Volume 48 — Mississippi Reports

Fisher, J. The opinion of the court contains a full statement of the case. The rule that whatever is annexed to the freehold becomes a part thereof, is most rigorously enforced against him who places it there as owner of the soil. Against such owner, there are no exceptions, if the article be put there for the better enjoyment of the freehold. English v. Foote, 8 S. & M. 444; Perkins et al. v. Swank et al. 43 ib. 3-19.

Whitfield, Chancellor. The opinion of the court contains a statement of the case. Insisted that the bill is in strict conformity with the statute, and the defendants had full opportunity to show, if they could, that any of the objections to the sale existed which are recognized in the statute, as the only grounds for invalidating the tax sale, under which the appellant claims. The grounds of demurrer are clearly insufficient.

Hooker, Chancellor. The opinion of the court contains a statement of the case.

Hill, Chancellor. This cause came on to he heard upon appellants’ motion for a writ of error, and the motion of appellees to docket the record and dismiss the appeal. The opinion of the court fully states the grounds of each motion.

The reporter finds no brief for plaintiff in error in tbe files. We are told by counsel for plaintiff in error, that the appointment of an administrator relates back to the death of his intestate, so as to clothe him with the legal title to the assets as of that date. It is a familiar principle, and counsel need not have been at the trouble of arraying authorities in support of it.

Henderson, Chancellor. The complainants received these two notes as collateral security for an antecedent debt of Waddy Thompson alone, and they took subject to all the equities existing between Thompson and his co-partner, Morris, and their creditors. No money was parted with at the time; no security given up or satisfied; no credit given Thompson in consideration of said notes. The credit had been given.Thompson before in his individual responsibility.

Trimble, Chancellor. The facts necessary to a proper understanding of the case, appear in the opinion of the court. The chancery cpurt had no jurisdiction of the matter. The complainant had a valid legal claim against Harvey Miller’s estate that could have readily been enforced through the probate court, whose jurisdiction was full, adequate and complete.

<p>Error to the circuit court of Lee county. Boone, J.</p> <p>William H. Clopton, as executor of the will of James H. Houghton, deceased, brought suit in the circuit court of Lee county against Thomas B. Smith, alone, upon two joint and several hills single, under seal, drawn by W. S. Ashly and Thomas B. Smith in favor of Houghton, both dated May 12, 1867, and payable October 12, 1867, the first for $500, and the latter for $20.85. Both bills or notes are framed in the usual formula, “we or either of us,” and contain on their face no special expression beyond their legal import of the relation either maker bore to the notes, or to each other, whether as principal or surety. The larger note states that it was given for borrowed money.</p> <p>There were filed five pleas in bar, all of which allege that the notes were made by Ashly, as principal, and by Smith, as surety, and that Houghton, the creditor, knew it.</p> <p>The first plea sets up that in January, 1868, after maturity of the notes, and while Ashly was good and responsible, Smith verbally notified Houghton to collect by law at once, or he would be no longer bound as surety, and that Houghton accepted the notification and promised compliance, but failed, and Ashly became insolvent.</p> <p>The second plea recites the facts contained in the first, and specially adds thereto that after the former notification, viz., in February, 1868, Smith inquired of Houghton if he had complied with the notification, and Houghton replied he had been fully secured by Ashly, by deed of trust on property, and now no longer looked to Smith, who was released. It is also averred that Houghton did not sue, nor collect by law or otherwise, and that Ashly has become insolvent.</p> <p>The third plea states that, on the 10th of February, 1868, at the instance of both Houghton and Smith, and to secure the one and indemnify the other as surety, Ashly executed to S. G. Watkins, as trustee, a deed of trust, with power of sale, uj)on sufficient property, which was duly sold by the trustee under the deed in February, 1869, for a sum sufficient to pay off the trust debt and expenses; and so concludes that the debt was paid by Ashly, the principal.</p> <p>The fourth plea states that on the 10th day of February, 1868, in consideration that Ashly, the principal, then executed a deed of trust to Watkins, trustee, on sufficient, personal property to secure the debts sued on, and others that day contracted, with power to sell, November 1, 1868, the maturity of the new debts, Houghton, the creditor, without the knowledge or assent of Smith, the surety, extended time to Ashly, the principal, upon the notes sued on, till the said 1st day of November, 1868.</p> <p>The fifth plea states, in detail, that, after maturity of the notes sued on, on 10th February, 1868, and because Smith, as surety, had theretofore verbally notified Houghton to proceed to collect by law of Ashly, the principal, the debts sued on, Houghton procured of Ashly to then execute to Watkins, trustee, a deed of trust on sufficient personal property to secure payment of the debts sued on, and of others mentioned in the deed, amounting in all to $839.90, with power of sale, by maturity of the new debts, November 1, 1868, if any should then remain unpaid; that, at said last named date, all the debts remained unpaid, and the property conveyed was then and long afterwards of value sufficient, if then sold, to pay off all the trust debts and exjienses; yet that the plaintiff omitted to cause a sale to be made until February, 1869, when one of the horses conveyed in the deed, of the cash value of $368, then sickened and died, and so was lost to the trust fund; by reason of which the proceeds of sale of the the balance of the property was insufficient to pay all the trust debt and expenses, and were applied by plaintiff to the payment of the trust expenses and the other secured debts, leaving those sued on wholly unpaid, and that Ashly has become, and now is, insolvent.</p> <p>To the third plea the plaintiff replied, that after execution of the first deed, viz.: November 5, 1868, the trust property was seized by Kendrick, sheriff of Monroe county, under a distress warrant, at the suit of Mrs. M. 4.. Oldshue v. Wm. S. Ashly, and on the same was recovered by Watkins, as trustee, by a writ of replevin, both of which suits of distress and replevin are pending in Monroe circuit court; that, after replevying, Watkins, trustee, duly sold the property at public auction for cash, and that at the sale the roan horse, Wade Hampton, was knocked off to plaintiff, Clopton, at $358; that Clopton, discovering that the horse was sick and in a dying condition, refused to take him and pay his bid; that the horse did soon die; that the balance of the trust property brought only $605.50, of which $97 were applied to trust expenses, leaving $508.49, which the trustee retains in his. hands to abide the result of the aforesaid suits. To this replication the defendant demurred.</p> <p>To the first, second, fourth and fifth pleas the plaintiff demurred, assigning among other causes, that the notes were under seal and the defendant was estopped to make any averment of suretyship, the notes being silent on the subject and imparting a liability as principal; and that there was no averment that the notice given was in writing and given thirty days before the succeeding term of the court.</p> <p>The demurrers to the pleas were sustained; defendant’s demurrer to plaintiff’s replication was visited upon the third plea and sustained, with leave to plea over, which being declined, judgment final was rendered for the plaintiff. 1</p> <p>The article of the Revised Code of 1857, referred to in the argument and pleas, is as follows: “Any person who is or shall be bound as surety, or accommodation indorser for another, may, at any time after the debt has become due, or liability been incurred, give notice in writing to the creditor to commence and prosecute legal proceeding against the principal debtor, if living and resident within this state, for the recovery of said debt; and if such creditor shall fail to commence such • legal proceeding, by the next term of the proper court in which suit can be brought, to be held after the expiration of thirty days after the giving of such notice, and to prosecute the same to effect, the surety who shall have given such notice, shall be discharged -from liability, and the creditor shall be barred of all recovery against him.” Chap, xlvi, art. 1.</p> <p>I. The first and second pleas set up the defense, provided specially by statute (Rev. Code 1857, p. 362, art. 1), of a notice to the creditor to commence legal proceeding against the principal debtor, and his failure to do so. The notice was verbal, though required by the statute to be in writing; but the allegations of the pleas show a far more decided waiver of the writing than that disclosed in Taylor v. Davis, 38 Miss. 393. The demurrer to the second plea, in one of its grounds, mistakes that plea as setting up a verbal release of Smith from the debt, whereas the facts alleged are plainly introduced to strengthen the former showing in the first plea, of a waiver by the creditor of the notice to sue being made in writing.</p> <p>The case of Bridges v. Winter, 42 Miss. 135, does not in the slightest degree conflict with Taylor v. Davis. That was simply a case of mere verbal notice, without any pretense of a waiver of the writing; and neither such waiver, nor any allusion to the well-considered case of Taylor v. Davis, in 38 Miss., was even hinted at by court or counsel.</p> <p>II. The defense disclosed by the third plea is, that the debts sued for were paid in full by a sale of the personal property of the principal debtor, conveyed in trust to secure them.</p> <p>The replication to it says that part of the trust property, to wit, the horse “Wade Hampton,” bought by the plaintiff, Clopton, for $358, was sick at the time, and soon died, and the purchaser declined to take it and pay the bid; and the proceeds of sale of the balance, after paying the trust expenses, are yet retained by the trustee to abide the result (in the circuit court of Monroe) of a distress warrant previously levied on the property by the sheriff at the suit of Mrs. M. A. Oldshue, and of an action of replevin against the sheriff by the trustee, in which the latter recovered possession of the property, and afterwards sold it under the deed.</p> <p>Defendant’s demurrer to this replication questions its sufficiency on these grounds, viz.:</p> <p>1. The sale being by a trustee, there could be no binding warranty of soundness as to the horse “ Wade Hampton,” and none is alleged, nor any fraud by the trustee in that behalf. Nor could the trustee commit any fraud which would affect those whom he represented. George v. Bean, 30 Miss. 147; Storm v. Smith, 43 Miss. 501, and other similar cases. Nor could the fraud of a trustee (the agent) upon the cestui que trust (his principal) injuriously affect the rights of Smith, the surety of the debtor.</p> <p>2. Clopton, the purchaser and debtor for the price of the horse, being also the creditor of the trust fund, and thus incompetent to litigate in law the question of his own indebtedness to his own agent, the trustee is by law chargeable with the amount as cash, as far as the rights of third persons are, concerned. Childress v. Childress, 3 Ala. 752; Duffie v. Buchanan, 8 Ala. 27-; Purdom v. Tipton, 9 Ala. 914; Stevens’ Adm’r v. Gay-lord, 11 Mass. 256; Winship v. Bass et al. 12 Mass. 200, 201, 203, 204.</p> <p>Our statute (Bev. Code of 1857, p. 441, art. 74) expressly charges the executor with his own debt, as cash, upon the indebtedness, if disputed, being established by the verdict of a jury. In this case, the plea proposed to submit the fact of that indebtedness to a jury.</p> <p>3. As to the proceeds of sale of the rest of the trust estate, if they were improperly retained by the trustee (the agent of Clopton, the executor and creditor), that will not be allowed to operate injury to the interests of an innocent party (Smith) who has no control over the agent, who is not legally responsible to him. The receipt of the money by the agent and trustee is the receipt of it by his principal, the creditor.</p> <p>III. The fourth plea sets up extension of time by the creditor, Haughton, to the principal debtor, Ashly, after maturity, upon a valuable consideration specified in the plea, without the consent or knowledge of the surety, Smith.' If the fact of the suretyship of Smith lawfully appears, either in the pleadings or on the proof, the sufficiency of this plea, both at law and in equity, is not understood to be questioned.</p> <p>IV. The fifth plea sets up both laches and malpractice on the part of the creditor, to the injury of the surety, in the management and appropriation of the proceeds of a trust estate expressly dedicated by the principal debtor at defendant’s instance, to the payment of the debts sued for, and to the indemnification of this defendant as surety. ■</p> <p>That all the above defenses will prevail in equity, see the following among many authorities: Burge, 203-4; Theobald, top, pp. 75-6-7; Nisbet v. Smith, 2 Bro. Ch. 579, and notes; Dubuisson v. Volkes, 30 Miss. 432; 1 Story Eq. § 325; King v. Baldwin, 17 Johns. 384.</p> <p>And if good in equity, they are equally good at law, if the facts may be there made to appear. See People v. Jansen, 7 Johns. 332; Pain v. Packard, 13 Johns. 174; King v. Baldwin, 17 Johns. 384, supra; Gahn v. Niencewicz, 11 Wend. 17; Boston Hat Manufacturing Co. v. Messinger, 2 Pick. 232-3-4-5; Hunt v. Briclgham, ib. 581; Baker v. Briggs, 8 Pick. 122; Harris v. Brooks, 21 Pick. 195; Carpenter v. King, 9 Met. 511; Bank of Steubenville v. Carroll’s Adm’r, 5 Ham. 207; Same v. Hoge et ah, ib. 17; notes to Birkmyr v. Darnell, 1 Smith. Lead. Cas. (ed. 1866), 478-9; notes on Doe v. Oliver, and the Duchess of Kingston’s case, 2 Smith Lead. Cas. (ed. 1866), 707-8-9-10; and all the Mississippi cases upon the question, which see collected in George Dig., title, “ Principal and Surety.”</p> <p>In this action at law, should the foregoing defenses, or any of them, have been allowed on demurrer to the pleas, notwithstanding the cause of action is what is called a “sealed instrument,” and does not upon its face express either the suretyship of Smith or the contrary ?