was heard by those who were in hearing distance, these are circumstances carrying a strong presumption of the falsehood of the witness. The latter branch of this instruction asserts that the jury should not convict if they have reasonable doubts of the guilt of defendant. The whol'e instruction was refused. It ought all to have been given. Still more erroneous was it, on the part of the court below, to give instruction Ho. 3, asked for by the prosecution. As the instruction stands on the record, it is an absurdity. It asserts the ridiculous proposition that, confessions and declarations, freely and voluntarily made, are not evidence; and, if such confession goes toward corroborating the prosecutrix, they tend to remove all suspicion of the falsity of her testimony. What a jargon ! . Let it not be overlooked that the statement of plaintiff in error (which, really, is no confession) was brought out by the state.</p> <p>The fourth instruction given for the state is too grossly erroneous to call for argument. It actually directs the jury that the want of intellectual culture of the prosecutrix, and her ignorance that rape is an enormous offense (about which, by the way, there is not a word of evidence in the record) may be taken by the jury as an excuse for her omission promptly to reveal the offense! That is, if a prosecutrix is unlearned and does not know that rape is an enormity, this does away with all suspicion of her evidence, springing out of a failure promptly to reveal the crime.</p>

The facts of this case are stated in the opinion of the court with such minuteness as to make any statement here supererogatory.

Ebeoe to the circuit court of Issaquena county. Shackle-EOED, J. The facts of this case are stated in the opinion of the court. [No memorandum of any argument for plaintiff in error has come to the hands of the reporter.] 1. The first objection to the record, on the part of the plaintiff in error, is, that the process under which the sheriff summoned the grand jury was not regular.

Eeeob to the circuit court of Pontotoc county. Held: that where the defendant denies the character in which a party sues, he must do it by plea under oath, but that it was not necessary in the case, because there was no averment of title by assignment.

Ellis, Chancellor. The facts of this case are fully stated in the opinion of the court. I. The first assignment of error is well taken and sustained hy abundant authority. Story’s Ec[. PL 841, §874; 1 Hoff. Ch. Pr. 234; Pulton Bank v. Beach, 6 Wend. 42. 2. The second assignment of error is well taken.

Eppop to the circuit court of Lincoln county. Smiley, J. The facts appear in tire opinion of the court. A demurrer to the declaration can never raise the question, whether a writ of attachment will lie against a married woman. The objection should be made to the writ. 41 Miss. 627. An attachment will lie against a married woman. 41 ib. 625, 626.

Peytoet, Chancellor. This was a bill by sundry judgment creditors of W. P. Baggett to vacate and cancel a deed of trust he had executed to secure Summers & Brannin. Held: to wit: the three hundred bales. To this Baggett objected at first, but somehow his scruples and objections were overcome, and a note for $40,000 is alleged to have been made due ninety days after date, and a deed in trust was executed on all.

Ebbob to the circuit court of Lee county. LovebiNG, J. The facts of this case, as affecting the main question discussed and decided by the court, are fully stated in the opinion of the court. The third instruction given for the plaintiff below, and which this court pronounced inapplicable to the facts, and, therefore improper, need not be given here.

<p>Appeal from the chancery court of Lincoln county. PettoN, Chancellor.</p> <p>The opinion of the court states the facts.</p>

Alder-son, J. Tlie opinion of the court distinctly narrates the history of this case, and clearly presents the state of facts out of which arises the question decided. 1.

1. If the record book in which the deed had been recorded had been consumed by fire, the lien of Myers was not impaired. Held: that mortgaged property could not be incumbered by the owner with a mechanics’ lien.

<p>Appeal from the chancery court of Oktibbeha county. Pollabd, Chancellor.</p> <p>Cited 2 Washburneon Real Property, 466, art. 3, 470, art. 9; 3d. ed.; Hill on Trust. 298, 300; 2 Wasliburne, 473, art. 18.</p>

<p>Appeal from the chancery court of Panola county. Simmohs, Chancellor.</p> <p>The rule at common law is, that partnership debts must be paid from partnership effects, and individual debts from individual effects. 3 Kent’s Com. 65; Story on Part.; McCulloch v. Dashiel, Admr., 1 Harr. & Gill. 96; 5 Johns. Ch. 60; 1 Story’s E<p 625. By this rule the private creditors should take all the private assets of Benjamin Irby. But it is insisted that this rule is changed by our statute, and by a decision of this court. The old law, How. & Hutch. 409, provided that, when the estate could not pay all the debts, the estate should “ be distributed to and among all creditors in proportion to their respective debts.” Another statute made “all promises, contracts and liabilities of copart-ners joint and several.” Ib. 595. Under these 'Statutes, the high court in Dahlgreen v. Duncan, 7 Smedes & Marsh. 280, decided that all debts should be entitled to a pro rata proportion of effects. The chancellor below declared that the case before him was one of great hardship and injustice, and that he would not decree as he did but for this case of Dahlgreen v. Duncan.</p> <p>Equality is what we ask. Make us equal to the creditors who have received 29.70 per cent of their debt, and we will pro rata the residue. We do not believe the law, as above found in How. & Hutch., has been materially changed by the provisions of the Rev. Code, p. 57, making all liabilities joint and several, and at p. 450, directing a distribution among all creditors. But it strikes us as monstrous, that these provisions should not only change the common-law rule of permitting partnership creditors to take only partnership effects, but enable them to take private effects, putting them in a better condition than private creditors. The chancellor could well have complied with the rule in Dahlgreen v. Duncan, and compelled equality among all the creditors. More than this our statutes do not contemplate and justice does not require.</p> <p>But the court erred in giving to these partnership creditors any thing, as their claims had not been registered and allowed against the insolvent personal estate of Irby. They had been allowed as to the partnership administration (a most remarkable one); but as creditors' of Benjamin Irby they had not presented their claims to his administrators, and the clerk had not made out a statement of a single one of these claims against the estate of Benjamin Irby. For this reason, if not for the former, the decree below must be reversed and the private funds must be given to private creditors who ■have registered their claims against the estate of Benjamin Irby. Rev. Code, 449, 450.</p>

