Volume 49 — Mississippi Reports

Pitot to the circuit court of Jackson county. Hon. Ghees' 0. CHANDLER, Judge.

Hon. Geo. F. BrowN, Judge. The opinion of the c'ourt contains a sufficient statement of the facts in the case. The following errors are assigned: 1st. The court erred in overruling the motion made by defendant in the court below for a new trial. 2d. The verdict of the jury was uncertain and informal, and the court erred in pronouncing judgment thereon. 3d. The judgment of the court is a nullity, on its face, and not susceptible of being enforced.

Hon. Cteo.E. Brown, Judge. The plaintiff in error was indicted at the March term, 1872, of the Warren county circuit court, for shooting with intent to kill and murder one Sandy Mitchell. He was arraigned and* put upon his trial, and the proof shows that he shot at Henry Creighton with intent, as he declared, to kill Creighton and not Mitchell. The jury found him guilty as charged in the indietment.

<p>Error to the circuit court of Montgomery county. Hon. Jason Niles, Judge. .</p> <p>Parker sued the plaintiff in error on an assumpsit of his testator, which is stated in the declaration as follows: That Cunningham was indebted to Parker in the sum of $1011.26, and Cunningham was the owner of four notes oh one Holman, amounting to $4000, which notes, however, were payable to Loggins, and in consideration that Cunningham, through said Loggins, did then and there indorse and assign said notes to Brantly; he, said Brantly, promised to pay the said sum of $1011.25 to Parker, and that Parker afterward accepted the said promise.</p> <p>To the declaration the defendant pleaded three special pleas and the general issue. A demurrer was filed to the special pleas, and sustained by the court, and defendant refused to plead over. A trial was had on the issues made by the general issue. The judgment was for the plaintiff for the amount sued for.</p> <p>A motion for a new trial was made, and overruled by the court. Defendant excepted and sued out a writ of error, and assigns the following causes of error, to-wit:</p> <p>1st. The court erred in sustaining the demurrer of the plaintiff to the special pleas of the defendant. Nos. 1, 2 and 3.</p> <p>2d. The court erred in giving instructions asked by the plaintiff, and refusing those asked by the defendant.</p> <p>3d. The court erred in allowing Cunningham to testify as a witness for the plaintiff.</p> <p>The questions raised by the demurrer of the plaintiff below to the special pleas of the defendant, and that raised by refusing the instructions asked for the plaintiff and defendant respectively, are the same, and will be considered together.</p> <p>The proposition of plaintiff in error is, that to bind. Brantly -to pay Cunningham’s debt to Parker, the promise of Brantly must be in writing.</p> <p>. The defendant in error replies, that, under the state of -facts set forth- in the declaration, it is not Cunningham’s debt, but Brantley’s debt.</p> <p>Giving to the words of the statute their plain and obvious meaning, we had always supposed that the statute of frauds was designed to prescribe a mode, by which alone .A. could make B.’s debt his (A.’s) debt; i. <?., by a promise in writing.</p> <p>It seems, however, well settled that if A. has a debt on B., and B. on C., and all being together, it is agreed that C. shall pay to A. the debt which he (C.)-owes B., and thereupon A. releases B. that C.’s promise to A. need not be in writing, and it is not within the statute of frauds. Olive v. Lewis, 45 Miss., 203 ; Sadler v. Hoover, 2 George, 260.</p> <p>• The next proposition is, that to bind Brantly to pay Cunningham’s debt to Parker, it is- absolutely essential that on -Brantly’s assumpsit Parker shall release Cunningham. In other words, that if Cunningham still remains liable to Parker, the promise of Brantly must be in writing, no matter what the consideration of Brantly’s assumpsit-, and the case of Olive v. Lewis supra sustains this. Green v. Creswell, 10 A. & E., 453 ; 37 E. C. L. B., and Thomlinson v. Gill, 6 A. & E., 564; 33 E. C. L. K.</p> <p>It was at one time thought that a verbal promise, even to answer for the debt of another for which that other remained liable, might be available if founded on an entirely new consideration conferring a distinct benefit upon the party making-such promise. This idea is, however, refuted- by Sergt. Williams in an elaborate note to the case of Forth v. Stanton, and the rule there laid down by him, and which has ever since been approved, of, is, that the only test and criterion by which to determine whether the promise needs to be in writing, is the question whether it' is or is not a promise to answer for. a debt, default or miscarriage of another, for which that other continues liable. If it be so, it must be redueed to writing; nor can the consideration, in any case, be of importance, except in such cases as (xoodwin y. Chase, IB. & A., 297; 20 E. O. L. R.; in which the consideration to the person giving the promise is something which extinguishes the original debtor’s liability. Smith on Contracts, pp. 46, 47.</p> <p>This is exactly the point which was presented by the special pleas of the defendant below, that Cunningham was not released on Brantly’s promise to pay Parker, but that C. was still held, and the same point is again presented in the instructions asked by defendant and refused by the court on the trial, in opposition to the foregoing authorities.</p> <p>Some New York cases were cited by the counsel for plaintiff in the court below, sustaining a view opposite to the foregoing authorities. But it is submitted that they can be of no force, as against the foregoing, one of which is a decision of this court, Olive v. Lewis, administrator, which will be adhered to. In that case it is distinctly laid down that if the promise be not absolute, but collateral or contingent to the debt of another, it is within the statute, and must be in writing. New York decisions on the statute are condemned by our court in Beaman v. Buck, 9 S. & M., 207; Box v. Stanford, 13 ib., 93; Hairston v. Jaudon, 42 Miss., 380.</p> <p>No exceptions will be engrafted on the statute. Qothard v. Flynn, 25 Miss., 60; Skaggs v. Nelson, ib., 88; Skipwith v. Dodd, 24 Miss., 487.</p> <p>We discuss, last, the error of the court below in admitting (Cunningham as a witness. Cunningham had sued Sweat-man, as executor of William F. Brantly, deceased, for the very notes, the transfer of which to Brantly was the consideration for his promise to pay the very debt sued for here by Parker. It would hardly be contended that Cunningham was a competent witness in the case in which he sues Sweat-man as executor, and to allow, him pro tanto, to establish Ms .debt in the other case. Cunningham cannot testify to establish his claim against Brantly’s estate, and thus make it liable to him for the $4000 of notes transferred to Brantly in his life time, but he may establish that claim to the extent of $1000, in this case, by fixing a liability on Brantly’s estate to pay his, Cunningham’s, debt to Parker, thereby discharging himself from said debt. The case of Reinhart v. Evans, MSS. opinion, January Term, 1873, seems decisive of this point,</p> <p>Cunningham was objected to as a witness for incompetency. Because he had a suit pending against the defendant as executor of Brantly, deceased, to recover the money due from W. F. Brantly, deceased, for and on account of the same notes transferred to Brantly, in consideration of which Brantly had promised to pay plaintiff’s debt in this suit. The objection was overruled, and defendant excepted.</p> <p>The force of this objection is not perceived. For the fact that the witness, now setting up a claim to the same fund, in another suit, would, if it had any influence at all, make him interested in defeating plaintiff’s claim in this suit. But the objection is utterly without foundation, since the interest which disqualifies, is an interest in the result of the suit in which he is offered as a witness, or in the record as evidence in a suit in his own favor. And the objection was so palpably unfounded, that it was not even made. However the suit might result, it could not have the least influence, ór be offered as evidence in his own suit. If the objection could be supposed to cover the incompetency raised by the statute, then it is equally unfounded. The statute prohibits a person “ from testifying as a witness to establish Ms own claim of any amount for or against the estate of a deceased person.” This is not Cunningham’s claim, but it is Parker’s.</p> <p>The next and only remaining question is raised by the instructions given for plaintiff, and asked for by defendant, and refused.</p> <p>The defendant’s view was, that the promise made by Brantly was collateral, unless Cunningham was released, or in other words, that, unless the transaction was a strict delegation, the promise of Brantly to pay Parker was in fact a promise to .pay Cunningham’s debt, and therefore void, unless in writing. This view of the law is believed to be entirely erroneous. In Leonard v. Vredenburg, 8 J., K. p. 39 of case. Chancellor Kent, then Chief Justice of New York, lays-down the rule thus : “ But if the promise to pay the debt of another, be procured on a new anddistinct consideration, independent of the debt, and one moving between the parties to the new promise, it is not a case within the statute” of frauds. Citing Williams v. Leper, 3 Burrows, K. 1886, to which the court is also referred.</p> <p>In Parley v. Oleaveland, 4 Con. 433, the authorities were all reviewed and the same principle established. That case was this, Parley and Oleaveland declaring that one Moon was indebted to plaintiff by promissory note for $100, and that if it fell due, Oleaveland, in consideration of fifteen tons of hay, sold by Moon to him, promised to pay the said notes of Moon to Parley.</p> <p>The court sustained the action, naming as a general principle: “ In all cases founded on a new and original consideration of benefit to the defendant, or harm to the plaintiff, (that is the creditor,) moving to the party making the promise either from the plaintiff or the original debtor, the subsisting liability of the original creditor is no objection to the recovery.” See page 439 of that case. This case was afterwards affirmed by a unanimous court, in 9 CoyL. 639./ The supreme court of the U. S. in Emerson v. Slater, 22 How, 29-43, stated the principle as follows : “Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal debtor, are in general within the statute of frauds. Other cases also arise which are within the statute of frauds, when the collateral agreement is subsequent to tbe execution of the debt, and was not the inducement to it, on the ground that the subsisting liability was the foundation of the promise on the part of the defendant, without any direct or separate consideration moving between the parties. But whenever the main purpose and object of the promisor is not to answer for another, but to subserve some business or pecuniary purpose of his own, involving either a benefit to himself or a damage to the other contracting party, his promise is not within the statute, although it may be, in form, a promise to pay the debt of another, and although the performance of the promise may have the effect of extinguishing that liability.” Citing Leonard v. Vredenburg, 8 John., 39 ; Farley v. Oleaveland, 4 Con. 432; Nelson v. Brynton, 3 Met. 400; Alger v. Scoville, 1 Gray, 391; Williams v. Lepor, 3 Burr. 1886; Castling v. Aubert, 2 East, B. 325; 2 Parsons on Contracts, 306.</p> <p>The same doctrine is announced in Parsons, as above cited, and by Ch. J. Shaw, in Nelson v. Brynton, 3 Met. The last case was this : Plaintiff sued the son to recover two notes given by the father, for $20 each; plaintiff had attached the father’s estate on the two notes, and the son, in consideration of a release of the attachment agreed to pay the notes. Ch. J. Shaw, after making an exhaustive examination of the case, held that the action could be maintained, and that the promise was not within the statute.</p> <p>These authorities we regard as conclusive.</p> <p>If it be argued that the evidence shows that the promise of Brantly was made to Cunningham, and not to Parker, and therefore that Parker cannot sue on it, in his name; we answer, 1st, that there is sufficient evidence to show, that the promise was made to Parker, and to sustain the verdict of the jury on that point; 2d, that, even if the promise was made to Cunningham alone, still Parker, for whose benefit it was made, can sue on it. See Schemerhorn v. Vanderheyden, 1 John., R. 139; Parker v. Bucldin, 2 DenijL, R. 45.</p>

Appealed from the chancery court of Lauderdale county. HoN. Thos. Chiustian, Chancellor. The facts of the case are fully stated in the opinion of the court. The question at issue in this case is substantially the same whether it arises on the demurrer to the bill, motion to dissolve the injunction, or upon the decree rendered upon the bill, answer and exhibits.

Hon. Geo. F. Brown, Judge. The facts of the case are very fully stated in the opinion of the court. We submit that the court below erred both in the finding of the facts, and in its conclusions of the law upon the facts established.

Hon. B. B, Boone, Judge. Ulysses McAllister and E. M. Bramlett, administrators-im chief of the estate of John Eortson, deceased, sued Wm. H. Clopton and John Clopton, in debt, Upon anote for $1538.45, dated May 6th, 1861, due February 21st, 1862, executed by them to the plaintiffs as such administrators, by one A. Kendrick (since deceased) as principal, and the defendants as sureties. The defendants filed divers pleas. 1. Two separate pleas of non est factum* 2.

<p>1. Landlord and tenant — distress for rent. — B. leased lands to C,, by written contract, for one bale of cotton weighing five hundred, pounds, for every twenty acres of'land cultivated by 0. Upon failure to pay, B. sued for the value of seven bales of cotton, for the rent of one hundred and fifty acres. Held: That it was error to exclude evidence of the value of-the cotton to find the amount due to the plaintiff in attachment, ,, . .</p> <p>2. Same — sane.—Distress for rent will obtain where produce is agreed to be paid, though the value is not fixed and certain, if the amount is so stipulated as to ‘ make it capable of ascertainment by calculation, and it is error to instruct tho jury that distress for rent; only obtains, where the sum agreed to be paid is stipulated, fixed and certain. Cotton has á certain commercial value, from day to day, and its price, with other produots, stocks and ooin, are quoted by telegraph throughout tho country, daily ; the value of tho rent, therefore, was capable of exact and positive calculation.</p>

AustiN PollaRD, Chancellor. The bill alleges, that complainants, intestate, on the 1st day of-,1862, sold to J. S. Shell, the tract of land in controversy, for $966.91, executed the bond for title, and the vendee’s note for the purchase money, due twelve months afterdate, and'died without collecting the note, or making the deed.

Hon. J. J. Hooker, Chancellor. Complainant’s bill seeks recovery on a writing obligatory of $4911.14, which, he charges, was executed by J. S. Simmons and L. B. Simmons, payable to Elijah Russell,… Held: that an act consolidating this fund for general school purposes is valid. Winan v. Bavard, 22 Cal., 624; Windham v. Chisholm, 35 Miss., 532; Hester v. Crisler, 36 Miss., 681. filed an elaborate brief.

