Volume 5 — Mississippi Reports

<p>Writs of error may be issued either by the clerks of the Circuit Court or by the clerk of the High Court of Errors and Appeals.</p> <p>Before an alias citation will be awarded, it must be shown that due diligence has been used to procure a service of the original.</p>

ERROR from the circuit court of the county of Madison. At the April term of said court, 1839, Rebecca McDowell, as Administratrix, &c., brought an action of assumpsit on a promissory note for one thousand three hundred and forty-five dollars, against Benjamin Tarver, Sion Sanders and Peter Ragsdale. The writ was returned executed on Sanders and Ragsdale, but there was no return as to Tarver.

<p>MOTION to.dismiss the cause for want of joinder-in error.</p>

<p>IN error from the circuit court for the county of Carrol.</p>

<p>MOTION to dismiss for want of legal citation.</p>

<p>Where an appeal from the probate court is not prosecuted in the name of all the parties, and the necessary steps are not taken to sever, the appeal will be dismissed on motion.</p>

<p>The appeal bond must be conditioned for the payment of the amount of the recovery, and the costs and judgment of the High Court of Errors and Appeals.</p>

<p>IN ERROR from the circuit court for the county of Adams.</p> <p>Declaration in ejectment in common form, for a house and lot under the hill in the city of Natchez, on the East side of Silver street. The facts and points of law presented on the trial, are contained in five bills of exceptions taken at the hearing of the cause.</p> <p>1. Dill of exceptions states, that plaintiff offered to read a patent, issued under a private act of Congress, to the legal representatives of Henry Willis, dated 5th October, 1821, to which defendant objected. Court overruled objection. Plaintiff then offered the two acts of Congress in evidence; to which defendant objected. Court permitted them to be read, which was done, and then the patent was read.</p> <p>2. Bill of exceptions states, that plaintiff then offered a deed from J. H. McComas and wife, to Garni. Pease, dated 15th November, 1820, for fractional section 77, township 7, range 3, west, 21 and eighty-hundredth acres. Defendant objected, &c.</p> <p>3. Bill of exceptions states, that plaintiff offered a deed from Garni. Pease .and wife to plaintiff, dated 22d December, 1820, for 22 acres of land, section 77, township 7, range 3, west. The same described in the above mentioned deed. Defendant objected, &c.</p> <p>4. Bill of exceptions states, that defendant offered a deed from White Turpin to prove color of title, which was ruled out, because the judgment was not produced.</p> <p>5. Bill of exceptions states, that defendant moved the court to grant a new trial, which was refused, and that on the hearing of the motion, the defendant read his own affidavit of the materiality of T. Downing’s evidence, to prove execution of a deed; that he lives in Monroe county, and he could not obtain his evidence on the trial because he did not previously know where he lived.</p> <p>1. And that the evidence on the trial was first a deed from J. H. McComas and wife to G. Pease, dated 15th November, 1820, and conveys to grantee, fractional section 77, township 7, range 3, west, 21 and eighty-hundredth acres in the city of Natchez, at the old fort, which had been located under an act of Congress of 8th May, 1820, for the relief of the legal representatives of Henry Willis. The reading of this deed was objected to, and objection overruled.</p> <p>2. A deed from G. Pease and wife to Peter Little, the plaintiff, for the same land, dated 22d December, 1820. Exceptions were taken to this testimony.</p> <p>3. A patent from the United States to the legal representatives of Henry Willis, dated 5th October, 1821, for the same land. Objections were also made to the reading of the patent.</p> <p>4. One Chotard stated, that Mrs. McComas, wife of J. H. McComas, and Mrs. Chotard, her mother, were the only legal representatives of Henry Willis, deceased; that he had understood there had been a division of land between them, and the land in Natchez was allotted to Mrs. McComas — that Mrs. Chotard was dead. He further stated, that Mrs. Chotard was the widow of Henry Willis, and Mrs. McComas his only child.</p> <p>5. L. Wailes was then introduced and produced his map and notes of the survey of the premises in controversy, and stated that said survey embraced fractional section 77, township 7, range 3, west; that the lot shaded blue was the lot in controversy, said lot has a front of eighty two feet; that the corner is 110 or 112 feet from McCabe’s corner. On cross examination he said he knew the land to be fractional section 77, by a map from the land office which he produced. And that he was governed by said plot and the directions of P. Little.</p> <p>6. Duval, another witness, stated, that after the late fire, Little built a fence, and Bledsoe built a chicken house on the premises.</p> <p>The defendant then read a deed from David and wife to Benjamin Brustie, for a lot 29 feet front, running back on the east side of the street leading to the lower landing under the hill, bounded above by a lot belonging to Packard, dated May 28, 1812.</p> <p>A deed was introduced from Brustie and wife to Richard Bledsoe and Cyrus Marsh, dated November 5, 1835, for two lots adjoining, of 29 feet each, on the east or south side of Silver street, under the hill in Natchez, front of 29 feet; also a lot adjoining the same on the lower side, of 29 feet front also.</p> <p>A lease was also read from Benjamin Brustie, to Catharine Howard, of a lot under the hill joining R. Perkins, opposite R. S. Smith’s, containing 25 feet front and back to the bluff, for 5 years, dated 28 October, 1831.</p> <p>Also an assignment of the above lease to R. Bledsoe, dated 25 May, 1835.</p> <p>A deed was introduced from Brustie and wife for the same lot, dated 25 September, 1835, to C. Durr.</p> <p>Also a conveyance from C. Durr to Bledsoe and Marsh for same lot, dated 25 September, 1835.</p> <p>Defendant then offered as color of title, a deed from White Turpin, sheriff of Adams county, to John Taylor, dated January 31, 1815, sold under a decree of the chancery court, v. 3. Pickard, and a deed on the back of the same, from E. D. W. Ister, and J. W. King, heirs, and attorneys for other heirs of John Taylor, to B. Brustie, dated February 26, 1831, for a house and lot on the east side of the road to the landing, bounded on the north-east by land of D. McGrath, on the south-west by land of V. Sellers.</p> <p>Defendant also offered in evidence, a deed from McGrath and Railton to Robert Cole & Co., dated March 3, 1818, for a lot, 23 feet front and 48 back, on the east side of Main street, between the lots of Isaiah Pickard and Peter Little, and assignment thereon from Robert Cole & Co., to Mrs. S; BalloUj who is now the wife of Brustie, dated April 15, 1819.</p> <p>John Henderson, another witness, stated that Brustie was in possession of a lot under the hill, on the left hand of the road near the landing.</p> <p>C. Miller deposed that Brustie was in possession of a lot on the left side of the road leading to the landing, in 1820, and previous.</p> <p>One A. Mardis stated, that he owned a lot which he bought of John David, and lived on it in 1809, below Watkins. Watkins’ lot was the next below McCabe’s. Witness had at that time a lot leased from Little, and Brustie’s lot was still below. Brustie was burned out twice; said lot was about where Bledsoe now has his building.</p> <p>J. Gobeau stated, that Brustie rented the premises .to T. Perkins, in 1823, and that Brustie had always been in possession, or had a tenant there, except when he was burnt out. Since the third fire Bledsoe put up a fence and so did Little. Gobeau said that some years ago Brustie had a long narrow house, the end to the street, and a dispute arose between him and Little about the lot, and Brustie moved the house 30 feet up the street, and gave it up to Little.</p> <p>L. Robetaille stated, that Brustie purchased a house and lot from one Johnson who had lived in it before 1809, and that he bought a lot of David in 1812. That Brustie was living there in 1813, at the time of the first fire. It was a long house on the left side of the street, near the landing. After the fire he built again, and was burnt out again in 1815. (Stated Schuyler was dead, and Downing was living in Monroe county; they were witnesses to a deed.)</p> <p>Instructions given by the court.</p> <p>1. No length of time will bar the title of the government.</p> <p>2. That if the government had the title to the land in 1820, that adverse possession could not commence until the government parted with the title.</p> <p>Defendant moved for the following instructions:</p> <p>Unless Mrs. McComas was the sole legal representative of Henry Willis, the plaintiff cannot recover. Refused.</p> <p>If Brustie was in possession under adverse claim, when McComas and wife sold to Pease, and Pease and wife sold to Little, the deeds were void. Given.</p> <p>If the land in controversy is not in section 77, township 7, range 3, west, the plaintiff cannot recover. Given.</p> <p>The plaintiff must prove that the land is in section 77, township 7, range 3, west. Given.</p> <p>Ejectment for a lot of ground situated under the hill in Natchez.</p> <p>Exceptions were taken to the admission of the title papers offered by the plaintiff below, and to the evidence of the surveyor Wailes, and the plots of survey, also to the rejection of defendant’s title papers.</p> <p>Exception was also taken to the decision of the court overruling the motion for a new trial.</p> <p>1. The plaintiff below shewed no title to the lots in controversy, and the rule is, he must recover only upon the strength of his own title, and not on the weakness of the defendant’s title.</p> <p>1.The record shews, that the only paper title set up by the plaintiff, was a patent from the United States, dated October 5th, 1821, “issued pursuant to'two acts of Congress of-May 8th, 1820, and December 29th, 1820, upon the return of a survey, by the surveyor general, of fractional section 77, in township 7, range 3, west, containing 21 and eighty-four hundredth acres, in favor of the legal representatives of Henry Willis.”</p> <p>This is the fountain head of the title.</p> <p>By said two acts of Congress, the legal representatives of Henry Willis were. authorized to locate on any lands, which had been previously offered for sale, and which was subject to entry.</p> <p>1. There was no evidence that the lots in controversy ever were offered for sale, or- were subject to entry, and -in fact they never ■were. .</p> <p>2. There was too evidence) that the lots i!h controv’ef'sy are included within fractional section 77, in township 7, rdnge 3, west, containing 21 and eighty-four hundredth acres, according to the survey returned under the acts of May and -December, 1820, by the surveyor general.</p> <p>3. Peter Little shewed no chain of title from'the legal representatives of Willis, 'under the patent to himself.</p> <p>The deeds from McComas and wife to Pease, and from Pease to Little, are both dated before the act of Congress of December, 1820, and convey a fractional section, which could not have been located, surveyed, and the survey returned under the acts of May and December, 1820.</p> <p>4. There was an adverse possession in Brustie (under whom Bledsoe was in possession,) at the time McComas and wife conveyed to Pease, and at the time Pease conveyed to Little, which rendered these deeds void for maintaináñce.</p> <p>For all, and for each of the above four reásons, the plaintiff shewed no title to himself, upon which he could recover the lands in controversy. Even if the defendant has -no title, the plaintiff shews no right, to turn him out of possession.</p> <p>2. But the defendant below, shewed an uninterrupted possession for 20 years and more, under a good and bona fide colorable-title, and this possession undei; our statute of limitations is good against the world. Sohae Of his Reeds Were ruled out, which ought to have been admitted ah a Color of title, -at least. Jackson dem. v. Ellis & West, 3 Johns-. R. 118; -lessee of Ewing v. Burnet, 11. Peters, 41. A void deed is admissible as -colorable title.</p> <p>Answer to Montgomery.</p> <p>Thirty feet front and back, will mean backas-far as vendor had a right to Convey.</p> <p>The deed in 1818, was admissible to shew an adverse possession, at the time MeOomas conveyed to - Pease, and also to shew a continued possession after -1818, under adverse title. 1 Cainejs Rep. 358. Jackson dem. Putnam v. Bowen.</p> <p>Where a-person Claims an adverse-possession'Under color of title, his poSsessionaS not bounded by his-actual possession, but-is có-extensive with the title "under which he claims. But where he enters and‘claims -possession under -no title, - there his adverse possession will be Confined T;o the metes and bounds Rf an actual possession. . ..</p> <p>As to adverse possession, and that it may be held under defective title, or even Void title. See 9 Johnson, 57; -18 Johnson, 40, 359; 13 Johnson Rép. 406. .</p> <p>Was the land’recovered embraced -in the fractional section described in the patent ?</p> <p>The diagram from the land Office, and Wailes’ survey by that diagram, as directed by the plaintiff, Little, is the only evidence. The diagram called for no place to begin, no course or distance to run, and as to boundaries, it called for none, unless the-river Mississippi, the City of Natchez, and the names of G-irault and other individuals can be called a reference to boundaries. There is not even the certificate of the surveyor to it, and nothing to show that these were intended as designation of boundaries. But if there were, the surVey of Wailes was not made by any boundaries named. He'was' directed wholly by the plaintiff, Little, who surely cannot be a witness, in his own Case,-to say where the boundaries of -the -fractional section are. The shape of the plat, and the number of ácres, is all Wailes had to guide him except the directions of Little, and his survey shews thirty- instead of twenty-one acres.</p> <p>1. The court did not err in admitting the plaintiff’s patent, because a patent pre-supposes and is conclusive evidence that every pre-requisite to .its emanation has been performed. 9 Crunch, 98; the law authorized it; land laws, 774, 785.</p> <p>2. The deeds from McComas and wife to Pease, and from Pease and wife to Little, although they bore date before the date of the patent, recite a fact which must have existed, as such fact alone could be the basis of the patent; but if they had not a shadow of title at the date of the deed, and afterwards acquired a good title, it will enure to their grantee. 11 J. R. 91. 13 J. R. 316, 320.</p> <p>3. The deeds offered by appellant were inadmissible. The one from W. Turpin recites a decree of chancery commanding the sheriff of Adams county to sell the house and lot therein described, and also recites that he was sheriff. The decree should have been produced. Familiar rules — all Bledsoe’s deeds void for uncertainty.</p> <p>4. The court should not have grante I a new trial, because—</p> <p>1. Adverse possession is no defence against the government, and the action was brought in less than twenty years after the title emanated from the government. See Angel on Limitations, 366-9.</p> <p>The deeds from McComas and wife to Pease, and from Pease and wife to Little were not void for champerty, because it is uncertain what lot was held adversely at their date by Brustie, as his location was shifted at one time, as proved by Gobeau, and was frequently vacant.</p> <p>Adverse possession must be by actual visible boundary and must be continued in the same place. See 2 John. Rep. 230. 1 do.-156. 3 J. C. 124.</p> <p>Those who claim under Mrs. McComas were entitled to recover her interest in the land, although she was not sole legal representative of Henry Willis, deceased. 1 John Cases 231. See Adams on Eject. 295. She was the only heir.</p> <p>The exact correspondence between the survey made by Wailes and the map from the land office is sufficient evidence of the locus in quo. S. R. Newman et al. v. G. Foster’s heirs. High Ct. E. and A. January, 1839.</p> <p>The affidavit of newly discovered testimony is not sufficient, it does not shew,any diligence to- get the witness^ The deed he •wanted to prove was dated 3d March,- 1818, and suit was commenced 2d August, 1836. So that the deed- did not show a color of title which would protect the defendant;</p>