</p> <p>We maintain that they should, and insist that upon this theory are united the better reason, the better authorities, good legal policy, and the plain provisions of our statutes.</p> <p>The only adverse case we have found in this state is that of Willis & Conley v. Ives, IS. & M. 307, decided in 1843, and which denies at law the defenses set up in the 3d, 4th and 5th pleas, while it does not profess to apply to nor in any wise affect the 1st and 2d.</p> <p>It will be understood that the trouble in allowing to the surety in an action at law upon a sealed writing, all the defenses he might rely upon in equity, is to there get at the 'fact of his suretyship. If that fact be legitimately disclosed, either by the pleadings or proof upon either side, all the modern authorities let in the defense.</p> <p>1. In the case at bar the fact is distinctly admitted by the legitimate effect of the demurrer to each plea. The case of Willis v. Ives was confessedly founded upon and identified with that of Sprigg v. the Bank of Mount Pleasant, 10 Pet. 257. In the latter case the plaintiff replied as an estoppel, that defendant by his bond has expressly obligated himself “ as a principaland the defendant demurred to the replication. The opinion of the court was prepared by Justice Thompson, the same judge, who, as chief justice of the supreme court of New York, had formerly delivered the opinion in the case of the People v. Jansen, 7 Johns. 332, where he held the defense pleaded to be good at law, because in that case the suretyship of defendant appeared on the face of the bond. He also recognized and adopted, in totidem verbis, the ruling of the same court in Pain v. Packard, 13 Johns. 174, while he was yet chief justice of the supreme court of New York, the very first line of which distinctly declares that the facts of the plea are admitted by the demurrer; and thereupon the court there proceed to apply the defense allowed in the People v. Jansen, where the fact of the suretyship appeared on the face of the bond. In the same case, 10 Pet. 267-8, Justice Thompson, on this point, carefully refers to and recognizes but distinguishes- the important case of the Bank of Steubenville v. Carroll’s Adm’rs, 5 Ham. 207, which is here submitted as strictly parallel to the case at bar in every essential particular.</p> <p>And yet, strangely enough, Judge Sharkey misconceives the supreme court, to intimate, that the proper course is for the plaintiffs to demur to the plea. Where even an intimation to that effect exists, we are unable to find in the case; nor can we conceive it possible the idea could be entertained by the supreme court judge, who had just then admitted and recognized directly the contrary. It certainly cannot be derived from page 264 of the opinion, where (and where alone) the question is alluded to, and only for the purpose of pronouncing it “unnecessary” to be inquired into; and the reason given for its being thus unnecessary, is that the bond, which was already set out in terms by the plea, thus affirmatively disclosed upon the record as matter of estoppel, the fact that all the obligors had expressly bound themselves “ as principals.” ' The invalidity of the defense having been thus first exposed in the plea itself, that member of the pleading must fall first, under the demurrer to the replication, even if the latter had been itself defective.</p> <p>If this emphatic waiver of an inquiry into the question may be construed to assume the dignity of even a quare (as it certainly does not rise to that of an intimation), it was effectually emasculated as such by the subsequent part of the opinion above quoted.</p> <p>Of course we do not deny that generally a demurrer only admits the facts demurred to, for the sake of the argument. That is, it virtually says: “ Even admitting the facts as you state them, they constitute no valid defense in law.” But in this peculiar instance it necessarily goes further. This case is sui generis in this particular. Here, it is conceded on all hands that if the fact appears on the record in any proper manner, its sufficiency in law is unquestionable. The demurrer admits the facts, and is then unable to deny their legal validity. The result is inevitable. The demurrer must fail. The plea must prevail.</p> <p>And this is the doctrine of the cases cited and approved in 10 Peters, which in turn is the basis of Willis v. Ives. It is the doctrine of reason and of true principle in pleading.</p> <p>Is it not legal mockery, to say a defense is valid at law if the facts shall be put on the record, and close every door to the introduction of those facts in any way ?</p> <p>Good legal defenses are set up in the first, second, fourth and fifth pleas. They were admitted by the demurrer, yet the demurrer was sustained as if the defense were invalid.</p> <p>A. good one was presented by the third plea. It was confessed by a special replication, and avoided. Yet a demurrer to the latter was applied to the good plea.</p> <p>A defendant has no other means of getting the facts upon record, hoAvever valid the defense they may constitute when there;</p> <p>2. But we insist that in this and all like cases, the fact of suretyship is provable at common law, and the court should have required an issue, or given judgment for the defendant on the demurrer. No part of the record discloses any estoppel (as in the case in 10 Pet.), by which defendant waived his suretyship, for a valuable simultaneous consideration passing to his friend, and expressly assumed to be bound “ as principal.” Here it is not the seal which is clothed with superior sanctity. Had this written contract contained such express waiver of suretyship and assumption of the character of principal, even without a seal, it could not be verbally disproved, either at law, or in equity,- in the absence of fraud, accident or mistake. Nay, even if it were a verbal contract, for a present consideration, defendant could not avoid his liability as principal debtor, in either form, by setting up a defense founded on the fact that the loan was really for the benefit of another. We refer the court to the same case (in equity) of Sprigg v. the Bank of Mount Pleasant, 14 Pet. 206, et seq.</p> <p>The only rule of evidence guarding the plaintiff’s rights in this connection, is one which appeals alike in behalf of all written contracts, sealed or unsealed, and equally in every form, to wit: They shall not be varied or contradicted, nor the obligation of the promisor or obligor, to the promisee or obligee, lessened by verbal proof. In every joint, or joint and several promissory note, all the makers are, as to the payee, principals, unless the contrary be expressed; and in a suit upon it, in law or equity (in the absence of fraud, etc.), they cannot vary or lessen their liability to him, as such, one iota, any more than in a case of a bill-single. If there be any estoppel, or quasi estoppel, in either case, it is as to the extent and obligation of that liability to him, and is operated by the inviolability of the writing, aud not of the mere seal. This statement is indisputable as to promissory notes; and yet, if among themselves, some of the makers of a note really hold toward one of them the relation of sureties, the law gives to them certain rights as such, which, if knowingly violated by the creditors, will discharge them altogether, or in part, as the facts may be.</p> <p>If the mutual relations of co-makers and co-obligors, among themselves, could not be inquired into verbally because of the estopping import of the writing or the seal, which alike imply their liability to the holder as principals, how else could their right to reimbursement by the principal be enforced; or how else could they defend themselves in his suit against them for contribution as co-principals ? In either case, resort is necessary, by the plaintiff in such suit, to the original paper, sealed or unsealed, to fix the primary liability. In such a suit, that writing or that seal could no more be varied or contradicted by parties to it, than in any other proceeding upon it. It would rest upon whatever of dignity it ever claimed, the same as when first brought to the bar by the payee or obligee against the makers or obligors.</p> <p>And even when the note or bill single shall have been merged into a judgment of record upon it — a grade of evidence higher and more inviolable, and creating a more invincible-estoppel than all others — then, although all the defendants are by the judgment itself made principals, the real sureties among them have the right, nevertheless, to defend at law against an action of debt on the judgment, or in equity by injunction against a fieri facias on it; or to enforce mutual rights amongst themselves, the same as in case of mere promissory notes. Harris v. Brooks, 21 Pick. 195; Carpenter v. King, 9 Mete. 511; Bank of Steubenville v. Carrol’s Ex’rs, 5 Hamm. (Ohio) 207; Same v. Hoge, 6 ib. 17; People v. Jansen, 7 Johns. 332; Pain v. Packard, 13 ib. 174; King v. Baldwin, 17 ib. 384; Gahn v. Niemcewicz, 11 Wend. 312, 317; 1 Smith Lead. Cas. 478, 479, in notes to Birkmyr v. Darnell, ed. of 1866 ; 2 ib. 708, 709, 710, note to Dor v. Oliver and Dutchess of Kingston’s case; Mattock v. Gibson, 8 Rich. (S. C.) 437; Cave v. Burns, 6 Ala. 780.</p> <p>Judge Shaw, in 9 Mete., most clearly demonstrates, by argument and illustration, that the suretyship of one of the parties “ is a fact collateral to the contract and no part of it.”</p> <p>3. But the defenses set up by two of the pleas are allowed at law by the express letter of our statute, passed for that purpose; and those presented by the other three are admitted by the spirit and legislative policy plainly manifested in other statutes of the old code (and re-enacted into that of 1871, to which we will presently refer).</p> <p>We have seen that the defense submitted by the first and second pleas, is expressly provided by the Rev. Code of 1857, p. 362, art. 1. It has uniformly been made at law, without question, and regardless of the character of the paper. The language of the act is purposely general, and comprehends all kinds of written liabilities: “ Any person who is or shall be bound as surety, or accommodation indorser,” etc. Under this the suretyship must needs be averred and proved by the defendant, or the act is nothing.</p> <p>Will it be contended that the defense should have been excluded, if the notice to sue in this case had been given in writing, and in literal compliance with the language of the act 1 If not, then we say we claim no benefit from the first and second pleas, if the court be of the opinion they do not distinctly aver such a clear waiver by Haughton, of objection to the notice as given, as is in legal effect equivalent to a literal compliance with the statute.</p> <p>The facts averred in the first plea, as showing the waiver, are almost identical with those in Taylor v. Davis, 38 Miss. 493. And although the notice required Haughton to sue “ immediately,” yet it appears from the record he did not even institute this suit against Smith himself for many terms of court thereafter; and against Ashly, the principal, never.</p> <p>The facts averred in the second plea constitute a subsequent and more emphatic waiver, and disclose a defense good, both under the statute and now at common law.</p> <p>In Bridges v. Winter, 42 Miss. 135, we have already said there was no waiver in the case, and no allusion to any; simply a plain violation of the statute in toto, without any excuse or substitute for compliance.</p> <p>If the defense presented by either one of these pleas be good under the statute, the demurrer to that one at least should have been overruled; and for this cause alone the judgment must be reversed.</p> <p>The defenses propounded by the third, fourth and fifth pleas, and all other defenses and remedies (and some more) allowed in equity to one who is actually a surety (whether he be apparently one or not),- are, in a proper state of the case, allowed at law by the spirit and policy, and the legal intent and operation, of all the other articles of chapter xlvi, pages 362-3, and of page 494,. article 102, of the Code of 1857. That is to say, the fullest inquiry is freely allowed as to which is the principal, and which the surety, and the prescribed legal action thereon, despite the traditional reticence and jealous prerogative of the seal, upon these questions so vitally essential to common justice and convenient relief for the parties concerned.</p> <p>It will be observed that none of the foregoing statutes were brought to the notice of the court in the case of Willis v. ives, save that one here quoted from article 102, p. 494 of the late Code; and upon that one, judge Sharkey appears to have bestowed but slight attention, briefly disposing of it with the 'inconclusive remark that “ this provision ¡íeems to have been designed to enable the party to reach the consideration by plea, *' * # and we are not prepared to carry the statute so far as to embrace the defense assumed in this plea.”</p> <p>The notes sued on are both under seal and are joint and several. The questions involved in this case have already been decided. Willis et al. v. Ives, 1 S. & M. 307; Sprigg v. The Bank of Mount Pleasant, 10 Pet. 257. In all the cases referred to by opposing counsel as holding a different rule, the foundation of the actions were promissory notes, or the fact of suretyship was expressed on the face of the instruments.</p> <p>The pleas allege a verbal notice, and are insufficient, not only on this account, but because they do not aver that the notice was given thirty days before the next term of the court. In Davis v. Taylor, 38 Miss. 493, this court held that the mode of. giving notice prescribed by the statute may be waived, but the reasoning of the court is feeble and illogical, and clearly conflicts with the rule applied in the interpretation of all similar statutes. It is respectfully submitted, hence, that this case has been expressly overruled by the case of Bridges et al. v. Winters et al. 42 Miss. 135, in which the court .say that a mere verbal notice was a nullity.</p> <p>The plea setting up payment of the notes sued on by the sale of the trust property by Watkins, cannot be maintained; it is an attempt to plead a set-off to an action of assumpsit which is unknown to the law. 2 S. & M. 597 ; 6 ib. 417; 7 ib. 9; 8 ib. 349; 2 Caines, 36 ; 3 Johns. Ch. 575 ; 13 Mass. 237 ; 17 ib. 178 j 12 ib. 193 ; 6 Pickering, 355.</p>