Hon, A, E. REYNOLDS, Chancellor, The complainants, Miller, Gardner & Go., filed their bill, allegipg, substantially, that on the 2d day of August, 1867, defendants, Adair & Isom, were the owners, in fee simple, of the property in controversy, lot No. 7, in block 85, in Corinth, Mississippi;'that the said Adair & Isom, being indebted to one J. J. Rice (who is not a party to this action), they executed their note for the said debt, for $470.00 due the 35th of December, 1867,…

<p>Appeal from the chancery court of Yalobusha county, Hon. DeWitt STEARNS, Chancellor:</p> <p>The bill was filed to the November term, 1872, of the chancery court of Yalobusha county, to recover from John and Eliza Elliott, guardians of George L. Davidson, a minor, and sole heir of F. L. Davidson, deceased, the sum of $273.55, paid out by him as administrator de bonis non of said decedent, in the compromise of a debt due from said decedent. The bill sets out the following state of facts: Said Davidson and one Robertson, partners in trade, on the 1st day of January, 1861, executed their promissory note for $837.03, to Wesson & Cox, of New York, payable ten months after date, with New York exchange, which note was afterwards endorsed to the Shoe and Leather Bank. 'Davidson died the 20th day of December, 1862, intestate. Robertson is also dead, and his estate insolvent. II. M. Davidson was appointed administrator of F. L. Davidson’s estate in March, 1863, and, as far as the records show, gave no notice to creditors to probate claims. H. M. Davidson died in December, 1865, leaving assets of said estate unadministered. In January, 1866, Woods, the appellant, was appointed administrator de bonis non. In September, 1869, he filed his final account, which was allowed in January, 1870. Complainant, believing he had fully administered said estate, thereupon made full distribution by paying to these guardians about $600.00. Some time in 1871, said Shoe and Leather Bank presented this note to complainant, and demanded payment, which was refused, complainant having no funds of said estate in his hands. On the 19 th day of October, 1871, said bank sued complainant, in the circuit court of said county, as administrator de bonis non on this note. Before trial, complainant compromised with said bank, by paying $207.50, and $57.00 attorney’s fee, and $9.50 court-costs, out of his own money. The compromise was made under advice of counsel. From January 1st, 1861, until the institution of this suit, the holders of the note were citizens of New York. Davidson and Robertson, till their death, were citizens of Mississippi. Complainant prays that the amount thus paid be deemed a charge in his favor, on the estate of this minor, inherited from his father, in the hands of his guardians. To this bill these guardians filed a demurrer. The causes of demurrer are as follows:</p> <p>1. Want of equity on the face of the bill.</p> <p>2. Complainant has lost his remedy by compromising the suit at law without defending the same.</p> <p>3. Complainant shows bj7 his bill that he had a good and valid defence to the suit at law, which he failed to set up; by his own negligence and laches, arid in his own wrong, he paid out the money claimed.</p> <p>4. The complainant’s remedy, if any, is in a court of law.</p> <p>5. If complainant was liable, as administrator, judgment might have been rendered against him — the assets reached in the hands of distributee, or amount allowed on final account, and such was complainant’s remedy.</p> <p>6. The statute of limitations of two years, in which time said claim should have been probated.</p> <p>7. The said note is now, and was, when suit was brought on it, barred by the statute of limitations of four years, in which all actions must be brought against executors and administrators. Defendants rely on all statutes of limitation.</p> <p>8. From the allegation of the bill, defendants could not voluntarily pay complainant said money,- and, not being-authorized so to do, they cannot be compelled by law to pay it.</p> <p>9. There was no legal liability or necessity for complainant to pay Attorney’s fees and costs. If complainant had a right to compromise, he might have done so as well before, as after suit, and saved these expenses.</p> <p>10. If complainant was liable at all, it was an individual liability, the result of a devastavit, and for which the assets in the hands of the guardians are not now liable-.</p> <p>Upon argument, the court rendered a decree sustaining the demurrer and dismissing the bill. Thereupon the complainant prayed an appeal to this court. The error complained of is the action of the court in sustaining the demurrer and dismissing the bill.</p> <p>If the note described in the record in this case was a valid claim, in the hands of the bank against the estate of F. L. Davidson, deceased, when put in suit by the bank, then. Woods was properly sued as administrator de bonis non of Davidson, and judgment for the bank would necessarily have followed, notwithstanding Woods bad settled his final account of the estate in the probate court, made distribution, and been discharged. The estate was not fully administered, and could not be fully closed so long as there was a valid debt outstanding, for whose payment'it was liable, Pollock v. Buie, 43 Miss., 140.</p> <p>And had the bank prosecuted its suit to judgment, against Woods, as administrator de "bonis non, the property of Davidson’s estate, in the hands of his heir, would have been liable to its satisfaction. Ib. But Woods compromised the suit with the bank, paying the amount of the compromise with his own money, and the question now presented is, whether lie can follow the estate into the hands of the heir and reimburse himself the amount, actually paid. This question, like that involved in the suit of the • bank against Woods, depends, for its solution, on the validity of the indebtedness preferred by the bank against the estate of Davidson. For, if that claim was ‘a valid charge against Davidson’s estate, then Woods, as his administrator, not only had the right, but it was his duty to provide for its payment, and this he did. That an administrator, who has paid a just debt against the estate of his intestate, out of his private funds, is entitled to an allowance for the same in his administrator’s account, in case the estate has passed into their hands. Woods v. Bidley, 27 Miss., p. 150. The court say, “ It is not to be controverted that if he, with his own money, pay the debts, he will be entitled to charge the estate, in his administrator’s account, with the amount of the debts so paid, to have the effects sold for the payment of his claim. Jle would also have the right, by bill in equity, to enforce the payment of his demand against the heirs and distributees, in ease the estate had passed into their hands! Short, admr., v. Porter, 44 Miss., 533.</p> <p>But it is insisted by the defendant, that the note on which Woods was sued, by the bank, was barred by the statute of limitations. If defendant’s theory be correct, and this note was not a valid charge against the estate of Davidson when settled by Woods, or if, in other words, the bank could not have recovered- at law, then the compromise was improper, and Woods cannot now charge the estate with the .amount. The action of the court below must be governed bjr the question of the validity of the claim against the estate. To show that the note was not barred by the statute of six years, the note was executed January 1,1861. At ten months it matured, November 1st and 4th, 1862. The statute was suspended January 29,1862, until one year after the war. The war ended by proclamation, April 2, 1866, and suit was brought to the October term, 1871, of the circuit court. Was it barred by the. statute of limitations. of two years ? It is shown that Davidson died December 20,1862, and that at the next succeeding March term of the probate court, letters of administration were granted to H. M. Davidson, who gave no notice to creditors of the estate to register claims, as required by the Code of 1857, p. 443. The next page (444) provides that claims not registered in two years from first notice shall be barred. The two articles must be taken and construed together, and the latter applies only where it affirmatively appears that the notice presented .in the former, has been given; and before the estate can claim to be exonerated, by reason of the failure of the creditor to register his claim, it must be shown that the administrator gave the notice in the manner prescribed by the .statute. Bank of Ala. v. Windham, 31 Miss., 317 ; Pearl v. Conley et al., 7 S. & M., 356 ; Dowell v. Webber, 2 S. & M., 452. But had Davidson given the requisite notice, even then, in view of the hostile relations existing between him and the creditor, it might well be urged that this statute of limitations could not be interposed. 10 Walláce, 172. In any view of the case, therefore, I arrive at the conclusion that the demurrer upon this ground was improperly sustained.</p> <p>But it is insisted that the note was barred by reason of the failure of the creditor to sue on it within four years-after •the qualification of the administrator, and upon this statute defendants have chiefly rested their case. This will be found equally untenable. The Revised Code of 1857, art. 11, p. 400, provides that “no action or solve facias shall be brought against any executor or administrator, upon any judgment, or other cause of action, against his testator or intestate but within four years after the qualification oi such executor or administrator. Now, as Davidson qualified at the March term, 1863, and suit was not instituted until October 19, 1871, it is apparent that more than four years and nine months had elapsed, and that the claim was barred unless a state of facts existed that would take it out of the operation of the statute. The statute commenced running on the 2d day of April, 1867. If, therefore, the creditor, in addition to the four years, is allowed nine months, then his suit was in time to save him from the bar. But, it may be said that the statute prohibiting suits for nine months after the grant of letters, is for the benefit of the estate, and that inasmuch as this restriction had been removed, and 'the said creditor'could have brought his suit at any time after the war terminated, .the nine months must be excluded, ratione cessante cessat lex. And this view seems to carry some force.</p> <p>Woods, the appellant, shows, by his bill, that on the 9th day of October, 1871, he was sued as the administrator de bonis non of Davidson, deceased, on a note which fell due November 1, 1861, and that he was appointed in January, 1866. With full knowledge of the fact that his appointment bore date nearly six years anterior to the bringing of this suit, and that the statute of limitations had commence! - to run on the note more than four years before the institution of the suit, he had no right to pay it without making at least the defense the law requires him to make. Henderson v. Illsby, 11 S. & M., 9,</p> <p>And it avails appellants nothing to say that he made an advantageous compromise, or that he acted under the advice of distinguished counsel, if he has failed to discharge •a duty laid upon him by law. And we submit that it is not consonant with the principles of equity and good conscience now to allow him to be reimbursed out of the property of this minor, in the hands of these appellees, for money paid out in his wrong, and by his own laches and neglect But the defense set up by the seventh cause of demurrer is certainly conclusive of the appellants case.</p> <p>The note sued on was clearly barred by the statute of limitations. Bev. Code, 1857, p. 400, art. 11.; 40 Miss. Bep., p. 611, ib., 618; 28 Miss., 312; 33 Miss. 155.</p> <p>More than four years elapsed after his appointment, and before suit'was brought by the bank. Now, when was this note affected by the statute of limitations ? We.answer, when the right of action thereon accrued. Johnson v. Pyles, 11 S. M., p. 189. .</p> <p>When did the cause of action accrue ? In November, 1862, when the note became payable. Angelí on Lim., sec. 42-105,</p> <p>Counsel’s theory was, that when this debt matured, the citizens of the States of New York and Mississippi were at war. That in consequence thereof, all commerce and communication between the citizens of these States was cut off. That no suit could have been brought on this note on account of the civil war.</p> <p>We maintain that, this position Is not tenable in point of law. A cause of action accrues When the creditor has a full and perfect right to prosecute his demand. Angelí on Lim., p. 84, § 42, '</p> <p>They had the- right to sue in November, 1861. There was a party, in law, capable of suing and of being sued, Angelí on Lim., p. 54-, sec, 63; there was then also a breach of the contract, It was a right then Vested in him from the very nature and terms of the contract.</p> <p>The right vested in them, but they were cut off from their remedy by the existence of the war.</p> <p>In 1861 the courts of this State Were open to litigants, and tíre machinery of the State government in full operation. And if this creditor was cut off from the remedy which he had on the note in this State, it is simply one of the many hardships of the late war, and nothing more. The case at bar cannot be held to be analogous to that class of cases where the debtor dies before the debt becomes due. In those cases the statute does not begin to run until there is an administration, because, until then, a right of action has not accrued, there being no one capable of being sued. Abbott v. McElroy, 10 S. tfc M., 100.</p> <p>As stated above, there must be a party to be sued. Davidson was alive when the note fell due, and Under no disability, unless the disability grew out of some statutory provision.</p> <p>Nothing short of this will affect the operation of the statute, and the courts have no power to engraft exceptions upon the statute. 2 S. & M., 452; 14 S. & M., 52; 28 Miss., 812, 381-730. Statutes of limitation are to be construed strictly, and. the courts must adhere to the plain meaning and' literal expression of the statute. Angelí on Lim., sec. 485; 28 MisS., 312 ; ib., 361; ib., 730 ; ib., 17. If the exception in their favor does not exisit in law, the court will not create it for them. Mclver V. Eagan, 2 Wheaton, U. S. Eep., 25.</p> <p>These statutes should be-strictly construed. ' They .are, founded upon considerations of public policy and private justice.</p> <p>The case at bar aptly illustrates the propriety and wisdom of these statutes of repose. The administrator paid off the debt without authority of law. The debt was due nearly eleven years before suit was brought on it. The creditor had had all the benefits of the suspension of the statute of limitations during the war, and one year after its close. The debtor was dead, his estate administered to final settlement and' distribution, and this debt had not been heard of. Its collection was clearly barred by the statute of limitations, and we confidently submit that this court will not compel reim* bursement out of the property of this minor.</p>

J. J Hookek, Chancellor. Ricks had a judgment in the circuit court of Madison county, against Griffin, administrator of Skidmore. After the rendition of this judgment, Griffin was discharged from the administration, and H. S. Foote, was appointed administrator, de bonis non, of Skidmore.

O. H. Whitfield, Chancellor. The opinion of the court contains a sufficient statement of the facts in the case. Held: that, unless the will,of the deceased show to the contrary very dearly, only the capital of the deceased, vested in the firm, shall be liable. 2. TI., supra. But in every case, it is held, that such a provision devotes the capital put in the firm by the deceased, to the subsequent business, to the end of the term.

Hon. W. B. CUNNINGHAM, Judge. The opinion of the court contains a sufficient statement of the case. Contended that the statute of limitations ceases from the date of issuing the original writ.