IN error from the Circuit Court of the county of Marshall. G. W. Oliver was indicted and tried for larceny at the September term of the Circuit Court for Marshall county, 1840: Hon. F. W. Iiuling, presiding. . The indictment contained four counts.

IN error from the criminal court of the county of Adams. At the December term, 1837, of the criminal court of- Adams county, an indictment for burglary was taken against the plaintiffs in error. On their. application the venue was changed to the county of Jefferson, and at the June term,. 1838, of the criminal court of that county, they were tried and found guilty.

<p>Defendant waives all objection to the service of process by appearing and pleading, although the plea be bad and treated as a nullity.</p>

This is an appeal from the court of chancery. From the record, it appears that John Eldergill and Arthur Carney had been partners in the mercantile business. That Eldergill, in the year 1803, commenced suit in the court of chancery, in the Mississippi territory, against Carney, for an account of the partnership effects, and for a decree of payment of the balance due him from Carney. In 1803, and before any decree was made, Carney died, and his widow administered his estate.

IN error from the circuit court of the county of Tishemingo. John S. Greeson was indicted in the circuit court of the county of Tishemingo for the crime of robbery.

<p>In error from the circuit court of the county of Itawamba.</p>

Armstead Carter filed his bill in the superior court of chancery against William Spencer, in which Carter, in substance, charged that he was, at the passage of the act of Congress of the 5th of April, 1832, in the sole and exclusive occupation of the west half of the south-west quarter of section twelve, township six, range one, west, and was the only person entitled to pre-emption under said act; that on the 38th day of September, 1832, he applied to the office and made his…

James Jones filed his bill in chancery at the June term, 1839, to restrain a judgment at law obtained against him by the appellees in the circuit court of Lowndes county.

<p>In criminal cases an appeal does not lie from the circuit court to the High Court of Errors and Appeals. Such causes must be removed by writ of error.</p>

ERROR from the circuit ,court of the county of Holmes. This was an action of debt against the plaintiff in error, as administrator of-Goodman, suggesting a devastavit. The defendant below, pleaded: 1. Nihil debit. And two special pleas, which were intended as pleas of retainer by his co-ad min-istrator Wright.

This was an action of debt on an administration bond by the judge of probate for the use of Catharine Mahon, against the several defendants, one of whom, William M. Phipps, and Catharine Bower, who was not joined in the suit,executed the bond as administrator and administratrix of Adam Bower, deceased, and the other defendants executed it as her sureties. The bond and its conditions are in the usual form, and were set forth in the declaration.

In error from the circuit court for the county of Claiborne. This was an action of covenant brought by David. Kinley against Edmund Fitzpatrick at the November term, 1837, of the circuit court for Claiborne county, founded upon a bill of sale under seal, for two negroes sold by the defendant to plaintiff.

In error from the circuit court of the county of Adams. This was an action of covenant brought in the Adams circuit court, founded upon a policy of insurance, executed by defendants below to the plaintiffs, who sued for a loss sustained .by damage done, by the leaking of the boat occasioned by a storm, to 459 bales of cotton, shipped on board the steamboat Fort-Adams, bound to New-Orleans and the intermediate ports. The insurance was against loss by fire and water.

ERROR from the circuit court of Yazoo. In Yazoo circuit court, February special term, 1888, Crutcher recovered a judgment against John M. Waskom, et al. On this judgment execution issued, which was bonded by defendants thereto with plaintiff in error as their surety, together with others.

Robinson sued Green at law and obtained a judgment, which this bill sought to enjoin. The original bill, charged in substance, that the note sued on was executed by Glidewell, one of the firm of Green, Glidewell & Co., in the name of the firm as surety for Broadnax, the principal in the note.

This was an appeal from the decree of the chancery court, rendered in February, 1839. By the complainant’s bill in this case, it appears that in 1835, in the month of January, he became the purchaser of a lot in the town of Woodville, which was sold by Wailes a trustee, under a deed of trust executed by Woods, to indemnify Joseph A.-Foster against certain liabilities which he had incurred for Woods.

<p>Where a party goes to trial without objecting to the irregularity of a change of venue, he is estopped from raising the objection in the appellate court.</p> <p>Where, in an action of trespass against several defendants, the jury returned a general verdict against all of them, and left the court-room; held that it was competent for them, on returning immediately into court, to show that the verdict had been given through mistake, and eoYrect it by finding against some of the defendants only.</p> <p>Where, in an action for breaking open a grocery and destroying liquors, a letter written by one of the defendants and others to plaintiff, requesting him to meet them at the counting-house of B. with the invoices of the liquors destroyed, that they might settle with him for the same: it was held that the letter was proper evidence to go before the jury, whose province it was, in view of all the testimony, to determine whether the letter contained an admission of liability, or a proposition merely to buy the plaintiff’s peace.</p> <p>An appellate court will not determine upon the admissibilify of 'particular testimony, where the bill of exceptions sets out only part of the evidence adduced on'the trial.</p>

<p>In an action on a promissory noté, a notarial record of deceased notary, not verified on oath, is admissible in evidence to prove that the endorsers have had notice.</p> <p>It is not necessary that the memoranda of protest and notice should be entirely in the hand-writing of the notary; it will be sufficient if he sign them.</p>

The appellant filed an original bill in the court below for a divorce and for alimony.' The bill charges that the complainant was married to the defendant in the year 1835, in the city of Natchez, and that she and her husband had continued to reside in this state up to the day when the application for a divorce was made, which was on the 18th of July, 1838.

Hite & Fitzpatrick sold to Glidewell and Griffin, a tract of land, together with a number of slaves, for the aggregate sum of sixty-eight… Held: where no such attempt was made, with due deference to the courts that made them, all seem to me, to have been made without a due regard to the distinction between a failure to defend at law, where the remedy was entirely at law, and the defence strictly legal, and a failure to make a defence where the party had a right to relief at…

APPEAL, from the circuit court of the county of Claiborne. This was an action of assumpsit against appellants, as executors of John A. Barnes, deceased, on a promissory note, made by Daniel Willis and by John A. Barnes and Allen Bridyers, endorsement dated March 5th, 1833, due four months after date, at the United States Bank, at Natchez, for $5,000. It further appeared that the blank endorsement was filled up after the death of Barnes.

IN error from the circuit court for the county of Hinds, This was an action of trover brought by Lane, the defendant in error, at the May term, 1837, of the circuit court of Hinds county, to recover of Phillips, the plaintiff in error, damages for the conversion of three slaves.