<p>Appeal from the probate court of De Soto county. Hancock, J.</p>

Tabbell, J. On 12th. March, 1869, appellee filed his bill of complaint against appellant, Robert Strong, Mrs. Sarah Castings and Samuel Castings, her husband, as administratrix and administrator, of S. 0. Capers, deceased, Mrs. Philip .Myers, executrix of Philip Myers, deceased, the personal representatives of James Winters, when known, and John Shelton and Gerard B. Downing, as defendants.

Leach-MAÍT, J. The opinion of the court contains a sufficient statement of the facts of the case' to show the application of the legal principles and rules enunciated by the court, and the briefs of counsel contain the principles of the instructions given and refused. Any further statement of the case is deemed unnecessary and improper.

Caba-riss, Chancellor. The opinion of the court contains a minute, statement of the facts of the case as shown by the pleadings, and recites “all the evidence having any bearing upon the case.” 1. It is certainly not a little curious to find, as a reason urged for vacating a deed of trust, that the consideration was “inadequate,” in other words, that the debt secured was not a sufficient incumbrance to sustain the deed.

Beror to the circuit court of Lee county. Boohe, J. The record does not show that the plaintiff in error was arraigned before his trial, but that, upon the motion of the district attorney, after his trial, the court permitted the minutes of the court to be so amended as to show that fact. The arraignment must appear in the record at the time of the trial and the trial could not proceed without the record showing an arraignment. Eev. Code, 1857, p. 620, art. 298.

Gamble, J. The opinion of the court fully states the case except as to the facts in-reference to the hire of the slaves of the ward.

<p>Ekrok to the circuit court of Washington county. Thimble, J.</p>

<p>Appeal from chancery court of Madison county. Yourra, Chancellor.</p>

Young, Chancellor. The bill shows that Bobbitt, the ancestor, was indebted to complainant Huntington, by note secured by mortgage on real estate and after Bobbitt’s death, and before the mortgage note was barred by the statute of limitations, Hanson, the administrator- of Bobbitt, by a written acknowledgment and promise indorsed on the note, waived in advance the statute of limitations and promised to pay the note.

Cabakiss, Chancellor. A careful examination of the statute, subjected to the usual legal tests and rules of construction, will disclose the fact, that to create a lien according to the first or second sections of the act, it is indispensable that there should be a contract between the parties by which the debt was incurred and the lien given to secure it.

Campbell, J. 1. Insisted that tlie return of a service of process in the court below was insufficient, and cited Crozier et ux. v. Gforren, 41 Miss. 564 ; Poster et al. v. Simmons, 40 ib. 585. 2. That the return was made by a “constable” instead of by the “sheriff,” which was illegal, and cited Laws of 1860, Session Acts, p. 203. 3.