<p>Error to the circuit court of Oktibbeha county. Son. B. B. BooNE, Judge.</p> <p>This is a writ of error to the court below, based upon the judgment of the court sustaining a demurier to the replication to a plea of bankruptcy^</p> <p>Contended, 1. That in a replication to a plea of bankruptcy, the plaintiff may allege fraud in the bankrupt proceedings, citing act of 1867 in relation to bankruptcy, section 29. In re Pennet 3 B. R., 145, Brown v. Willman, 1 Rich., 374; 6 Bush (Ky.) 344, Beard v. Hall, 36 Conn., 270. In re Rosenberg, 2 B. R., 81. In re Kemball, 2 ib., 74. In re Wright, ib.-, 57; Sampson v. Benton, 4 ib., 1.</p> <p>2. That notwithstanding the bankruptcy of a judgment debtor,-the State courts have jurisdiction to enforce .the judgment lien, citing and commenting elaborately on Davis v. Carpenter et al., 2-B. B., 125; In re-Kerr, ib., 124 ; In re SchnefhB. R., 46; In re-Smith et al., 1 B. R., 169; Bennipgton v. Sale ot al., ib., 157; Braner v. Shelby, 27 Miss., 407; ■ Bush v. Cooper, 26 Miss., 599; Wooten v. Clark 27, Miss., 75 ; Talbert v. Melton, 9.S. & M., 9; Russell v. Cheatham, 8 S. & M., 710; 6 How. (Miss.), 563 ; 7 ib., 227; Foster v. Ames, 2_ B. R.,147; In re Melborne3 B. R., 91; Kelly v. Stronge, 1 ib., 91.</p> <p>A discharge granted under the bankrupt act of 1867, when properly pleaded, is a bar to an action for prior indebtedness and cannot be- impeached in a State court, for any cause which would have prevented the granting 'of . it under section 29, or been sufficient ground for annulling it under section 34. The authority to set aside and annul a discharge in bankruptcy upon ihe federal court, by section 34, is incompatible with the exercise of the same power by a State court, and the power is exclusive and paramount. Corey v. Ripley, 4 B. R, 162; Bump on Bankruptcy, 230, 231. Proceedings in bankruptcy are in a court of record ; and all decrees and judgments therein are of the nature of judgments in rein, and conclusive upon all, whether parties or not. Shawhan v. Wherritt, 7 How., 627; 17 Curtis, S. 0., 328, 331; Voorhees v. U. S. Bank, 10 Pet., 449; Sturges v. Crowning-shield, 4 Wheat., 196. See also In re Winn, 1 B. R., 131; Pennington v. Dale et al., ib., 157 ; In re Barrow et al., ib., 125; Oassard, et ah, v. Knower, 4 B. R., 185;Markam et ah, v». Heavy, 4 ib., 166 ; In re Snedaker, 3 ib., 155; In re Salmons, 2 ib., 19 ; Bankrupt act of 1867, §§ 1, 14,15, 20, 21, 29, 82, 33,34; In re Brinkman, 7 B. R., 430 ; In re Sacchie, 6 ib., 497; Corey v. Ripley, 2 Am. Rep., 19.</p> <p>After commencement of proceedings in bankruptcy, all-proceedings by the creditors, in the State courts', against the bankrupt must stop, the object being to bring all matters and questions between the bankrupt and his creditors, into the bankrupt court. In re Stevens, 5, B. R., 300 ; 4 ib., 61; Payne et al. v. Able et al., ib., 67; Gozzani’s Treat., 88, 89, 199.</p> <p>2. When a debtor goes into bankruptcy, the creditor holding a lien must go into the bankrupt court to enforce it, and he has no judicial remedy elsewhere. Pennington v. Sale et al., 1 B. R., 157; In re Barrow, ib., 125 ; Oassard v. Knower, 4 ib., 185 ; Markam v. Spalding et aln ib., 166 ; In re Stevens, 5 ib., 300; In re Snedaker, 3 ib., 155 ; In re Salmons, 2 ib., 199; Am. Law Rec., 124; Bankrupt Act § 14, 20-.</p>

The facts of the case sufficiently appear in the opinion of the court, The defendant, E. M. Tindall, could not under our statute have oonveyed his property to his wife, M. A. Tindall, at the. time that he did, and invest his wife with a valid, good title. Code, p. 376, § 1778.

Hon. Georse F. Brown, Judge. This was an action of replevin brought by James agai nst plaintiffs in error, for the recovery of a large lot of staves, about four thousand in number, or the value of said staves. • After the levy of the writ, Heard & Harrell, gave a re-plevin bond, in the penalty of $500, double the value of the staves, as estimated in the retu/n of this sheriff, and the property was thereupon delivered to them1.

Hon. O. II. Whitfield, Chancellor. The facts.in this case are sufficiently stated in the opinion of the court. The following are the assignments of error: 1. Said chancery court erred in overruling the separate demurrer of W. W. Troup, executor, to the amended bill of complaint in the said cause. 2.

<p>1. Deed — Acknowledgment of Husband and Wife. — Though the husband and wife may appear at the same time, before the officer, taking the acknowledgment, yet their acknowledgment must be separate and distinct. The mere statement in the certificate that Jones and wife appeared and acknowledged that they signed, sealed and delivered the deed, is nothing more in legal effect, than the acknowledgment of the husband.</p> <p>2. Same — Same.—The law requires the acknowledgment of the wife to be separate, full and complete in itself, without reference to that of the husband. The statement in her acknowledgment that she “signed” the deed cannot be so connected with the words “ sealed and delivered ” in the husband’s acknowledgment, as to make her’s perfect, full and complete, as required by the statute.</p> <p>3. Same — Same.—An acknowledgment of the wife, whioh is insufficient in itself, Cannot be helped out and made valid by reference to that of her husband. It must #tand or fall by itself.</p> <p>4. Same — Same.—Sealing and delivering have always been considered as essential •to a deed. It takes effect only from delivery.</p> <p>NoTE.--My assent toa judgment of affirmance, is far the present withheld in this ease. Tuibell,</p>

Hon. George F. Browít, Judge. On the 14th of August, 1871, appellee instituted in the court below, an action of trespass on the Case v. Appellants, alleging that he had been in the employment of the said company, as engineer on a passenger train, running o¡-ver the whole road; that, whilst so employed, and without any neglect on/¿is part, but through the neglect, carelessness and omission of duty on the part of the R. R. company, in suffering the cross-ties and structure of…

Hon. J. M. Ellis, chancellor. On the 2d day of February, 1871, Rufus x`, surviving partner of the firm of A. Brown & Oo., filed his bill against Anna. M. Holmes and her husband, William Holmes, and before answer, filed by leave of the court, a supplemental bill.

J. A. ORR, Judge. The facts in the case are fully stated in the opinion of the court and briefs of counsel. The following errors'are assigned: 1. That the court below wrongfully dismissed said cause, and ejected the same out of court, without any rightful authority, and on its own motion. 2. That the jury -were the judges of the facts, and not the court, that the court erred as to the law, and as to its own power and jurisdiction. 3.

Hon. J. F. SimmoNS, chancellor. The opinion of the court contains a sufficient statement of the case. cited Foxworth v. Bullock et al., 44 Miss., 457 ; Gordon et al. v. Manning, ib., 756, as decisive of this case. contended: 1. That complainant had full, ample and adequate remedy at law. 2.

Hon. B. B. Boose, Judge, A full statement Of the case is given in the opinion of the court.

Hon. Geo. F. BrowN, Judge. The opinion of the court contains a sufficient statement of the case. Section 782, of the Code of 1871, entitles the plaintiff to a trial term in a case like this, only when an affidavit under said section has been attached do the account sued on, made before a justice of the peace.

Hon. E. Stafford, chancellor. The facts of the case are sufficiently stated in the opinion of the court and briefs of counsel. The following are the assignments of error, to-wit: 1. The court erred in rendering the final decree in said cause, on the 25th day of July, 1872. 2. The court erred in not decreeing that appellant was entitled to prior satisfaction out of the proceeds of sale of cotton sequestered in said suit, and in failing to dismiss the bill of complainant. 3.

<p>1, Peactice — Wbit oj? Erboe_The Code of 1857, art. 9, gives tho writ of error to any party aggrieved by a judgment or decree. If there be several, any one is entitled to the writ. Such was the right at common law.</p> <p>2, Same — Where Several Paeties Thereto. — Where there are several parties to a judgment, one may take steps to have it reviewed ; but, to make one suit final, he must institute proceedings to compel the others, either to join with him or withdraw altogether, which latter alternative bars them of another writ. Whit-worth et til. v. Carter, Adm’r, 41 Miss. Rep., p. 640; Hoggatt v. Eerrall, ib., 643.</p> <p>3, Same — Rums as to Bab oe Statute. — The rule is, if the interests, are necessarily joint, the bar of one by the statute is the bar of all; but if the interests be joint and several, disability may save one, whilst the statute would bar another. Booty. McEerrin, 37 Miss. Rep., 52.</p>

Hon. C. 0. SHACKLEFORD, Judge. The opinion of the court contains a full statement of the facts in the case. 1. The errors complained of in this case are manifestly well taken. The motion to quash the indictment should have been sustained, if for no-other purpose than to promote that reasonable certainty which should always attend the pleadings in a criminal ease.

Hon. C. C. Shackleford, Judge, The opinion of the court contains a sufficient statement of the case, Contended that the plaintiffs in error were mere wharfingers, receiving and shipping goods for hire, and they were responsible only for ordinary diligence. Story on Bailments, 451, et seg.; Cowles et al. v. Painter, 26 Miss., 256 ; Thompson & Chew v. (Twin & Wallis, 46 Miss., 522.

Hon. DeWitt Stearns, Chancellor. The opinion of the court contains a sufficient statement of the case. The jurisdiction of a court of chancery to decree the specific performance of contracts, is simply this: That an award of damages at law will not give a party the compensation to which he is entitled ; that is, will not put him in a situation as beneficial to him as if the agreement were specifically performed. 1 Hare & Wall Lead. Gas.

<p>1. Indictment- — Abson.—All indictments upon statutes, especially the most penal, must state all the circumstances which constitute tho definition of tho offense m the act, so as to bring the defendant precisely within it. They must pursue the precise and technical language employed in the Statute in the definition or description of the offense. Anthony’s case, 13 S. & M., 263; Ikes’ case, 23 Miss., 52S j Riggs’ case, 26 Miss., 51; Williams’ case, 42 Miss., 328.</p> <p>2. Same — Special AVebhent, — The Revised Code of 1871, § 2490 provides that “ every person who shall willfully set fire to, or burn, in the night time, any hotise, ship, vessel, or boat, inwhioh thero shall be at tho time, some human being usually staying, lodging or residing at night, upon conviction thereof, shall suffer death, or be imprisoned in the penitentiary for life.” Held: To describe this offense, it is not Sufficient to charge that the accused, “ on the 10th day of October, 1871, in tho county of Lauderdale, in the night time, a corfcain dwelling-house there situate, ih wh-ch a human being was atthe time, and usually lodging, did unlawfully, feloniously and maliciously set fire to, and burn, contrary to the statute,’’ etc.; thus omitting to charge the “ staying, lodging and residing” to be dt night, as well as the burning.</p>

Hon. E. P. Eeeb, Chancellor. The facts in the case fully appear in the opinion of the court. Held: that when parties went through the forms of marriage and afterward consummated it by copulation, they could not be heard to say that they had no intention of marriage, that the form was a ruse and the copulation adultery. They were held to be estopped, and to be married by operation of law, past their own disputing.