<p>In error from the circuit court of the county of Yazoo.</p> <p>At the November term, 1838, of the circuit court of Yazoo county, the appellant applied for an order to the sheriff of that county to pay certain moneys, in his hands, which had been levied by an execution on a judgment in his favor rendered at a former term of that court in satisfaction of the judgment. In support of this application he read to the court the record of the judgment which he had obtained against George W. Hawley and others, at April term, 1838, and the writ of fieri facias by which the money had been levied. The execution was issued on the 15th day of August, 1838, and went into the hands of the sheriff on the 17th day of the same month. The appellees resisted this motion, and claimed the application of the money to the satisfaction of a judgment which they had recovered against the same defendants on the 25th day of November, 1836, upon which an execution had been issued returnable to the October term, 1837, of that court. This execution had been levied and a forthcoming bond taken and forfeited. Subsequently, an alias execution was delivered to the sheriff, but before any steps had been taken by him to levy it, the appellees directed him to stay all proceedings under it until the next term of the court, after which, he was by the further instructions of the Bank, enjoined to take out a new execution which might also with the same consent be suspended until the next term following. These orders to delay the execution of the judgment in favor of the Bank were not revoked until the 15th day of October, 1338, when a writ of fieri facias was again taken out. In the mean time Michie’s execution had been levied. The court below directed the money to be applied to the payment of the judgment of the Bank, and this is the error complained of.</p> <p>It was in proof, that if the execution in favor of the Planters’ Bank was satisfied, the execution in favor of Michie would be excluded from the fund made; and that if the Planters’ Bank execution had not been suspended, it would have been long since paid.</p> <p>I. By the common law, a judgment did not bind lands, except in debt against the heir on the bond of his ancestor. 2 Bacon’s Ab. A. But an execution bound the goods from its test, or award. 4 Comyn’s Digest, Execution, D. 2.</p> <p>By the statute of Westminster 2d, giving the Elegit a moiety of the lands of the debtor were extendable. And by this statute and those giving the statute Merchant and Staple, a lien was created. 2 Bacon’s Ab. 353. These statutes were never in force in Mississippi. The questions, therefore, which arise on this record must be determined by the act of 1822. Rev. Code. The act of 1824, Statutes, page — , and the principles of the common law, as applicable to these statutes.</p> <p>I will consider the questions to be investigated. First, under the act of 1822. And secondly, whether the act of 1824, in making the lien take date from the judgment, instead of the delivery to the sheriff of the execution, intended to alter the law as to fraud in holding up executions.</p> <p>1. The statute of 1822 is a copy of the statute of Charles — and the decisions made in England and the United States, under that and similar statutes, will be sufficient to settle the first point in the case</p> <p>The hen given to a creditor is a mere security — it is a general lien, covering all the debtor’s goods; hence any act on the part of a creditor, which may be injurious to the rights of other creditors, or any agreement to delay the enforcement of his lien, is a violation of good faith towards other creditors, It operates a fraud upon their rights; and however pure the intention of the parties may be, it is a legal fraud.</p> <p>To constitute this legal fraud, the intent to delay or defraud others, is all that is necessary.</p> <p>The statutes of 21 and 27 ELiz. in relation to fraudulent conveyances of the party, were merely declaratory of the common law. They only apply to actual conveyances from the party. But in relation to liens or securities which arise by operation of law, for the satisfaction of debts, any agreement to postpone their execution, is prohibited by the law. It is against its policy, and tends to lock up by a general and sweeping lien all the debtor’s property. Pringle v. Isaac, 5 Ex. Rep. 147. Kempland v. Mc-Kauly cited therein, 1 Rawl Rep. 368.</p> <p>The principle of these cases is, that where a lien is given by law, public policy requires good faith: and agreements not to proceed upon it, necessarily suspends it, and operates a fraud on other creditors. It is a waiver of the priority given by the law. In this case the sheriff was directed explicitly not to. proceed on the bank execution, until the subsequent term. Before the expiration of the stay, the goods were levied on under Michie’s execution, arid while the order to stay was in full operation, was Michie bound to wait until the time expired? Surely, not. If his execution was levied at a time when the bank had estopped herself from proceeding — when no levy could be lawfully made on the bank execution, will the subsequent revocation without. the consent, or even with it, do away the legal effect of Michie’s levy.</p> <p>2. Does the act of 1824, which makes the lien take effect from judgment, instead of delivery or seisen, alter the rule of the common law ?</p> <p>The lien in its nature is precisely the same — the time at which the lien commences its operation is only altered. The lien is the same by both acts. What is it by the act of 1822 ? “A right to have the property bound by it appropriated to satisfy the execution delivered.” What is it by the act of 1824? “A right to have the property bound by it, appropriated to satisfy the judgment.” If an execution issues under the first, the property is bound. If a judgment is rendered under the last, the property is bound. If, after the lien attaches under the first, you order the sheriff not to proceed, and another execution is afterwards- delivered, this last is entitled to be satisfied first, although the first creditor immediately proceeds under the identical execution which bound the property; because having ordered a suspension, the rights of the junior execution immediately attached.</p> <p>If after the lien attaches by judgment you suspend it by agreement, does not the lien of the younger judgment immediately attach ?</p> <p>But the question is easily solved. What are the liens ? The execution lien, all admit, is a mere security, a mere right to enforce satisfaction. If the judgment lien is the same, the same consequences must necessarily follow. And that it is the same, vide 4 Kent’s Com. 437.</p> <p>A statute acknowledged bound goods and lands, 3 Bacon’s Ab. 364, 369. Yet a suspension of the right to execute it, discharges it as to another. 3 Bacon’s Ab. 370.</p> <p>The point has been expressly adjudged in Peck’s Rep. 30, and no distinction as to the binding efficacy of the lien or of the manner of its discharge in law. Sanford v. Roosa, 12 John Rep. 162. No legal sale could be made under the Planters’ execution. It was revoked without authority. The bank had no right to retract.</p> <p>II. On the above point, I have the most perfect reliance. But there are others, which, in my opinion, will determine the case for me.</p> <p>I contend the lien of judgment and execution only extends to and binds the goods and lands, as against the debtor and his heirs or purchasers under him. Not as against or between judgment creditors.</p> <p>Persons who purchase, can take security — can look out for indemnity. Purchasers at execution sales cannot — to hold that the lien extends to them will destroy both debtor and creditor. The lien may exist for years — may be levied on lands or slaves, and sell them years after they have been sold under other executions. Establish the rule, that it is a lien against all the world, and the unfortunate debtor is doubly sacrificed. No person will bid.</p> <p>Let us see what the courts mean, and what the legislature mean, when they say, “ lands or goods shall be bound by the judgment or the award of execution, or delivery of execution.”</p> <p>By the common law, goods are bound by the award of execution, and by statute they are bound by delivery to sheriff. 4 Comyn’s Digest, Execution. Now when we ascertain the meaning of these words, the question is settled. How are they bound? as to the debtor and purchasers only. Not as to other judgment creditors.</p> <p>Now if the lien or binding efficacy of it extended to all the world, a sale made by the sheriff under an execution last delivered would not pass the property as against one previously delivered. 4 East, 545. That a sale made under the last is good is established by many cases, which it would not be if the goods were bound to all intents. Payne v. Drew, 537 et seq. and cases there cited. So in 4 Bibb, 29. 1 Pirtle’s Digest, Title Execution, which shows there is no lien as between creditors.</p> <p>This is not only the law as to lien by execution, but also by judgment.</p> <p>It is true that under the statute which gives the Elegit, and which says “all the lands seised or possessed at the time shall be extended,” some difference of opinion has arisen. Bingham on Executions. In Tennessee the courts have given full effect to the statute, although a fierifacias and not an Elegit has been resorted to. Whilst in North Carolina, (1 Hay’s Rep.) and in Virginia it is holden if a fieri facias is resorted to, and not the Elegit, there is lien as between creditors.</p> <p>But this question must be decided under our statute of 1834, which says “the property shall be bound from the judgment, and shall be liable to pay it.”</p> <p>It is a rule in construing statutes, that when words have a known and settled meaning at common law, or when the same words in another statute have received a judical construction, the legislature will be presumed to have used them in that sense.</p> <p>At common law, goods were bound from teste. The statute of Charles said all goods should be bound by delivery to the sheriff. The words in the statute of Charles, are precisely those used in our act of 1833, and in the act of 1834. The first act says, the property shall be bound from the delivery to the sheriff The act of 1834 says, the property shall be bound from the judgment, and liable to pay it. Liable to pay it as against whom? Purchasers and the executors, &c. of debtor.</p> <p>The Kentucky statute is like ours, and that of Charles. The settled meaning of these words “bound,” &c. is that that they shall be bound only as against the debtor and the heirs or purchasers from him, not against another execution creditor. 1 Pirtle’s Digest, Execution. Payne v. Drew, 4 East, 538, 539, 540. Lorae v. Jenkins, 2 Eq. Cases Ab. 381. 4 Bibb 29. 3 J. J Marshall.</p> <p>In New York, lands are bound “by statute from the docketing of the judgment,” and the same construction has been given to the New York act, 12 John. Rep. 162. They are mere securities as to subsequent incumbrances by the debtor. 4 Kent’s Com. 437.</p> <p>Surely the legislature never intended by the act of 1824, to altej the previous law, except that the lien whatever it was, should run from the judgment, instead of the delivery of execution. To give to the statute a different meaning, would be most abominable and pernicious in its consequences.</p> <p>III. If then the lands and goods, by the act of 1824 are only bound as to subsequent purchasers, and there is no lien as to creditors, how are the rights of creditors to be determined ? This point is answered clearly and satisfactorily by the court in Payne v. Drew, 4 East, 545. 4 Bibb, 29. 3 J. J. Marshall. “When there are several authorities,” &c. (read from beginning of page 545 to end of case.)'</p> <p>In Pirtle’s Digest, Executions, the first levy is entitled to first satisfaction. So 4 Comyn’s Digest, 247. Why is this so ? It was clearly competent for the sheriff to levy and sell under the last. If he levies under it, it is by the levy on personal property a satisfaction at the instant of the levy. He becomes responsible to the judgment creditor for the goods levied on, and it would be unjust to appropriate it to an older judgment, after the younger judgment or execution creditor has battled it through, at great expense. Hutchison v. Johnston, 1 T. Rep. 729, supports this view of the case; then there was no actual levy.</p> <p>True, it is the duty as a matter of public policy, for the sheriff to levy and sell under the elder execution or judgment, when both are delivered to him. Where there are several authorities under which the sheriff may levy and sell, the law to insure peace and quiet, requires the sheriff to levy and sell under the oldest. If he does not he becomes liable, and if he levies them all at one time, and sells under all, the oldest shall have the proceeds. The maxim in such case is, “he who is first in point of time, is best in point of right;” but if he levies first under one,'that one has gained a priority.</p> <p>IV. In this case, the Bank execution was suspended, the sheriff had no power to sell under it, and the question is, “if a sale under Michie’s judgment would have been valid,” was not the sheriff bound to levy and sell under it. That he was, see 4 East, 537.</p> <p>It is manifest, if the above views be correct, that there are no liens between creditors, as against Michie the Bank had no lien. Michie’s judgment was extinguished by the levy, and he is entitled to the proceeds. The Bank could not sleep upon her judgment. In this case the maxim, “ vigilaniibus non dormientibus leges subveniente applies in full force. The principle in effect has been decreed by this court in Adams v. Dyer, 8 John. R. 349.</p> <p>Again, at the time of the levy under Michie’s execution, the plaintiff could not proceed under his; the levy satisfied our judgment, and we are entitled to proceeds. 6 Wendal’s Rep.</p> <p>Judgment is a lien on the debtor’s property from the rendition. Act of 1824, ch. 74, sec. 12, page 52.</p> <p>Howard’s Reports, vol. I. page —, and the lien is given between creditors, see opinion, 63.</p> <p>It is contended by the counsel for the plaintiff in error, Michie, that the execution of the Bank in the case under consideration, lost its priority by the act of the agents of the Bank in suspending its operation, and that it became dormant and fraudulent.</p> <p>Upon the subject of the loss’of execution liens many adjudged cases are cited, and many more might be cited, for the books are full of adjudications, (both English and American,) on the point.</p> <p>By the counsel for the Bank it is, 1st replied, that those adjudications are not applicable to the question under discussion; the case under consideration being one of judgment lien, and not execution lien.</p> <p>There is a discrimination in the law between the two cases, and that which would cause the loss of the execution lien, will often not affect the judgment lien.</p> <p>Where an execution creditor having once given impetus to his execution, and after levy suspends its operation, leaving the debtor in the possession, use and enjoyment of the property, or where he does acts which the court can legally and properly construe into a design to aid the debtor in hindering and delaying his other creditors in the collection of their just debts, suffering him to retain the possession and enjoyment of his property; the principle of the statute of frauds is made to bear on the case, he is considered to be acting mala fide, his execution is adjudged to be dormant and fraudulent; and loses its precedence.</p> <p>That such distinction is made in the law between judgment and execution liens, the counsel for the Bank rely upon the numerous authorities cited in favor of the plaintiff in error, Michie, and also, in support of the position, refer to the following case:— 17 Johnson, 273, Kellog v. Griffin.</p> <p>To show that the acts of the creditor which will cause a loss of his judgment lien in favor of a junior judgment are materially different from the acts which will cause a loss of the execution lien, and that the Bank in this case has done no act such as those reported in the books as sufficient to destroy their judgment lien, see the case of Porter’s Lessee v. Cocke, Peck’s Rep. p. 30, cited by the counsel for the plaintiff in error, Michie; and also see the case of Kellog v. Griffin, before cited, 17 John. p. 273.</p> <p>If the Court should be of opinion that the law upon the subject of loss of lien, or precedence to right of satisfaction, applies indiscriminately to judgments and to executions, we contend that the Bank has done no act which, under a correct understanding of the numerous authorities cited, can be construed into an intention to aid the debtor in hindering and delaying his other creditors in the collection of their debts, no act of which the plaintiff has a right to complain, or which has in the slightest degree prejudiced his rights.</p> <p>We appeal to each and every case cited by the counsel on either side, and confidently contend, that the facts in this case are not so strong against the bank, as those in any one case where the execution was decided to be dormant and fraudulent. And the facts in many of the cases to be found in the books where the execution was decided not to be fraudulent and void or dormant, were much stronger against the oldest creditor, than they are in the case under adjudication. See 8th Johnson, 20. 2 Johnson, 417. 11 Johnson R. 109. 3d Cowen, 278. 5th Co wen, 390/</p> <p>■ The counsel for the bank contend that the record shows the property was sold under both executions; but if by Michie’s alone the bank is entitled to the money. 4 Yeat’s Rep. 197. • The sheriff having two executions in his hands and sells, it is immaterial on which he sells. The- one having the'priority will be preferred and' the court will order the money to be paid on the elder execution, and so although the sale was made on the younger. Walker’s Rep. 548, Lynn v. Gridly, see 9 Wendell, showing that the lien exists in relation to judgment creditors, page 157.</p> <p>A levy is. not a satisfaction, it suspends the judgment till the property is disposed of, and if taken by a better title or a prior, lien, the execution is not satisfied, nor the judgment on which it issued. - ■</p>