<p>Error to the circuit court of Marshall county. Dayis, J.</p> <p>Submit that the first verdict in this cause, which is for the plaintiff in error, must stand, and that the court below erred in setting it aside. The question upon which the verdict of the jury was found was simply a question of fact, all the law involved in the case was fully explained in the charges given by the court below. The question which the jury had to determine was, whether in receiving the money plaintiff in error acted under duress or not. “ Every contract,” says Bacon, “must be the act of the understanding, which they are incapable of using, who are under restraint and terror, and therefore the law requires free consent as essential to every contract.” 2 Bac. Abr. 402, title Duress ; Brown v. Peck & Wood, 2 Wis. 277.</p> <p>Consent is the essence of every contract, and where there is compulsion there is no consent. 1 Pars, on Cont. 319, 320; 2 Mete. (Ky.) 447; Burk v. Burton, admr., etc., 18 Ark. 233.</p> <p>The law as to definition of duress, given by the charges of the court below on the first trial, was more favorable to the railroad company than those as above cited, and the jury having the fact to determine whether or not there was duress found for the plaintiff, the testimony not only warranted but justified the verdict. _ The testimony of the plaintiff is, that he had been a large creditor of the railroad company, had indulged it in money matters to a great extent, that whenever he asked for money they were always pressed, that in January, 1862, he urged the company for a settlement, and.it paid him in cash $2,000 in Confederate money, and executed their note for the balance, which note is sued on in this action; that in the latter part of October, 1862, he was in Holly Springs, where the headquarters of the company then was; was called into the office of the company where its president, secretary and treasurer were; that Mr. Mason, the treasurer, said the company desired to pay him what it owed him ; that he objected to receiving the money, and assigned various good and substantial reasons why he did not wish to receive it; to all of which objections the reply was, you must receive it; he told them that his home was within a few miles of the federal lines, that the probability was that in a very short time the federal army would reach and take possession of his home ; that he could not use the Confederate money, and that the company could; all the reasons which would likely induce a man of ordinary foresight and prudence to decline it were assigned by him ; the federal forces did take possession of his home within four days after that and controlled his actions and movements. At that time the headquarters of the Confederate army under Gfen. Yan Dorn was at Holly Springs, a military order was in existence for the arrest of any person who refused to take Confederate money in payment of debts, or attempted in any way to depreciate its value. Captain William H. Jones, the provost marshal, had his office in Holly Springs at the time, with instructions to arrest any one who infracted said military order, and actually did arrest and imprison certain persons for said infraction.</p> <p>This, then, was the condition of things in North Mississippi. A refusal to take the money a violation of a military order ; the military officers on the ground, ready to inflict severe punishment on any one who violated said order; the conduct and language of the railroad officers, you must take the money ; the reasons assigned by Davis why he did not wish to receive it; all force the irresistible conclusion that he did not act with his own free* will, and that he was under duress when he did receive it. The jury so found, and the court below had ho right to disturb their verdict. The defendant in error insists that, ’ if Davis was under duress at the time that he received the money, his long acquiescence ratified the act. The proof is that, Shortly after the transaction, a few days, the federal forces were at Davis’ house, had possession and control of him and his house, governed his every movement; the office of the railroad company moved from Holly Springs further south; that he never saw any of the officers of the company until 1865, when he complained of their treatment toward him in compelling him to take the money; that the headquarters of the railroad company were all the time within the Confederate lines; and, even if he could have reached them, the same duress which compelled him to receive the money would have prevented him from tendering it back. This was a fact, however, which the jury passed on, and their verdict must stand. “It is the peculiar province of the jury to weigh the evidence, and give credit to those facts which, in their judgment, are entitled to the greater consideration. The law has wisely imposed this delicate duty upon jurors, and it is not for the court to rejudge their judgment.” Kelly et al. v. Miller et ux., 40 Miss. ; Starks v. Miller & Adams, 36 ib. 434. “A judgment will not be satisfied as against evidence, merely because, in the opinion of the court, the evidence preponderates greatly against the verdict.” Johnson v. Hamburger, 15 Wis. 175; 15 Iowa, 72; 12 Ohio, 146; Ohio & C. R. R. Co. v. Brown, 25 Ill. 124; 10 Iowa, 440; 11 ib. 285; Williams v. Baker, 49 Me. 427.</p> <p>We submit that on the second trial the court below erred in excluding from the jury the testimony of Davis, that he would not have received the Confederate money but for the existence of the military order. The fourth charge given on this trial on the part of the railroad company is as follows : “ To constitute duress the danger must not only exist in the opinion of the person menaced, but it mast be shown to have actually operated upon the mind and to have constituted the motive for the performance of the act sought to be avoided.” How are we to know the motive of the plaintiff, except by his declarations ? The charge we submit is correct, the refusal to admit the testimony is error.</p> <p>The court also erred in refusing to admit that portion of Judge Orr’s testimony from the jury. Orr, at that time, was the Confederate military officer in command at Holly Springs, and his testimony shows the condition of affairs there then, their absolute authority, their entire readiness to arrest, imprison or do any other tyrranical act which they saw proper. It certainly was competent to show the condition of the company and the liability, if not the certainty, of the arrest of any one violating military orders.</p> <p>Was the plaintiff placed under duress by the circumstances under which he received the Confederate money as a payment of his debt? What is duress? Coke says that for ‘ ‘ menaces in four instances a man may avoid his own act: 1st. For. fear of loss of life; 2d. Of loss of member; 3d. Of mayhem ; 4th. Of imprisonment.” 2 Bac. Abr. 403, title Duress. Nor it does not appear that, for refusing to take Confederate money, any one had ever been subjected to the loss of life or member, or to mayhem ; or had ever been threatened with either. If duress existed in the case, it was from the fear of imprisonment by the plaintiff, and for any such fear no sufficient grounds existed, or were in proof, before the jury. G-reenleaf says: “By duress, in its more extended sense, is meant that degree of severity, either threatened and impending or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.” 2 Greenl. on Ev., § 301. This definition is adopted by the supreme court of the United States, in the case of Brown v. Pierce, 7 Wall. 214.</p> <p>In this case the plaintiff relied upon duress of imprisonment ; or rather, upon the fear of imprisonment, not actual imprisonment, and the practical question is, was the plaintiff, in accepting the money, influenced by threats of any kind whatever; or was he really placed in circumstances which did inspire a just fear of any restraint of, or injury to, his person. We submit that the case is lacking in one necessary ingredient of duress, there was neither imprisonment nor harm, nor threatened imprisonment or harm.