Hancock, J. All the facts necessary to a full understanding of the case are found in the opinion of the court. Cited 2 Phill. Ey., p. 162, note 225 ; 1 Saund. 327 a; Vaile y. Troy and Boston R. R., 20 N. Y. 187; Rison v. Berry, 4 Rand. 275; Beck y. Sargent, 4 Taunt. 232; 2 Johns. Ch. 352; Ott v. Schroeppell, 5 N. Y. 491; Jenkins v. Meagher, 46 Miss. 93. 1. The liability of the sureties is distinctly limited by the bond.

' Lyon, Chancellor. The opinion of the court contains a full statement ■of the case. 1. A trust is implied where an estate is purchased in the name of one person, and the consideration is paid by another. Tiffany & Bullard on the Law of Trusts, 20,23,29; Hill on Trustees, 91; Story Eq. Jur., § 1195; 31 Miss. 426, 427; 1 How. (Miss.) 353; 23 ib. 294; 2 Johns. Ch. 405, 409; 2 Story Eq. Jur., §§ 1190, 1201 a, 1206. 2.

Harman, Chancellor. On the 11th day of March, 1868, the appellants filed their bill in the court below, alleging that F. A. Montgomery owed them the following debts: A promissory note for $4,760.80, dated May 16, 1861, and due nine months after date; another note for $968.30, dated September 1, 1865, and due January 1, 1867, and an open account for plantation supplies furnished during the year 1866.

Cunningham, J. All the facts necessary to a full understanding of the case will be found in the opinion of the court. - Contended, that the conductor or engineer, who put Harrison in fear and compelled him to undertake the perilous task of uncoupling the cars, was liable, civilly and criminally, but that the plaintiff in error was not, because the act complained of was a willful trespass by the servant and beyond his authority, and not sanctioned by the employer; and cited,…

Stearns, Chancellor. The facts sufficiently appear in the opinion of the court.

Gowan, Chancellor. The estate of Stewart, deceased, recovered a judgment of the circuit court against the estate of Joshua R. White, deceased, and the estate of J. B. Hathorn, deceased, founded on a promissory note executed by said Hathorn and White in their lifetime, Hathorn having signed the note as surety for White.

Niles, J. The opinion of the court contains a full statement of the case. Filed an elaborate brief in this case, in which they make the following points: 1. Held: are subject to this power; and regulations which affect them may not only he established by the state, but must also he subject to change from time to time with reference to the general well-being of the community, as circumstances change, or as experience demonstrates the necessity.” Vide 2d ed., pp. 574-5.

Cabaniss, Chancellor. The opinion of the court contains a sufficient statement of the case. The history of this case, so far as it relates to the appropriation of payments, is substantially as follows: • In the spring of 1857, J. & T. Green took a mortgage from Bowman, on the land on which the Bowman house was then being built, for about $5,500. Soon afterward th^ defendant, McLaughlin, made a contract to do the plastering on said house, and commenced work.

Hooker, Chancellor. The facts sufficiently appear in the argument, and in the opinion of the court. This case involves the construction of two deeds of settlement made by Lambden and the Planters’ Bank in 1842, to J. R. Richards, trustee for Mrs. Elizabeth Goosey and her children.

Hooker, Chancellor. The opinion of the court contains a sufficient statement of the case. Contended that, in order to-make a nuncupative -will valid, there must be established by proof indisputable, the presence of not only the animus testandi, but of the rogatio mentium, without which every nuncupation is void.

Orr, J. The opinion of the court contains a sufficient statement of the case. Insisted that the court erred in admitting the testimony of the plaintiff to establish his own claim, amounting more than fifty dollars, against the estate of a deceased person, citing Rev. Code of 1857, art. 190, p. 510, and commenting at length upon the following authorities: Griffin v. Lowe, 37 -Miss. 458; Hedges v. Aydelott, 46 Miss. 99; 2 S. & M. 75; 34 Miss. 432.

<p>Error to the circuit court of Warren county. Brown, J.</p> <p>The facts of the case are stated in the opinion of the court. The errors assigned are as follows:</p> <p>1. The court erred in its instructions for the state, and in refusing those asked for by the accused.</p> <p>2. The court erred in refusing to quash the indictment, and the record fails to show that the motion to quash was ever disposed of.</p> <p>3. The court erred in overruling the motion of plaintiffs in error for a new trial.</p> <p>4. The indictment is insufficient, and the verdict is not supported by the evidence.</p>

Milsapps, J. The opinion of the court contains a statement of the case. The assessment of damages is a matter to he left entirely with the jury to determine, and unless their finding- is grossly extravagant, or the damages palpably inadequate, the court has no right to interfere. The action of the court, therefore, in correcting the verdict was error.

<p>Error to the circuit court of De Soto county. Fisher, J.</p>

Walker, Chancellor. The opinion of the court contains a sufficient statement of the case. All that is demanded by the statute of frauds is, that the writing shows a contract or promise to sell the property to be sold, and the parties to it. That the consideration of the promise need not appear in the writing is not open to controversy.