This was an action of debt in the circuit court of Amite county, upon an administration bond, for the use of Charles McMicken. The breach assigned was the refusal of the defendants to pay the claim of the plaintiff, which amounted to @1,875 61, and which had been allowed him by the referees, to whom it was referred according to the statute, by the probate court of Amite county.

ERROR from the circuit court of the'county of Warren. The plaintiff sued out an attachment against the Steamboat Vesta, under the provisions of the act of 1840. A levy was made upon the boat, which was replevied by W. C. Gould, who then had possession of her. A motion was made' on the return of the writ to set it aside, on the ground that it was not under the sea! of the justice of the peace who issued it. The motion was sustained, and the proceeding ordered to be dismissed.

This was an action of assumpsit by the appellees against the appellant, in the circuit court of Adams county, to recover the amount of a promissory note made by the appellant to John A. Quitman, payable- at the Commercial Bank of Natchez, due the first day of August, 1838, for the sum of $1,050. It was after-wards endorsed by the payee to L. R. Marshall, by him to J. T. McKnight, who endorsed it to the appellees.

<p>ERROR from the circuit court of the county of Warren.</p> <p>This was an action of slander brought by Ransom Jones against William C. Doss, in the circuit court of Warren county.’ Doss filed the plea of the general issue, not guilty, and a special plea of justification. Issue was joined on both pleas, and submitted to the jury. The plain tiff read the special plea, and proved the speaking of the words in the declaration, and closed his testimony. The defendant offered no proof. The defendant asked the court to instruct the jury “ that the plea of justification was no evidence of the speaking of the slanderous words, or of the intention with which they were uttered.” This was refused by the court, and the following charge was given in lieu thereof, “ that the pica was no evidence of the words being spoken, but was evidence of the intention with which they were spoken, and might be taken into consideration by the jury in aggravation of damages.” There was a verdict for the plaintiff below in five hundred dollars damages, and final judgment upon the same.</p> <p>The principal errors assigned upon which reliance is placed for a reversal of the judgment of the circuit court, are,</p> <p>1st. The refusal of the court to give the instructions above as asked for by the defendant below.</p> <p>2d. The error of the court in giving the instruction it did give to the jury, and</p> <p>3d. The giving instructions to the jury gratuitously by the court, unasked for and unsolicited by either party.</p> <p>1st. The statute in Revised Code,page 116, sec. 49, says, “the defendant in any cause may plead as many several matters, either of law or fact, as he may judge necessary to his defence.” He maypléad non assumpsit and payment, aiid yet not admit thé debt due thereby. He may plead justification and not guilty and yet'not supercede the necessity of the plaintiff’s proving his declaration. Gould Plead. 432-3. “ One plea cannot be supported by what is contained in another.” Kirk v. Noriel, 1 D. and E. 118. Montgomery v. Richardson et al. 5 Car. and Payne, 247.</p> <p>There have been, it is true, in Massachusetts, in 1 Pick. 1, and in 3 Mass. Reps. 546, and 15 Mass. Reps. 48, decisions which have gone so far as to say that the plea of justification when accompanied by that of not guilty, was evidence that the words were spoken, as well as of the intent.</p> <p>This however is clearly not the law; it was pronounced by Justice Woodbury, in 2 New. Hamp. Rep. 89,’as “contrary to immemorial practice as well as authority.” Chief Justice Marshall in 1- Devreux Rep. in relation to the same opinions as delivered in Massachusetts, says, as follows: “I believe it stands alone-, and that no similar decision has been made in any state of the Union.” See also 15 Mass. Rep. 56', in the note where the whole doctrine is fully and ably reviewed, and a multitude of strong and invincible authorities collected.</p> <p>2d. The court instructed the jury that the jolea of justification was not only evidence of the intention, but “could be taken into consideration in aggravation of damages.” This was going even farther than the cases in Massachusetts. There they only decided that after pleading justification, facts in mitigation of damages would not be listened to: this was as far as they went. It is believed that in no case where pleading more than. one plea is allowed, has it ever been determined that the plea of justification when accompanied with “ not guilty,” is evidence of anything, except in the cases above cited from Massachusetts.</p> <p>3d. But the court instructed the jury gratuitously. In its anxiety to procure a verdict for the plaintiff, or' in heedlessness or ignorance of the law, it palpably violated the letter and spirit of an act of the legislature, and put at defiance a solemn adjudication of this court. In the year 1833, the legislature passed the following act.- “ That for the better preservation of .the sanctity of the right of trial by jury pure and uninfluenced, no judge before whom any issue of fact may hereafter be tried by a jury, shall sum up or comment on the evidence; nor shall said judge charge the jury on points or principles of law applicable to the case before them, unless the parties to such issue or their counsel differ in opinion as to the same; or one of the parties or counsel shall ask the charge of said judge to be given upon some point in controversy in said issue, which shall be distinctly specified in writing by the party asking such charge; and the judge shall charge to no other point than that to which his opinion is required.” Laws of Mississippi, 407. In this case the judge did comment on the evidence. He first determined the plea of justification to be evidence, and then by way of comment, without being asked, told the jury they could “ take it into consideration in aggravation of damages.” And in this case, too, the judge gave his opinion “ on a point to which” it was not required; about which, so far as appears, the counsel did not differ: which opinion was wholly uncalled for, illegally given, and was not law.</p> <p>In Davis v. Tiernan & Co. 2 Howard, 804-5, this point is directly decided. The judges say, “ But as the charge was uncalled for, it is a perfect violation of the statute.”</p> <p>An inspection of the record will show that not only the law of the case, but also its merits requires a new trial to be granted. The record shows, and it is assigned for error, that after the cause was set for a certain day, and not called up or disposed of on that day, the defendant was afterwards forced into a trial without notice, in the absence of his witnesses, who lived, as the record shows, in a different county; add was denied even the poor privilege of making an application for a continuance. As however the errors set forth herein- to which the attention of the court is especially invited, are considered in themselves sufficient to reverse the judgment, the other errors will not be further pressed.</p> <p>1. We think the charge clearly correct. There is some conflict of authority, as to whether the plea of justification, when filed with the plea of not guilty, is not evidence of the speaking of the words, or in other words the admission contained in the plea of justification, is evidence under the general issue. But I am decidedly of opinion that the pica of justification is not evidence of the speaking under the general issue, so as to supersede the proof of witnesses. But the .question here is,not-whether the plea of justification is evidence of speaking; but, when the words are proved as laid in the declaration, the question is, whether deliberately filing the plea of justification and not sustaining it, is not a fact to show the quo animo, or intention of the party when he spoke the words as proved. Surely it is. ■</p> <p>The defendant speaks the words ,of slander, and he after-wards deliberately affirms on record, that he did speak them, and they are true. It is proved they are untrue. Does not this deliberate affirmation' on record show that he did not speak them through misapprehension, or innocently, but with bad motives ? Surely it does.</p> <p>In the case of Kennedy v. Gifford, 19 Wendal, 296, after suit brought, the . defendant repeated the charge; and averred it to be true. The court held the repetition of the words and affirmation of their truth were good evidence to show the quo animo with which the words were spoken, although repeated after suit brought. Surely if he puts the repetition on record, in the shape of a plea, and fails to sustain it, it is a great deal worse. If it is evidence in .the one. case, it suiely is in the other.</p> <p>In 3 Massachusetts, 546, the point is so decided. And Chi tty, in his pleading, lays down this rule, thus: “It is not advisable to justify that the words are true, unless the. plea can be supported by indisputable testimony, because such a justification, when ineffectual, will in general materially enhance the damages.” See also 2 Selwyn, Nisi Prius, 440, 441.</p> <p>2. But suppose the judge was mistaken, will the judgment be reversed ? Surely not. The error to reverse must be material; for when it is not, it will not be reversed.. Now the judge said, the plea of justification, unsupported, was evidence of the intent, with which the words were spoken, i, e.. that they were spoken maliciously. Npw in order to make the charge material, the bill of exceptions must show, that the defendant offered evidence to ' show that the words were spoken by'mistake, or in a sense not malicious; for the general rule is, “that when actionable words are spoken/’ the law implies malice, or an intention to injure. In this case the words were proved; the law, therefore, independent of the plea, or other evidence, imputes the intention, from the fact of their being actionable. Vide 2 Starkie Ev. 461. The law is expressly laid down, (2 Starkie, 461,) that when the words spoken are illegal, or actionable, no extrinsic proof of malice or intent is necessary, and that malice or an evil intent in such case is an inference of law. In this case, it is not- pretended that any evidence was offered, or pretended to be offered, to rebut the malicious intent; if so, the charge of the court was wholly gratuitous and unnecessary, and did nothing more than the law done without it.</p> <p>It has, accordingly, been held that where erroneous instructions have positively been given or refused, yet if the verdict is according to law and evidence on the whole case, a new trial ought not to be granted. Thomas & Wife v. Tanner, 6 Monroe, 61. Again, to grant a new trial for misdirection, it must appear that the jury were, in consequence of such misdirection, induced to come to a wrong conclusion. Duke of Newcastle v. Broxton, 1 Neveli & Manning. 4 Chitty’s General Practice, 41. The charge in this instance was, that the plea was evidence of intent. Suppose it was not, still the speaking of the words afforded the same evidence.</p> <p>Suppose then the judge had not given the charge, that the plea of justification was evidence of intention, the record shows that the j ury would have been bound to find the same way they did, because the words being proved, the intention with which they were spoken, is an inference of law, unless rebutted. The charge, therefore, has not varied the case in the least particular. Without it, the jury, by the law, must have found precisely the same way, and when that is the case, an erroneous abstract principle of law advanced by the judge, will not be sufficient to reverse.</p>