<p>Error to the circuit court of Warren county, Hon. Geo. F. Bkown, Judge.</p> <p>The defendant in error brought her action of ejectment against the plaintiff in error, in the circuit court of Warren county, to recover the possession of a lot of land in the city of Vicksburg, particularly described in the declaration,' and to sustain said action read on the trial in evidence, a deed made by Harman Stidger to Elizabeth Borman, conveying the property in controversy, ivith the usual covenants of general warranty of title, and bearing date the 3rd da3>' of March, 1847. Also a deed from Elizabeth Borman, and her husband Frederick Borman, conveying the property to defendant in error, for a valuable consideration, and bearing date the 6th day of October, 1847. Both deeds were properly acknowledged and recorded. Also a deed from C. Steele, tax collector, bearing date April 13, 1848. And another deed from Samuel W. Brown, tax collector, bearing date February 21, 1848 ; both conveying the property in controversy to defendant in' error, and acknowledged and recorded.</p> <p>The plaintiff in error then withdrew the case from the j ury by a demurrer to the evidence, which was sustained by the court, and judgment rendered for the plaintiff in error.</p> <p>The evidence was incorporated in a bill of exceptions, and the cause brought to this court upon a writ of error.</p> <p>The following errors are assigned:</p> <p>1. The court erred in sustaining the demurrer filed by defendant, to the evidence introduced by the plaintiff in the court below, on the trial of said cause.</p> <p>2. The court erred in overruling the motion for a new trial.</p> <p>This is not a mere question of possession, but is mixed up with muniments of title, which render its elucidation much more simple.</p> <p>Mr. Tyler in his recent valuable work on ejectments and adverse enjoyment, lays down this rule in respect to those cases in which a recovery is sought upon the ground purely of a prior possession. “ Ejectment is a possessory action, and possession is always presumptive of right, and it stands, good until other and stronger evidence destroys that presumption. This presumption of right every possessor of lands has in the first instance, and after a continuous possession for the period prescribed by the statute of limitations, under pretense or claim of right, the actual possession ripens into a right of possession which will toll an entry. But until the possession of the tenant has become so matured, it would seem to follow that if the claimant shows a prior possession, and upon which the defendant entered, until its having been formally abandoned as derelict, the presumption which arose from the tenant’s possession, is transferred to the prior possession of the claimant, and the tenant, to recall that presumption must show a still prior presumption; and so the presumption may be removed from one side to the' other, toties guot%es, until one party or the other has shown a possession which cannot be overruled, or put an end to the doctrine of presumptions founded on mere possession, by showing a regular legal title, or a right of possession. This we take to be the only rational principle and policy which could be adopted when the question is one of possession alone.</p> <p>It is true, as an elementary principle in an action of ejectment, that a party claiming the right to the lands in controversy, must recover, if at all, on the strength of his own title, and not on the defects in that of his adversary.</p> <p>It has been so repeatedly adjudicated that it is useless to cite authorities.</p> <p>This is, however, as between parties relying upon paper titles, and even if it were not, the general rule above referred to, does not apply to cases in which the real owner, neither objects nor consents to the possession of either party. In all such cases the court regards the better right as between the parties, to be vested in the first possessor.</p> <p>This is but carrying out to its logical consequences, the rule of presumptions which attaches to the fact of possession. Such has been the express decisions of the best courts in the country. Reams v. Conovan, 21 Cal., 291; Hubbard v. Barry, ib., 321 ; Buracus v. Coffin, 14 ib., 91; Newman v-Cincinnati, 18 Ohio, 323; Jackson v. Porter, Paine, 457; Robinson v. Doe, 6 Black., 85 ; Davidson v. Cent, 38 Eng. L. and E, 469; Onderdonk v. Lord, Hill & Denio, 129. In this case the possession was under a deed of general warranty, dated twenty-five years ago, and certainly was enough to put the defendant upon proof; and without such proof to entitle the plaintiff to a recovery. Downing v. Miller, 33 Barb., 386 ; Hicks v. Coleman, 25 Cal., 122; Daily v. Favre, 43 Mo., 556 ; Russell v. Erwing, 38 Ala., 44; Borel v. Rawlings, 30 Cal., 408; Buckner v. Chambliss, 30 Ga., 632; Hutchinson v. Paly, 4 Cal., 33; Winans v. Christy, ib., 70; Wilson v. Palmer, 18 Texas, 592; Nagle v. Macy, 9 Cal., 426; Jones v. Nunn', 12 Ga,, 469 ; Jackson v. Hardee, 4 Johns., 202.</p> <p>But without any title at all, the plaintiff in this action was entitled to recover against the defendant, who is wholly without title, or even color of title. Her older possession, though for a less term than twenty years, or by'our statute of limitations ten years, carries with it a presumption of title sufficient to put the defendant on her defense, and must overcome that possession, because it is the possession, so far as this case goes, of a naked trespasser. Leport v. Todd, 3 Yroom, 124; Middleton v. Johns, 4 Grant, 129; Bates v. Campbell, 25 Wis., 613; Paige v. O’Brien, 36 Cal., 559; Jackson v. ITubble, 1 Conn., 613 ; Schultz v. Arnot, 33 Mo., 172; Brewster v. Striker, 1 E. I). Smith’s N. Y., 321; Bequeth v. Caulfield, 4 Cal., 278; Potter v. Knowles, 5 Cal., 87 ; Shunnery v. Phillips, 22 Penn., 151; Tappscott v. Cobb, 11 Grant, Ya., 172 ; Hall v. Gittings, 2 liar. & J., 112; Hay v. Alverson, 9 Wend., 223; Cincinnati v. White, 6 Peters, 431.</p> <p>Indeed it has been held, and very properly, we think, that in actions of ejectment it is not necessary that a plaintiff should show a good title against all the world, and that it is enough if he has a right to the recove' y against the defendant. Garrett v. Lyle, 27 Ala., 586; Mel \11 v. Pryor, 17 Ala., 533. And the courts have gone so far as', a say, when one disposessed of land brings ejectment against an intruder, the defendant cannot defend by showing an outstanding title in another. Huleck v. Scoville, 4 Gilm. .159 ; Jackson v. Hardee, 4 Johns, 202; Clark v. Diggs, 6 Iredell R., 159. Certainly here the defendant could not, had she been disposed to make the effort, take advantage of an outstanding title in a third party unless she proposed to connect, and did connect, herself with the title of such third party. Ryan v. Tomlinson, 39 Cal., 639; McAllister v. Williams, 1 Term R„ 334; Zoronque v. Williams, 15 La., an. R., 76 ; Baily v. March, 3 N. H., 274; People of Enfield v. Permit, ib., 512. If the court intended to lay down the broad proposition as ap-' plicable to all oases, that a plaintiff in ejectment can only recover when he shows a complete title in himself, we respectfully submit that the court was wrong. Such is not the law as now decided by our most enlightened courts, and taken outside the facts, the statement of the learned judge was unadulterated, obiter dictum,, by which no court would consent to be controlled. The same objection obtains to the •decision in the case of Doe v. Pritchard, 11 S. & M., 336, and Cunningham v. Dean. 33 Miss., 47.</p> <p>As against a party seeking to recover on prior possession alone, uncoupled with any valid claim of title, the only defense by an intruder, which is at all sanctioned by authority, is that there has been such delay in bringing the suit that the prior possessor will be deemed to have abandoned his claim to the possession, or that there has been a formal abandonment in fact. In Whitney v. Wright, 15 Wend., 171, it was held that the omission by the first possessor to bring an action against a disseizor claim,ing under title adverse for thirteen years, with knowledge of the adverse entry and continuance of possession under it, would authorize a jury to find an abandonment of the claim by the prior possessor.</p> <p>This is an apt illustration of the rule, and the present controversy wholly outside of it. The witness who testifies on this point says, “it was his impression” that Steigleman had entered into possession in 1858, and that his family had occupied .it notoriously from that'time to the 9th of December, 1872. No presumption of abandonment could arise upon such testimony as this, and beside the pendency of the rebellion for four long years, the trouble incident to the reconstruction of the State government, the suspension of the statute of limitations, the destruction of old courts and. the organization of new, and the subjection of the State to military rule for several years, are all great historical events of'which this court is bound to take judicial cognizance, and they sufficiently explain the reason and cause of the delay here, but the evidence fails to show anything like an abandonment.</p> <p>The plaintiff was a married woman; there was no evidence of any formal abandonment, and before any presumption of abandonment could arise, there must have been a disseizin under color of title adverse to that of the plaintiff, a continuance of possession thereunder to the knowledge of the plaintiff for a long time. 'Whitney v. Wright, supra. This disseisin and adverse holding must have been actual, visible, and exclusive, commenced and continued under a claim of right. Magee v. Magee, 8 George, 138.</p> <p>The plaintiff's right of action accrued only when the adverse possession commenced, and possession only becomes adverse when accompanied by “a claim of right” or title. Adams v. Quice, 1 George, 397; Snodgrass v. Andrews, ib., 472. Certainly before the plaintiff could have been required to produce any testimony beyond that adduced on the trial of the case, the possession by defendant under a claim of trial was necessary to be proven; and that for the reason that the possession of the plaintiff, under deed of general warranty, was prima facie evidence of a seizin in fee. Heard v. Baird, 40 Miss., 793.</p> <p>The plaintiff was, however, entitled to recover on the tax deeds read in evidence. They were executed in the year 1848, and of themselves are prima facie evidence that the collector performed all the things required of him by law before selling the land for taxes. Nor could they be im* peached unless for neglect or fraud directly charged and proven. Acts. 1846, p. 79, art. 81. They vested in-the purchaser a “full and complete title.” The manifest in* teation of the law-giver was, that by the production of his deed after the period for redemption had expired, a purchaser at the sale of the land for taxes, should be prima facie entitled to recover. The provision of the ReV. Code, 1871, § 1709, is to the same effect. The policy of the law making tax deeds prima facie evidence has, in fact, become settled in this State by repeated acts of the legislature, and there is no reason for any other rule. Certainly when the law said that these deeds shall vest “a full and complete title,” it meant something, and could only mean that the court should so held, unless they were impeached for “ neglect or fraud directly charged and proven.” It did not mean that they -should, “ in any event,” regardless of errors in assessment, pass “ a full and complete title,” but that prima facie they should, and that the onus of impeaching them should be cast on the defendant. We therefore respectfully submit, that the judgment of the court below should be reversed, and that there should be a judgment in this court, rendered in favor of the plaintiff in error, on the demurrer to the evidence.</p> <p>Plaintiff showed no record or paper title, except two tax deeds and two other deeds, without any evidence that either the tax. payers or the grantors in either of the other deeds had any title whatever, and relied upon possession of six or seven years, between 1851 or 1852, to entitle her to recover.</p> <p>In March, 1858, defendant, with her husband, went into possession of the premises, with the knowledge of plaintiff, and without any objection by her as purchaser, and have notoriously claimed and occupied it as their own ever since. They are not, therefore, either trespassers, disseizors or intruders, in any sense, and hence the authorities relied on by plaintiff are not applicable to this case, but rather sustain the judgment of the court below, especially those cited from the reports of this State.</p> <p>Plaintiff lived in the same town, and on the adjoining or opposite square from defendant during the whole thirteen or fourteen years defendant has occupied and claimed the property, and she must be presumed to have abandoned or yielded her previous possession to defendant.</p> <p>Counsel are in error when they call plaintiff a married Woman. Her husband died in 1848, several years before she ever obtained possession of the premises. If this court should be of opinion that the judgment of the court below must be reversed, we ask that the case may be remanded. When it was tried in the court below, the leading counsel for the defendant was absent, and the other counsel representing her was forced into trial without any of her deeds or title papers, or even accurate knowledge, at the time, of her claim or grounds of defense. Common justice to her, therefore, requires that the case be remanded, if the judgment should be reversed.</p>

. Appeal from the chancery court of Marshall county. Hon. DeWitt SteaRNS, Chancellor. The opinion of the court contains a sufficient statement of the case.