<p>Error to tbe circuit court of Pontotoc county. Pollard, Special Judge.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

Hooker, Chancellor. The facts fully appear in the briefs of counsel and in the opinion of the court. The appellant assigns errors as follows : 1. The court erred in disallowing the payment of $623.24 made on 1st February, 1861, and charging the property with the payment of that sum and interest.. 2. The court erred in disallowing the payment of $775.26, paid to James S. Reid on the note for $1,155.55, and in charging the property with the payment of that sum and interest. 3.

Harmon, Chancellor. A full statement of the case is given in the opinion of the court. 1. The court had no jurisdiction to give any decree for the recovery of the possession of the land in favor of complainant against defendants helow. 1. The bill did not ask for any such relief, but only for an injunction against payment of rents, and for a receiver of the rents during the pendency of the action of ejectment.

Shackleford, J. The facts are fully stated in the opinion of the court. Sheriffs’ authority at common law to take recognizances was limited to binding an offender to keep the peace. 1 Black. Com. 343. The powers of the sheriff at common law are defined by the supreme court of the United States, in South v. State of Maryland, 18 How. 401. His powers in this particular have been extended by statute, but the statute does not reach' such cases as this.

<p>Appeal from tlie chancery court of Monroe county. Whitfield, Chancellor.</p> <p>A full statement of the case is given in thé opinion of the court.</p> <p>If the wife is liable for the debt, and the husband was her agent in the purchase, then the decree is wrong as against the husband, and he is in no way liable for it. Bacon v. Beavan et al. 44 Miss. 295, 296.</p> <p>We shall show hereafter that this property of the wife was not.held under the WOman’s Law of Mississippi, but by the special provisions of the will. For the present, we will show that, if held under the Woman’s Law of Mississippi of 1857, there is no liability fixed on the wife. Code of 1857, p. 336, art. 25, provides that all contracts made by the wife, or by the husband with her consent, for work and labor done, or for improvements on the estate, may be enforced against her separate property. A gin-stand is a fixture of the freehold, and may be classed as an improvement, but it is doubtful. It is too well settled to require more than a reference to the adjudicated cases, that, to subject the ¡property of the wife, the appellee must bring himself precisely within the provisions of the act. Davis v. Foy, 7 S. & M. 73-75. She is not liable for buildings put on her lands. Selph v. Howland, 23 Miss. 226; Robertson v. Bruner, 24 ib. 243 ; Whitworth v. Carter, 43 ib. 71, 72. The proof does not bring the appellee’s case within the rule.</p> <p>The sole credit was given to John H. Clopton, the husband. All the witnesses, both for the appellants and appellee, agree on this point: that the wife never gave her consent, or made the husband her agent. It is certainly competent for a solvent husband to purchase property and give to • his wife, or contract for improvements on his own credit. The credit must be given to the wife or her estate at the time. In the case of Guión v. Doherty, 43 Miss. 551, the court affirm the charge of the circuit judge, and say that, if the husband bought the goods on his own credit, and gave his individual note for them, the wife is not liable, although for the benefit of her property. The credit must have been originally given to the wife, and the vendors and makers (of the gin), or the appellee, treated with her and looked to her for payment. The central idea is, to whom was the crait given ? On page 552, the court say: “ The only question is, does the evidence prove, or tend to prove, that the goods (gin) were for the use of the wife’s plantation, and purchased on her credit ? ”</p> <p>In this case it is not pretended that there is any proof that the credit was given to the wife, but the contrary directly proven. The husband had the wife’s money in hand at the time of the purchase; the gin makers thought proper to sell on the personal credit of the husband; now, when the husband is bankrupt, must the wife lose it ?</p> <p>The title to the plantation on which the gin was used is shown by the will to be the joint property of the wife and the children of appellants, and not the separate -property of the wife. It was not bought or used for the separate property of the wife alone. If there is any equity in the case it is against all, and the owners of one-half the estate are not made parties to the bill.</p> <p>It is not shown in the bill or proof that any property of any specific description is owned by the wife. In a late case it was determined that to subject the wife’s property is a proceeding in rem and not in personam. No judgment can be rendered against her personally, and especially when she does not make the contract. How can the sheriff determine what is the separate property of the wife 1 Bank of Louisiana v. Williams and wife, 46 Miss.</p> <p>It is settled that when a note is given for an account, and it is fairly inferable from the circumstances that it was intended by the parties to be in settlement, the account is merged in the note. John Clopton says expressly, that the account was receipted in full, and this was not denied by aj>pellee. This is fixed by the fact that suit was brought on the note and not on the account, and the foundation of this action is the judgment founded on that note. Appellee has no equity whatever, except what he derives as against John Colpton, by the payment of the judgment as surety. But it appears he sold for value, and it is doubtful even if this equity exists. If Mrs. Clopton pays this money, John Clopton is still liable on the judgment.</p> <p>In the suit at law, the plaintiff declares on the note and not on the account, and this brings the case directly within the rule in Slocum v. Holmes, 1 How. (Miss.) 144; Mayes v. Oglesby, 6 ib. 50; Toby v. Barber, 5 Johns. 68 ; John v. Weed, 9 ib. 310 ; Guión v. Doherty, 43 Miss. 554-55.</p> <p>There is no doubt that both note and account for the gin were merged in the judgment. The latter is a higher security. -Story on Prom. Notes, § 407; Chitty on Cont. 681, and authorities cited; 43 Miss. 554.</p> <p>But the pleadings and proofs show Mrs. Clopton does not hold the property under the statute, but under the will of her father, John Abbott. After giving her, in the sixth clause, the property, he does not stop. This.Avould have left the property subject to the woman’s law, and to the contracts of the husband made in conformity thereto. But, knowing the statute, testator adds: “ All of Avhich I give to laer, and the heirs of her body forever; not to be liable for the debts or contracts of her husband, or any future husband.” He Avas unwilling that the power to incumber the estate should be exercised as provided by statute. He had the unquestioned right to do so. At common laav these words often created a separate estate. Of course, it will not be pretended that the statute intended to take away the power of the father to impose limitations and conditions on the estate devised to his married daughter; on the contrary, it is uniformly held, that a married woman may incumber and convey her property in the manner prescribed by the instrument conveying it to her, and she is restricted to that method. If it (the instrument) imposes no limitation or restriction, then the statute prevails. The case of Doty v. Mitchell, 9 S. & M. 436, 447, settles this doctrine on a similar state of facts. It is supported by the following authorities. The common law doctrine is exhausted (Morgan v. Elam, 4 Yerg. 375), and is cited and confirmed as applicable under our statute in 9 S. &. M. 447; David v. Fisk, 9 ib. 151; Berry v. Bland, 7 ib. 83. In Whitworth v. Carter, the ablest construction and analysis of the Avoman’s law yet delivered, this doctrine is plainly asserted (43 Miss. 71), and, if possible, more strongly in the case of the Bank of Louisiana v. Williams and wife, 46 Miss.</p> <p>By the 6th and 7th clauses of the will of John Abbott, one-half the plantation is given Mrs. Clopton and one-half to her children, making them tenants in common. The wife and the husband, as guardian for the children, hold the property in trust to execute the trusts of the will, that is, that the plantation shall be cultivated by them, and the proceeds to be divided between the wife and children, and this to be done until the children become of age.</p> <p>If the gin was bought by the husband, as trustee for the children, the wife is not liable.</p> <p>If he bought it for the use of all, then it is void, for the will does not authorize the trustee to buy on credit; but if it did, then the whole estate is liable. The children have an undivided half interest in every acre of the land.</p> <p>It may be, on a settlement of the accounts, the mother owes them largely, enough to cover the estate.</p> <p>No reference was made to the master to take and state an account between the parties, but a decree was rendered for the payment of the judgment and interest. It may be questioned whether it is irregular in this case, but it is submitted to the court. Beville v. McIntosh, 41 Miss. 516 ; Freeman v. Ledbetter, 43 ib. 165.</p> <p>The first question which I shall present for the consideration of the court is, how far the separate property of a married woman may be made liable by contracts made by the husband alone, and without her consent, for supplies for her plantation.</p> <p>This question, I believe, has not been expressly adjudicated by this court, and therefore remains an open question.</p> <p>Without argument or reference to other authority, I may refer the court to the 25th article, Revised Code, page 336, as decisive of this question. It is this : “And all contracts made by the husband and wife, or by either of them, for supplies for the plantation of the wife may be enforced, and satisfaction had out of her separate estate.”</p> <p>This article gives to the husband alone full power and authority to bind by contract the property of the wife for supplies for the plantation of the wife. The act contains no limitation upon the power, nor does it require that the contract shall be made in the name of the wife, or with her consent. If it is not necessary, as it is not, that the contract should be made in the name of the wife, then a contract for plantation supplies, made by the husband, and in his own name, may be enforced against her separate estate, as well as one made in her name. In seeking to enforce a contract made by the husband in his own name, it would only be necessary to show that the contract was for plantation supplies for his wife’s property, and that the article purchased was necessary for plantation use. Necessity is the only limitation upon his power.</p> <p>Now, the bill in this case sets out a contract, made by the husband, for a gin-stand for the use of the plantation of Mrs. Clopton, and the answer of defendants admits its use in ginning the . cotton raised on the plantation, and that it was necessary, and that, in the purchase, he acted as agent for his wife, and the bill' so charges the fact to be. Can, then, there be any question as to the right of complainant to have the separate estate of Mrs. Clopton made liable for the said debt ? It may be insisted that a gin-stand is not ■ embraced in the word “supplies.” The case of Roberlmer v. Ward and wife, 12 S. & M. 490, is decisive of this question. The court say: “A plantation could scarcely be cultivated without work-horses or mules, and they are, no doubt, to be included under the term ‘ supplies for plantation use’ in the statute.” If a horse is embraced in the word “ supplies,” certainly a gin-stand would be.</p> <p>It may be insisted that the husband is not the agent of his wife. Generally, this may be true. But the statute makes him her agent for this and other purposes, and he can bind her separate estate as such. Rev. Code, p. 336, art. 25; Atwood v. Meredith et al. 37 Miss. 641.</p> <p>It will be contended that, as John H. Clopton closed the account by giving his individual, note, Mrs. Clop-ton’s liability was lost, and her separate estate cannot now be made liable. This position is in violation of the authorities upon this subject. In the case of Wyllie and others v. Collins & Co., 9 Ga. 231, 232, this very question was raised, and the court held the separate estate of the wife liable. The facts were these: Mrs. Wyllie was the owner of a large estate in her own right; Wyllie purchased, for the use of her plantation, a gin-stand, and gave his individual note; was sued, and judgment obtained against him, and the execution was returned nulla bona; Collins then filed his bill to subject the separate estate of the wife, and the court decied that her estate was liable. Thus it will be seen that the facts of the case now under consideration and the one referred to are in every particular the same, whilst our statute makes our case stronger for complainant than the Georgia case. The case of Carter v. Everleigh and wife, 4 Dess. Eq. 19, arises also out of the purchase by husband of a gin-stand for the use of the wife. See also, 1 Hill Ch. 228; 4 Dess. Eq. 591; 1 McCord Ch. 267.</p> <p>The cáse of Guión et ux. v. Doherty, 43 Miss. 538, is decisive of this case; the facts are very much the same, varying only in the fact that the articles purchased by Guión included both plantation supplies and family supplies. Now, the act of the legislature, article 25, Rev. Code, p. 336, makes a distinction in the power of ~the husband to bind by contract the wife’s separate estate. Where plantation supplies are purchased, the husband need not have the consent of his wife; when family supplies are purchased he must have her consent, otherwise he cannot bind her estate. Then, in the case of Guión, many, and perhaps most, of the articles purchased were for family consumption; the court, therefore, did right in saying that the question of consent was one for the jury. But this the court would not have said if the note embraced articles only for plantation supplies.</p> <p>But it is insisted by counsel that the account was merged in and satisfied by the note of Clopton. In the case of Guión, the court say, not unless it was taken absolutely in satisfaction. Now, Matheny swears positively that' it was not so taken, but simply to oblige Clopton, who said it should be paid in a few days. O’Conner, who wrote the note, says it was not intended to be a satisfaction of the account and release of the liability of Mrs. Clopton, but only to close the account at Clopton’s request.</p> <p>Dr. John L. Tindall swears that the universal custom at his gin-shop was to require the gin-stand to be paid for when the cotton crop was sold, and that this was the understanding and expectation in the case of the sale of this gin-stand to Clopton, and in this he is uncontradicted. John H. Clopton and Mrs. Sarah E. Clopton both swear he had the whole control and management of his wife’s plantation, purchased what was necessary, raised the crop, sold the cotton, and paid the debts, and that this indulgence was extended to him in the most unlimited manner. If this was a case where the agency was required to-be shown, we would want no other proof than that of Clopton himself.</p>

Simmons, Chancellor. 1. The court below must have proceeded on the idea that the agreement between Cooper on the one hand, and Page & Hubbard on the other, was a mortgage, in which the former was the mortgagee and the latter the mortgagors. This is a mistake. A mortgage is a conveyance by the mortgagor of his property to the mortgagee, to be void on condition of payment of the debt. But here there is no conveyance. In fact, Page & Hubbard had nothing to convey.

The appellants, except Travis M. Brooks and J. L. Covert, were the children and heirs-at-law of Lewis Richardson, Sr., and his wife, Sarah M. Richardson. William H. Richardson, Sr., deceased, grandfather of said children, by his will devised to Lewis Richardson, Sr., and Sarah M. Richardson, for life, with remainder to said children, a large and valuable tract of land in Holmes county, Mississippi, said tract containing about 2,998 acres.

Deane, Chancellor. The bill in this cause was filed in the chancery court of Jasper county by complainant to perfect a tax title to the W. | of S. E. |, and S. W. | of N. E. section 25, T. 3, It. 11 E., for which he paid at tax sale, on the 9th of October, 1869, the sum of $5.64, and received a deed from It. Meeks, sheriff and tax collector of said county; this deed is exhibit A to bill.