ERROR from the circuit court of Hancock county. The defendant, Samuel A. Carpenter, was tried and convicted of perjury at the August term, 1838, of the Hancock circuit court. The foundation of the bill of indictment was an affidavit made by Carpenter before a justice of the peace for Hancock county.

ERROR from the circuit court of the county of Monroe. This was an action of debt upon a bill single executed by the defendant and others to secure the payment of certain lots in the town of Aberdeen, which were purchased by them of the plaintiffs.

ERROR from the circuit court of Warren county. The defendants below, in their own proper persons, filed the general issue in the following words: «The defendants, Joseph Templeton, Alexander McNeil, John Henderson, and William Henderson come into court in proper person and say, they did not undertake or promise to pay as set forth in the plaintiff’s declaration, and they put themselves on the country.” This plea was signed by all the defendants.

<p>Under the provisions of the revised constitution, and the act of the legislature of 1833, authorising suits against the state in the court of chancery, suits may he brought in that court against the state, whether matters of equity or law jurisdiction.</p>

ERROR from the circuit court of Carroll county. This was an action of assumpsit brought by Dorsey at the October term, 183S, against Newell and Peirce. The writ was returned by the sheriff “ executed,” and on the sscond day of the term judgment by defairlt was taken against both defendants. On the third of May, 1839, defendant Peirce sued out a writ of error coram nobis, to October term, 1839, upon affidavit that there was no service upon him of the original writ.

ERROR from the circuit court of Hinds county. On the 11th day of September, 1834, the plaintiffs obtained a judgment against the defendant in the circuit court of Hinds county, and on the 27th of the same month sued out an execution, which was returned unsatisfied. On the 29th of June, 1839, an alias fieri facias was issued, on which a part of the money was made.

This case originated from a controversy between several execution creditors as to the appropriation of moneys levied upon various executions against James G. Trigg. Held: that an injunction with bond and security destroys the judgment or execution lien upon personal property. An appeal suspends the effect of the judgment when bond and security are given, a forthcoming bond satisfies the judgment and destroys its lien.

ERROR from the circuit court of the county of Warren. This was an action against the makers and endorsers of a promissory note. The record stated that a demurrer was first filed, which after joinder was withdrawn, and a plea to the merits allowed to be filed without any affidavit of merits.

This was an appeal from a decree of the superior court of chancery, which disallowed a demurrer to the bill of the appellee.

<p>ERROR from the Circuit Court of the county of Hinds.</p> <p>At the May term of said court, 1839, William Hare, the plaintiff in error, was tried and convicted of the murder of Robert Sharp. A motion was made for a new trial, by the prisoner.</p> <p>The motion was supported by affidavits, which disclosed these facts. When the case was submitted to the jury, they were placed in charge of a sworn qfficer$ who took them to a hotel in the village of Raymond, at which there were many guests, and there placed them in a room which did not admit of being fastened, except on the outside. After they had been there some time, how long was not stated, a man by the name of Woodley went into the room unnoticed by the bailiff. That whilst he, the bailiff, withdrew to obtain water for the jury, he left them under the charge of Woodley, that he was absent seven or eight minutes, and that he left the door unfastened. It was further proved that Woodley was not a deputy sheriff, nor was he sworn to take charge of the jury. How long he continued in the room with them, did not appear. By the bill of exceptions it appeared that the motion was made because Woodley was in the room with the jury, and conversed with them on the subject of the prisoner’s guilt, and to establish this, the affidavit of one of the jurors was offered, which the court below rejected, and altho^h the affidavit had a place designated in the bill of exceptions, yet by some omission it was not copied.</p> <p>Before the indictment was found, or the grand jury were sworn, the counsel for- the prisoner filed a plea, challenging the array of the panel, on the ground, that the same was not drawn at any regular term of the circuit court, or otherwise in pursuance of the statute. The court refused to receive this plea.</p> <p>The prisoner also tendered a plea, setting out in substance that he had “before been arraigned and tried for the same offence, which was charged in the bill of indictment.” This plea was likewise rejected, and the opinion of the court excepted to.</p> <p>The following errors were assigned by defendants counsel, in the proceedings of the court below.</p> <p>1. The refusal of the court to receive the plea of the defendant challenging and objecting to the array of the panel, for the reason that they were not drawn at the preceding regular term of the court, and recorded for the instruction of the prisoner, according to statute.</p> <p>2. That there was no regular writ of venire facias upon which to bring in the panel.</p> <p>3. That the writ of venire facias whereon the said panel was brought into court, was issued without authority, and was therefore null and void.</p> <p>The first point to be considered is, whether there .was a lawful grand jury. The first assignment brings into review the array of the panel, the venire facias, service, and return, and the rejection of the plea to the array. Indeed the plea itself presents the prominent objection. It was offered when the persons selected for a grand jury were about to be sworn. It is stated that the sheriff’ and clerk, on the 18th of March, 1839, which will be judicially recognised as a day of the recess between the fall and spring terms of the circuit court, drew a number of persons to serve as jurors at the then next term; and the clerk issued a written command to the sheriff to summon them accordingly. That they were freeholders or householders of the county, or were drawn out of the box one or two, or that the names drawn were registered, does not appeal^</p> <p>It is surely no vain assumption that a grand jury is an essential auxiliary of the court of oyer and terminer and jail delivery, and that without its preliminary action a prosecution and conviction for murder could not be sustained. The constituent elements of the grand inquest, as well as of that of trial by jury, were, by our national and state constitutions, engrafted upon our civil polity; and, though the forms and modes of these institutions, owing to differences in our condition, habits, and circumstances, differ from those of the nation from whom we derived them, the substance of them must be preserved. It cannot be too often or too urgently repeated, that they'are the foundation pillars of that noble fabric of civil liberty which was reared by the Saxon race, and which each successive generation of that race has delighted to beautify and adorn.</p> <p>But what are those constituent elements thus planted on constitutional foundations, and that must be preserved? There must be an authoritative and responsible source from which the panel is to emanate, each one on the array must be a freeman at least in the civil division over which the court is to preside, and the inquest is to be taken; the panel must be registered or so published previously, as that those who are suitors, or to be tried, can have, opportunity to make up knowingly, challenges to the array or polls. 3 Blackstone’s Com. 355. 6 Bacon, 523, 524.</p> <p>In England, the sheriff arrayed the panel, and hence the challenge allowed to the array for his neglect, partiality or corruption. 6 Bacon, 551,552. 1 Chit. C. L. 536, 537. Here it is essential to the existence of the grand inquest that some officer, commission or tribunal, should be designated and empowered to select the jurors to be summoned. The act of 1830, Reprint 304, gave a sure, safe and perfect mode of originating the papel; and adjudications of this court had scrupulously enforced its provisions. The freeholders and householders of the county were to be procured from the assessment rolls and deposited in a box. Then at the court preceding that to which the venire facias was to issue, the sheriff and clerk in presence of the judge in open court, were to draw the required number of names, rejecting the removed and ineligible. The panel thus drawn, could not be a shuffled one. The public eye was open upon its inception. On this the venire facias issued, and the panel was registered for inspection. If the circuit court failed to sit, the sheriff and clerk repaired to the probate court, and the second-box was opened, and so the modus operandi excluded the probability of abuse.- But the act of 1836 abrogated the challenge to the array and forbid a venire facias from being quashed for any cause whatever, in any court. Reprint, 578. Let us carry this stolid act into operation. No challenge to the array is to be had, and no venire facias to be quashed. What then? Where are we to go for the panel ? To the act of 1830 ? We are not constrained to do so, because it is a dead letter. If we invoke it as a rule of action, no violation of its provisions, however monstrous, can be noticed. If a sheriff should return a panel of free negroes and mulattoes as good and lawful men, the judge in his obedience to the act of 1836, would make up his grand jury out of them. Would he reject a plea-to the array? He could not. Would he quash the venire? Thus then it is we are putting our fellow men upon trials of life and death, under a statute that gives us no panel out of which to form a grand jury, or on which to build petit juries for the trials of issues of traverse and of civil controversies.</p> <p>Again, another element of the grand inquest to be preserved as we would sustain the institution itself, is that the jurors should have at least the qualification of being freemen, 6 Bacon, 524. The act of *30 requires freeholders or householders who are free white citizens. But if this requisition be disregarded, under the latter act, it is no vice. If the sheriff were to return a panel of young men, or such as were neither householders nor freeholders, a grand jury could be selected out of them — and under the latter act it would be quite sufficient. Here those on the panel are called persons.</p> <p>So, too, it is necessary that the panel should be of citizens of the county, 6 Bacon, 559. But as the challenge to the array no longer exists, and as no venire facias is to be vacated for any cause, a panel from Rankin or Warren would have answered to have passed on the indictment in this case, as well as if from Hinds. There was nothing prior to the plea to the array to show from what county those persons came.</p> <p>Abuses at each step in the application of the statute in review multiply and aggravate. Our constitutions, in bringing from Britain, the institution of grand jury, assuredly contemplated an impartial inquest. But allow it possible, or even probable, that in some county there may be some temporary excitement, or some undue and formidable conspiracy, and that the sheriff, or whoever may choose to make a panel — (for the act of ’36 appoints no person or mode for its emanation,) — 'Should be very much prejudiced, or somewhat base, and should cull out a trained band to his own notion — your circuit judge is obliged to submit to it. He is constrained to elect his grand inquest out of such material. These illustrations could be readily increased.</p> <p>There is still another important consideration. It was a portion of the British scheme of grand and petit juries, that the panel should be arrayed and returned “weeks and months before the jurors were to appear,” and for the very important reason and motive that the suitors and accused should have inspection of the names, that partialities, corruptions, affinities, and the like, might be ascertained — and thus the trial, through the grand and petit juries, should be kept pure and sacredly devoted to the administration of public justice. But what is the practice under the late act ? It is to make the list at any time — in any manner — no one knows or can know whether even the clerk and sheriff co-operate. In the present instance, the list was made in March for May, instead of being drawn at the preceding term, and of being enrolled according to the act of 1830. Instances have occurred where the judge gave an oral order after taking his seat, and a jury was got for him in an hour. Is this to be borne ? Is it not plain that with such flagrant violations of the act of 1830, which is really the law in force, the institutions of grand jury and jury-trial will sink into the most shameless abuses, the extremest contempt, and become too mean or too hurtful to be preserved ? If you enforce the act of ’36, you are obliged to consider the act of 1830 as suspended and inoperative. You cannot enforce the former without the power to declare infractions of it illegal and void; and that you cannot do, unless you have the power to entertain a challenge to the array and to substantial defects in the venire facias. But as it has been shown that an enforcement of the latter act necessarily involves a subversion of the constituent and essential elements of the grand inquest and trial by jury, as secured to us by the fundamental law, this court is constrained to declare it unconstitutional and void. And this being done, it will be plain that the panel was illegal, the venire facias void, the grand jury unlawful, and that the indictment in this case must fall.</p> <p>Challenge to the array may be made by the prisoner before the finding of the indictment; and the proper time is between the appearance. and swearing of the grand jury. So it was made here. 1 Chitty’s C. L. 309,544,545; 1 Burr’s Trial, 38 — ■; Ross v. State, 1 Blackford, 390; Hudson v. State, 1 Blackford, 318; Commonwealth v. Clark, 2 Brown, 323; People v. Jewett, 3 Wend. 314; Commonwealth v. Smith, 9 Mas. 109; McClure v. State, 1 Yerg. 206; Commonwealths. Knapp, 10 Pick. 477; Hooker v. State, 4 Ohio, 450; Gardner v. Turner, 9 John. 261; Pringle v. Huse, 1 Cowen, 435, 436, n. 1; Commonwealth v. Leppard, 6 Sarg. & R. 395; Crane v. Dygett, 4 Wend. 675.</p> <p>II. The plea of the former trial, &c., ought not to have been rejected.</p> <p>III. A new trial ought to have been granted. After the jury retired under charge of a sworn officer, they, according to his oath ought to have been kept together in some convenient place, (separated from the rest of the world,) without meat, drink, or fire, candles and water excepted, suffered to speak to no one, nor to the officer, nor he to them, unless to ask them if they were agreed, without leave of the court. They were conducted to a room in a tavern, accessible. The door for a period left open, and they were put under the charge of one not an officer or sworn. He spoke to them. If these deviations are to be allowed, any thing may be. King v. Mosely, &c. 18 Eng. C. & R. 115; Cochrane v. Street, 1 Wash. 79 — top 103; Howie v. Dunn, 1 Leigh, 4SS; Hale v. Cove, 1 Strange, 642; Metcalf v. Dean, Cro. Eliz. 189,411; Blair v. Chambers, 1 Sarg. & Rawle, 169; People v. Douglass, 4 Cow. 26; Brant v. Fowler, 7 Cowen, 562.</p>