<p>1 -Appeal from the chancery court of DeSoto county. Hon. J. F. SimmoNs, Chancellor.</p> <p>The appellant assigns as error:</p> <p>1. The court erred in overruling appellant’s demurrer. 2. The court erred in decreeing that the boy, Boss, should be placed in the hands of appellee or her agent. 3. The court erred in taxing appellant with costs.</p> <p>Yiolet Maples, a citizen of Limestone county, State of Alabama, filed her petition in the chancery- court of DeSoto county, alleging that she is the mother of Boss Maples, aged about fifteen years. That said boy, Boss, left her home, and she believes he was induced to do so by Ambrick Maples; and said boy is now in the possession of said Ambrick Maples, and he absolutely refuses to give possession of said boy to petitioner. She believes that Ambrick Maples will carry said boy, Boss, out of the jurisdiction of the court, unless the court will take charge of said boy, and asks for writ of habeas corpus, which was granted by the court.</p> <p>Defendant, Ambrick Maples, filed a demurrer to said proceeding : 1. Because said petition did not allege that said boy, Boss, was restrained of his liberty, and because petitioner showed that said boy was over fifteen years of age, and had a right to elect who he would stay with. The court overruled the demurrer.</p> <p>Ambrick Maples filed his answer, stating that said boy, Boss, was eighteen years of age. Said boy came to his house in December or January last. He knows nothing about Boss leaving the house of petitioner; he did not induce him to come; he furnished him no money to pay his expenses. He denies that said boy, Boss, is in his custody, or has been since he came here. Said boy worked with him last year. He was in rags when he came. He had him taught, clothed him, and paid his hire to his mother. Said boy is his grand-son. He has nothing to do with him. Boss hires himself, makes his own contracts and collects his own. money. He permits him to stay at his house, as any other relative; he does not drive him away. Said boy is unwilling to go to Alabama, and he believes will not go unless taken as a prisoner.</p> <p>Appellee introduced Mr. Bridgforth, who stated that before a writ of habeas corpus was issued he went to the house of Ambrick Maples, and found the boy, Boss Maples, there. His nephew showed an order from Yiolet Maples, authorizing him, John Bridgforth, to bring suit for the possession of the boy, Boss, and directing Ambrick Maples to deliver the boy to John Bridgforth. The boy, Boss, was present. Said he did not want to go to Alabama. Ambrick Maples said the boy might go if he wanted, but that he would resist John Bridgforth or any officer who attempted to take him forcibly. That he had hired him for the year, and that the negroes had the power and intended to keep it.</p> <p>John W. Bridgforth states that he had a written authority from Violet Maples, mother of Boss, to demand him, etc. I went, with my uncle, Bridgforth, and demanded him. Am-brick Maples refused to deliver him. Boss was present; said he did not want to go. Ambrick Maples would say Boss might go if he wanted, then he would say he should not go. Violet Maples is cooking for my father-in-law. He hires her by the month. She eats in my father-in-law’s kitchen. Ambrick Maples told us that he furnished- the boy, Boss, with money to come back on if he did not like to stay in Alabama. Violet Maples has been married to her present husband several years; has two other children, the youngest about two years of age. She gave me no money; promised to pay my expenses. The father of Boss is a 'white man; his mother a negro, and formerly a slave.</p> <p>Appellee proved by Ambrick Maples,who states that Violet Maples and her children, came to this State last Christmas was a year; said she had parted from herTmsband; she went back the next fall; Boss was unwilling to go with her; I hired Boss from her f°r last year, and paid her the hire; did not persuade him to come back from Alabama; I did not know that he was coming back until he and another boy, Jo., came ; I thought Mr. Bridgforth wanted the boy Jo.; I have never detained Boss, or restrained him of his liberty; 1 told him he could stay at my house if he wanted to, as I would any relative ; he has never been in my custody ; he has hired himself to my neighbor, Captain Manning, to pick cotton; makes his own contracts and collects the money; he comes to my house, and I think, regards it as his home; I have told him to go to his mother, in Alabama, and if he did not have the money I would loan the same to him to pay his way on the cars. Boss was seventeen years old last June. His mother has had seven children, all by different men.</p> <p>■ A. J. Jeffries proves, that the two Mr. Bridgforths live at Ms place; Ambriek Maples lives on my place; they were all talking a good deal; Bridgforth had a letter from Boss Maples’ mother, but said Jo. was the one he wanted, that Jo. was apprenticed to him; Bridgforth said he had nothing to do with Jo. Boss was his grandson, and he might go if he wanted to.</p> <p>Boss Maples states, that he left Alabama since Christmas; his father, who lives in Louisiana, gave him four dollars, and his mother gave him five dollars of the money she had received from my grandfather for last year’s hire, and came with that money; I hired myself to Oapt. Manning, and he paid me $5.00; I make my own contracts ; my grandfather does not prevent me from going where I choose; he did not persuade me to come back, and furnished me no money to pay my way; X do not want to go back to Alabama ; I want to stay here; my mother knew that I was coming back here, and told me I might come if I wanted to.</p> <p>Plaintiff introduced J. W. Bridgforth, Avho states that he would have taken Boss forcibly and against his will to his mother in Alabama, if necessary, if it had not been for Am-brick Maples.</p> <p>The court should have sustained appellant’s demurrer to appellee’s petition for writ of habeas carpus. The petition alleges that Boss Maples is fifteen years of age, and is the son of appellee, who is the mother of said Boss, and that he is in the custody of Ambriek Maples, the appellant. Is this a sufficient .allegation to authorize the issuance of a writ of habeas corpus ? There is no pretense that appellant confines Boss, or restrains him of his personal liberty. He is free to go when he pleases, and he is fifteen years of age. The father is bound to maintain his child until he is old enough to maintain himself, and in consequence of this he is entitled to bis custody and the value of' his labor and services; but is the mother chargeable with his support, etc.? She is not, only when she has separate estate, and the child unable to support itself, and likely to become a public charge. See 2 Ken.t, p- 192. We insist that the petition for writ of ha^ hern corpus should allege that the boy was restrained of his liberty, or that appellant detained him against his will.</p> <p>But upon the facts of the case the proof conclusively shows that the appellant, Ambrick Maples, has not the custody even of the boy Boss. Boss stays sometimes with appellant, who is his grandfather, but hires his own time, makes his own contracts, and collects his own money, and is from’ fifteen to eighteen years of age. The only person who proves his age is his grandfather, appellant, and he says he is eighteen. Bridgforth, the agent of his mother, swears, in his petition, that he is fifteen years old. Then when will the right of the mother cease to sue out the writ of habeas corpus* Boss might marry before he was twenty years of age; and we^suppose then, according to the theory of the court who pronounced the .judgment in this case, the agent of the mother could sue out the writ of habeas corpus, have the boy placed in his possession by the judgment of the court, and forcibly take him from his wife, or even his children, and carry him/into a neighboring State. Chancellor Kent says, that a father may obtain the custody of his children by writ of habeas corpus, when they are improperly detained from him, but the courts, both of law and equity, will investigate the circumstances, and act according to sound discretion, and will not always, of course, interfere and take a child, though under fourteen years of age, from the possession of a third party, and deliver it over to the father against the will Of the'child; they will consult the inclination of the. infant if it be of sufficient mature age to judge for itself, etc. (See 2 Kent, pp. 194 and 195.) Then if the boy is not detained by a party, or restrained of his liberty, and over fourteen, and is eighteen years of- age, will the law permit the courts to interfere and imprison a boy to force him to go to his mother ? Then upon the subject of when is it to the interest of the child to stay? His mother has had six children, all by different men ; she now has a husband ; she is a hireling; has no home, and is living in the kitchen of the father-in law of the agent of appellant. Boss was naked when he came here, and was clothed and sent to school; here he can make a good support and educate himself.</p> <p>A father cannot maintain any of the possessory actions to recover possession of a child against one who employs him. He may sue for the value of his labor, and, under certain circumstances, may recover the same ; and he has the right to use his parental authority to force a child to stay with him; but we insist ivhere the child is over fourteen years of age, and not restrained of his liberty, or detained against his will, he cannot'invoke the aid of a court by writ of habeas corpus and have the child arrested and imprisoned, against his will, placed in the custody of the agent of the parent, to be forcibly taken, against his will, to another State. Can parents delegate their rights to another party to use their parental authority to force a child of this age, against its will, to leave the State ? Bridgforth says he would have taken Boss forcibly, and against his will, to Alabama, if appellee, Maples, had delivered him up to him. Then would not Bridgforth have been guilty of an assault and battery, or false imprisonment of the boy Boss, and can he call unto his aid the powers of the court to enable him to commit an offense? We think that the only order the court could make in this case was to discharge the boy from the arrest under the writ of habeas corpus.</p> <p>If it were necessary, in order to maintain the petition for the recovery of this child, to allege that respondent restrained it of its liberties, would it be because, being fifteen years of age, it has the legal right to elect with whom it will stay? If the boy, in consequence of his age (fifteen years) has the right to elect with whom he will stay, then the petition must allege that he is restrained of his liberties, and it could only be performed by the boy himself, or some one acting in his behalf.</p> <p>The principle here asserted, then, the demurrer admitting all the allegations of the petition, and raising nothing but questions of law, is, that a child fifteen years old, so far as the right to control its own movements and person is concerned, has acquired the rights of a person twenty-one years old... In other words, it has attained its majority, and the rare of parental authority and discipline is at an end. Under this principle, if Boss Maples had not chosen to relieve himself from parental authority, by flight, he could have done so by habeas corpus against his mother, for he would have the right to elect with whom he would stay. This cannot be law.</p> <p>There is a rule of law covering and intending to cover, a wholly different state of facts, arising out of the relations/of husband and wife, and parent and child, somewhat similar to this. Where there is a contest between the father, on the one side, and the mother on the other, as to the custody of their children, each being of sufficient ability to maintain and educate the child, and of equal moral character, the State nor the child suffering detriment, and the child being of age to exercise a choice, the court wrill leave the child to elect with which of the two it will go. This rule is an exception to the old common law rights of the father, under which he was understood to be preferred, in all cases, to the mother, in the matter of the custody of their children — nothing more. The rule was applied by this court in Foster v. Sim-mond, 6 ITow., 408. The age of majority is twenty-one years, and during this period all are infants, and subject to parental authority and discipline. The rights of parents arise from their duties. The duties of parents to their children are, maintenance and education. If the parent be of sufficient ability to furnish his children with the necessaries of life, neglect to do so is an indictable offense. 2 Kent’s Com., 184, note 1, and cases cited. In consequence of the obligation of the father to provide for the maintenance, and in some qualified degree, for the education of his infant children, he is entitled to the custody of their, persons and the.value of their services» 2.Kent’s Oom., 186. . All interference with parental authority, except by the courts of justice, when that power is abused, is injurious to domestic subordination and to the public peace, morals and society. 2 Kent’s Com., 211; note 2. Upon the death of the father, his authority and duty over the children devolve on the mother. 2 Kent, 212, 218 and 214.'</p> <p>■ There is no difference in the law with regard to an illegitimate child so far as the. mother is concerned. She is bound to the same duties of maintenance and education, and entitled to the same rights resulting from those duties. 2 Kent’s Com., 225. The father may obtain the custody of his children by the writ of habeas corpus when they are improperly detained from him. Ib., 187. It is submitted that the second clause of section 1896, Code of 1871, under which the petition in the case was preferred, and which extends the writ of habeas corpus to all cases in which the custody of any person is withheld from the person entitled thereto, is an express recognition of the right of the parent in the premises, by furnishing the remedy for its enforcement. Violet Maples, in her petition, alleges that her said son Boss, is now in the custody of said Ambrick; that he absolutely refuses to give possession of said Boss to her. This sets forth a restraint of his liberties, and the court did right in overruling the demurrer,</p> <p>Eights and duties are correlative. If Violet had the •right to the custody of the person of Boss, it was the duty of Ambrick not to refuse it to her.</p> <p>Being in the custody of the court, and the court having concluded as to who was entitled to him, what Was it to do % It was its Unquestionable duty to either turn the boy over to its mother, or. apprentice him under § 1793 of the Code. This latter, in this.case, the court could not do, for the mother was before the court, asserting her claim to the boy, and alleging her inability to take charge of him by reason of Ambrick’s interference. To have discharged him in open court, with a simple order on the minutes that the mother was entitled to his custody, provided she could catch him before he could get under the protection of Ambrick’s strong arm, otherwise she must take out another writ, would have been a mockery of justice. Under such circumstances it was the duty of the court to order its officer to turn said Boss over to his mother. Under § 1409, Code 1871, it is made the duty of the judge to award the custody to the party entitled thereto.” The court certainly has authority to execute its own award.</p> <p>3. Ought appellant to have been taxed with the costs ? He denies, that Boss is or has been in his custody, in his answer, but with it he couples his information that there is no law that will permit said boy to be awarded to his mother and conveyed to Alabama, because his mother is there, and, therefore, he did not restrain him of his liberty. The proof is conclusive that said boy was in his custody, and but for his interference, Bridgforth says that he, as the agent of Yiolet, would have taken charge of Boss, by force, if necessary, and carried him to his mother. He had the right to do it. All the testimony goes to show that Ambrick said he would resist an officer or anybody who might attempt to take Boss to his mother. He has resisted his mother in every way known to the law, and is now doing so before the court of last resort. He is the author of the litigation. It is absurd to say that a child may flee from its mother, take shelter in the house of a third person, and when the mother pursues, have her successfully resisted by such persons, and continuing so, and yet say that the child is not in the custody of such person, because he avers that he did not restrain the child of its liberties. Appellant ought not only to be taxed with costs, but when, arrested for contempt of court, he feigned sickness; the court ought to have ordered him to be brought in, and have taxed him thirty days in the county jail.</p>

Hon. Geo. F. BkowN, Judge. The appellees, Adam & Speed, filed their petition to the judge oí the circuit court, praying for a writ of mandamus against A. H. Arthur, clerk of the board of supervisors of Warren county, alleging that on the 20th day of March, 1871, the said board of supervisors allowed and ordered the payment of an account to petitioners, for $2,000.00, fee for services as counsel for said county in a tax suit in the chancery and supreme courts, and that the…

Hon. B. B. BooNe, Judge. The facts of the case are fully stated in the opinion of the court. The following are the assignments of error: 1. The court erred'in rejecting all the testimony of plaintiff in error. 2. The court erred in overruling defendant’s motion for a new trial. We contend that a ratification of a void or irregular sale may be shown in a court of law as well as in a court of equity.

Hon. W. D. BRADFORD, Judge. The facts of the case sufficiently appear in the opinion of the court. Held: that the assignee failed to show such a legal title as would stipport the action. Wilson v. McElroy was not a suit upon a sheriff’s bond, where a right of action is given by- statute to the party injured. The question was before the high court in Matthews v. Bailey, 25 Miss., 33.

<p>1. Chancekx Pbactice — Attachment and Gabnishment. — R. as creditor of M., deceased, instituted suit by bill in equity against M., as a non-resident, by attachment of the debt due by S. B. alleges that the estate of M. is indebted to him in the sum of $2,500.00, That P. is administrator, and that the estate is insolvent, and tha t he took and converted an obligation of M. & H. to his own use, for $5,000.00. Prays an attachment against the effects 6f M., and garnishment of S., his debtor. The allegations of the bill are denied by the answer. Reid: That to authorize this proceeding under the statute, the debtor of complainant’s creditor must be a nonresident of this State, and have either lands and tenements within the same, or some other porson within the State who is indebted to him, or has effects of his in his hands. Bev. Code 1857, p. 5i9, art 60 ; Trotter v. White, 10 S. & M., 607 ; Freeman v. Malcolm, 11 S. & M., 53; Freeman v. Guión, 11 S. & M., 58,</p> <p>2. Same-Case in Judgment. — 1The answer of the garnishee states that he gave to M. three notes, amounting to $20,000.00, and does not know whether M. has negotiated the notes, or any of them ; but if he has so transferred them, he owes them to the holder, and not to M. He should not he charged, because it does not appear affirmatively that he was, when garnisheed,.indebted to the defendant., unless that fact so appear, it is insufficient, and no judgment should be rendered against him.</p>

Hon. Bobert Leachman, Judge. Lewis sued Perry in the court below, in trespass, for taking and converting to his own use, one horse, two yoke of oxen, and one wagon, valued at $1,000.00. Defendant pleaded not guilty, and specially; 1.

Hon. Geo. F. Blows', Judge. The facts of the case are very fully stated in the opinion of the Court. 1. The defandant was not liable to the plaintiffs for the value of the goods sold to Morris Wolfe. This point was made in the court below, in the first instruction asked by defendant and refused by the court. The credit was given to Wolfe, and to him alone.

Hon. OrlaNdo Davis, judge. The opinion of the court contains a sufficient statement of the case. Contended that an executor or an administrator might be garnisheed for a debt due by his decedent. Code of 1871, §§ 1485,1486 ; 41 Miss., 62; 3 S. & M., 461, 454; 40 Miss., 67. A writ of garnishment is in the nature of a final process, as to the plaintiff, and original as to the garnishee. 13 S. & M., 596; 38 Miss., 99.