<p>Adpeal from the chancery court of Claiborne county.</p> <p>As to complainants, Jeffries surely delivered by placing the deed in Mrs. Routh’s possession, and putting it in her power to use it; and she surely accepted by haying possession of it, giving it to her husband, and by his exhibiting it to complainants. They state in the bill, and in the answer to the cross-bill — which is testimony for complainants, and is nowhere denied — that Job Routh did show them the deed, and that they sold the goods to her and gave her the credit upon the faith of it.</p> <p>The magistrate’s certificate, in which Jeffries acknowledges that he delivered the deed, estops him from denying delivery as to complainants, who are creditors and purchasers. Wall v. Wall, 30 Miss. 96-100.</p> <p>The deed having been placed in possession of Mrs. Routh, duly signed, sealed and acknowledged, the title to the land vested in her; and, as to complainants, she and her father are estopped from denying it. Its production and exhibition are prima facie evidence of delivery. Morris v. Henderson, 37 Miss. 501.</p> <p>I submit that a title, having once vested under the deed, cannot be divested merely by destroying the deed or returning it to the grantor. See Burton v. Wells, 30 Miss. 691, 692; Mallory v. Stodder, 6 Alq,. 801; King v. Cocheran, 14 ib. 822.</p> <p>Yarious matters of defense are set up and charged in the answers, and the answers are made cross-bills for discovery from complainants in aid of the defense. No relief is asked.</p> <p>The universal rule, in both courts of equity and of law, is, that the answer to a bill of discovery is testimony. It is conclusive upon the appellees, and they are not permitted to contradict or question it. Story Eq. PL, §§ 389, 390 ; 1 How. (Miss.) 596; 7 ib. 463 ; 44 Miss. 807.</p> <p>By the cross-bill, complainants are introduced as witnesses ; and the rule is universal, that a party cannot question either the competency or credibility of his own witness. 7 Cow. 242 ; 1 Starkie on Ev. 185. The answer to the cross-hills proves the original bill, and it wholly denies and disproves the answers and cross-bills, and is conclusive as evidence, according to the case of McGehee and wife v. White, 31 Miss. 47.</p> <p>The deed of gift gave Mrs. Routh an estate for life, with remainder to her two infant daughters, Priscilla and Catharine. What right had she to reject the deed, or return it to her father, or destroy it, or agree upon the substitution of another, altering and diminishing the estate of her infant daughters ? They are infants, entitled to the larger estate, and she had no right to destroy or diminish the amount of their interest by requiring a different deed to be substituted; it was a crime to do so. It may have been maternal; it was not legal.</p> <p>In the court below, the counsel for appellees cited McGehee and wife v. White, and claimed that it was conclusive in their favor. But it is not even analogous. The deed was made by McGehee and wife to Mrs. White alone, in fee. There was no infant remainder-man. The deed was tendered to her husband, White. He looked at it, read it, refused to receive because it was not made to him and wife, and handed it back to be amended, and it was destroyed. Mrs. White, the grantee, never accepted it, never saw it. Upon this state of facts, the court decided' that there was neither delivery or acceptance. No one was imposed upon by the deed; no credit obtained on the faith of it. . The suit was brought by a party claiming the property in a line of descent from Mrs. White. The court decide that, upon the facts of the case, there was no deed, no estate to descend. White did not- accept for his wife, and she never saw the deed or authorized its acceptance.</p> <p>The chancellor erred in deciding., that the judgment of Wood & McGinnis and the decree of W. R. Gunnis & Co. (the appellants) against Routh and wife, are each null and void, and therefore that the sheriff’s sale and deed thereunder are also void.</p> <p>Executions on both the judgment and decree were in the sheriff’s hands, and levied by him on Mrs. Routh’s interest in the land in controversy, and the sale was made by him under both exections at the same time; and if either the judgment or decree was valid, then a title passed to complainants by the sheriff’s sale.</p> <p>The law is, if executions on various judgments, in favor of different persons, are levied on the same lot, and it be sold under them, if one judgment or execution be regular, though all the others be vicious or even void, the title of the purchaser will be good. Kane v. Martin, 9 S. & M. 387; Banks v. Evans, 10 ib. 35; Hand v. Grant, ib. 514.</p> <p>There is no objection to the executions. Appellees object that the judgment and decree are both void. If I show either to be good, it will support the sale and sustain the sheriff’s deed.</p> <p>The judgment at law in favor of Wood & McGinnis is valid. Hardin v. Phelan, 41 Miss. 114, 115; Robertson and wife v. Bruner, 24 ib. 243; Code of 1857, p. 508, art. 181; 1 Chitty PI. 329; Code of 1857, p. 336, art. 26 ; Gale v. Lancaster, 44 Miss. 413.</p> <p>“ The evidence upon which the orders and judgments of courts of general jurisdiction are founded is not necessarily a jjart of the record, nor required to be shown by it. Every presumption is to be indulged in favor of the correctness of the facts on which their judgments and decrees are founded, and which appear of record.” 39 Miss. 784; 26 ib. 70; 31 ib. 578; 37 ib. 17.</p> <p>“ The presumption of law is, that such judgments are founded upon proper and sufficient evidence, and cannot be collaterally impeached, however insufficient the evidence may have been in fact.” 31-Miss. 578; 39 ib. 784-789; Pollock, Adm’r v. Buie, 43 ib. 151; 1 Chitty PI. 329; Stennel v. Hogg, 1 Saund. 228.</p> <p>There was a plea of non-assumpsit, that admitted the law, waived defects in pleading, and disputed the facts. There was a jury trial, verdict and judgment. Is not 'that conclusive as to the facts ? 24 Miss. 243; 43 ib. 31.</p> <p>The jurisdiction of the circuit court did not depend upon an averment, that the account sued on was contracted by the wife for the support of herself and family, or of her separate property. 2 Pet. 164,165 ; 2 Am. Lead. Cas. 737. But, if I am mistaken, the judgment is not void, it is only erroneous, and cannot be attacked or objected to collaterally. 24 Miss. 519; 28 ib. 409; ib. 413; 10 Pet. 469-473; 12 S. & M. 117; 27 Miss. 478, 479.</p> <p>If a judgment be erroneous, yet it is a judgment, and, until reversed, cannot be disregarded. It is not coram non judice. 2 Cranch, 186; 41 Miss. 560; 43 ib. 31.</p> <p>Must it appear affirmatively, of record, by averment, that she had separate estate ? The statute of jeofails says not. Her liability is charged. Must it appear of record by proof? The proofs never appear in the circuit court except by bill of exceptions.</p> <p>The chancellor decided that appellants’ remedy in the premises, if they were entitled to any, was in a court of law, and not in a court of equity.</p> <p>Such is not the law. The deed from Jeffries to Mrs. Routh has been suppressed, perhaps destroyed.</p> <p>Complainants were entitled to come into equity for discovery whether the deed had not been made as charged (1 Story Eq. Jur. 82-91, §§ 64-74; 2 ib. 1); and the jurisdiction having once rightfully attached, it shall be made effectual for the purposes of complete relief,' to prevent multiplicity of suits' and circuity of action. 1 Story Eq. 82-91; 2 ib., § 12&5 ; Scruggs v. Blair, 44 Miss. 413; Williams’ Heirs v. Rhodes, 33 ib. 137.</p> <p>When chancery has jurisdiction of the rights of parties for any purpose in a cause, it will draw to itself all collateral subjects necessary and proper to be considered, in order to a full, complete, and final adjudication of those rights. Gilliam v. Chancellor & Murray, 43 Miss. 448.</p> <p>They were entitled to come into equity because Jeffries’ deed has been destroyed or suppressed, and they don’t know which alternative is true; but they know that it is the fraudulent conduct of appellees, and the court will give full relief in odium spoliatoris. 1 Story Eq. Jur., 101, §§ 84, 252, 254.</p> <p>Conferring- jurisdiction on courts of law by act of legislature, does not change or obliterate the jurisdiction in equity, unless the statute abolish or limit it. Jurisdiction concurrent. Ib. 80, § 63.</p> <p>The chancellor decided that complainants were entitled to bring ejectment as upon an equitable title, just as defendant may defend upon equitable title under the Code, 388, art. 17.</p> <p>In the first place, this article was adopted to enable defendants to avail themselves at law of an equitable defense, because they have not the privilege of choosing the forum, and it prevents circuity of action.</p> <p>In the second place, it expressly authorizes complainants to come into equity “ to try the defendant’s equitable title.”</p> <p>Complainants were entitled, nay, compelled, to come into equity to get the deed from Jeffries to Mrs. Routh, or, in case of its destruction, to obtain a decree for the execution of another; for it is an important and indispensable muniment of their title, which they cannot recover in a court of law. 2 Story Eq. Jur. 12-20, §§ 703-711; Philips v. Hines, 33 Miss. 163, 170.</p> <p>Equity will afford relief against any legal advantage unconscientiously obtained, or sought to be unconscientiously used. Marshall v. Minter, 43 Miss. 667, 679. The destruction or suppression of the deed casts a cloud upon complainant’s title, and authorized a bill of quia timet and for general relief. Boyd v. Thornton, 13 S. & M. 343-’5.</p> <p>It was contended below, that the original bill was for discovery, and that therefore complainants are bound by appellees’ answer. But the only point upon which' complainants asked discovery was, that if they had not stated the deed correctly, then that appellees might state its shape and terms, what it granted, when made, etc. The answers substantially admit the bill.</p> <p>It was contended below, that complainants’ purchase was void for gross inadequacy of price. “ Common sense knows no such principle. The value of a thing is what it will produce.” 1 Story Eq. Jur., § 245.</p> <p>There was no proof of the value of the land. The sale was public, open, in market-overt and _fair. It was not impeached by any proof; and it was only a life estate sold, with the chances of a lawsuit, and the times were notoriously hard and money historically scarce. Ladner v. Ogden, 31 Miss. 337-340.</p> <p>The complainants', among other things, prayed for a discovery of the title of the defendant, Mrs. Routh, to the lands described in their bill, and for a discovery as to the execution of a deed to her from her father, the defendant, Jeffries, who both in their answers to said bill deny that she had any title thereto, and also deny that said deed referred to in said bill was ever delivered or accepted, though tendered for acceptance; but that acceptance thereof was absolutely refused, and same returned to grantor, and has since, being regarded as worthless, been lost or destroyed.</p> <p>The principle is well established, that “the party who files a bill of discovery always admits that he cannot prove the facts except by the answer of his adversary, and that answer is conclusive upon him; he is not permitted to contradict it.” 7 How. 463.</p> <p>But again, there were no depositions taken or other proof offered, except the transcript of the sequestration suit offered by the defendants; and by going to trial on bill and answer, without any evidence to contradict the answer, the same being responsive to the bill, is to be taken as true, and is conclusive against plaintiffs. 40 Miss. 777, § 2; 6 How. 303; 2 Dan. Ch. PI. and Pr. (3d Am. ed.) 840, note 2; 1 Greenl. Ev. § 260; 3 ib. §§ 284, 285.</p> <p>A deed takes effect only by sealing and delivery, and without proof of these it can have no effect whatever (and, according to our practice, the acknowledgment precedes the delivery, and can, therefore be no proof of delivery). 4 How. 25, § 2; 3 Wall. 641; 5 ib. 85-6. There must also be an acceptance of the deed. 31 Miss. 41; 41 ib. 258. There must be an actual delivery and acceptance of a deed in order to pass the title — the assent of two minds. 34 Miss. 741-2; 6 Cow. 617.</p> <p>The case of Wall v. Wall, 30 Miss. 91-97, cannot avail the plaintiffs, because in that case the acceptance, under the circumstances of the case, was presumed. In the case at bar, however, both delivery and acceptance are expressly denied by the sworn answers of the defendants (and not otherwise disproved), which is conclusive on the plaintiffs.</p> <p>In the court below, the counsel for plaintiffs insisted that a deed of gift, especially where minors were the beneficiaries, could not be revoked, and that the grantee must re-convey in order to re-invest the title in the original grantor; that merely destroying the deed of gift would not re-invest the title in the origipal grantor, but, according to the preceding authorities, without a delivery and acceptance, there is no vesting of title in the contemplated grantee; and, according to 34 Miss. 741, and 3 Wall. 86, above cited, the making,, acknowledging and having a deed recorded by the grantor do not per se vest the title in the grantee; and, according to 6 Cow. 719, above cited, not only under such circumstances does no title vest, but the deed is declared “ unquestionably void.”</p> <p>The bill, in aid of plaintiffs’ pretended title, seeks for the production, delivery up and recording of the deed referred to in said bill, and removing of clouds from their title.</p> <p>But a court of equity will not grant relief to a party seeking the cancellation (or delivery up ?) of title deeds held by his adversary, and which he alleges constitute a cloud on his title (or, in the other case, are necessary to sustain or perfect his title ?), unless he shows a clear title in himself. If he has a doubtful title, he will be left to his remedy at law, and the burden of proof is on him to establish his right, etc., even if it requires him to prove a negative. 33 Miss. 296-298. He must show clearly the validity of his own title, and its freedom fropi suspicion, and the invalidity of that of his opponent. ' Only at the suit of true owners will such a bill lie. Gross inadequacy of price is a badge of fraud. 44 Miss. 662, 663, 666, 667,and cases cited; 32 ib. 272, 273; 8S.-&M. 265; 25 Miss. 457. The plaintiffs pretend to have bought the land in controversy, 2,400 acres, for $58.60, less than three cents per acre,' being the amount of costs due on the two suits, and for which they were already liable; and the whole facts of the case show that they then had a suspicion that Mrs. Bouth had no title, and were merely speculating in a lawsuit.</p> <p>The bill prálys for the delivery up to plaintiffs of the property in controversy, and for rents, etc., for its wrongful detention. The hill is in the nature of an ejectment suit in chancery, and as such is dehors all safe precedents and adjudicated cases.</p> <p>In Forniquet, adm’r, etc. v. Forniquet et al., 34 Miss. 100, the court puts its decision in granting such a prayer expressly upon the ground of aiding the jurisdiction of the probate court, which was incompetent to grant adequate relief, and the power of the chancery court was limited to that necessity. But, in the case at bar, had the chancery court granted the main and preliminary relief, the circuit court, in an ejectment suit, would then have been competent to give adequate relief; and the granting the relief prayed for, would have been, in the language of the court, “ an encroachment upon the jurisdiction of the” circuit court.</p> <p>A cross-bill is the proper method for bringing the whole matter before the court, and the court will adjudicate the whole matter, and give defendants relief if entitled to it. Story Eq. PL, §§ 389-393 and 396; 2 Daniels Ch. Pr. and PL (3d Am. ed.) 1647-1651; Late Code 548-551.</p> <p>And the court below, we think, should have granted the relief prayed for by defendant, Jeffries, to wit, the cancellation of the sheriff’s deed' to plaintiffs, and a re-conveyance from them to him, and a perpetual injunction against plaintiffs’ running executions issued on said judgment and decree against said lands; and we ask this court to render such decree as the chancellor ought to have rendered. And if said judgment and decree are void, as we think they clearly are, then the court below ought so to have declared them, and perpetually enjoined their execution, or set them aside as prayed for. They show, upon the face of the proceedings, great ignorance of law, or a willful imposition upon the court, and fraud upon defendant, Mrs. Routh; and if void for fraud, as charged in the cross-bill, equity will set them aside, especially in favor of a stranger to them, whose rights are injuriously affected thereby. 10 S. & M. 293, 296.</p> <p>Jeffries alleges, in his answer, that the draft of the deed from him to his daughter, Mrs. Routh, did not conform to his wishes in the matter; that he wished and intended to place the property beyond the power of his daughter or her husband to incumber the same in any manner whatever; and a chancery court will reform a deed and make it comply with the intention of the donor, even after judgment and levy of execution against the husband of the donee. Stone v. Hale, 17 Cocke, 557.</p> <p>The plaintiffs insist, by way of demurrer, that Mrs. Routh, being a feme covert, cannot answer their bill, etc., alone and without joining her husband, etc. To which we reply, that an answer was required from her by the bill, and she had a right, by the statute, to make that answer a cross-bill. Plaintiffs, if she had not answered, would not have hesitated to have taken a pro confesso against her, and in that case we never would have heard of the objection now raised. They never took any steps to compel an answer from her husband, nor did they take anjpro confesso against him. But even before the enactment of the law (late Code, 336, art. 26), she could answer separately, when a material party, and required so to do, as in the present case. 11 S. &M. 42,43.</p> <p>. When a decree of a court of chancery is relied on, and any benefit claimed from it, the entire proceedings on which it is predicated should accompany it. 5 ib. 791, § 3 ; 44 Miss. 243, 244.</p> <p>■ The complainants as to said judgment and decree rely and insist upon the principle of “ res judicatabut, however this principle may affect Mrs. Routh, Jeffries is not estopped by said judgment or decree because not a party or privy thereto. 1 Greenl. Ev. §§ 524, 553; 2 How. 820; 29 Miss. 133; 38 ib. 476; and particularly 27 Me. (14 Shep.) 539 ; 7 S. & M. 85; 14 ib. 205; 39 Miss. 367; and particularly 10 Wall. (U. S.) 318; 32 Miss. 200; 8 S. & M. 431; 9 ib. 613; 32 Miss. 198; 34 ib. 70; 41 ib. 50; 3 How. (U. S.) 762, 763; 30 Miss. 395, 396; 2 Eng. 445; 1 Hill (S. C.) 53; 1 Wheat. 91; 5 ib. 450; 2 Litt. 256; 1 J. J. Marsh, 407; 1 Scam. 56; 3 ib. 133; 4 ib. 302; 1 Greenl. 306; 41 Miss. 114, 115, 125; 43 ib. 679; 32 ib. 279; 30 ib. 59; 44 ib. 430.</p> <p>The separate property of the wife cannot be subjected for her general debts contracted during coverture. There must be a distinct intention to bind such property. 11 S. & M. 594; 2 Sandf. Ch. 287; 23 Miss. 280; 36 ib. 549.</p> <p>And the burden of proof is upon the party seeking to charge her separate property by reason of her contract, to show that she has so bound her estate. 9 S. & M. 435.</p> <p>A judgment against husband and wife, founded on a contract made by them during coverture, is invalid; and a sale of the wife’s property under an execution issued thereon conveys no title. And why? because the judgment as to her is void. 25 Miss. 28, 29; 33 ib. 550, explained in 33 ib. 548.</p> <p>And if the judgment is void, the execution issuing thereon is also a nullity; and a sale under an execution, which is a nullity, can vest no title, especially in favor of one having notice, as the plaintiffs and their attorney, who, in the case at bar, got the judgment and made the purchase for them at the sheriff’s sale, had. 8 S. & M. 518.</p> <p>The judgments in 12 S. & M. 490, and 24 Miss. 242, relied upon by plaintiff’s counsel in the court below, were obtained under the married woman’s law of 1846, which is very different from the acts of 1839 and 1857, and made the husband and wife jointly liable even upon an implied contract as well as upon an express one.</p> <p>“ The plaintiff must set out in his pleadings the special circumstances which authorize a married woman by our laws to make a binding contract. It must appear of record, in some form or other, that all the necessary facts are present to make the promise binding on the wife.” 43 Miss. 679 ; 41 ib. 114, 115.</p> <p>In 12 S. & M. 490, and 24 Miss. 242, the necessary facts, under the act of 1846, were set out in the declaration.</p> <p>A judgment cannot be given on a verdict which varies substantially from the issue, and if the verdict find matter outside of the issue, it is void for so much. 1 S. & M. 594. And as to the liability of Mrs. Routh and her separate estate, there were no proper averments to charge her or her estate, and, ergo, no issue for that purpose made up or joined. 14 S. & M. 205; 2 ib. 540 ; 41 Miss. 90 ; 42 ib. 506.</p> <p>A void judgment or decree may be treated as a nullity (42 ib. 210), and may be disregarded and even attacked collaterally when sought to be enforced, or any benefit claimed under it. 6 How. 114 ; ib. 234, 235; 8 S. & M. 519 ; 3 How. (ü. S.) 762-’3.</p> <p>Such a judgment is binding no where, and may be relieved against without reversal. 3 Eng. 318; ib. 324. And a sheriff cannot, in trespass, justify under process issued thereon. 3 Eng. 406. And such a judgment, when joint, cannot be good in part, and bad in part; bad as to one, bad as to all. 1 How. 530; 42 Miss. 210.</p> <p>Judgments are conclusive only as to matters in issue. 1 Greenl. Ev. § 528-534. And as to the liability of Mrs. Routh, or her estate, there was no issue.</p> <p>Neither consent nor acquiescence can give jurisdiction where it is not authorized by law. 41 Miss. 670 ; 4 S. & M. 563; 7 Port. 37; 7 How. 231. And it is never too late to raise the objection where the record discloses a total want of jurisdiction in the court below. 10 S. & M. 163, § 3; 2 A. K. Marsh. 607; 3 How. 34.</p> <p>The court must have jurisdiction both of the person and subject-matter, in order to impart validity to its judgments. 41 Miss. 50, § 4. And an order, judgment or decree is void, when the court rendering it has no jurisdiction of the subject-matter and of the parties. 9 S. & M. 621, § 3; 41 Miss. 50.</p> <p>In Lake v. Hastings, 24 Miss. 495, 496, this court says that, “ A party who seeks justice must pursue it according to the forms and remedies prescribed by law, otherwise interminable confusion will ensue, and injustice be done,” etc. 10 Pet. 475; 2 A. K. Marsh. 607. See also, 3 Dallas, 382 (1 Cond. U. S. S. C. 170, and cases cited in note).</p>