</p> <p>The subject of duress is well discussed in the cases of Jones v. Thomas, 5 Cold. (Tenn.) 445; Belote v. Henderson, ib. 471; Waller v. Parker, ib. 476, and in Rollings v. Cate, 1 Heiskell, 98. In the second of these cases the court say: “Duress of the person may be actual violence upon the person, or threats of personal violence, or actual arrest or imprisonment, without lawful authority, or threats of unlawful arrest or imprisonment.” 5 Cold. 474.</p> <p>Now it is submitted that the testimony in this case does not bring it within the foregoing accurate definition of duress of the person..</p> <p>In the case of Wilkerson v. Bishop et al., decided by the supreme court of Tennessee, the court say, “Because it is shown that it is dangerous to refuse a particular kind of currency, it does not follow that every man who receives it is impelled by fear of danger. When threats, or other attempts at intimidation are proven, then the fact of the danger to which the party disregarding the threat is exposed, is a fact, which, proven in connection with the threat, may complete the duress. But the mere proof of the existence of the danger, without proof that it in fact operated upon the mind of the party, or that such threats or other means were employed as must tend to cause it to operate upon the mind, will not be sufficient to establish the fact of duress. If it were otherwise, every contract, the consideration of which was Confederate money, entered into during the reign of terror spoken of by the witness in this case, might be set aside. To constitute duress, the danger must not only exist, but must be shown to have actually operated upon the mind, and to have constituted the controlling motive for the performance of the act sought to be avoided.”</p> <p>Now the plaintiff himself being the judge, he did not receive the payment in question under duress. He does not pretend that he was threatened with injury of any kind, had he refused to take the money. His language is, that he objected, saying, “that he owed a debt, which he was afraid he could not pay off with the money, if he took it.” Now the fear that the money might not be available to him, in the payment of a particular debt, certainly did not constitute a duress. The proof is, that at the time Confederate money was the only currency in general circulation in the. state, and that it was valuable, and purchased whatever was for sale. Moreover, if it was so dangerous for the plaintiff to refuse to take this currency, why did he not anticipate that under the same terror his creditor would not refuse to take it. His creditor was Maj. Gorman, his neighbor, as we are informed by plaintiff himself on his examination by way of rebuttal, and by defendant’s witness, Mason. The proof is distinct that no threats were used to influence the plaintiff, and that he did not say that he was afraid of being arrested if he refused the money, and that nothing was said about the military order compelling persons to take Confederate money.</p> <p>Plaintiff says that he also assigned as another reason why he did not wish to take Confederate money, that he thought it unsafe to have so large an amount on hand at his residence. He objected farther that he did not have the note with him, and therefore could not settle, and he then adds: “but I was assured that a receipt against the note would be sufficient. At this time the Confederate army was near Holly Springs, with headquarters in the city. Mr. Mason then counted the money to me, for which I executed my receipt.” The money then was accepted by the plaintiff and for it lie executed Ms receipt, and lie then adds, “ a few days after receiving said money, I offered it to Maj. Dor-mán, in payment of a debt I owed Mm, but be refused to take it.” Here then is a refusal by a citizen to receive Confederate money, and no harm followed; and this .very refusal was even anticipated when plaintiff received it. Fort and Crump also prove that they refused to take Confederate money, and that for so doing they were never molested.</p> <p>The attention of the court is especially requested tp the case of Jones v. Thomas, 5 Cold. 545. In this case it is held that “ causes which would be allowed to invalidate and annul payments and settlements in Confederate money, must be nearly or quite the same as those which will vitiate payments and settlements not tainted with that currency, as mistake, fraud, duress, and the like.”</p> <p>Now this is the language of a court that held that Confederate money was an illegal currency that would not support an unexecuted contract. This court has properly, always held Confederate money to have been a legal currency, and has uniformly upheld unexecuted contracts, supported only by that currency, and therefore the foregoing language from the supreme court of Tennessee will be applied with additional stringency by this court to a contract executed in this state as the contested payment in this case was. It should be remembered in this connection too, that the decisions of this court upon this subject have been fully indorsed by the supreme court of the United States. Thorington v. Smith, 8 Wall. 1.</p> <p>The most that can be said in this case is, that the plaintiff was unwilling to receive payment of his debt in Confederate money; but this unwillingness falls far short of legal duress. Thousands of instances have occurred in which creditors unwillingly received payment of debts in Confederate money, and will it be contended that on this ground alone such payments are to be held for naught; and so, too, many creditors who, on debts contracted before the war, had a right to demand specie, have unwillingly accepted of currency in payment. Are these transactions also to be invalidated ? or will they not be held to be executed, and firmly obligatory ?</p> <p>In the language of the Tennessee court, in the case of Jones v. Thomas, “the public good demands now, as in the ordinary conditions of life it has always done, the discouragement of litigation, the prevention of strifes and animosity, and the protection and maintenance of the peace, repose and harmony of the people.” 5 Cold. 467.</p> <p>Upon this principle, therefore, if upon no other, this court should hold the plaintiff bound by his acceptance of Confederate money as a payment of the debt for which he is now suing. Even in Tennessee, where Confederate money has been looked upon with so much disfavor, the supreme court holds that “ mere unwillingness to receive Confederate currency, in payment and settlementof debts, will not, if the currency be actually received in payment and settlement, be enough to invalidate the acceptance as a payment.” Jones v. Thomas, 5 Cold. 465.</p> <p>In the case of Cross, guardian, v. Sells et al., recently decided by the supreme court of Tennessee, it was insisted by the plaintiff that a payment in Confederate money, not indorsed upon the note, was an unexecuted contract, and the currency being illegal would not be sustained. The court, however, held that “to entitle the debtor to a credit for the amount paid, the actual entry of the payment on the note is not necessary, he may prove such payment aliunde.”</p> <p>“It is only necessary that he show, by competent testimony, that he paid and his creditor received the Confederate money upon the understanding, expressed or implied from the circumstances connected with the payment, that it was to be a payment on the note or other indebtedness of payor to the payee.”</p> <p>The plaintiff, on his cross-examination, says: “Nothing was said by ■ Goodman, McConnico, Mason or myself, about the military order requiring persons to receive Confederate money at the time that I received said money, and no threats were used to induce me to take it. Nor did I, at the time, object to receiving said money because it was Confederate money.” He says, too, “nor did I ever tender the money back to the railroad company.”</p> <p>Mason proves that “the best feelings existed between plaintiff and the officers of the company.”</p> <p>2d. The testimony not only disproves duress when the payment was received, but, had it even existed, the plaintiff afterward so ratified it as to give it validity.</p> <p>The payment was received the last of October, 1862. At that time and, subsequently, Confederate money was the almost exclusive currency.</p>