IN ERROR from the May term, 1840, of the circuit court of the county of Madison. This was a proceeding under the statute for the trial of the right of property taken on execution. It appeared that at the May term 1837, of said court, that Thomas J. Couch recovered judgment against John White for the sum of four thousand five hundred and nineteen dollars, forty-six cents and costs.

<p>Whore service has been had upon all the makers of a joint and several note, it is not error to discontinue as to part of the defendants and take judgment against the others.</p>

ERROR from the circuit court of the county of Adams. An attachment at the suit of the appellant against one John F. Golding, was levied upon a negro, as the property of the defendant, which was claimed by Mandeville, the appellee, and an issue made up under the act of the legislature, was submitted to the jury. On the trial of this issue, B. Cozzens was offered as a witness by the appellant,'who was objected to on the ground of interest.

ERROR from the circuit court of the county of Adams. Held: “that the second execution, levy and bond were absolutely void.” Now if the bond was absolutely void in law, how was it so ? surely by operation of law. Will the law so operate as to make the bond absolutely void, and at the same time, give it the effect of a judgment ?

<p>Where B. by his will bequeathed to his daughter A. a life estate in certain slaves,with directions that after her decease, they should go to the gross estate, and no further disposition was made of the slaves by the will, it was held that on the death of the testator, A. did not become the absolute owner by the merger of the particular estate and the remainder; but that on the death of A. her heirs were entitled to the slaves.</p> <p>The statute of limitations does not bar the remainder man in slaves, until six years after the termination of the particular estate.</p> <p>The husband acquires by marriage an absolute right to all the personal property of the wife, and may sue for it in his own name.</p>

<p>An application for a continuance in an action of replevin, stands upon the same grounds as in other actions, and it will be error if the judge refuses to hear it.</p> <p>A gift by deed, not recorded, of a slave, when the consideration is that of blood, and the gift is not accompanied by delivery of possession to the donee, is not valid as to a subsequent donee who holds by virtue of a deed of gift from the same donor, perfected by a delivery of possession.</p> <p>Where the defendant claims the property in a chattel under a deed of gift, as against a subsequent gift of the same chattel, he must allege in his plea, that delivery accompanied the gift, or the plea will be demurrable, under our. statute of frauds.</p> <p>[Note.—This cause was decided in 1835, and overlooked by the Reporter.]</p>

<p>IN error to the circuit court of Warren county.</p>

This was an action of trover, instituted in 1831, by John F. Carmichael, as administrator de bonis non, of Harriet Browder, to recover damages for the conversion of thirty-four bales of cotton. There was a marriage agreement entered into between said Harriet and her husband, previous to then marriage. Both parties possessed plantations, slaves and stocks, previous to their marriage.

<p>Whether an erasure of one of the parties from an obligation is a material alteration of the contract is a question of law, and ought to be decided by the court.</p> <p>It is the duly of the acceptors of a letter of credit to notify the guarantors within a reasonable time, of the acceptance of the letter.</p>

<p>Where a trustee placed trust negroes upon his own plantation, to labor with his own slaves, it was held, that the cestui que trust was not compelled to receive a portion of the profits as compensation; but was entitled to recover a fair hire for the use of his negroes.</p>

The plaintiff below brought his action on a promissory note of defendant made payable to plaintiff’s intestate.

ERROR from the county of Clarke. The plaintiff in error was indicted under the act of 1839, in the foliowingrwords, to wit: “ That Sampson Ainsworth, late of the county aforesaid, laborer, on the 20th day of September, 1839, with force and arms in the county aforesaid, one Alson Shelby, in and upon the left arm of him the said Alson Shelby, then and there feloniously and maliciously did, with a certain drawn knife, stab and wound, with intent, then and there, feloniously,…

<p>Where in a suit against an Administrator on his bond to recover a debt due by the intestate, he pleaded that the right of action did not accrue within six years before the commencement of the suit; held the plea was bad. The defendant should have averred his exemption from liability to pay as administrator at the time of the presentation of the claim.</p> <p>The law does not require the authentication of a claim against a deceased person’s estate, as a prerequisite to presentment, in order to prevent the statutefiom attaching 'asa bar.</p>

<p>The writ oí procedendo lies only where there has b§en a neglect or refusal of justice by an' inferior court.</p>

ERROR from the circuit court of the county of Copiah. The plaintifF in error obtained a judgment against the defendants, for seven thousand and odd dollars, and issued execution thereon. The sheriff returned the execution, with this endorsement thereon, to wit: “ This execution was not levied on the property of the defendants, nor is any money made by sale of. property of the defendant. August 27th, 1838. (Signed,) Thos.

<p>Where the replication was in these words: “issue to second plea,” it held that the defect was cured after verdict, by the statute of Jeofails. It should have been taken advantage of by demurrer.</p> <p>A remittitur may be entered by counsel.</p> <p>It is a familiar rule of practice, that it is error to permit a deposition to be read in evidence, which has been taken without notice to the adverse parly. Proof of notice must appear in the record; or its absence will be a sufficient ground for a new trial.</p> <p>In an action on a warranty of the title of slaves, who have been recovered of the vendee under an outstanding title, the record of the judgment of such recovery, is conclusive evidence against the vendor to show the fact of such recovery, and the quantum, of damages.</p> <p>Notice of the pendency of an action to one who is privy in interest, or bound to indemnify, will malee the judgment evidence against him. It was held sufficient, that the party was in court during the trial.</p> <p>It seems, that proof that the executors of an estate, within eighteen months after notice given for the presentation of claims against the estate, had been heard to speak of a particular claim, would afford presumption, that they had received notice; but it should appear that the declarations were made within the eighteen months, or they would not afford a ground to presume that notice was given, so as to prevent the statutary bar.</p> <p>A claim growing out of a warranty, broken before the death of the testator, is subject to the operation of the statute, requiring claims to be presented within eighteen months after notice.</p> <p>Judgment for the recovery of negroes, under an outstanding title, is a disturbance of the vendee, holding them by bill of sale and warranty of title.</p>

<p>The statute against retailing spirituous liquors makes it unlawful to sell in less quantities than one gallon; it also declares it unlawful for the person selling to suffer the same to he drank in and about his house; therefore a count in an indictment charging that the defendant sold in less quantities than one gallon and suffered the same to he drank in his house, is bad for duplicity.</p> <p>The principle is well settled, if there be one good count in a hill of indictment, the verdict will he presumed to have been found under that count.</p>

This case was on an appeal, prosecuted by the representatives of Eugene Magee, to reverse a decree rendered against them in the court below, on the following state of facts: John Collins filed his hill alledging, that he bound himself as surety in a note, for Richard H. Spears, for three thousand eight hundred and seventy-five dollars and ninety-six cents.

<p>IN error to the circuit court from the county of Adams.</p>

This cause was tried before the Hon. D. O. Shattuck, at the November term, 1839. Held: that corporations must prove their corporate character. What good reason can we assign for this? It is very plain. Private acts, the judicial tribunals could not be presumed to know. But why not? Because they were not promulgated as were the public laws, and these acts of incorporation were private acts.

In the court below, the defendant in error declared upon a bill single dated the 9th day of April, 1819, due one day after date. The 'plaintiff in error plead two pleas. First, payment after due, and concluded to the country. To this plea the defendant in error demurred, and for cause of error assigned that the plea concluded to the country, instead of with a verification.