Brown, J. Defendants in error filed a petition against Sharpe, Tium and French, to enforce a mechanic’s lien on part of lots 157 and 158, and the buildings thereon, and for a personal judgment against Sharpe. The contract for the materials furnished by defendants in error was verbal, and was made by Sharpe in September, 1869. The account for materials was due in January, 1870. The contract, being verbal, was not susceptible of record.

Peyton, Chancellor. The facts are stated in the argument of counsel and the opinion of the court. This was a bill filed by Mahala E. Miller against T. C. Bishop and wife, in chancery court of Copiah county, suing by her father, James, as next friend, she being a minor.

Harmon, Chancellor. The appellee, Estell, on the 28th December, 1866, sold to the appellant, Myers, a certain tract of land in Bolivar county, with some personalty, for $71,000, of which there was paid in cash $31,000. The balance of the purchase money was evidenced by three promissory notes of the vendee, one for $5,000, due February 1, 1867; one for $17,500, due January 1, 1868, and the third for $17,500, due January 1, 1869.

<p>Appeal from the chancery court of Washington county. Harmon, Chancellor.</p> <p>The argument of counsel and the opinion of the court contain a sufficient statement of the case.</p> <p>I. The objection of a want of jurisdiction is urged for the reason that, under our statutes, courts of law are competent to g’rant relief in favor of the appellant against the separate estate of the appellees. The objection is not well taken. Their cognizance may be, and doubtless is, concurrent, but not exclusive. Prior to the adoption of our statutes the courts of chancery had exclusive jurisdiction in cases involving the separate estates of married woman, and it is a cardinal maxim in those courts that jurisdiction once acquired is never surrendered. The act of 1857 does not negative this jurisdiction, and it, of necessity, continues. Cord on Eights of Married Women, §§ 265, 270; 1 Story Eq. Jur., §§ 64 i, 64 k, 65, 66, 71; 2 ib. § 1368; McKenzie v. Johnston, 4 Madd. 373.</p> <p>II. But is contended that the contract relied upon in this case was not authorized by law, and the liability incurred is not chargeable upon the estates of the appellees. The language of the statute is: “ All contracts made by the husband and wife, or by either of them, * * * for the maintenance, care and support of her slaves, and .for the employment of an agent or overseer for their management, may be enforced, and satisfaction had out of her separate estate. And all contracts made by the wife, or by the husband with her consent, * * # for work and labor done for the use, benefit or improvement of her separate estate, shall be binding on her, and satisfaction may be had out of her separate property.” This language was evidently employed in reference to. a state of things which has, in part, ceased to exist, and, it is urged, cannot be made applicable to married women or their separate estate at the present time. That slavery being abolished, the wife has no right to employ, nor has her husband for her, an agent for the management of hired laborers or tenants upon her plantation.</p> <p>1. There is no doubt that married women are entitled to the beneficial enjoyment of such property and its profits, products and income. This granted, it seems to us that they are necessarily authorized to employ an agent to assist in the creation, so to speak, of the “product” from their separate estates by the management of the laborers or tenants upon them. Beyond doubt, she has the power to lease her property, and to all the rights and privileges requisite to the proper enjoyment of that power. The modes of leasing property are as various as the dispositions of the parties owning it. The law simply gives the wife the power to rent without prescribing the manner in which she may execute that power, the quantity or character of the rent to be reserved, or the agency by which it is to be realized or collected. Suppose, as is usual in the county in which the property of the parties is situate, the appellees had leased to laborers for one-half the gross crops to be raised by them, under certain conditions, or for one-fourth the “product” of the laborers, reserving the privilege of supervision, management and direction, so as to make the “ product ” more than it would be if the laborers were left to themselves; and in 'pursuance of this reservation they had employed an agent or experienced planter to supervise and direct the laboring tenants, will it be said this contract is not authorized by law ? Here was a means employed, indispensable to the end necessary to secure the “ product” to which the appellees were entitled.</p> <p>The authority to employ an agent for the purposes mentioned in the bill, necessarily grows out of the right to enjoy the rights, issues, profits, products and income of their separate estate.</p> <p>2. The operation of the ordinance of the convention abolishing slavery is not such as to defeat, the complainant’s right to a recovery. Construed in pari materia with the act of 1857, it would simply have the legal effect to strike from the act the word “ slaves,” and substitute in its place the persons formerly occupying that relation, but whose condition, as to servitude, was only changed from compulsory to voluntary.</p> <p>3. Aside from this, the appellees had the power to contract for work and labor for “ the use, benefit or improvement ” of their separate estate. These words are general in terms. No particular kind of work and labor is specified. The contract, as set out in the bill, was one entered into expressly for “ such use and benefit.” The supervision of an educated intelligence is a necessity to prevent waste and deterioration in fertility, and increase the product of the sail. To deny to a married woman the privilege of employing such intelligence, is to say she may have the product of the soil, but cannot use the means necessary to create or enhance the product; an absurdity too glaring to require confutation.</p> <p>The ground of demurrer that we principally insist upon is, that the contract sued on is not such an one as a married woman could make chargeable on her sejoarate estate. The services by the complainant were rendered and the contract therefor made, according to the bill, in 1870; hence the Code of 1857 is the law that governs the contract.</p> <p>Assuming, upon the authority of all the cases in the Mississippi Reports, among which we would cite Robinson v. Bruner, 24 Miss. 242; Robinson v. Ward, 12 S. & M. 490; Hardin v. Phelan, 41 Miss. 112; Stevenson v. Osborn, ib. 119; .Whitworth v. Carter, 43 ib. 61; Dunbar v. Mayer, ib. 679; Foxworth v. McGee, 44 ib. 340; Bank of Louisiana v. Williams, 46 ib. 430; that the contract of a married woman is void unless it comes within the positive and literal exceptions of the statute, we conclude that the contract sued on is not binding on the two married ladies, because, first, it arises out of a co-partnership contract, which is not within the statutory exception; and, second,.the services contracted for do not bring it within either of the exceptions. The statute which authorizes a married woman to make a contract that will be binding on her separate estate, for family or plantation supplies, does not authorize her, under the guise of a copartnership contract, to j)ay for family or plantation supplies purchased in whole or in part, for another woman; nor does it authorize one married woman, under the form of a co-partnership, to make a contract which will subject her property to pay for overseer’s wages furnished in whole or in part to another woman.</p> <p>Letting down the bars, to permit a married woman to enter into the field of co-partnership contracts, gives her a license by which she may escape the guardian eye of the law. In Foxworth v. Magee, 44 Miss. 430, it was held that a married woman could not become a member of a commercial firm. And although a distinction is drawn between commercial partnerships and planting partnerships (Davis v. Richardson & May), yet the distinction is not such as would affect the doctrine announced in Foxworth v. Magee. If she could become a member of a planting concern composed of herself and one other, she might become a member of a concern composed of a dozen, and thus be made responsible for plantation supplies or overseer’s wages to large amounts in which she really had very little interest.</p> <p>The second point we would present is, that a married woman could not make a contract in 1870 for overseer’s wages to manage laborers employed. Contracts made “for the maintenance, clothing, care and support of her slaves, and for the employment of an agent or overseer for their management, may be enforced and satisfaction had out of her separate estate.” Rev. Code 1857, p. 336, art. 25. This is for overseer’s wages to manage her slaves, not her hired laborers. The corresponding section 1780, in Code of 1871, omits overseer’s wages entirely. If the last part of the above sentence, quoted from Code of 1857, is to be construed as applicable to hired laborers, the first part of the same sentence must also have a like interpretation, and so a contract made “for the maintenance, clothing and support” of one in the employ of the married woman will also be binding on her. And this again opens up an almost unlimited range of contracts for the married women to embark in.</p>

Davis, J. The opinion of the court contains a full statement of the case. Argued at length that the verdict was contrary to the evidence, and that a new trial should have been granted. The court below refused to set aside the verdict, and it will not be disturbed unless the error is very clear. 1. There was no question in the case but of a simple fact — payment.

Walker, Chancellor. On the 6th of June, 1871, “The city of Natchez,” as complainant, filed, in the chancery court of Adams county, her bill of complaint against the appellants, W. B. Briel and L.… Held: 9 ib. 104; Earl of Ripon v. Hobart, 1 Cooper Sel.

Cunningham, J. The facts are apparent in the opinion of the court. The only point involved in this case is, whether the state or Yazoo city is entitled to the money collected for licenses granted by Yazoo city to persons to retail vinous and spirituous liquors within the city limits, since the 8th day of April, 1872 ? We contend that this fund belongs not to the state, but to Yazoo city.

Henderson, Chancellor. The opinion of the court states the facts. The appellee filed his bill in the court below to foreclose a mortgage given by appellant, with power of sale in the appellee. The mortgagor demurred to the bill, and assigned as cause, among other grounds, that the complainant’s remedy was complete at law, and that the mortgagee had power to sell. The demurrer was overruled, and the mortgagor appealed.