<p>Error to the circuit court of Marshall county. Hon. 0. Davis, Judge.</p> <p>The facts in the case are sufficiently stated in the opinion of the court.</p> <p>The following is the assignment of errors :</p> <p>1. The court erred in overruling the motion of plaintiff in error for a new trial.</p> <p>■2. The action was improperly brought in the name of Craft, the consignor, and should have been brought in the name of Duncan, the consignee.</p> <p>■ 3. The court erred in giving charges numbered three and six, at the request of the plaintiff in the court below, now the defendant in error,</p> <p>We insist that the verdict of the jury in this case, was contrary to law and the evidence, and that the court below should have set it aside and granted the plaintiff in error a new trial. The testimony shows that the money for which this suit was brought, was delivered to the Southern Express Company, at Holly Springs, Mississippi, on the 22d day of December', 1861, and on the 4th day of January, 1882, to be transmitted to J. D. Duncan, at Bowling Green, Kentucky. At that time Bowling Green was occupied by the Confederate army, under the command of Gen. Albert Sidney Johnson, and was confronted by the Federal army, under the command of Gen. Buell, A battle between these ■ forces was daily anticipated. Would the Southern Express Company have been justifiable in sending forward these •packages until it had learned that it would be safe to do so under the circumstances which surrounded the case ? But if the packages had 'been sent forward immediately upon their delivery to the company, in Holly Springs, they were liable to great delay on the route, because •Bowling Green was occupied' by the Confederate forces, and all the- lines of railroad converging at that point from the south, were under the control of the military authorities. The Southern Express Company was, therefore, in that locality, controlled by the military authorities. It could only use the railroads running into Bowling Green from the south, in forwarding its packages, when it was permitted to do so by the military authorities. These authorities impressed into their service railroads and every other species of property which, in their judgment, their wants demanded. The ordinary rules of law, enforcing diligence on common carriers, would not apply to the Southern Express Company in this case. Inter arma leges silent is a maxim of law as familiar to the people of this country, since the late war, in practice, as it" was, prior thereto in theory alone.</p> <p>Again, there^ is no proof in this case showing that the lines were open between Holly Springs and Bowling Green after these packages were delivered to the company, so that they could have been forwarded and delivered. Mr. Craft swears that he passed over the line of road from Bowling Green to Holly Springs about the 12th of December, 1861, and the road was then in good running order. That was ten days before the first package was delivered to the company in Holly Springs. Mighty changes take place within ten days in time of war. The State of Kentucky might have been over-run and its government overthrown by the Federal forces within that time.</p> <p>The witness, Ballard, swore that he believed that communication was open between Bowling Green and Holly Springs in December, 1861, and in January, 1862. But this was a mere impression of his, not based upon any knowledge or distinct recollection with reference to the subject. The evidence does not show, therefore, that these packages could have been forwarded before the fall of Bowling Green, which was on the 14th day of February, 1862. But the testimony of Ballard, the agent of the company, relieves the company from the charge of negligence, and shows that all was done by it which could have been done under the circumstances. Ballard swears that he has no recollection of the time when these particular packages were forwarded, but he does recollect distinctly that in December, 1861, and in January and February, 1862, all packages delivered to the express office, in Holly Springs, were forwarded without delay, unless the points to which they were to be sent had fallen into the lines of the public enemy, or were endangered by their presence. Here is 'proof positive that these packages were forwarded if it was practicable to do so, and if they were not, the proof shows such a reason for not doing so as will relieve the company, in any court of justice, from all liability.</p> <p>The proof shows, as we think, due diligence and proper discretion on the part of the company prior to the fall of Bowling Green, on the 14th of February, 1862. Our next inquiry is, what became of these packages of money ? What was done with them by the company ? The proof shows, that the Confederate army, when it fell back from Bowling Green, on the 14th of February, 1862, went directly to Nashville. Tennessee, and there halted, but evacuated Nashville on the 17th of February, 1862. These packages were handed to the cashier of the Southern Express Company, in Nashville, by the money clerk of the company, just before the fall of Nashville. Davis, the cashier, received them from the money clerk, and states, that they had probably been returned from Bowling Green to Nashville by the company. Reaching Bowling Green -too late to be delivered by the company to J. D. Duncan, the consignee, they were sent to the Southern Express Company at Nashville, for safe keeping. In Nashville these packages were seized by the Federal authorites, after the place had been evacuated by the Confederate army and taken possession of by the Federal forces. The .testimony of Davis, the cashier of the company at Nashvillle, shows clearly, that the Federal authorities in Nashville, seized the books, papers, money, packages, and every species of property belonging to the company in June, 1862, and with the balance, these identical packages, addressed to J. D. Duncan at Bowling Green. This the company could. not prevent, and is not responsible for the property thus taken. The plea of “ vis major ” is certainly a good one, and requires no reference to authorities in its support. If they were needed, however, the decision of this court, on that branch of this case, which went up from the chancery court, would be conclusive upon the point. Southern Express Company v. Heber Craft, 43 Miss., 508.</p> <p>We think, therefore, that the court erred in refusing to set the verdict aside; because it Was manifestly wrong, and without testimony to support it.</p> <p>We will now notice the second error assigned, that the action was improperly brought in the name of Craft, and should have been brought in the name of Duncan, if brought at all.</p> <p>A mere reference to the facts' in proof, will settle this point. Craft swears, that he bought a horse from Duncan for $165.00, and was to send him the money in payment for the horse, by express. Craft lived at Holly Springs, Mississippi, and Duhcan lived near Bowling Green Kentucky, “when this contract was made.</p> <p>J. D. Dun'can, the consignee, swears, that he sold Craft the horse near Bowling Green, Kentucky, for $165.00, and that Craft was to send him the money by express. Both of the parties to the contract, swear, that Craft was to send the money to Duncan by express. It was a stipulation in the contract, that Craft should send the money by express.</p> <p>When Craft delivered the money to the-express office in Holly Springs, in December, 1861, and. January, 1862, and took its receipts for the same, he stood entirely discharged from all obligations to Duncan, arising under the contract. He had fully complied with the terms of the contract, and was released from all liability. He had no further interest in, or connection with the contract, or with Duncan; and if the money was lost by the company, Duncan alone could sue for the loss; Duncan alone could be injured by the misconduct of the company, after the delivery of the money to it by Craft. The payment of the money to Duncan by Craft in 1865, does not affect the legal question involved, in the slightest degree. This payment, made by Craft in 1865, was made in his own wrong, and does not change the legal status of the parties, and give Craft a right of action against the Southern Express Company in 1866.</p> <p>Upon well established principles of law, a party who has no interest in the subject matter of the suit, cannot bring the action for a redress of the wrong complained of.</p> <p>With reference to a consignor and consignee, the general-rule of law is, that an action-brought against a common carrier for an injury done to their goods in transitu, must be brought in the name of the consignee, and not in that of the consignor. This is the rule when there is no distinct agreement between the parties, that the consignor shall be discharged from all liability upon his delivery of the goods to the common carrier.</p> <p>In this case there was a stipulation in the contract, which in law, released Craft from all liability upon his .delivery of the money to the express company. In support of the foregoing position, we cite the following authorities: 1 Ohitty’s •Pleading, pp. 5 and 6 ; ib., 70; Grove v. Brien, 17 Curtis, 650, (8 “EL, 439-440;) The Mary & Susan v. Wagenan, 3 Curtis, 452-458, ( 1 W., 25 ;) 2 Kedfield on Kail ways, 17 L and 172; 2 Kent, 3d ed., lec. 39, pp. 498, 499,500; The Frances v. Claimant, 9 Cranch, 183 ; Bonner v. Marsh, 10 S. & M., 376 ; Shuts v, Wilgus, 56 Barb., (N. Y.)-662.</p> <p>We come next to charges three and six, embraced in the third assignment of error. The third charge is in the following language: “The owner of articles lost or injured may maintain an action, notwithstanding they are consigned to a third person.” It is hard to tell what was meant or intended by this charge. But, taken in connection with the others, and with the facts of th¿ case, we suppose it was intended to lay down the principle that an action could and should be brought in the name of the consignor, and not of the consignee, for injuries done to articles in transitu by the common carrier. It must have been so understood by the court and jury when it was given. We submit that it was clearly wrong, and states precisely what is not the law, but the reverse of it. The general rule is that, upon the delivery of goods to a common carrier, the title vests at once in the consignee, and an action for injuries done to them must, be brought in the name of the consignee, and not in that of the consignor. This rule prevails even where- the goods are shipped at the risk of the consignor. We again refer to the authorities already cited on this point. The third charge is? therefore, manifestly wrong, was calculated to mislead the jury, and should have been refused.</p> <p>The sixth charge refers a question of law to the jury for its decision. The question is referred to them for their decision, without instructions from the court as to what the law is. They are required by this charge to determine whether Craft was released from the liability to Duncan before Duncan received the packages of money. This was a question which the jury could not decide.</p> <p>But it is liable to another objection, equally fatal. It asserts that if Craft was not released from liability to Duncan until Duncan received the packages of mone~, then Craft was the proper party to sue for the loss or non-delivéry of the money. This was an erroneous principle. Upon the delivery of the packages to the company by Graft, the right of property, and the right to sue for its loss or injury, vested' in Duncan, the consignee ; and this is true if the shipment was made at the risk of Craft, the consignor.</p> <p>By this charge the jury were evidently misled. We think that the judgment of the court below ought to be reversed, and the cause dismissed; as it is clear that Craft cannot maintain the action in his name.</p> <p>In December, 1861, Craft delivered to the express company the moneys as expressed in the receipts, to be by said company conveyed to Bowling Green, Ky., to one Duncan, at that place. Duncan failed to receive the money, and in 1866 Craft brought this suit against the company. Judgment by default was rendered at the return term of the process, and execution issued thereon. The appellant, after the-rendition of the judgment, filed a bill in the chancery court, enjoining the collection of the judgment, alleging that the judgment was a nullity, the writ not being served upon any one authorized to represent the company. Injunction was obtained, and at the trial was dissolved by the chancery court, and the decree of the court below was reversed by this court, the judgment set aside, and a new trial at law awarded the company. The new trial was had, on the merits and judgment again for Craft, and the appellant brings the case, by appeal, to this court.</p> <p>We submit that the verdict is in strict conformity with the law and testimony.</p> <p>The money was delivered to appellant, a common carrier, to be transported from Holly Springs, Mississippi, to Bowling Green, Kentucky. Duncan, the consignee proves that, in December and January he called frequently at the office of the company for the package of money, but never receiyed it, the company’s agent informing him that no such package was received.</p> <p>The burden of proof to exonerate the company from liability in failing to transport and deliver the money is upon the company.</p> <p>“ A common carrier is liable for all losses not occasioned by the act of God or the enemies of the country, and the burden of proof is thrown upon him to show that the loss was occasioned in a manner that will exempt him from liability.” Turney v. Wilson, 7 Yerger, p. 340.</p> <p>££ Proof by a common carrier that the loss happened from some unknown cause is not sufficient to exempt him from liability.” Turney v. Wilson, 7 Yerger, p. 340. This principle is well settled. See Johnson v. Friar, 4 Yerger, 48; Yerger v. Skipwith, Meigs, 502; E. T. & Ga. it. B,. Go. v. Nelson, 1 Coldwell, 272 ; Womach v. Southern Express Go., 1 ITeiskell, 256.</p> <p>We submit, however, that the proof in this case shows that there was an uninterrupted line of railway from Bowling Green to Holly Springs, and trains passing daily. The appellant offered no proof, and could get none, to show any excuse why the money was not safely transported.</p> <p>Appellant insists that Craft, the consignor, could not bring this suit. We submit that the proof shows that he is the only proper one to sue. Craft was the owner of the money when delivered to appellant. Duncan, the consignee, had no interest in it. It was shipped to pay a debt to Duncan, the appellant having failed to carry out its contract and deliver this money, Craft paid his debt to Duncan and then instituted this suit.</p> <p>££ A-consignor who owns the goods and sustains the injury from the damage or loss is the proper party to bring the action against the carrier. Redfield on Carriers, p. 233; Sanford v. ITusatonic Railway, 11 Cushing, 155; Turney v. Wilson, 7 Yerger 341.</p> <p>Craft was clearly the owner of the goods. D-uncan had no interest; his debt had been paid; he had sustained no loss, ahd Craft was the only one who had sustained loss. The bill of lading is not conclusive evidence of the ownership of the goods; it may raise a presumption of title, but that presumption may be repelled or explained by testimony. Edwards on Bailments, 562; Conger v. Railroad Cos., 17 Wisconsin, 486; Hooper y. Chicago and Northern R. R. Co., 27 Wisconsin, p. 81.</p> <p>Even, however, had the facts shown that Craft was not the owner of the goods at the time of the shipping, yét then he is the proper person to bring this suit.</p> <p>In Blanchard v. Page, 8 Gray, p. 281, it was held, after most elaborate examination, that the shipper named in the bill of lading may sue the carrier for an injury to the goods, although he has no interests general or special, therein. The same principle is held in Hooper v. The Chicago and Northwestern Railroad Companjr, 27 Wisconsin, p. 81 (also 9 Am. Rep., p. 439), by Chief Justice Dixon, in a very able and learped opinion; he holds that the shipper is ft party ip interest to the contract, and it does not lie with the carrier who made the contract with him to say upon the breach of it, that he is not entitled to recover the damages, unless the consignee object. The consignor or shipper is, by operation of the-rule, regarded as a trustee of an express trust, like a factor or other mercantile agent who contracts in his own name on behalf of his principal. See also Gennell v. Schmidt, 2 Sandf,, S. C., 706; Bobbins v. Derende, Wisconsin, 448.</p> <p>The above principles sustain" the charges given by the court below, and the judgment of the oourt below should, we respectfully submit, be confirmed</p>

Hon. E. Staeeord, Chancellor. S. W. Ferguson, administrator de lonis non of the estate of Guignard Scott, deceased, filed his bill in the chancery court of Washington county, on the 4th day of November, 1871, to subject to sale, for the payment of debts, an interest of one-fifth of one-sixth of and in certain lands in that county, derived by his intestate as heir at law of Calhoun Scott, deceased. Guignard Scott left no personal estate of any kind.

Hon. W. B. CUNNINsham:, Judge. This was an action of ejectment, brought originally in Sunflower county, but afterwards removed, by consent of the parties, to the county of… Held: that the action not Toeing local-, but transitory, and as the defendant might by his appearance, or consent give jurisdiction originally to the circuit court, in any county in which he might be found, or where he choose to appear. This decision was made under the act of 1823. Hutch. Code, p. 854.

Hon. George F. Brown, Judge. The opinion of the court contains a sufficient statement of ' the case.

Ho.n, PeWitt SteaRNS, Chancellor. The opinion of the court contains a sufficient statement of the case. 1. There is no doubt that the voluntary conveyance made the 21st of March, 1868, by Wm. and Nancy Seal' to their children, Thomas J. and Ellen G., was void as to prior creditors.