Ekroe to the circuit court of Warren county. Bbowh, J. 1st. The remedy by attachment is a special and extraordinary proceeding, in which all the provisions of the statute must be observed. Rankin v. Dulaney, 43 Miss. 197; Smith v. G-risson, 26 ib. 143; Ford v. Hurd, 4 Smedes & Marsh. 683. 2d. An affidavit alleging one or the other of two or more distinct grounds would be bad, because of the impossibility of determining which is relied on to sustain the attachment.

Browk, J. This was an action to recover, of the plaintiff in error, damages for killing a mule. It was tried and resulted in a verdict in favor of the owner of the mule. There was considerable testimony in tbe case, but, as it was made to turn in this court upon legal rules and principles rather than upon the facts, they are not stated.

Cunningham, J. The errors assigned in this case are the refusal of the circuit court to sustain the motion to exclude from the jury the patent to Green, and the evidence of possession under it, and the refusal of the instructions asked by plaintiff and giving those asked by defendants, and the same questions are involved in the several assignments of error, viz.: 1st. Whether the statute of limitations of ten years barred plaintiff; 2d. Whether the eighth section of “An act…

Leach-MAN, J. This was an action in the circuit court of Lauderdale county, against Mahala Moore and Elias Moore, upon a promissory note made by them. Summons was issued to Lauderdale for both defendants, and was returned as executed on Elias Moore, but “not found” as to Mahala Moore.

Error; to circuit court of Madison county. Camp bell, J. 1. The court erred in excluding from the jury the bill of sale executed by Hancock to plaintiffs in error. Held: that if the maker of a note give a new note in payment of the whole amount of the first note, without objecting to the consideration; this is a waiver of any defense arising out of the consideration. Cameron v. Hall, 3 Ala. 158.

Ebbob to the circuit court of Adams county. Smiley, J. The opinion of the court states the facts of the case, presenting th§ question discussed and decided. 1. If contracts relate to movables, they are governed by the lex loci contractus, ubi celébralas est or the lex loci con-tractus ubi destinati solutio est. If to immovables, they are governed by the lex loci rei sitae. 2 Pars, on Cont. 570; La. Code Prac. art. 13 ; Civ.