<p>1. Novation. — In. the civil law there are three kinds of novation: 1. Where the debtor and creditor remain the same, but a new debt takes the place of the old one; 2. Where the debt remains the same, but a new debtor is substituted; and, 3. Where the debt and debtor remain, but a new creditor is substituted.</p> <p>2. Same — delegation.—Delegation is where a debtor obtains a release from his creditor by the substitution and acceptance of another who obliges himself to the creditor. Domat, 910, sec. 2318, 2319.</p> <p>3. Same at common law. — Novation at common law is mainly the same as in the civil law. 3 T. K. 180.</p> <p>4. Consideration. — There must always be an old debt extinguished, as a consideration for the new one.</p> <p>5. Same — doctrine illustrated by the case at bar. — P. was indebted to S., who was indebted to C. & C. S. took P.Js note for the amount, having it made payable to C. & C., stating to P, at the time that he desired to hand it to them in settlement of his own debt to them. Held, that when the note was accordingly accepted by C. & C. the several transactions operated upon the principle of novation, as an extinguishment of P.>s debt to S., and of S.Js debt to C. & C. by the substitution of the debt created by the note from P. to C. & C. Held, further, that the new debt from P. to C. & C. was not at all affected by a cotemporaneous collateral covenant between S. & P., and to which C. & C. had not assented; but aliter if they had assented. — Tarbell, J., dissenting.</p> <p>5. Instructions to jury. — An instruction containing only a correct legal proposition held to be erroneous, because inapplicable to the facts.</p> <p>6. Evidence — presumption—contracts.—Where the consideration passes from A. to B., and A. takes B.5s note, payable to C., the transaction must be held to amount to a consent by B. that A. shall deliver it to C.; and if B. is further informed that A.’s motive for taking the note, payable to C., is the extinguishment of a debt owing by A. to 0., these facts establish a prima facie consideration for the note. ’And the inference is greatly strengthened if C., shortly after receiving the note, transfers it by indorsement to a third party. But if the onus of proof be upon 0., the inference thus created is subject to explanation.</p> <p>7. Same. — When P. signed the note payable to C. & C., with notice that S. intended handing it to them in payment of his debt to them, he was estopped in pais from setting up any transactions between S. and himself as a defense against it. Tarbell, J., dissenting.</p>

Boone, J. The facts of the case are all apparent in the argument of counsel and opinion of the court. This case presents three classes of execeptions : 1. The special exceptions taken to the rulings of the court on the trial. 2. The errors committed by the court in granting certain instructions for defendant. 3. The grounds on which the motion for a new trial was made; that the verdict was contrary to law and the evidence. These will be considered in this order: I. 1.

Young, Chancellor. The bill was exhibited by T. H. & J. M. Allen & Co., and stated that William J. Hall and wife conveyed lot 27, in Goodman, on the 11th of January, 1867, to William T. Courts, who filed his deed for record April 6, 1867, and that W. T. Courts, on the 14th of May, 1867, mortgaged lot 27 to complainants, and that the lot 27 was subsequently sold under the mortgage and purchased by complainants; that said William J. Hall executed to Kennedy Harrington a…

<p>Appeal from the chancery court of Yalobusha county. Stearns, Chancellor.</p> <p>The record discloses the following facts:</p> <p>Appellant married one Napoleon Roberts, on the 4th October, 1859. About the 30th October, 1859, Roberts left his home in this state and went to Louisiana on business. Several letters were received from him, the last about the 30th November, 1859. He was then in Louisiana, sick in bed, and announced that he had concluded his business and would return home as soon as able to travel. His domestic relations were affectionate and agreeable. He has never been heard of since. It was the belief of his family, when appellant married Wilkie, and is their belief now, that Roberts died in Louisiana in the latter part of 1859.</p> <p>Appellant married Sylvester Wilkie, 22d December, 1861. Left him in the fall of 1868 and went to Arkansas.</p> <p>Wilkie married Mary Eliza Adams, 1869, and died 6th September, 1871.</p> <p>On the 12th September, 1871, the clerk of the chancery court of Yalobusha county, in vacation, granted letters of administration on Wilkie’s estate to appellee. At the ensuing October, 1871, term of the chancery court, the clerk moved the court to confirm his action in vacation, and at the same time appellant appeared and moved the court to set aside and vacate the action of the clerk, and to grant letters of administration to her. On the application of appellee, the matter was continued to the following term, in January, 1872, when the court confirmed the action of the clerk. And from this decision of the court appellant appealed.</p> <p>The controversy originated from the doubt of the validity of appellant’s marriage with Wilkie.</p> <p>I. Every presumption must be indulged in favor of a marriage solemnized according to the forms of law. Ward v. Dulaney, 23 Miss. 415; Hull v. Rawls, 27 ib. 471, 473 ; Powell v. Powell, ib. 783, 784.</p> <p>These cases are pertinent in more aspects than one.</p> <p>There is a presumption of the continuation of life; there is also a presumption of innocence. The former yields to the latter when these conflict. Spears v. Burton, 31 Miss. 546; Rex v. Twyning, 2 B. & Aid.; Greensboro v. Underhill, 12 Vt. 604; Yates v. Houston, 3 Tex.; Canady v. Gorge, 6 Rich. Eq. (S. C.) 103; 1 Greenl. Ev., §§ 35, 41; Best on Ev. (5th Lon. ed. 1870), §§ 334, 335; Cloydon'v. Wardell, 4 N. Y. 230.</p> <p>The authorities last cited maintain the validity of a marriage within the five or seven years from the time the absentee was lasU heard from, if it be not proved that such absentee was, in fact, living at the time of the marriage. This proposition was clearly announced in the sixth instruction to the jury by the distinguished judge who presided in the lower court, in Spears v. Burton; and this court, speaking of that and another instruction: “We consider these instructions as stating the correct rule upon the subject. It is true, that the presumption of law that Bayard was alive until the lapse of five years after his departure has giyen rise to the presumption created by the statute, that: e was dead. But there is also a presumption of law tlj t the marriage of the plaintiff’s father and mother w, ’ * valid, it having been solemnized in due form of lai It was valid, unless the former husband was living that time. But unless he was shown to be living, t* j presumption must be indulged that he was dead; because, otherwise, the second marriage would be held criminal by reason of a presumption which would be to establish a crime upon a bare presumption.” 31 Miss. 555.</p> <p>Manifestly, this presumption of innocence is inapplicable, except to such a case as that of appellant, where the marriage was solemnized before the expiration of five years from the time Roberts was proved to be living. For, had Roberts been absent five successive years before appellant married Wilkie, without being lmown to her, within the time, to be living (Rev. Code, 1857, 577, art. 29), her marriage with Wilkie would not have been criminal and punishable. Proof, indeed, that Roberts was living when she married Wilkie would avoid that marriage. Gibson v. the State, 38 Miss. 322.</p> <p>But, from the time appellant heard from Roberts, to the time she married Wilkie, five years not having expired, the statutory presumption of death does not attach; and, unless the presumption in favor of innocence is applied, she committed bigamy, and can be punished on the presumption that Roberts was living when she married Wilkie, it not being proved that Roberts was then dead.</p> <p>On authority, therefore, it seems clear that a presumption of death arises whether the marriage occurred before or after the expiration of five years from the time the absentee was proved to be living, such absentee not being proved to be living at the time of the marriage; and the only difference between a marriage before and one after five years is — the absentee being proved to be living when it was solemnized — in the former case the marriage is criminally bigamous, in the latter it is not. Gibson v. the State, 38 Miss.; Spears v. Burton, 31 ib.</p> <p>It was urged in the lower court, by counsel for appellee, that the presumption of innocence invoked to support the validity of the marriage of Wilkie and appellant, applied as well to the marriage of Wilkie and the woman Mary Eliza Adams; and apparently this conceit had much weight with the chancellor, for the only reason that functionary assigned for sustaining the grant (by the clerk, in vacation) of letters of administration to appellee, was, it appeared to him, that the presumptions of innocence were about equal to the presumptions of guilt. The position asserted in behalf of appellant, briefly stated, is, if Roberts was living when she married Wilkie, and that fact is proved, her marriage with Wilkie was void, and the marriage of Wilkie and the woman Mary Eliza was valid; but if Roberts is not proved to have been living when she married Wilkie, that marriage is presumed to be valid, and that presumption must be destroyed by proof, or Wilkie’s marriage with the woman Mary Eliza. must be deemed void. Were it not proved that, appellant was living when Wilkie contracted the second marriage, the presumption would then indeed be in favor of the validity of the second marriage. But_the application, under the circumstances, of the presumption to the marriage, of Wilkie and the woman Mary Eliza, involves the absurdity of sustaining the validity of two co-existing matrimonial connections.</p> <p>2. There is a presumption of the continuanc of life unless the contrary is proved, or sufficient time has elapsed to raise the presumption of death. 1 Greenl. Ev., § 41.</p> <p>In Mississippi a presumption of .death arises sooner in some cases than others. Rev. Code, 1871, §§ 882, 2506; Gibson v. the State, 38 Miss.</p> <p>The extent of the presumption of. death is, that after the lapse of a definite time the absent and unheard of person is dead; but not that such person died at the end of the time at which the presumption arises, or at any particular time, and a jury may find the fact of death from the lapse of a shorter period, if other circumstances concur. ■ Best on Presump. Ev. (5th Lon. ed., 1870), § 409; 1 Greenl. Ev., § 41; Smith v. ICnowlton, 11 N. H. 191,197; 1 Barb. Cb. 462.</p> <p>“ The jury may find, as a matter of fact, that a ■ party died within a much less period after he was last heard from, on circumstantial evidence which leads their minds to such a conclusion.” Parker, C. J., in 11 N. H. 197.</p> <p>In this case the presumption is that Roberts died “ long ago.” Starting with the fact that Roberts is dead, the inquiry is, when, most probably, did he die ? The testimony satisfactorily points to the latter part of 1859. He was then in the state of Louisiana, whither he had temporarily gone on business; was confined to bed in feeble health; announced his purpose to return to his home and family in this state as soon as able; his domestic relations affectionate and pleasant, and therefore well calculated to induce his early return. He has never been heard of since. Those interested in him so deeply, believed and believe that he is dead. The facts, if not stronger, are strikingly like those in Spears v. Burton, before cited.</p> <p>3. This presumption of innocence is applicable alike to civil and criminal cases. Bex v. Twyning, 2 B. & Aid.; Spears v. Burton, 31 Miss., is an ejectment suit. Clayton v. Wardell, 4 N. Y. 231, 237; Best on Presump. Ev. (5th London ed., 1870), § 334.</p> <p>“ The presumption of innocence is- favored in law. This is a well known rule, and runs through the whole criminal law; but it likewise holds in civil proceedings.” Best on Presump. Ev., § 334.</p> <p>And then against this is opposed the strong legal presumption against the commission of crime; a presumption applicable in every case, as well civil as criminal.” Clayton v. Wardell, 4 N. Y. 231, 237.</p> <p>Should it be argued that the presumption, on which depends the validity of appellant’s marriage with Wilkie, .merely relieves her of a penalty and did not bind Wilkie, that position is refuted in Gibson v. the State, 38 Miss. 322-3.</p> <p>It is admitted that on the 4th day of February, 1859, the appellant was married to one Napoleon Boberts; that in October, 1859, he left her, saying he was going to Louisiana on business, and would shortly return; but that he never returned, and, save by a few letters received from him soon after his departure, has never been heard from; that, without a divorce, appellant married the decedent on the 30th day of November, 1861, about two years after the disappearance of Roberts; that in the fall of 1868 appellant deserted the decedent, without informing him of her intention, and took up her abode in the state of Arkansas with a daughter of her’s, remaining there until after the decedent’s death; that decedent, after appellant’s desertion of him, on the 11th day of September, 1869, married one Mary Eliza Adams, who is the person claimed by appellee to be the true widow; that appellant knew of this marriage, and made no objection to it either to the decedent or to said Mary Eliza, or to any of appellant’s own relatives, who resided in Yalabusha county.</p> <p>■ Such are the circumstances, and the only question involved in the cause is, which is the legal marria.ge ?</p> <p>■ The principle which controls this case may be gathered from 1 Greenl. Ev., § 41, and the Rev. Code of 1857, page 521, art. 252. A jaerson once shown to be alive, is, for seven years presumed to be still alive, unless the contrary is shown, and this presumption is so strong, that “ the burden of proof lies on the party who asserts the death.” Throgmorton v. Walton, 2 Roll. 461; Wilson v. Hodges, 2 East, 313; Battin v. Bigelow, 1 Pet. C. C. R., 452; Gilliland v. Martin, 3 McLean, 490; 1 Greenl. Ev., § 41.</p> <p>Counsel for the appellant maintain that this principle is overridden, and the burden of proving Roberts’ death affirmatively is devolved on the appellee, by the presumption which, they say, the law will entertain of the innocence and validity of the appellant’s marriage with the decedent. They cite as authorities to this point, 1' Greenl. Ev., § 35; 2 Am. Lead. Cas. 702-6; Hull v. Rawle, 27 Miss. 471; Spears v. Burton, 31 ib. 547; Gibson v. the State, 38 ib. 313. Generally, these authorities are not apjilicable to the case at bar, for the reason that they adjudicate causes which differ from this in an essential point, viz.: the fact that there is not in them what is here, a counter presumption of innocence. True, the appellant is entitled to be held by this court innocent of bigamy; and did ‘the case rest here, the presumption of Roberts’ continuation in life at the period of her marriage to Wilkie should be overthrown; but the case does not rest here, for Mary Eliza Wilkie, as well as the decedent himself, is entitled to a presumption of innocence as strong as appellant’s, and the latter presumption will nullify the former.</p> <p>Appellant’s counsel will object, however, that Mary Eliza Wilkie is entitled to no presumption of innocence, “ because,” say they, “ we produce the appellant in person; her existence is an undoubted fact, and in the face of it, said Mary Eliza cannot invoke a presumption, nor can the appellee for her. Let them produce Roberts alive, to invalidate appellant’s marriage, as we produce the appellant alive to invalidate the marriage of Mary Eliza Wilkie.” This is a plausible objection, and would be sound if only the validity of Mary Eliza Wilkie’s marriage to decedent depended on appellant’s life or death, as that of the appellant to decedent does on the life or death of Roberts. Such, however, is not the case. The presumption of Mary Eliza Wilkie’s innocence rests on neither the life nor death of this appellant, and, therefore, cannot be settled by the bodily presence of the appellant, but does rest solely on the precise point which the presumption of the innocence of the appellant herself raises, i. e., the life or death of Roberts, which question, it is evident, will hardly be decided by the bodily presence of Roberts’ wife.</p> <p>Since, then, each party is entitled to presumption of innocence which directly conflict with those of the other, and are equally powerful, the court will not entertain one presumption in preference to another, but should ignore both in the decision of the case. For this, we find authority in law, as well as in reason. 2 Am. Lead. Cas. 704. Gibson v. the State, 38 Miss. 313, is in point here. This principle, in relation' to the continuance of life, hears a two-fold aspect: 1. In the absence of proof to the contrary, life is presumed to continue during a period of seven years; 2. After the passage of seven years, death is presumed to have occurred. In no author do we find a hint that the one presumption is of more force than the other. Now, in Gibson v. the State, counsel for the appellant sought to overthrow the last branch of this principle, not the first. The man Williams had been absent more than five years, the legal presumption of his death had attached, his wife had married Gibson, who afterwards had married the woman Ann Cochran without a divorce; and, under an indictment. for bigamy, it became necessary, to Gibson’s defense, to show that his first marriage (to Mrs. Williams) was invalid. To do this, he invoked his presumption of innocence in order to overthrow the statutory presumption of Williams’ death, just as, in this case, the appellant invokes her presumption of innocence to overthrow the statutory presumption of Roberts’ life. The-court refused to entertain such a proposition, saying that this marriage with Mrs. Williams was to be presumed innocent as well as that with Ann Cochran; and, between the two conflicting presumptions, the statute was permitted to stand unshaken and the prisoner was convicted.</p> <p>The foregoing views will be found to be borne out by an analysis of the authorities cited by appellant’s counsel. Section 35, 1 Greenl. Ev., is founded on the case of Williams v. the East India Co., 3 East. 192, which' is adverted to in 2 Am. Lead. Cas. 704, and held to be ill considered, in that it ignores the fact that the master who received the inflammable articles should be presumed innocent of a criminal negligence, as well as he who shipped them. The pages in 2 Am. Lead. Cas., ■which counsel cite, contain nothing contradictory to this principle. In Hull v. Rawls, 27 Miss. 471, the court rejected a statement of Rawls, the decedent, which was the only testimony that would even tend to show that the death of the first wife might not have been well known at the time of the second marriage'; and also states that even if the first wife were known to be alive, there was no proof before the court that she had not been divorced from the decedent previous to his marriage to the appellee. Moreover, in that case, the indulgence of a presumption that the appellee was innocent involved no imputation of crime to -the first wife of Rawls, the decedent; whereas, in this case, to presume the appellant innocent would be inevitably to presume another guilty; and this difference between the two cases is alone fatal to Hull v. Rawls as an authority. The use of Spears v. Burton as a precedent is fallacious, for the same reason. There, a presumption of Mrs. Burton’s innocence cast no stain on any one, and it was properly indulged; here, such a a presumption does fix a stigma on others, and its indulgence would be improper. In relying on Gibson v. the State, 38 Miss, 313, opposing counsel seem to us to be leaning on a reed worse broken than any of the others. To grasp the full significance of this case, it should be read in connection with Spears v. Burton, and carefully compared with it. ■ The able counsel for both the prosecution and the defense relied on Spears v. Burton as authority for themselves. The same learned judge delivered the opinion of the court in each case, and cites and approves Spears v. Burton in his decision. Both cases were adjudicated entirely on legal presumptions; and in both we find the same presumption of innocence of bigamy invoked and insisted on in order to overthrow, in the one case, a presumption of life, in the other, a presumption of death — the two co-ordinate branches of the one principle. Yet, notwithstanding all this similarity and parallelism in “ the conclusion of the whole matter,” there is a difference which is fatal to the appellant in this cause. In Spears v. Burton, the presumption which is attached is overthrown; in Gibson v. the State, it is not. Now, there must be some explanation of this remarkable difference in the result of these cases, and it is found in the fact that the very element which enters into the case at bar, and which is not found in Spears v. Burton and its cognate cases, does enter into Gibson v. the State — a second marriage which is entitled to its presumption of guiltlessness.</p> <p>In the case of Spears v. Burton, on which appellant so confidently relies, speaking of the missing husband, the court say: “ Unless he was shown to be then living, the presumption must be indulged that he was dead; because, otherwise, the second marriage would be held criminal, by reason of a presumption ” (that of his life), “ which would be to establish a crime upon a bare presumption.” Here we have the principle in a nut-shell; the law will not presume a crime.</p> <p>Now, for this court to hold that appellant’s marriage with decedent was invalid, and that Mary Eliza Wilkie’s marriage with him was valid, would not “be to establish a crime upon a bare presumption.” The admitted facts of this case are such as to exclude every hypothesis of innocence of bigamy in all parties. In fact, the crime is virtually conceded. The dilemma is so irrefragible that there is no escape from the conviction that some of these parties, either appellant or decedent, or Mary Eliza Wilkie, have committed a bigamy. At the time of appellant’s marriage with the decedent, her first husband, Roberts, was either alive or dead. If he was alive, then her marriage with decedent was bigamous; if he were dead, then her' marriage with decedent was valid; but decedent’s subsequent marriage with Mary Eliza Wilkie was bigamous. Hence, the court is not called upon to presume a crime, or to decide whether a crime was committed; but only to decide which of these parties shall stand charged with a crime, commission of which, by some of them, cannot be doubted.</p> <p>Under this view of the case, all questions of presumptions of innocence fall to the ground. For either party to demand to be held guiltless, at the expense of the unavoidable stigmatizing of the other, with no better reason for such a demand than that in law she is presumed innocent, would he no less unreasonable in law than in fact. The legal presumption of Roberts’ life, then, stands without even the ghost of a principle to assail it, and clearly designates the appellant as the party who must lose by this controversy. Ignorantia juris non excusat; and it is hut just that she who married in direct opposition to the law of the land should suffer by it, rather than she who married in accordance with that law. By her marriage with decedent, appellant directly violated the spirit of the statute; and now she relies on that very violation, and that alone, as a reason for abrogating and annulling the statute altogether. Such demands have been yielded to by the courts in other cases, rather than to criminate the transgressor and subject him to a criininal prosecution; but has it ever been done in favor of the person violating the law, when the very tenderness shown to him necessarily results in the extremest harshness towards, 'and fixes the- gravest felony on, an innocent party, who has married in reliance on that very statute ?</p> <p>Appellant admits that in the fall of 1868, she deserted the decedent, Wilkie, without informing him of her design, and took up her abode in Arkansas, where she remained until after the decedent’s death; that she knew of decedent’s marriage to Mary Eliza Wilkie, and uttered no word of remonstrance either to the decedent or to the said Mary Eliza, or to any of appellant’ s own family, who were living in Yalobusha county at the time. These facts, taken in connection with the rash and highly improper haste of her marriage with decedent, show an indifference to the sacred obligations of the married state, a levity in tearing herself away from such ties, and, according to her own statement, a connivance at a bigamous connection which cannot but weigh heavily with the court, and materially aid it in coming to a just conclusion as to the merits of this cause. The deposition of appellant states, that in his last letter to her, her husband, Roberts, informed her that he was lying very ill at some town in Louisiana (name not remembered); that he .had to be propped up in bed with pillows in order to write, and that he would come home as soon as he could. We submit that there is a grave objection to the credibility of this letter. In the first place, it is exactly such a letter as a man who was forsaking his wife and wanted to quiet all inquiry, and prevent any search, would have written. Such artifices are too common to need comment. In the second place, the fact which is sought to be proved by the' contents of that letter, viz.: Roberts’ death at that time of that illness, is, under the circumstances, exceedingly improbable. This letter was written in the latter part of 1859, a period of profound peace and free communication; if it shows anything, it shows that Roberts was attended in his illness with extreme kindness. He was furnished materials for correspondence, propped up in bed with pillows that he might write, his letters were faithfully posted, etc. And yet we are asked to believe that those persons who had so kindly attended him in his illness had stood about his bed and heard the pathos which always breathes in the last utterances of the dying, had seen the last faint light of love and life fade from him forevei-j in the midst of strangers, — that these persons were so deficient in the commonest impulses of humanity as to write no line to the bereaved wife, telling her the sad story of her husband’s decease, and of the spot where she might find his ashes. Is it not incredible ? Or, if there was such a community amongst us (which God forbid!), is it not as fully incredible that the members of it would alogether have failed speedily to present to the stranger’s family their bills for the expenses of his last illness and burial ?</p> <p>It will probably be insisted that the fact, that Roberts has not been heard from to this day, should influence the decision of the court. The strength of this argument is very much impaired by the fact that immediately after the marriage of appellant to decedent, a violent civil war deluged the county for years; that all communication was stopped in a greater or less degree, especially between this and the trans-Mississippi country. That thousands of men disappeared forever from the knowledge of their families, with whom they were anxious to keep up intercourse, much more from those from whom they were anxious to secrete themselves. If Roberts is dead, which, however, by no means follows from the failure of his wife, who has married again, to hear from him, it is not unreasonable to suppose that he died during the war, and at a period too late to aid the appellant in this controversy. The court will judicially know of this war and its history. 1 Greenl. Ev., § 5.</p>