Hon. •J. J. IIooRer, Chancellor. The facts in the case fully appear in the opinion of the court. “In reality,as between the parties themselves, there is no difference, whether the partnership property held for the purposes of the trade or business, consists of personal or movable property, or of real or immovable property, or of both, so far as their ultimate rights and interest therein are poncerned.” Story on Partship, p. 127, § 92 ; Watson on Partnership, ch. 2, pp. 72 to…

Hon. D. N. Walker, Chancellor. The opinion of the court contains a sufficient statement of the case. As the will in this case is a foreign will, disposing of foreign property, not a will “ touching or disposing of estate within this State,” it could not be probated here. Code of 1857, p. 433, art. 42 ; ib., p. 45, art. 49.

Tippah county. Hon, B. B. Boone, Judge. The facts in-the case are fully stated'in the opinion of the court. The'following errors are: assigned: 3. The court erred in- refusing- to sustain the defendant’s' motion for a new trial in the court below. 2. The verdict was wholly unsustained by the evidence. In this case there was judgment in the circuit court of Tippah county opon the verdict of a jury for $91.64, in favor-of Gray and wife, against plaintiff in error.

<p>1. Rights op Foreign Sureties Against Principal. — A security upon property in this State, given to indemnify sureties who live m another State, as against whom in that State a remedy at law exists on the debt, and who have been compelled to. pay the same or any part thereof by a judgment at law, may main'ain a suit in equity in this State, on tho mortgage, to reimburse themselves for whatever hag been naid ; and it is no defense that the creditor has lost his remedy at law upon the note or bond, and also upon the mortgage against the principal debtor and mortgagor in this State.</p> <p>2. Rights op Senior Mortgagee. — A senior mor' go gee, who is no party to the suit, of a junior mortgagee, to foreclose, may enjoin the execution of the decree, and may establish his right to appropriate the mortgaged property to his debt..</p> <p>3. statute op Limitations. — The law of the domicile governs as to the statute of limitations, and the statute commences to run whenever the right or causo of action accrued. Yarnell v. Moore & Davis, 3 Caldwell, 174.</p> <p>4. Remedy in Behalf op Sureties — when it Arises. — It is well establ'sbed that a remedy in behalf of the surety, eithorat law against his principal, or in equity upon an indemnity given to himself, or to be subrogated to one given by the principal to the creditor, arises whenever there has been a breach of the indemnifying contract. If the surety pays the debt, his cause of action immediately arises, and the statute begins to run.</p> <p>6. Foreign Administrator — His Power, etc. — An administrator appointed in another State has no authority to intermeddle with assets in (his State. The principie applies more especially to canses of action which accrued to the intestato or testator.</p> <p>6. Eppect op a Judgment Recovered by a Foreign Administrator_A judgment recovered in one jurisdiction, by an administrator or executor, may be the foundation of a personal suit in another State. Bonafores v. walker, 2 Dun. arid East, 127; Douglas v. weilate, Douglas K.,4, n. 1.</p> <p>7. Power of Administrator to Sue, etc. — It is well settled in this State ihat an administrator can sue iu his personal right upon a promissory note payable to himself as administrator and in which he has no personal interest. The same principle applies where a note or bond is assigned to him specially as administrator.</p>

Hon, E. Hill, Chancellor. The facts sufficiently appear iii the opinion of the court. The question presented to this court is the sufficiency of the answer to work a dissolution of the injunction in this cause. We admit the general rule tobe-, that when the answer fully denies the allegations, upon which complainant bases his claim for equitable relief, the injunction should be dissolved, though the rule is not universal in its application. 3 Sumner, 75.

Hon. J. J. HookeR, Chancellor. The opinion of the court contains a sufficient statement of the case. If the complainant cannot recover on his pleadings and exhibits, admitting them to be true, of course he cannot recover on his testimony. He cannot make, by his proof, a stronger case than he has charged in bis pleadings. Toulmin. v. Heidelberg, 32 Miss., 268.

B. B. Booke, judge. The plaintiff in error filed his petition, praying an alternate writ of mandamus to compel the defendant in. error, county treasurer of Itawamba county, to pay Mm the amount of a warrant ordered by the board of police of said county, and issued by the clerk of said board, in his favor, for the sum of two hundred and fifty-three dollars, which he says the said treasurer fails and refuses to pay, although he admits that he holds money in his hands as…

<p>Appeal from the chancery court of . Lee county, Hon. 0, H. Whitfield, Chancellor.</p> <p>The opinion of the court contains a sufficient statement of the case.</p> <p>1. The only legal fact involved in the question of the incompetency of the complainant to contract on account of insanity, was that of his actual insanity, and the causes of it would not become-pertinent, except in a question of medical jurisprudence.</p> <p>The influence brought to bear upon Hughes, were founded upon a general .popularity of Sirnonton among his fellow-citizens, and do not constitute that undue and improper inflence which will vitiate the contract. The true exposition of that poisonous element as affecting the validity of deeds and wills procured by its exercise, is graphically described by Greenleaf to be “ an influence obtained either by flattery, excessive importunity or threats, or in some other mode by which a dominion is acquired over the will of the legislator, [or grantor,] destroying his free agency, and constraining him to do against his free will what he is unable to refuse.” 2 Greenl. Ev., (Redfield’s Ed.,) § 688,note 1.</p> <p>The acts and contracts of persons who are of weak understandings will be held void in courts of equity, if the nature of the act or contract justify the conclusion that the party has not exercised a deliberate judgment, but has been imposed upon, circumvented, or overcome by cunning or artifice, or undue influence. But the simple fact that the intellectual capacity of one party to a contract is below that of the average of mankind, does not alone furnish sufficient ground for setting aside the contract. 1 Story, Eq. Jur., (Redfield’s Ed ) §§237,238; Block v. Christian, 1 Knapp, 77. In the case made by the bill, Simonton’s conduct is not brought within the rule,</p> <p>The representations ascribed to Sirnonton, by which it is charged Hughes’ action was influenced,' lack the principle element of fraud and falsehood. They constitute mere conjectural opinions concerning the future political condition of the country, based upon fair and honest belief.</p> <p>If Hughes was insane at the time of making the contract, and that fact appears of record, he cannot sue in his own name to avoid it, until his insanity shall have ceased. Once proven to have been insane, his insanity is presumed to continue until the contrary is proved. He must sue by his committee, or by his next friend. Story Eq. PL, §§ 64, 66; 1 Bland, 370; Fitzgerald v. Reed, 9 S. & M.. 94: cited and discussed.</p> <p>But whether the suit be rightfully brought or not, he cannot avoid his executed contract, without first restoring the admitted amount of consideration received, by its actual payment into court, and offering to voluntarily pay back any further amount, to be ascertained by the account prayed to be taken. Fitzgerald v. Need, supra; Loomis v. Spencer, 2 Paige, 153 ; Arnold v. Richmond Iron Works, 1 Gray, 437.</p> <p>1. Contended that the facts shown by the bill, entitled the complainant to the relief prayed for. The influence of Simon-ton over Hughes, was that of the strong over the weak: and undue advantage for the benefit of the former being taken, the transaction should be annulled. If a person is of a feeble, understanding, and the bargain is unconscionable, what better proof can one wish of its having been obtained by fraud or imposition, or undue influence, as by the power of the strong over the weak. Story Eq. Jur., 236 note. “ If a contract which is rash, improvident, or harsh, be made with a person of weak understanding, there does arise a natui*al inference that it was obtained by fraud, circumvention, or undue influence.” lb., 235, 238, note 2.</p> <p>2. On the question of redundancy in the bill, see Taylor v. Eckford, 1 S. & M., 21-34; Seymour v. Delany, 6 Johns, ch., 223-227 ; 4 Kent, Com., 307 ; Story, Eq. Jur., 234, 235.</p> <p>3. Was complainant authorized to bring suit in his own name ? Under the ancient common law, lunatics were permitted to show (heir lunacy in defense of their alleged contract. 2 Black. Com., 291. But later this right was denied on the ground that a man cannot know in his sanity what he did when he was insane. The modern doctrine is, that á lunatic may allege his lunacy as a defense to an alleged contract. Rice v. Peet, 15 Johns., 503; Webster v. Wofford, 3 Day, 90 ; Lang v. Whidden, 2 N. H., 435 ; Mitchell v. Kingman, 5 Pick., 431; Doe v. Dignowitty, 4 S. & M., 73; Owen’s Case, 1 Bland Oh., 376. There is no allegation in the bill that complainant was absolutely a lunatic, but only that his mind was seriously diseased. To say that one has fits of insanity atone time does not mean thatafitis on him all the time, and' he has one now. So when we aver that complainant was subject to attacks of insanity, which in degree and effects were variable, and that he has not entirely recovered, it does not follow that he is insane now. The only question is, was he insane at the time of making the contract. A lunatic may sue by himself or guardian to set aside a contract made by him. Doe v. Dignowitty, 4 S. & M., 73; Fitzgerald v. Reed, 9 ib., 102,103; Gibson v. Loper, 6 Gray, 279 ; Baxter v. Earl of Portsmouth, 9 Eng. O. L. R., 79 ; Mitchell v. Kingman, 5 Pick., 431.</p> <p>4. Ought the complainant to make an offer in his bill to place the parties in statu quo f N° considerations of policy or equity require the adoption of such a rule. To say that an insane man, before he can avoid a voidable deed, must put the grantee in statu quo, would be to say, in effect, that in a large majority of cases., his deed shall not be avoided at all. The more insane the grantor was when the deed was made the less likely will he be to retain the fruits of his bargain, so as to be able to make restitution. -6 Gray, 282, 283; Dearborne v. Eastman, 4 N. H., 441 ; Tucker v. More-land, 10 Pet., 58; Shaw v. Boyd, 5 Serg. & R., 309; Phillips v. Green, 3 A. K. Marsh., 7 ; Wilcox v. Roath, 12 Conn., 550; Goodsell v. Myers, 3 Wend., 479.</p> <p>5. The demurrer is to the whole bill. If a demurrer is applied to the whole bill, when it is good to part only, it will be overruled. Story Eq. PL, § 443; 42 Miss., 347, 473, 496.</p>

Hon. 0. Davis, Judge. Plaintiffs in error brought their action in assumpsit against defendant, for money had and received by him from one Joshua Hobson, in August, 1864, in the State of Kentucky, amounting to $333.33-¿-, which sum was given to Mary F. Hudson, one of plaintiffs, by will of her grandfather, and was paid defendant by Hobson, the executor. The plea of non-assumpsit was filed, and by leave of the court additional plea of' payment and bill of particulars.

Hon. URIAH Millsaps, Judge. The opinion of the court contains a sufficient statement of the case. Contended that when a plea of bankruptcy is interposed in the courts of this State, the plaintiff may properly reply that the certificate of bankruptcy was obtained through fraud; and the court has the jurisdiction to decide upon a demurrer to the replication, whether such discharge was illegally obtained or not. Perkins v. Gay, 3 Am.

Hon. Geo. F. Brown, Judge. Relators, as the holders of certain school warrants issued by the board of school .directors of Warren county, upon the. school house fund, filed their petition on the 1st day of March, 1873, in the circuit court, praying a mandamus against the board of supervisors of said county, compelling them to levy a tax to pay off said warrants, amounting in the aggregate to the sum of $10,263. Copies of the warrants are filed with the petition.

Hon. J. A. Orr, Judge. • This was an action brought by M. E. Hendricks, whose husband was clerk of the board of supervisors of Lowndes county, against the board, to recover the sum of $300.00, for services alleged to have beven rendered in issuing four hundred commissions to road-overseers.

Hon. W. D. BRADFORD, judge. The defendants.in error filed their declaration in the court below,.demanding of plaintiff in error the payment of a bill of exchange for $466.07.

.. Error to the circuit court of Tunica county, Hon. O. 0. SHACKLEFORD, Judge. The facts of this case are sufficiently stated in the opinion of the court. ■ The record is very defective, and the errors appear on its face. The case itself was not properly brought in the first instance, and was appealed to the circuit court.

Hon. E. Hill, Chancellor. The facts in the case are stated in the opinion of the court. Notice to absent and non-resident defendants by publication, is an inferior mode of executing process, and a strict compliance with the statute in reference thereto is required.

<p>1. Confederate Money — Rule of Evidence. — under the act of Eehruary 19, 1867, “ to change the rule of evidence in certain cases,” all contracts made between May 1, 1882, and May 1, 1865, for the payment of money shall be presumed to have intended “ Confederate money,” unless the contrary appear on the face of the contract. Where a note was given for Confederate money, borrowed from plaintiff on the 2d day of June, 1862, payablo on the 1st day of March, 1864, “payable in such money, currency, or funds as will be generally received for debts in this country at maturity of this note.” Held: To be error to instruct the jury, directing the value of Confederate money to be ascertained at the maturity of the note. The correct measure of recovery is the value of Confederate money at the time of the Joan. This is founded in reason and justice.</p> <p>2. Same — Contkact.—Without the stipulation as to the currency m which it was payable, the note would have been payable in the funds or currency generally received in payment of debts at the date of its maturity, precisely according to its present conditions, and the contract between the parties is the same, with or without the stipulation.</p>

O. H. Whitfield, Chancellor. The facts in this case appear sufficiently in the opinion of the court. filed an elaborate brief. This case has been before this court before, and was determined in favor of the appellee, upon the identical objections that are now raised against the decree. We think this conclusive of all the assignments of error. See, also, Acts of the Legislature of 1866, page 32, section 4, organising Lee county.

Hon. Geo. F. Brown, Judge. This was an information of quo warranto, against Williams, who demurred, and the demurrer was sustained, and the… Held: the constitution was ratified, and State officers and a legislature were elected. It is now urged for the defendant, that these officials then took and held office under the established, permanent government of Mississippi as a State of the Union. That legislature ratified the amendment, and it is urged that this was a State act.

Hon. Geo. F. BkoavN, Judge. The defendant, J. F. Cunningham, was indicted by the grand jury, at the September term, 1872, of the circuit court of Hinds county, for an attempt to forge Auditors warrants on the State treasury, and at the same term of the court the defendant was arraigned and filed a demurrer to the indictment, and sets up the following causes of demurrer, to-wit: 1.