<p>IN error to the circuit court of Noxubee county.</p> <p>This cause was tried before the Hon. H. S. Bennett, at the May term of said court, 1837.</p> <p>This was an action of assumpsit upon a promissory note. The declaration was in the usual form. The defendant in the court below, pleaded the general issue and filed an affidavit, in which he stated that he did not execute the note sued on, nor authorise any other person to do the same.</p> <p>The cause was submitted to the jury, and the court was requested to instruct them that the plea filed did not put in issue the signature of said defendant only, but the making or execution of the whole note. This was refused, and the judge charged the jury, that if they found that the signature to the note was that of the defendant^ they must find for the plaintiff, unless they should also find that there had been some material alteration of the instrument.</p> <p>The errors assigned were the charge of the court, and that it did not appear that the jury were sworn,</p> <p>The record stated that, “ the jury say on their oaths,” &c. In the bill of exceptions was the following: “And after argument before the jury, then and there empannelled and sworn to try the issue joined,” &c.</p> <p>The plea in this case was non assumpsit, verified by the oath of the defendant, alleging that he had not executed the note upon which the suit was instituted.</p> <p>This plea, by the act of 1824, was equivalent to that of non est factum, and necessarily put in issue, not only the signature of the note sued on, but every other circumstance connected with said note. Laws of Mississippi, (late collection,) 21. 1 Chitty’s Pleadings, 424. 12 Johnson, 337. 6 Mun-ford, 358. Philips’ Evidence, 128. 3 Campbell, 33. 13 Johnson, 430.</p> <p>As the defendant then, by the common law, could, under the plea of non est factum, give in evidence, upon trial, that the instrument sued on had been delivered as an escrow, or obtained while the defendant was a lunatic or intoxicated, or that a different instrument was substituted, instead of the one which the party supposed he was executing; the court below erred in excluding from the jury who tried this cause, by his charge, all evidence, except what related exclusively to the signature of the defendant.</p> <p>In this case, as in the authorities cited, the true issue submitted to the consideration of the jury, was not whether the signature was the defendant’s, but whether the instrument sued on was executed under such circumstances, as to give the plaintiff a legal right to maintain his action thereon. It was, therefore, the peculiar power of the jury in this case to inquire for what purposes the note sued on was made — the circumstances under which it was executed — the mental condition of the defendant when his name was subscribed thereto, arid whether or not any fraud had been practised by the plaintiff in procuring the same.</p> <p>The defendant in this case had signed his name to a blank piece of paper, to be used by the plaintiff for an appeal bond in a justice’s court, and which had been converted into a note by the plaintiff without the knowledge or authority of the defendant. It was therefore, not his note. This was the question for the jury to try, and the presiding judge, in confining the investigation and decision of the jury to the signature alone, deprived the defendant of the best possible legal defence.</p> <p>The court below consequently erred in refusing to charge the jury as required by the defendant below, “that the plea in this cause, filed by said defendant, does not put in issue the signature of the defendant to the promissory .note sued on only, but the making or execution of the whole note.”</p> <p>It was certainly the intention of the legislature by the act of 1824, to render the plea of non assumpsit, when verified by affidavit, equivalent to that of non est factum; the pleas then being the same, the evidence given under the one could surely be given under the other; The court below, in excluding all evidence whatsoever, except that relating to the signature alone, imposed a limitation upon the investigatiotis of the jury subversive of justice, and unrecognized by law.</p>

Julius Culbertson sued out an attachment for rent, against the goods and chattels of J. D. Cornell, which was levied, and Cornell entered into'bond with the appellants, H. Tooly, and L. Pitcher, as his security, payable to- Mark Izod, sheriff of said county, for the sum of three hundred and sixty dollars, reciting the attachment and levy on sundry articles specified, and that the same had been returned on the execution of the bond, which would be void, provided Cornell paid…

<p>IN error to the circuit court of the county of Wilkinson.</p> <p>cited 5 Johnson’s Reports, 99; 11 Mass. 89; 1 Cowen’s Rep. 313; 16 J. R. 574.</p> <p>cited 3 Caine’s Reports, 61; 3 Bacon 419,-430; 13 J. R. 313; 13 J. R. 97.</p>

This action of assumpsit was brought by Wilcox and Fearn, under the statute of 1837, jointly against James C. Mitchell, as the maker of a promissory note for @13,033, against Henry Calhoun as first endorser, Mitchell Calhoun second endorser, and A. G. McNutt, third and last endorser. The defendants pleaded non assumpsit. There was a verdict and judgment in favor of the defendants Henry Calhoun and A. G. McNutt, and against the other defendants.

ERROR from the Circuit Court of the county of Wilkinson. This was an action of assumpsit, upon a promissory note payable to the plaintiffs by defendants. The defendants pleaded in abatement, that, the attorney who brought the suit, was one of the directors of the bank at the time of the institution of the suit, and was therefore prohibited from acting as its attorney by the act of the legislature of 1840.

<p>WRIT of error from a decision in the circuit court, overruling a motion to quash a forthcoming bond.</p>

The appellant filed his bill of complaint in the court of chancery, stating that he purchased of the appellee a tract of land and several negroes, at the price of seventeen thousand six hundred and twenty-five dollars. That he gave three several promissory notes for the payment of the purchase money by instalments, and also executed a deed in trust to secure the payment thereof. That he has paid or adjusted two notes payable in 1837 and 1838.

IN error from the circuit court of Rankin county. This was an action on the case brought by Foisom v. Fore, in the circuit court of Rankin county, on a promissory note. On the second day of the return term of the original writ, no plea being filed, the plaintiff below took judgment by default, on the ground of “meritorious defence,” that the consideration of the note was a gambling debt.

<p>ERROR to the circuit court of Franklin county.</p>

<p>Where a contract was rescinded by a memorandum in writing, which made no mention of money already paid on the contract, parol evidence was admitted to prove that the party who had paid the same was not to receive it bade.</p> <p>It is a general rule that admissions or declarations voluntarily made by a party, are always admissible in évidence against him.</p>

<p>ERROR from the circuit court pf Lowndes.</p>

ERROR from the circuit court of the county of Rankin. This was a motion in the circuit court of Rankin county, by defendants in error against the plaintiffs, to recover judgment for the amount of an execution in favor of defendants, which it was alledged was placed in the hands of Willis P. Coleman,.as sheriff of Rankin county. The motion was entered to recover the amount of the execution and interest, and also twenty-ñve per cent, damages, according to the statute. ' .

<p>APPEAL from the Probate Court of. Franklin county.</p>

<p>If it appear from the record that all the parties prayed the appeal, it will be sufficient under the statute, although the bond is executed by one only.</p>

<p>Clerics of the Circuit Court cannot grant writs of error in criminal cases; the writ, in such cases, can only issue upon the fiat of a judge, or court of competent jurisdiction.</p>

ERROR from the Circuit Court of Ciaiborne county. On the 24th day of May, 1837, the plaintiffs obtained four several judgments in the circuit court of Claiborne county, against P. Hooper and others, on which executions were regularly sued out. Levies were made, and forthcoming bonds taken and forfeited, and so returned to the November term following.

<p>IN error from the circuit court for the county of Yazoo.</p> <p>Hezekiah Rester instituted suit in March, 1838, against Mag-nus T. Rogers, as maker of a promissory note, and Alexander Elliot and Aaron Vickery, first and second endorsers, for $1000. The action was joint against the maker and endorsers, in pursuance of the statute. The plaintiff discontinued as to the first endorser, and took judgment by default against the second endorser and the maker.</p> <p>The note upon which the action was founded, was not filed among the papers.</p> <p>Tbe following bill of particulars was filed with thé papers:</p> <p>Defendants to Plaintifis Dr.</p> <p>To amount of note sued on in this action, $1000</p> <p>Paid charges of protest on same, 3</p> <p>$1003</p>

Suit was instituted by the defendant in error in the circuit court of Wilkinson county, against Smith, Davis and William T. Lewis, who was then sheriff of said county, as endorsers of a note made by one H. A. Moore. The capias was directed to the coroner, but appears to have been executed, (by the return) by the deputy of said Lewis, on W. B. Davis, one of the defendants. Smith and William, T. Lewis the other defendants, acknowledged service of the writ in writing.

IN Error from the Circuit Court of the county of Warren. This was an action of assumpsit by the plaintiffs against Nicholas H. Rappleye, Thomas M. Green and Edwin G. Cook, on a promissory note for the sum of @5,333. The action was brought in pursuance of the statute of 1837, approved May 15th, against Rappleye as maker, and Green and Cook as endorsers. The note was dated May 6,1837. Cook appeared by attorney and filed his plea to the action.

<p>Where a note had been secured by a deed of trust, which was taken up by the parties, and a new note given with no other alteration than a change of the place of payment, it was held not to effect the security of the deed of trust.</p>

<p>In proceedings on attachment the form of the statutory bond must be pursued.</p>

ERROR from the circuit court of the county of Adams. This is an action upon a promissory note, made by the defendants, and payable to the Commercial Bank of Natchez, for the sum of three thousand dollars. It appears from the evidence, that Claiborne, one of the makers, presented it to the bank to be discounted, and that the bank declined to do so. The note was made for the accommodation of Claiborne.

<p>A count in an indictment on the statute, against retailing spirituous liquors, charging that the defendant did unlawfully sell and retail vinous and spirituous liquors, to wit: wine, rum, gin, brandy, and whiskey, in a less quantity than one gallon, to persons, to the jurors unknown, and that, the said defendant did then and there suffer and permit the said vinous and spirituous liquors so retailed and sold in less quantities than one gallon, as aforesaid, to be drank and used in and about the house of him, the said C., contrary to the form of the statute, «¡¡■c., was held to be good.</p> <p>A count charging that the defendant, as a tavern and inn keeper, did unlawfully, gratuitously, and without special charge therefor, offer, give and deliver, vinous and spirituous liquors, 4-c., in less quantity than one gallon to divers persons, to the jurors unknown, which said persons were then and there the guests of the said C. contrary, <jc., was held good.</p> <p>A general charge of violating a penal statute, is not sufficiently certain to warrant a conviction.</p> <p>It is the well settled law, that a hypothetical opinion given by the court to the jury, is not error.</p> <p>No one can excuse himself from the operation of a penal statute, by showing that he acted as the agent of another person.</p>

The appellants, as the heirs of Isaac Ross, and Margaret A. Reed, filed their bills in chancery, to set aside certain bequests of the testator and testatrix, in their respective wills, to trustees, directing that their slaves should be sent to Liberia, there to remain free. There was a demurrer to both bills, and the suits dismissed, from which an appeal was taken to this court. The cases were submitted together, and the opinion applies to both.