Harmon, Chancellor. The facts appear in the opinion of the court. Held: in construing the statute, that whenever it is manifest that a scroll was intended to be used by way of seal, it must have that effect, whether it so appears from the body of the instrument or from the scroll itself.” Hudson v. Poindexter, 42 Miss. 306-7; McRaven v. McGrier, 9 S. & M. 47; Whittington v. Clark, 8 ib. 485.

McMillan, Chancellor. The opinion of the court states the case. It is a settled rule in chancery that an injunction, until dissolved, must be obeyed, even if wrongfully sued out. Kerr Inj. Eq. 638. It is equally well settled that a party in contempt for breach of injunction, shall not, before purging himself of the contempt, be heard on motion to dissolve the injunction, or take any steps in the cause. A court will not lend its aid to one in contempt of court.

Peyton, Chancellor. The opinion of the court contains a sufficient statement of the case. The question of the validity of the mortgage was once settled for the appellant by demurrer to his bill, on overruling which, the defendants, by answer, raise the following, among other objections, to a decree of foreclosure: 1.

<p>Appeal from the chancery court of Hinds county, 1st district, Cabaniss, Chancellor.</p> <p>The opinion of the court contains a sufficient statement of the case.</p> <p>All the authorities agree that no general rule can be laid down to define multifariousness, and that each particular bill must of necessity be tested by facts it sets forth. Story Ecp PI. (ed. 1848), § 530.</p> <p>By multifariousness in a bill, is meant the improper joining in one bill distinct and independent matters, and thereby confounding them; as, for example, the uniting in one bill of several matters perfectly distinct</p> <p>and independent, against one defendent, or the demand of several matters of a distinct and independent nature against several defendants. Story Eq. PI. (ed. 1848), § 271, p. 313.</p> <p>The same author states, also: “ That the objection must be confined to a case where the case of each particular defendant is entirely separate and distinct in its subject-matter from that of the other defendants; for the case against one defendant may be so entire as to be incapable of being prosecuted in several suits, and yet some other defendant may be a necessary party to some portion only of the case stated, and then the objection of multifariousness could not be allowed to prevail.” Story Eq. PI. (ed. 1848), § 271 a, p. 315. And, in the section last above cited, says : “ It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it is sufficient if each party have an interest in some matters in the suit.”</p> <p>The case here shows that all of t)ie defendants have an interest in the land sought to be recovered, all deriving title to their respective parcels from the same source — the pretended sale by McGowan’s executors— and therefore the demurrer in the case was bad. In fact, if our bill had omitted to make all persons interested in any part of the plantation, parties defendant, a demurrer to the bill for want of proper parties might have been successfully interposed.</p> <p>In a case before the lord chancellor of England, this language is used: “ If the object of the suit be single, but it happens that different persons have separate interests in distinct questions which arise out of that single object, such persons must necessarily be brought before the court.” 5 Madd. 138.</p> <p>That is the precise state of facts now before the court. See also, Story Eq. PI. (ed. 1848), § 286, note 2, and cases there cited.</p> <p>Equity abhors a multiplicity of suits, and always endeavors, as far as possible, to litigate a whole subject in the same suit. Story Eq. PI. (ed. of 1848), § 531.</p> <p>A bill is not multifarious which unites several matters distinct in themselves, but which, together, make the complainants’ equity, and are necessary to complete relief; nor, on the ground of misjoinder of several plaintiffs, where either of them would not be entitled to proceed separately for relief without making the others defendants. Danl. Ch. Pr. (ed. 1871), 339, note 1.'</p> <p>This whole question of multifariousness is elaborately treated in the same work (edition of 1871), with notes referring to a great number of cases decided in the American courts, and which are absolutely conclusive in our favor on this question. Danl. Ch. Pr. (ed. 1871), 333-346, and notes and cases there cited.</p> <p>This question of multifariousness has been expressly adjudicated in our favor by this court. Eorniquet v. Forestall, 34 Miss. 87, and the other cases there cited.</p> <p>And yet the demurrer was sustained by the chancellor on the sole ground of multifariousness in the bill; and on this ground he dismissed it instead of permitting it to be amended. This was error, even though the bill had been open to the objection. In general, any defect in a bill may be amended as often as occasion may require. Even after answer, a bill may be amended by the new lights afforded by the answer. Story Eq. PL (ed. 1848), 907, § 885. _</p> <p>_ . Under the general statute of the state of Mississippi, relating to amendments, we were clearly entitled to have an order for amendment on sustaining the demurrer, and the bill ought to have been retained for amendment. Rev. Code 1871, § 621.</p> <p>This is not, in effect, a bill of review. The main object of the bill is to secure to the heirs of Hugh McGowan the lands of which he died seized and possessed, on the ground that the whole proceedings by which they were attempted to be taken from them were illegal and fraudulent; that there was no ground for the sale; that all of the executor’s accounts were fraudulent; that the will of McGowan was violated by the order of sale; and that the inheritance of complainants has been taken from them by the defendants without consideration and without authority of law. True it is, that the administration accounts are referred to in the bill, and a prayer made that, if necessary, they may be referred to a commissioner to reform; but that does not make this a bill of review. The only object in referring to those accounts at all was to show the general proposition that they were founded in fraud, and gave, therefore, no reason for a sale of the lands; and that the pretended sale was, in fact, made in violation of the orders of the court, by selling on a credit of twelve months, when the order was for a cash sale.</p> <p>We have studied equity jurisprudence in vain, if the decision appealed from in this case cannot be sustained upon either of the grounds of demurrer to the bill of complaint; and in support of this position we cite the following authorities — those from Story’s Equity Pleadings being from the edition of 1844: Story Eq. PL, § 271, and note 1, p. 295 and notes 1 and 2, p. 296; §§ 272, 278, as to sales to different persons in different lots; § 274, p. 300 and note 2, where bill was to correct accounts of executors, and to vacate sales by them; [this note quotes the language ‘ of a decision to the contrary of the rule here referred to, but which decision had been overruled]; § 274 a, top p. 301, to same effect. Also, Gaines et ux. v. Chew et al., 2 How. (U. S.) 619, pp. 641-644; also, Story Eq. PL, §§ 276, 284, 538, to the effect that “unconnected parties” cannot be joined, except “where there is one common interest among them all centering on the point in issue in the cause.” Also secs. 277 and 278, and note 1 to sec. 278, commencing on tenth line from bottom of page 305, and continuing on pages 306 and 307; especially commencing on seventh line from top of page 307, in continuation of this note 1, in which reference is again made to the case hereinbefore referred to, cited in note 2 to sec. 274. Also, sec. 284 a, to show that a bill will not be treated as multifarious if two matters are joined therein, provided all the defendants have an equal interest therein, and the relief prayed for is of the same general character. As to the same point, see also Graves & White v. Hull et al., 27 Miss. 419, 422.</p> <p>It follows, as a legal sequence of this rule that, if all the defendants have not an equal- interest in the subject-matter of the suit, the bill must be regarded as multifarious, and consequently dismissed.</p> <p>See also, Story Eq. PL, sec. 530 (2), on page 515, to show that a demurrer will lie if a defendant has no connection with a large portion of the subject-matters of the bill. See also, Santacruz v. Santacruz, 44 Miss. 714, 720. In this connection, we submit that it is beyond our comprehension what connection the purchasers at the sales of the lands by the executions of Hugh McGowan can have with a proper adjustment of the accounts between these executors and the legatees or devisees under the will of said Hugh McGowan.</p> <p>Even upon the general conclusion of Judge Story, as expressed in section 539 of his Commentaries on Equity Pleadings, that “ there is no positive, inflexible rule as to what, in the sense of courts of equity, constitutes multifariousness, which is fatal to the suit on demurrer,” we insist that the decree appealed from in this case must be affirmed, as, in the section here referred to, he uses this language: “These courts,” referring to courts of equity, “ have always exercised a sound discretion in determining whether the subject-matters of the suit are properly joined or not, and whether the parties, plaintiff or defendant, are also properly joined or not. * # * . All that can be done in each particular case, as it arises, is to consider whether it comes nearer to the class of decisions where the objection is held to be fatal, or to the other class where it is held not to be fatal.”</p> <p>’ A demurrer is the proper form for objection to a bill of complaint on the ground of multifariousness, or misjoinder of defendants. Story Eq. PI., §§ 271, 284, 538.</p> <p>As then it follows, that the decree appealed from in this case was but the exercise of sound discretion on the part of the chancellor as to whether the original and amended bills of complaint were fatally defective, either on the ground of multifariousness, or of the misjoinder of defendants, we submit that this decree must be affirmed, as this court does not recognize a matter vesting in the sound discretion of the inferior court as a proper subject-matter for appeal.</p> <p>Under this view of the facts in this case, and the authorities before cited, it appears to us strange indeed that appellant’s counsel can hope to reverse the decree appealed from., Surely, their bills of complaint fail to show any community of interest between the heirs of Hugh McGowan, deceased, and the purchasers of the lands at the sales by his executors in a re-adjustment of the accounts of such executors. Even if there should be a re-statement of these accounts of the executors, surely these purchasers could not be regarded or treated by the courts as proper parties to an application intended for this purpose; then as such re-statement of said accounts constituted a large portion of the subject-matter of the bill of complaint in this case, in which these purchasers have no interest, it necessarily follows that the decree dismissing these hills of complaint was correct and should be affirmed.</p> <p>Then it follows, that if such heirs, legatees or devisees were entitled to maintain such separate actions, they could not maintain the joint action attempted in the bill of complaint in this case.</p> <p>The fifth cause of the demurrer to the bills of complaint in this case was to this effect:</p> <p>The bill of complaint shows that more than two years elapsed after the final settlement of the accounts of Hugh McGowan, deceased, had been allowed by the probate court of Hinds county before said bill of complaint was filed, and yet it fails to show or assign any sufficient reason why the alleged errors in the executors’ accounts had not been corrected by bill of review.</p> <p>And if, then, a period of two years elapsed from the allowance of this final account, before the bill of complaint in this case was filed, and the pleadings show that it had, the complainants were barred from having any re-statement or corrections of these accounts of the executors of said Hugh McGowan. Code of 1857, p. 431, art. 33; ib. p. 401, art. 16.</p> <p>The bill of complaint seems to anticipate that this objection would be urged against the relief therein prayed for, and to avoid it by alleging “ that, when the sale of said lands occurred, the youngest heir had not attained the age of majority,” etc.</p> <p>This allegation constitutes no defense against the position here discussed, for the reason that the bill of complaint alleges that the complainants are the only heirs, etc., of Hugh McGowan, “ except the above named defendant, A. M. McGowan.” Although it does not appear, from this allegation, whether such minor heir was said A. M. McGowan, one of the defendants or one of the complainants, it could not be that such minor was said A. M. McGowan, for the following reasons : It appears, from other allegations of the bill of complaint, that he had qualified as one of the executors of Hugh McGowan, and participated in making the final account and sales of the lands complained of in the hill of complaint.</p> <p>It follows, then, that such minor was one of the complainants in the bill of complaint in this cause ; and, under the decision in Fearn et al. v. Shirley et al., 31 Miss. 301, p. 305, it follows, that whatever will bar an action as to azzy one of several plaintiffs will bar it as to all.</p> <p>It is too well settled, especially by the decisions of this court and the previous appellate court of this state, that a party cannot be heard, to avail himself of an objection not raised in the inferior court, 'to authorize the citation of authorities on- the point. The fact, that appellants did not ask for leave to amend their bill of complaint, must be regarded by this court, not only as a waiver of such right, but as evidence that they were willing to risk a reversal by this court of the decree appealed from, upon the ground that their bill of complaint was sufficient to entitle them to all the relief therein prayed for. This court cannot determine what would have been the action of the chancery court with respect to an application for such amendment. Surely, if appellants do not desire to amend their bill of complaint, the chancery court could not compel them to do so. If they had desired to amend this bill in the chancery court, they should have made a proper application for this purpose. Perryman and wife v. Gardner et al., 42 Miss. 548, 549; Hunt v. Walker et al., 40 ib. 590, 593; Code of 1871, § 1036, p. 203.</p> <p>In all such cases the chancellor must, ex vi termini, be invested, to some extent, with a discretion as to whether or not there can be any amendment made in the bill of complaint which would authorize or justify him in putting parties to the delay and expense of a further answer; which could only disclose such matters as might then be judicially known to him; which could not authorize a court of chancery to grant any relief whatever in the cause, or to take jurisdiction of these subject-matters. Osborn v. Noble, 45 Miss.; Bloom, Adm’r v. Price, 44 Miss. 73, 79-81.</p> <p>Even admitting, on the one hand, that these sales of the lands were, as charged in the bill of complaint, fraudulent, still this would not constitute any reason why the final account of these executors.was not correct and properly allowed ; and admitting, on the other hand, that these accounts were false, fraudulent, etc., as charged, still this would not constitute any reason why the purchasers at the sales of these lands had acted in fraud of the rights of the heirs, legatees or devisees, etc., of said Hugh McGowan. It follows, then, that although these purchasers had no interest in a proper adjustment of these accounts, as between these executors and the heirs, legatees or devisees of Hugh McGowan, deceased, although these heirs, legatees or devisees may have had a common or community of interest, both in these accounts and sales of lands; that still there was no such community of interest between such heirs, legatees or devisees, such executors and purchasers, as would authorize a court of equity, by one and the same decree, to adjust the several interests between all of these parties; in such case, even if there was such community of interest in these heirs, legatees or devisees, both in these accounts and sales, still the record in this cause discloses the fact that there was no such community of interest between these purchasers and such heirs, legatees or devisees in these accounts, and no community of interest between such purchasers, even as to the separate lots or parcels of land so sold by such executors. In such a state of the case, there could not have been any amendments of the bill of complaint, according to the authorities before cited by us, by which these several and distinct matters could have been adjudicated in the same bill or by one and the same record, and consequently there was no error in "the decree appealed from because it did not provide for leave to amend the bill of complaint.</p> <p>As the demurrer in this case was accompanied by an answer denying all fraud, and the answer was specially limited to the allegations of the bill which charged fraud, etc., it follows that the decisions in Gray et al. v. Regan, Adm’r, 23 Miss. 304; Hamilton & Young v. Lockhart et al., 41 Miss. 460, 479, and Horsan v. Field, 41 ib. 712, cannot prejudice the rights of the appellees in this case.</p> <p>As the remaining causes of demurrer — 3, 4 and 5 — • to the bill of complaint are predicated upon facts appearing only in the. exhibits to this bill of complaint, and as this court, in the recent case of W. C. Stathom et al. v. New York Life Insurance ConqDany, 46 Miss., has decided that such matters will not be noticed on demurrer to the bill, we shall only refer to these remaining cases of demurrer, and the authorities which sustain them.</p> <p>The third cause of demurrer was to this effect: The bill fails to show that said sales of lands, by the executors of Hugh McGowan, were not in accordance with the provisions of the will, which authorized these executors “ to sell property of all kinds in their discretion as to time, terms and amounts, and to sell either publicly or privately.”</p> <p>The fourth cause of demurrer, after reciting said power of sale given by the will to the executors, alleges that the probate court of Hinds county, by a valid final decree, ratified the sale of said lands on a credit of twelve months, as so made by said executors.</p> <p>The fifth cause of demurrer, after referring to the power of sale by these executors as given in the will of Hugh McGowan,-and the decree of the probate court confirming such sales, is to this effect: That such sales being made in conformity to the directions of said will were valid, even if made on a credit, and in violation of the decree of the probate court, as under said bill said court could not have had jurisdiction to divest the executors of the power to sell said lands according to their discretion under this bill.</p> <p>We submit that these several positions are sustained by the following authorities: Code of 1857, art. 136, p. 458; ib. art. 55, p. 437; ib. art. 54, p. 436; Bartlett v. Sutherland et al.-, 24 Miss. 395; Bell et al. v. Tombigbee R. R. Co., 4 S. & M. 549, 563; King et ux. v. Talbert, 36 Miss. 367, 373-4.</p>

Smiiet, J. ■ The facts sufficiently appear in the opinion of the court. The only questions in this case are, whether a public officer is personally responsible for contracts made in his official capacity, without an obligation to bind himself; and, secondly, does not the statute provide that the collector shall pay the printer’s fee for such an' advertisement as this suit is based upon ?

Error- to the chancery court of Oktibbeha county. Pollard, Chancellor. A statement of the case is contained in the opinion of the court. 1. The powers of a trustee are limited and special, and he is obligated by his relation to the utmost diligence, fidelity and good faith. His cestui que trust is not bound by his acts, except so far as they are authorized by the powers specially conferred on him. Story Eq. Jur., title, Trustees; Hill on Trustees.

<p>Error to the circuit court of Yazoo county. Cunningham, J.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>Filed a written argument, citing Bacon v. Bevan & Co., 44 Miss. 293; Partee et ux. v. Silliman, ib. 272.</p>

1. The record does not show such a return as is contemplated by the statute; that the return on a writ of habeas corpus should be signed ■ by the sheriff, see Code, p. 282, § 1405. 2. The second and third causes of demurrer bring before the court the whole question relating to the law of apprenticeship as it now exists in this state, as well as the validity of the proceedings in the chancery court of Lafayette county in apprenticing the minor.

Walker, Chancellor. The opinion of the court contains a sufficient statement of the case. No case can he produced, at least in this court, which holds that voluntary absence of a party from court during the trial is per se negligence.

<p>1. Pleadings — practice.—Whatever might be the proper judgment upon a demurrer to a declaration for want of technical form, it is manifest that, after plea, issue in bar and demurrer to the evidence, it is too late to raise the exceptions.</p> <p>2. Demurrer to evidence. — Office of demurrer to evidence considered, and rule repeated, citing 43 Miss. 184.</p> <p>3. Same — practice.—Where the plaintiff in assumpsit proved that, at the request of the defendant, though without any special contract for the amount of wages, he had been in defendant’s employ for two yearn, the law raises an assumpsit upon the quantum meruit; and upon demurrer to the evidence, the judgment will be quod recuperet, and a writ of inquiry to ascertain the amount.</p>

Boone, J. To an action of debt instituted by an administrator against an executrix, on the 27th of April, 1866, on a promissory note due August 10, 1859, the defendant pleaded: 1. General issue. 2 and 3. Non estfadum. 4. Limitation of six years and nine months since maturity of the note. 5. Limitation of four years and nine months since the grant of letters testamentary. 6.

<p>Error to the circuit court of Hinds county. Brown, J.</p> <p>Judgment upon appeal from J. W. Covington, Esq., justice of the peace.</p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>Whitelaw et al. v. Robinson, 8 S. & M. 349; 3 Black. Com. 304, note; 2 Johns. 150; 2 Caines Cas. 33; 2 Yeates, 208; 2 Story on Cont. 690; 41 Miss. 131; ib. 197-339.</p> <p>Bouv. Law Diet., title, “ Liquidated Damages; ” 30 Miss. 245; 40 ib. 64; 4 How. 70; Code of 1857, p. 493, art. 98; 1 Pars, on Cont. 228, note e; Story Eq. Jur., § 527; 43 Miss. 328; 13 S. & M. 605; 1 ib. 383; 3 How. 222; 23 Miss. 524; 29 ib. 41.</p>

Whitfield, Chancellor. Upon the filing and docketing of this cause, the appellee moved the supreme court to quash the writ of error therein, and to dismiss* this cause, because said writ was sued out from a decree of the chancery court; and also, because it was sued out by said Patterson, who was not a party to the bill, and is in' no way interested in the cause, except as surety on the delivery bond given upon levy of writ of sequestration, etc. 1.

Simmons, Chancellor. The facts appear in the opinion of the court. A party failing to assert a claim in a suit in equity, in which it might have been litigated with propriety, will not be permitted afterwards to enforce it in a second suit, unless the failure to do so was caused by the fraud of his adversary. See Stewart v. Stebbins, 30 Miss. 66. It may be alleged that the purchase of the land was a partnership purchase between Everson and Mrs. Kersey.

Brown, J. The facts are stated in the dissenting opinion of Tarbell, J. A majority of the court having reversed the judgment of the circuit court, the following dissenting opinion was delivered:

<p>1. Habeas corpus — practice.—On the trial of habeas corpus} sued out by a person committed, as appears by the return, by the sentence of a justice of the peace, it is competent for the relator to deny the existence of the sentence, the jurisdiction of the justice’s court, or the constitutionality of the law under which said judgment and sentence were rendered ; but, in such case, the relator cannot go into the evidence on which ho was convicted, with a view to a revision of the question of his guilt. Such revision can occur only on an appeal.</p> <p>2. Constitutional amendments respecting people of color. — The thirteenth, fourteenth and fifteenth amendments of the constitution of the Unitod States are the logical results of the late civil war, and were intended to put the questions of slavery or freedom, and partial or impartial citizenship and suffrage forever at rest by securing equality of rights to the race of color ; and these amendments, while affirmatory of these rights, are also prohibitory upon the states against their denial or abridgement.</p> <p>3. ee Civil rights ” in Mississippi. — The Mississippi cc civil rights’bill” of February 7, 1873, securing to people of color equal accommodations with white people in public conveyances and places of publio entertainment or amusement, is constitutional and valid ; and a judgment and sentence of conviction against the lessee of a theatre for denying admission and equal accommodation to colored men is affirmed.</p>

<p>Appeal from the chancery court of Lowndes county. Foote, Chancellor.</p>

Bradford, Chancellor. The complainant in the court below, Charles C. Dibrell, filed his bill to the April term, 1868, alleging that on the 4th December, 1866, William F. Walker, then largely indebted in a sum exceeding $60,000, to Ms wife Eliza R. Walker, on account of her separate estate, executed and delivered a deed of conveyance to one Thomas J. Denton, a citizen of said county, and his successors in office, as trustee for said Eliza, and the heirs of her body, by which…

Foote, Chancellor. The appellant, Lucy A. Whitfield, filed her bill in the chancery court below, to the February term, 1868, alleging that on the 9th of July, 1866, Charles Baskerville and James Whitfield, being in possession of certain lots in the town of Columbus, Miss., as owners thereof, bargained and sold the same to her for $2,375, to be paid on the 1st of February, 1857 ; that said Baskerville and Whitfield, at the time of sale, made their deed of conveyance for the…