<p>Eeeoe to the circuit court of Franklin county. Alder-son, J.</p>

<p>Appeal from chancery court of Warren county. Hill, Chancellor.</p> <p>The sole questions are those presented on the assignment of errors: 1st. Under the issue thus made and the evidence responsive to that issue, could the court below decree a reformation of the policy ? 2d. Could the court below decree a payment of the amount insured by the policy %</p> <p>In considering the first error assigned, it may be well to notice the right given by law, and recognized by all the courts, to insurance companies to restrict and limit their contracts and liabilities by provisions annexed to their policies like those exhibited in the policy in this case. The great questions of public policy underlying these contracts of insurance have controlled the courts, in permitting a limitation to be fixed to the person insured, to the property insured, to the nature of the suit, the ownership, legal title, and possession of the property insured. 1 Bell’s Comm. 540 ; 3 Kent, 371; Shelton v. Mutual Fire Insurance Company, 4 Mass. 230 ; 4 Denio (FT. Y.), 301.</p> <p>Such restrictions are allowed generally in policies of insurance, “especially policies against fire, as such policies would become extremely hazardous by reasons of the temptation they hold out to the nefarious commission of willful fire or arson, which is necessarily attended with peril of the most deplorable kind to a whole community.”</p> <p>This bill now proposes to take fiom the appellants a most vital and important right necessary to their own protection and the protection of the whole community; a right most jealously given them ; by changing the entire nature and character of the policy upon the- testimony of Saftorius alone.</p> <p>While it is undeniable that courts of equity can reform policies of insurance as they may other contracts, yet such reformation can only be made upon the most clear and positive evidence. Angelí on Insurance, 61, 62, and notes.</p> <p>“A court of equity ought to withhold its aid when the mistake is not made out by the clearest evidence according to the understanding of both of the parties and upon testimony entirely -exact and satisfactory.” United States v. Monroe, 5 Mason, 522 ; Kennedy v. Umbraugh, Wright, 327 ; Lyman v. Little, 15 Yt. 526 ; Preston. v. Whitcomb, 17 ib. 183.</p> <p>“ Equity will not lend its aid to amend a written contract (policy of insurance) where the alleged mistake is denied by the answer, without the clearest and most satisfactory proof of the mistake and of the real agreement.” Lyman v. United Ins. Co., 2 Johns. Ch. 680. “For unless the contract be so amended as to conform to the understanding of both parties.” S. C., 17 Johns. Ch. 323. Also Watkins v. Stockell, 6 Har. & J. 435; 2 How. (Miss.) 201; J. J. Marsh. 432; Nabors v. Lock, 24 Miss. 44; Kilpatrick v. Lock, 23 ib. 124; Mosbey v.' Wall, ib. 81-; Cooper v. Farmers’ Mutual Ins. Co., 50 Denio, 299 ; Teason v. Atlantic Mutual Ins. Co., 40 Miss. 33 ; Story’s Eq. Jur., § 153.</p> <p>The statement Sartorius makes in the hill is entirely covered with suspicion. It is not free from doubt, uncertainty ; it is not clear, accurate, positive. His testimony is accompanied by the same characteristics. It is not, in fact, the case required to be made by the authorities we have just cited. It is not, in the language of those eminent judges, Story and Kent, in the cases cited, a case of ‘ ‘ the clearest and most satisfactory proof of mistake and of the real agreement.”</p> <p>The witnesses, except Sartorius and Fairchild, know nothing of any agreement between the parties different from what the policy itself contains. The policy itself speaks with Fairchild, the circumstances testify with Fairchild and against Sartorius, and we invoke the well-established rules on this subject requiring the mistake to be made out in the most clear and decided manner. 2 Johns. Ch. 630.</p> <p>But the answer of Fairchild is conclusive as to the real agreement; and even if Sartorius appears free from suspicion in this case of so peculiar and tender a nature, Fair-child’s answer and deposition must outweigh Sartorius’ bill and deposition.</p> <p>In view, then, of these authorities and the circumstances surrounding the case, and in view of the issue under the evidence responsive to that issue, could the court below decree a reformation of the policy ?</p> <p>If so, what safeguard would ever be thrown Ground written contracts? If so, what safety would there be to insurance agents in restricting the limit of their liability to persons, property and character? If so, what protection would policies of insurance afford to the insurer and insured, or to the community, the property-holders? Of what earthly value could such a contract be made, as a matter of safety and protection ?</p> <p>On the contrary, if without the clearest and most satisfactory, undeniable and unimpeachable testimony, thoroughly and accurately establishing the mistake, policies of insurance, after fire, can be readily altered, changed or “ reformed,” Row wide would tire door of temptation to crime be thrown open, and of how little value would be the protection which well-established decisions have thrown around insured and insurer ?</p> <p>The scope of the bill is the reformation of the policy; the specific object and purpose of the bill is to reform the policy; the tenor and effect, the allegations of the bill are directed to a reformation of the policy; the issue made by the pleading is that of a reformation of the policy; the proof has alone been responsive to that issue; the complainants in the bill have summoned the appellants to answer alone upon the reformation of the policy, and the answer has been made to that end. In rendering its decree, therefore, for the payment of the amount named, the court has declared a fact which is not in issue by the bill and answer.</p> <p>It is manifest that the bill was filed to keep certain causes on the docket of the circuit court of Warren county until the policies had been reformed in such a manner that the appellees could be made parties thereto, and upon the issue of reformation of the policy alone ought the court below to have passed a decree for the payment of money ? Such a decree was outside the issue made, and, of course, was a decree the appellants were not prepared to meet. It was, therefore, error for the court below to decree what was not within the general scope of the bill. Livingston v. Van Rensselaer, 1 Wend. 63 ; Crockett v. Lee, 2 Wheat. 522 ; Stuart v. Meeh. & Farmers’ Bank, 19 Johns. 496 ; Smith v. Smith, 1 Ired. Ch. 83; Langdon v. Roane, 6 Ala. 518 ; Dickinson v. Morgan, 8 Dana, 130 ; Handly v. Young, 4 Bibb, 876 ; Bulard v. Phillips, 3 Ala. 218 ; 2 Led. Ch. 113, 216 ; 1 B. Monr. 216.</p> <p>The prayer of the bill is for the specific reformation of the policy and the payment of the amount insured, and for general relief. And in such case no other relief could be granted inconsistent with the specific relief prayed. Pleas-ants v. Grlasscock, 1 Smed.es & Marsh. Ch. 17 ; Peck v. Peck, 9 Yerg. 301; Rhodes v. Halleday, 6 Murf. 251; Wilkin, v. Wilkin, 1 Johns. Ch. Ill ; Drover v. Drover, 5 Porter, 9. The decree thus rendered for the payment of money, not in issue-by the bill, cuts the appellants off from any ground of defense they have against the appellee. On the policy, if reformed, they may have ever so perfect a defense against the questions of loss or no loss, against the questions of damages, against the issues involved in the suits at law, yet by this decree the defense is barred. This bill prays that the suit at law may be kept open. Although manifestly on the face of the bill itself, it seems the appellees could never recover at law; yet although the appellants could recover in these suits, still they are debarred, virtually debarred, from the recovery until a court of equity shall decree the policy reformed; would it be just and equitable, under this state of facts, to close the court of law ? to decree the payment of the amount now actually in controversy in a court of law, and cut off the appellants from defenses on the questions involved in these suits % But, upon this point, see the conclusion arrived at in Oliver v. Mut. Com. Ins. Co., 2 Curtis, 277. There, although the policy was declared reformed, still the court refused to decree the payment of the amount insured, as the defendant in that case had the same defenses the defendants here have; and the court declined to out them off from their defense in a court of law. 7 Yes. 211; 15 ib. 516; 4 Bro. Ch. 514; 3 Jeremy’s Eq. Juris. 432; 2 Madd. 106 ; 1 Young & Coll. 559.</p> <p>It is not apparent from the evidence that Sartorius was agent for IToffheimer Brothers & Co., in effecting this insurance. It is not apparent from any agreement between Fair-child and Sartorius, that Sartorius, as agent, had a right to the policy ; and there is such a conflict in this case as will preclude a court of equity, under all the decisions, from touching the policy.