<p>Maraied Women, Contract op — Mississippi Statute. — The S'atute respecting the separate estate of married women, and their power over it, is emiblin and confers a legal capacity to make the class of contracts therein mentioned.</p> <p>Same — Same—Power op Feme Coverts to borr.ow money_A feme covert has not the general power to borrow money, although it is specified in the note (signed by herself and husband) to be for one of the purposes for which she may make a valid contract. If, however, it is shown that the money was actually used for such purpose, her promise to repay would bo binding. The actual use to which tho money was put makes the liability.</p> <p>Same — Liability op the Husband. — A note given for money loaned the wife, signed by the husband and wife, may not be binding on the wife, but it is nevertheless good against the husband. In such case a deed in trust on the wife’-s property encumbers the income.</p>

Hon. ÜRIAH Millsaps, Judge. The opinion of the court contains a sufficient statement of the case. The following are the assignments of error, to-wit: 1. the court erred in refusing to continue the cause upon the application of plaintiff in error. 2. The court erred in excluding the juror,-., from the jury box, because he was not a householder or freeholder. 3. The court erred in permitting the trial to progress in the absence of the plaintiff in error. 4.

Hon. B. B. Boone, Judge. The facts sufficiently appear in the opinion of the court. The following is assigned for error: 1. Court erred in sustaining plaintiff’s demurrer to defendant’s pleas. 2. Court erred in overruling defendant’s motion, for a new trial. 1. Can a common carrier limit its common law liability by special contract, and the evidence a,nd consideration to establish and support such a contract?

Hon. W, D- BRADFORD, Judge. Plaintiff in error brought suit at the April term, 1867. It was continued from term to term, until the April term, 1872, when the suit was dismissed, and the judgment of dismissal entered on the minutes of the court.

<p>Appeal from the chancery court of Alcorn county, at Chambers. Hon. A. E. Reynolds, Chancellor.</p> <p>The only question in this case arose on a writ of habeas corpus, which was obtained by James E. Stewart to be re,leased from imprisonment; and in his petition alleged that he was illegally held in custody by J. C. Potts, the sheriff of Alcorn county. The sheriff answered that he holds and detains the said James-E. Stewart by virtue of a warrant issued by W. H. Dodson, an acting justice of the peace in and for said county and State, issued on the 2d day of May; 1874.</p> <p>A motion was made to discharge the prisoner; the motion was overruled, and the prisoner remanded to the custody of the sheriff, and the case comes to this court upon a writ of error.</p> <p>Argued the case orally, and filed an elaborate brief, citing the following authorities: Code of 1871, §§ 1747, 1748, 1750, Act of April 6, 1874; Bank of Commerce' v. N. Y. City, 2 Blackf., 631; Weston et al. v. City of Charleston, 2 Peters, 466 ; Ex parte Garland, 4 Wallace, 379;' 22 New York, 81; Const, of Miss., Art. 12, § 20; Const, of Ténn., Art. 2, § 28; Southern Law Review for April, 1874.</p> <p>Argued the case orally, and filed a brief, citing the following authorities: Revised Code, 1871, §§ 1747,1748,1750, Act of April 6,1874; Const. Miss., Art. 12, §§ 13-20; Cooley’s Const. Lim., 474; Act of Congress, July 2, 1862; January 24, 1865; July, 1865; Ex parte Garland, 4 Wallace, 378; 2 Peters, 466 ; McCüllock V. Maryland, 4 Wheaton, 428.</p>

Hon. J. J. Hooker, Chancellor. The facts sufficiently appear in the-opinion of the court, The appellant, as widow, was entitled to have the eX-eiiiptions and allowance set… Held: fol* all purposes in law, as married, and their children, whether born before the ratification of this constitution .or not, shall be legitimate; and the legislature may, by law, .punish adultery and concubinage.” The subject matter of marriage is peculiarly within the province of the legislature.

E, Stafford, Chancellor. The opinion of the court contains a sufficient statement of the case. 1. The bill alleges that complainant released his right of action at law under mistake and surprise, 'and asks that such release and taking of the note and insufficient security be set aside and he remitted to his original claim. The relief can only be bad in chancery. 1 Story Eq. Jm\, §§ 184, 135, 147,155.

Hon. O. H. Whiteield, Chancellor. The opinion of the court'contains a correct statement of the case. Contended that as to Stegall, the averments of the bill are not sustained by proof. 1. It is no ground for relief, in equity, that he sold the goods of the store on credit and not for cash. The remedy, if any there be, for a violation of the partnership articles in this respect, is in a court of law. 2.

<p>1. Csanúeki — Injunction—Motion to Dissolve. — Complainants filed their bill to enjoin a suit at lam The bond for injunction was filed, and the writ of injunction issued. The approval of the bond does not appear of record. A demurrer was filed and a motion to dissolve was sustained. Meld ¡ The complainants were entitled to twenty days in which to perfect their injunction bond,</p> <p>2. Same — Practise—Amendments.—The most ample power to amend, limited only by a sound discretion, is authorised by the statute, which allows amendments in the “pleadings and proceedings ” in chancory, on “liberal terms,” or upon the motion to dissolve, for the want of a “good and sufficient” bond, the subject is within sections 1028 and 1037 of the Gode 1871.</p> <p>3. Same — CaSeIn JOdOMent_The motion to dissolve was on the ground that “ no good and sufficient bond ” was filed With the conditions prescribed by law,” and “duly approved.” Meld: That it was error to dissolve the injunction, without giving time to the complainants to perfect their bond.</p>

Hon. Abel AldersoN, Judge. • The opinion of the court contains a sufficient statement of the case. 1. The notice published for the defendant, Gilmore, was insufficent. Code of 1857, p. 878, art. 9; Moon v. Williams, 44 Miss., 64. The legality of the notice must appear affirmatively of record.

E, G. Peyton, Jr., Chancellor, The facts of the case sufficiently appear in the opinion of the -court, Complainant filed her bill against defendants to set aside certain deeds of conveyance for fraud. Defendants filed several pleas in abatement.

Hon, Geo. F. BbowN, Judge. The facts in the case are sufficiently stated in the opinion of the court. It is assigned for error, that the court below erred in overruling the demurrer to the evidence, filed the following motion to dismiss: 1. “Motion by defendant in error to dismiss this case be* cause this court has no jurisdiction of the same. 2. Because this case was adjudicated before a justice of the peace, when defendant in error obtained a judgment for $50, only.

<p>Appeal from the chancery court of Adams county. Hon. I). N. Walker, Chancellor.</p> <p>The facts of the case are sufficiently stated in th© opinion of the court.</p> <p>The bills in this case are framed with a double aspect.</p> <p>1. Considering the appellee’s claim as invalid,.it is alleged to be a cloud, and to cast a doubt and suspicion upon the title and interest of appellants, which a court of equity has jurisdiction to remove.</p> <p>2. If the appellee is entitled to hold 240 acres of the land, as claimed by her, since that has not been ascertained and set apart to her in severalty, and she is in the use and possession of the entire tract of 1100 acres, a court of equity has jurisdiction to award a partition, and to allot her separate part, leaving to the appellants-^the widow and heir at law of the purchaser at sheriff’s sale — the residue, in which they have qii interest, but which interests in severalty can only be ascertained after the part to which the appellee may be entitled, shall have been set apart to her.</p> <p>I. That the claim of appellee is invalid, and, under the circumstances under which it was made, that she was not entitled to the exemption claimed.</p> <p>Such a claim is purely the creature of statute \ and, in this case, it is rested on the statute of 1865, ch. 9. The facts stated in the amended bill, which the demurrer admits, do not entitle her to the benefit of the statute exemption.</p> <p>By section 5 of that act, the right was given her to “ designate specifically ” the property — that is, in this case, the part of the land — which she “ claimed as exempt; ” and after that was done, the property “ so specifically designated ” was forbidden to be levied on, otherwise than is provided for in section 4 of the same act, which enacted, that in case of doubt as to the liability of any property to be taken in execution, the officer should summon three disinterested citizens to determine the matter.</p> <p>The law does not fiorce him into the position of an exempt property holder. It simply gives him the privilege to elect to become so ; which he may exercise, or he may waive it. This statute, which gives the right, at the same time limits the terms of its enjoyment, and imposes the duty of election on the debtor, to be exercised in such manner as not to operate to the undue detriment of the creditor. As to the time when the right may be asserted, the debtor must claim the benefit of the exemption within due season. 20 Penn. St. R., 142. If he neglects to assert his right in due season, it is thereby waived. 19 Penn. St. R., 257.</p> <p>II. But the claim asserted here by the appellee is invalid. She is still in possession, claiming and exercising control over the entire plantation, and asserting title to a considerable part of it; and, in the language of the Code of 1871, § 975, she “ asserts a claim, or pretends to have some right or title thereto, which causes a doubt or suspicion in the title ” of the appellants. These facts clearly give jurisdiction in equity, in virtue of the statute, to have the cloud and doubt removed from appellant’s title.</p> <p>III. If, however, the right of exemption of 240 acres of the plantation is valid, under the circumstances stated in the bill, a court of equity has jurisdiction to award partition between the appellees and the appellants, who have a unity of interest in this respect, allotting to the appellee her exempt portion, and leaving to the appellants the residue. The interests and portion of the appallants in severalty, can not be ascertained until the share of the appellee, if, indeed, she is entitled to any, shall have been apportioned to her; for the interests of appellants will then attach to the residue. Hence the necessity of the aid of a court of equity, to have the appellee’s share set apart.</p> <p>The bill prays, in the disjunctive, for such relief as the nature of the case may require, and which may be consonant with equity, and for general relief. Under this prayer, a court of equity may grant such equitable relief as the circumstances of the case may render proper. Dease v. Moody, 31 Miss., 617.</p> <p>Contended that complainant’s (Mrs. Lessley) remedy for the recovery of her dower was adequate at law, under the provisions of the Code. As to her rights, the bill is multifarious. iShe does not claim dower, and therefore has no right to make herself a party to the suit.</p> <p>All joint tenants, tenants in common, may recover their undivided interests in an action of ejectment. Code of 1871, title Ejectment; Gordon v. Sizer, 39 Miss., 805. If the sale operated as an alienation of the whole property, the notice or claim of the defendant can be and is no cloud whatever on the title. But if a cloud only, and complainants have the legal title, equity, when properly resorted to, will remove the cloud. But equity will not allot dower, ascertain undivided interests, determine exemptions, decree partitions, remove clouds, disturb possession by injunction or by partitions, and decree perpetual injunctions against setting up titles, all at one time, on .the same bill, and in the same cause. And yet all of these are set up and asked to be done in this bill of complaint. The bill is, therefore, palpably multifarious.</p> <p>The complainants contend that as the claim of exemption was not made before the levy of the attachment, it did not have the effect to exempt any portion of the j>roperty. Exemption means absolute freedom from liability to seizure and sale. No seizure or sale of a homestead without the knowledge or consent of the debtor, and whether a claim to a homestead or not can be legal or can divest the head of the family of his title. The intent of the statute is to secure the debtor and his family a home; and this humane purpose ought not to be defeated. 41 Miss., 127; Thoms v. Thoms, 45 Miss., 263. A man may, even on the the day of the sale, under execution, make an election which of two lots he will hold as a homestead, and withdraw it from the sale to the extent of his homestead right. Tomlin-son v. Swinney, 22 Ark., 400; Scara v. Hanks, 14 Ohio, N. S., 29. A homestead is not subject to attachment. Grubbs v. Ellyson, 23 Ark., 287. Nor to sale under execution. Tomlinson v. Swinney, supra ; Tueker v. Kennison, 47 N. H., 267; Fogg v. Fogg, 46 ib., 282.</p> <p>A homestead is a vested right, and when once acquired by a man, and still occupied by him, is not defeated even by the death or absence of his family. 6 Allen, 73; 12 ib., 34; Thoms v. Thoms, 45 Miss. Under the homestead act, which provides that, except in certain cases, the homestead shall not be liable to levy or sale, no judgment lien can attach, so that if the exemption ceases to exist, the first levy will bind the property whether execution issued, on a junior or senior judgment. Green v. Marks, 25 111., 221 j Bliss v. Clark, 39 ib., 590; Thoms v. Thoms, 45' Miss., supra. The exempt property, upon the death of the owner, intestate, descends directly to the widow and children, and vests by operation of law absolutely in them, without any condition, limitation, or restriction as to their right to the same. . And although it is made the duty of the appraiser of an estate, for convenience and to prevent litigation, to designate and set apart said property to the widow and children, yet their title to the same does not depend upon any action of the appraisers. Wally v. Wally, 41 Miss., 657; Holliday v. Holland, ib., 528 ; Whitley v. Stephenson, 38 ib. 115, 40 ib., 49; Smith v. Allen, 39 ib., 469; Whitworth'V. Lyon, ib., 467; Hardin v. Osborne, 43 ib., 533; Stephenson v. Osborne, 41 ib., 127.</p> <p>' Nothing short of a voluntary abandonment of a homestead, and so understood by all the parties in interest, will divest the estate of the homestead interest charged therein. Locke v. Powell, 47 N. IT., 46; Thoms v. Thoms, supra. The sale of exempt property under execution does not' destroy its character as such. Mason v. O’Brien, 42 Miss., 428. A homestead can be acquired by acts done after the levy and before the sale, where there is no fraud, and the question of homestead must be tried on the facts existing at the time of the sale. Stone v. Donnell, 20 Tex., 11. It devolves upon the purchaser to show that the property was not exempt when sold. 7 Mich., 488. The question of homestead or not is a question for a jury in a court of law, but not a court of chancery. Occupation is prima facie evidence of a dedication. Tomlinson v. Swinney, 22 Ark., 400 ; Locke y. Powell, 47 N. H., 46; 20 Tex., 11; Oook v, McOhristian, 4 Cal., 26.</p>