</p> <p>The circumstances surrounding Sartorius are almost overwhelming. He renews the policies; he keeps them on hand ; he pays the premiums; he proves the loss by fire; lie makes three different affidavits as to amount, loss and damage, and claims damages in Ms own name ; he employs his counsel, institutes suits in his own name, and not until he is a bankrupt does he begin to assert his assumed-character of agent.</p> <p>Besides this, Fairchild, a disinterested witness, answers and deposes fully and fairly, and renders a direct and positive conflict in the evidence upon the point at issue, viz.: the policy itself, entirely unanswerable, so positive and direct that the decision in 2 Curtis could not be made to apply to this case under any view of it, unless we took detached and unconnected sentences, without a general view of the harmony of the whole case.</p> <p>But should a different view of that case be had from the one presented by us, and if it should be now held that the case in 2 Curtis is in conflict with the great authorities we have cited, we can only point to the current of opinion throughout the United States on this subject, and say it is overwhelmed by the weight of opinion and authority. Ex’rs. of Getman v. Beardsley, 2 Johns. Ch. 272; Hinkle v. Boyal Ins. Co., 1 Yes. 312; Davis v. Simonds, 1 Cox, 404; Townsend v. Stargrown, 6 Yes. 212; Woolman v. Hearn, 2 ib; Graves v. Boston Ins. Co., 2 Cranch, 442; Langley v. Brown, 2 Atk. 203 ; Adams v. Bobertson, 32 Ill. 45; Nevens v. Dunlap, 33 H. Y. 626; Shay v. Pettes, 35 Ill. 306 ; Bartle v. Yosbury, 3 Grant (Penn.), 277; Hewton v. Bilyew, 30 Ill. 228; Gelpeke v. Blake, 15 Iowa, 387; Jack v. Haber, ib. 450; Sawyer v. Hovey, 3 All. (Mass.) 331; 6 B. I. 386; 23 H. Y. (9 Smith) 357; 17 Md. 361; 13 Wis. 355, 458.</p> <p>Thus throughout the union and without exception, as far as we have been able to continue the inquiry, all the authorities hold that a court of equity will not touch a written contract, “unless the evidence be clear, of the most convincing character, and wholly unimpeachable.”</p> <p>If the case in 2 Curtis can be used in any other way than authorities generally go, it can only be by doubtful construction of the text, by detached and unconnected sentences, without a view of the whole case. For, when we attempt to apply that decision here, we find there was no conflict in the evidence in that case, while the evidence is wholly of irreconcilable elements here.</p> <p>Before a court of equity will touch a case of this character, it must be obvious that the mistake complained of was a mutual mistake. It must not be a one sided mistake, but both parties must have made it. It cannot be otherwise. The case made by 2 Curtis is that case; the bill alleges the mutuality of the mistake, and that the insurance company there intended and designed to insure Oliver. Is that the case here ? Does the bill allege, that in this case there is any pretext anywhere that there was a mutual mistake? But such must be the case. Schelliger v. Hopple, 3 Grant (Penn.), 154.</p> <p>How this is the difference between this case and the case in 2 Curtis; there the bill alleges the mutual mistake, and there the evidence established it in the most conclusive manner. Here, therefore, the case in 2 Curtis is reconcilable with the opinions of the great chancellors; and the view assumed by the appellees is irreconcilable with the current of opinion. Oliver was justly entitled to have the policy reformed because the court was satisfied, from force of positive and uncontradictory evidence, and the natural deductions flowing therefrom, that there had been a mutual mistake. Here the appellees are not entitled to have the policy changed in one single line or mode, because the evidence is not clear, positive, uncontradicted, that there is a mutual mistake.</p> <p>For at the conclusion of the case, as at the beginning, the case is not clear, satisfactory, convincing, uncontradictory, that Fairchild and Sartorius made a mutual mistake in not having the policy speak differently from what it now speaks, yet both Fairchild and Sartorius mutually agreeing that it should speak as it is sought to be made to speak by this bill! To this point the court should be brought at the end of the case by the clearest and most satisfactory evidence beyond contradiction, or else written contracts are of little valne, and the courts have shielded them to little purpose.</p> <p>The evidence in the cause must make the court overwhelmingly satisfied that when the policy issued, that policy, Fairchild and Sartorius all agree as the bill would now have the policy speak. But the end is conclusive that Fairchild and Sartorius do not agree, and hence the policy, as it now stands, must speak its own terms.</p> <p>Contended that the policy issued by appellants does not express the previously concluded agreement between the parties to it, and is not the contract for insurance designed by both parties to be executed.</p> <p>1. If the agreement for insurance does not properly express the contract previously made by Hoff heimer Brothers & Co., through their agent, P. Sartorius, and ¥m. A. Fair-child, agent for the Phoenix Insurance Company, equity will reform.</p> <p>2. If an agreement of insurance be made with one known to the company to be merely an agent, and nothing is said as to whose account the insurance is to be stated,-the agent has a right to a policy insuring him as agent, or for whom it may concern, and this is true, whether the company knows the agent’s principal or not. If the company is advised that the party applying for insurance is agent (of no matter whom), and that he is himself not the real owner of the property insured, the principle is the same, and the agent is entitled to a policy as such agent, or for whom it may concern, although the names of the principals may never have been disclosed.</p> <p>3. If an agent makes a mistake in declaring the interest, equity requires it to be corrected and the policy reformed.</p> <p>4. There is a distinction between the correction of a mistake in a written contract, and in the execution of a power; in the latter case courts interfere more willingly.</p> <p>5. If a party fails, through, mistake, to obtain such a policy as he is entitled to, by an existing, valid contract, equity will relieve, though the mistake arose from ignorance of law. In complete support of the theory stated, reference is asked to the case of Oliver v. the Mutual Commercial Marine Insurance Company, where the foregoing rules of insurance were observed and recognized in an able opinion delivered by Justice Curtis, then of the supreme court of the United States. 2 Curtis’ U. S. C. C. 277. If appellees would have had a right to correct the mistake immediately after made (of this there can be no doubt), then it is well settled that a court of equity will grant relief whenever the mistake is discovered. “ Equity relieves against a mistake, as well as against fraud, in a deed or contract in writing, and parol evidence is admissible to prove the mistake, though it is denied in the answer.” Gillespie v. Moon, 2 Johns. Ch. 585. “ A court of chancery has jurisdiction to correct mistakes in policies of insurance, as well as in all other written instruments.” Phcenix Fire Insurance Company v. Gurnee, 1 Paige’s Ch. 278. “Courts of equity will grant relief in cases of mistake in written contracts, not only when the fact of the mistake is expressly established, but also when it is fairly implied from the nature of the transaction.” 1 Story’s Eq. Jur. (9th ed.), § 162. Relief has been granted or refused, according to circumstances, in cases of asserted mistakes in policies of insurance, even after a loss has taken place.” 1 Story’s Eq. Jur. (9th ed.), § 158.</p> <p>There is no error in the decree of the court below, granting the relief sought by the bill. The court having acquired jurisdiction of this case, and having corrected the mistake in the policy of insurance, did not err in entertaining the bill, for the purpose of granting full relief/ It is a well-defined principle of equity, that, where a party comes into a court of chancery for relief in cases of fraud, account, accident or mistake, and tlie court takes jurisdiction, it will go on and give tke proper relief. “ Tke jurisdiction kaving once rightfully attacked, it shall Tbe made effectual for tke purpose of complete relief.” 1 Story’s Eq. Jur., § 64; 1 Fonblanque Eq., B. 1, ck. 1, § 3, note f; Middleton v, Russ, 3 Conn. 135; Jesus College v. Bloom, 3 Atk. 262, 263; Adley v. tke Wkitstable Co., 17 Yes. 329 ; Cooper’s Eq. PL 31. Tke reason for tke rule is to prevent expensive and unnecessary litigation.</p>

<p>CHANCERY — PASTIES—PARTITION—ADMINISTRATOR IS NOT A PROPER party. —An administrator is neither a necessary nor aproper party defendant to proceedings in chancery for partition.</p> <p>A re-argument was applied for by counsel for appellant, and consented to by counsel for appellee, but refused by the court. — Repobtvr.</p>

This is a motion by James Moore and Gr. W. Yasser to vacate the judgment rendered against them in this court on the 23d July, 1868. The history of the cause, as shown by the record, is this, viz. : W.. J. Wheless & Co. recovered a judgment in the circuit court of Carroll county, at the October term, 1867, against Lane & Standley, upon which Lane & Standley sued out a writ of error, and gave a bond, in the usual form, with James Moore and Gr.

Foote, J. The opinion of the court states all the facts of this case necessary to an understanding of the views of the court, except the particulars of the suit in which, was rendered the judgment against E. P. Davis, under which appellant claimed title to the land by purchase at an execution sale.

<p>Error to circuit court of Amite county. Smiley, J.</p>

Beowh, J. In the trial of this case there was evidence of the payment of the debt, for the security of which the deed of trust mentioned was executed. There was also evidence tending to contradict this. The case was tried in the circuit court, before the adoption of the Bev. Code of 1871, which repealed art. 17, p. 338, Bev. Code of 1857. The other features of this case are plainly exhibited in the opinion of the court.

Shack-leford, J. The record shows that the defendant in the court below, by leave of court, filed two pleas in abatement to the indictment upon which it is alleged, in the minutes of the court, that the district attorney joined issue ; but there are no replications filed and nothing to show what the issue was. There was but one way to join issue, and that was by filing replications to the pleas, which was not done, and tjiose pleas stand now not disputed on the record.

Christian, Chancellor. Equity will not enjoin judgment at law, unless recovered by fraud, accident, etc. 2 Story’s Eq. Jur., §§ 896, 897, 898. See, also, Story’s Eq. Plead., §§ 782, 783, 784; see Moore et al. v. Barclay et al., 23 Ala. 742, and authorities cited; Rogers v. Bradford et al., 29 ib. 474. If the answer denies the material allegations of the bill, the injunction will be dissolved. See 3 Equity Lead. Cas. 202, 207. There must be a strong case of fraud or mistake.

[Counsel on both sides filed elaborate written arguments which are too lengthy for insertion here, and too full and compact to justify any abridgment by the reporter.]

<p>1. Chancert — practice—how belief obtained. — The only remedy for a wrong threatened, or done, or to enforce a right in a court of equity is to bring the appropriate original suit and interplead with the adversary in respect of it; or, if a suit is already pending touching the subject matter, to apply to be made a party thereto, and either, as a co-complainant, or defendant, introduce into the suit the right which is claimed.</p> <p>2. Same — same — bill of intervention unknown. — A bill of intervention, by which a stranger seeks to be introduced as a party to another suit in chancery, for the purpose of amending a bill which the complainant has abandoned, and then to conduct that suit in his own name, is unknown in chancery practice.</p>

Mill-saps, J. The action brought here is for a failure to deliver freight, an action which is governed by special rules, and requiring evidence of a special character by the defendant.

Lyou, Chancellor. 1. It is a general rule in chancery as well as in pleadings at law that the allegations are to he taken most strongly against the pleader, and that every fact necessary to entitle the party to relief must be clearly stated and not left to inference. In the present case, the notes of Reed and Caldwell constituted a personal liability against them.

<p>Appeal from the chancery court of Warren county. Hill, Chancellor.</p>