<p>A court of chancery has jurisdiction to decree an account for profits of lands against a disseisor, where some of the complainants are infants.</p> <p>Where an answer sets up facts as a plea in bar, the allegations of the bill must be either expressly admitted or denied.</p> <p>Where an answer was rejected as insufficient, and leave given to answer further, which was declined, but permission asked to plead and denied, such denial was held, not ground of error, inasmuch as the defendant could have insisted upon his facts as a plea in his amended answer.</p>

<p>APPEAL from the Superior Court of Chancery.</p> <p>The appellee filed his bill in the court below, in which he states that in the year 1830 or ’31, he applied to Kent, one of the defendants, for a loan of money. That Kent then advanced him the sum of three hundred dollars, and that to secure the payment of the same, he executed a deed of mortgage to the said Kent for a negro slave named Tom, and delivered to him the possession of the negro. That about oneyear afterwards,Kent advanced him the further sum of two hundred and fifty dollars, which was the residue of the sum originally contracted for by complainant, and receipted for by complainant’s brother. At the time of advancing the last sum, it was agreed by parol, that complainant might redeem the slave at any time within ten years. He has at different times offered to do so and tendered the sum borrowed to the said Kent, and also to Stephen Granberry, the other defendant, who is now in possession of the negro, but that both have refused to permit him to redeem. Granberry claims the slave under a purchase from Kent, who had full notice of the mortgage.</p> <p>The answer of Kent admits the loan of $300 in 1830, and the execution of the bill of sale, with a condition that he was to have the use of the slave until January, 1833, and if the money was not then paid, the property was to belong to him. That in 1832 he made an absolute purchase by advancing $250 more. That this sum was paid to complainant’s son, who gave him a receipt for it, and paid the same to complainant, who received it in full satisfaction for the boy. He denies that he agreed to let complainant'redeem at any time within ten years. Admits that after he sold the boy to Granberry, complainant offered to redeem by paying $550. The answer of Granberry admits the sale of the boy to him for $600, and as to other matters stated in the bill, adopts the answer of Kent. It did not admit or deny the notice of the mortgage charged in the bill. It was excepted to, and the exceptions sustained, and he made no further answer. There was a pro confesso decree against him. James and Matthew Allbritain prove the payment of the sum of $550 at the two several times mentioned in the bill and answers, and that by the agreement. Kent was to have the labor of the boy for the interest on the money, and Kent was bound to re-deliver him whenever the money was paid by complainant, if it was ten years. Robert F. Sibley, another witness, proves that Kent told him he had loaned to complainant $300, and that the negro was to work for the use of the money until it was paid. Witness told Kent the labor of the boy was worth more than the interest, and Kent replied that he would allow complainant $100 per annum for the services of the slave, and charge him 10 per cent, for the use of the money, and that tvhen the negro worked out the principal and interest, he would return him. An account was directed to be taken by the chancellor. The commissioner made complainant indebted to Kent a balance of $96 50. Hire was allowed at the rate of $100 from the 18th of December, 1830, to the 18th of November, 1838. This report was confirmed and a final decree made that the complainant recover the negro from Granberry, and hire at the rate of 32 cents per diem, until he is delivered in pursuance of the decree.</p> <p>The conditions of the bill of sale written under the- same and signed, was as follows: “The condition of this bill of sale is such, that if the said Richard Allbritain doth pay or cause to be paid unto the said Kent the sum of three hundred dollars, on or before the first day of January, 1833, then the above bill of sale to be void, otherwise to be of full force and effect.”</p> <p>1. We insist that the decree is erroneous, and ought to be reversed, because it does not pursue the report, which should have been its basis. Upon what principle is it, that, when an account is ordered, the account taken, report made, and the report confirmed, that report may be disregarded, and a decree pronounced against the report, it is difficult for counsel to conceive. A decree different from the one rendered, and one of two kinds should have been pronounced. 1. There should have been a decree in favor of Kent, for the ninety-six dollars and fifty cents reported in his favor; or 2. and which would have been the only decree which could be rendered in the case: the court should have decreed that Granberry deliver the negro, and pay the @160 found against him, and that complainant pay to defendant, Kent, the @256 50, reported in his favor.</p> <p>2. But we insist there should have been no decree at all in favor of the complainant; because, the case made out by the bill is not the case as made out by the answers and proof.</p> <p>The bill is filed to redeem a mortgage, and the bill alleges a mortgage and calls upon the defendant to answer and produce the mortgage. The answers deny that a mortgage was executed ; admit however, that a mortgage was intended, but the paper which is produced is not a mortgage. The bill of sale and the condition to it, show a liberty to re-purchase, or a conditional sale. The testimony shows the same thing, ^ee American Equity Digest, 264, § 50. Gray v. Prather, 2 Bibb, 228. Price v. Bearden, 1 Marsh. 169. Pratten v. Norfiet, 1 Marsh. 178.</p> <p>The rule is that when a case is stated by a bill, and the answer and proof make a different case, the bill must be dismissed, unless the complainant amend his bill. See Lindsay v. Lynch, 2 Schol. and Lefroy, 1 to 11.</p> <p>3. But if it were competent to ask the court to decree upon the facts made out by the answer and proofs, yet the complainant could have no decree, because the bill is not framed with a view to meet the case. The answer shows that there was a mistake in the execution of the bill of sale, the transaction there being a loan of money and not a mortgage, but being by mistake a conditional sale. It is not competent to alter, vary, or change a written instrument by parol. 1 Phillips on- Evidence, 223. This rule is enforced as well in a court of equity, as in a court of law, and unless a bill be filed for the purpose of correcting a mistake, no such testimony can be received. 2 Equity Digest, 73, S. 13. A mistake never can be collaterally inquired into, but only in a case when by the^ pleadings the question is raised. 3 Equity Dig. 75. sec. 38. 9 CQwen, 747.</p> <p>4. But again, suppose the court, will say that they are authorised to proceed in this case, and not dismiss the bill, it is then insisted .that there can be no decree for redemption, because the property was sold, to Granberry without notice of the claim of complainant. It is true 'that complainant alleges notice; but the answer of Kent & Granberry show notice to Granberry of a conditional sale merely. There is no proof of notice. It is also true that the bill was taken for confessed; but the effect of this confessionis taken away by<the agreement.ofthe parties in the court below to read the answer of Granberry.</p> <p>5. But if Granberry. had notice, of a mortgage, he had notice also of the relinquishment of the , equity of redemption. Was there then a relinquishment of the equity of redemption? It is contended that there, was. The bill charges a mortgage, and the payment of three hundred dollars of the money, at the time of its execution, and two . hundred and fifty dollars thereafter, and calls-upon the defendants by interrogatory to answer as to these facts. The defendants do answer, admit the execution of the paper,-also the payment of the three hundred dollars, but deny that the two hundred and fifty dollars was advanced on the mortgage ; but, on the contrary, that the two hundred and fifty dollars was paid in consideration of the relinquishment of the equity of redemption, and he files with his answer a paper executed by the agent of Allbritain, the complainant. The' facts are not contradicted by the proof but in part, and the proof, as can be shown, ought not to be credited.</p> <p>The answer, being responsive to the bill, is evidence. See the rule on this subject in Woodcock v. Bennett, 1 Cowen, 743.</p> <p>It is true, then, that whatever may have been the original character of the transaction, that the equity of redemption was released, and the complainant had no right to redemption, or a right to repurchase.</p> <p>6. But should the court differ with us, then we say that the complainant’s own proof makes out a case of liberty to repurchase in a given time, or an agreement to sell, on condition that application was made in a given time. In each case, the right to the thing only rests upon the offer to pay the money within the time, and from that time only should there be a decree for him.</p> <p>The allegation in the bill, that the transaction between complainant and defendant, Kent, was the loan of money by defendant to complainant, and the mortgaging the negro Tom to secure the re-payment of the money is clearly evidenced by the writing itself. See the case of Hammonds v. Hopkins, 3 Yerger’s Rep. 526. There the writing was not so explicitly a mortgage as in the present case, and the defendant insisted in his answer that the parties intended a sale, still the court seem to think it too plain to admit of controversy, that it was a mortgage. Upon this point authorities innumerable might be cited, but it is believed that it would be an unnecessary waste of time.</p> <p>The answer acknowledges that the advance of the $300 was a loan of so much money to complainant by defendant, but defendant insists that although the use of the boy was to go for the interest of the money, yet this was a conditional sale and not a mortgage. By his own acknowledgment it was a mortgage, and not a conditional sale. The very fact of loaning money and taking a deed or other instrument, conveying or transferring property to secure the repayment constitutes a mortgage in contradistinction to a sale, absolute or conditional, which are never predicated on a loan, for they, are inconsistent with it. See Hardin’s Rep. 6, Reed v. Lansdale; 5 Littel’s Rep. 86; Butler’s note to.Coke’s Lit. 205, a; 1 Vern. 190, 192; 3 J. J. Marshall, 354, Edrington et al. v. Harper.</p> <p>The defendant Kent denies that the further advance of the sum of two hundred and fifty dollars was a loan as charged in the bill, but insists that it was paid on the purchase of complainant’s right of redemption, and relies upon the receipt signed «Stephen Allbritain for Richard Allbritain.” There is no evidence to prove that ever Stephen Allbritain was authorised, in any way whatever, to give this receipt, or even that he was the agent of complainant, or that the money was ever paid to him, or that he ever paid it to complainant. But on the contrary, James Allbritain and Matthew Allbritain prove that the two hundred and fifty dollars were advanced as a, loan and that Tom was to continue as security and to work for the use of the whole amount, five hundred and fifty dollars; and complainant to have the right to redeem him at any time if it was even ten years. It will be remarked, the defendant will not deny in his answer, the statement of the bill, that when he first got possession of Tom he. agreed to loan complainant, on that security, five hundred, and. fifty dollars, but he passes over this allegation in silence. The law is, that a mortgagee who pretends to have purchased from the mortgagor, the right of redemption, must show it by clear and convincing proof. 3 Yerger Rep. 526. Here the defendant does not show it by any kind of legal proof, and that he did not purchase the right as he contends by advancing the additional sum of two hundred and fifty dollars, is shown by the positive swearing of two witnesses.</p> <p>The answer of the defendant Kent acknowledges the tender to him of the five hundred and fifty dollars in January, 1834. If it should be contended that this tender was not formally and technically made, without delaying to argue the point, we reply that it was not necessary where the defendant positively declared he would not receive the money. Littell’s selected Cases, 204; Dorsy v. Barbee, &c.; Cooly v. Weeks, 10 Yerger’sRep. 141.</p> <p>The bill charges that the defendant Granberry had the possession of the slave, and Kent “pretends” to have sold him to said Granberry. Kent and Granberry both answer that Granberry had purchased him, they do not say when; and there is no proof of the purchase. For Granberry not having answered as to his knowledge of the negro being held by Kent in mortgage and as to the tender to him, his answer was excepted to, the exceptions sustained, and he not having answered further, there was a pro confesso taken against him; and this was never set aside. His answer and exhibit were, by consent, read on the hearing of the cause; the exhibit, which is a bill of sale from Kent to Granberry for the boy Tom, was not proven. But this matters not, Gran-berry is in no better condition than Kent.</p> <p>There is then nothing to prevent a redemption, there is no pretence of the statute of limitations applying. It does not, moreover, run between mortgagor and mortgagee, and whether it could run in favor of a purchaser from the mortgagor, it is not necessary to enquire, for here the bill was filed in 1836, before the statutory bar would have applied, even to a proper case, because the time to form a bar had not elapsed. The defendants, it is contended, have been shown to be in the wrong in this whole matter, and it is believed that a decree should have gone against them jointly for the hire and the return of the slave. They refused to let complainant redeem, compelled him to resort to a court of chancery, and having litigated the matter from beginning to end, they ought of course to pay all the cost and hire from the time of the final decree in the court below.</p>

ERROR from the circuit court of Lowndes county. The Planters’ Bank instituted an action of assumpsit in the circuit court of Lowndes county, against John M. Grant, and the other plaintiffs in error, upon a bill of exchange, drawn by Grant and endorsed by the other plaintiffs. The declaration contained a count on the bill of exchange and the common money counts.

<p>APPEAL from the criminal court of the county of Jefferson.</p>

<p>IN ERROR from the Circuit Court of the county of Hinds.</p>

<p>The writ of error must be in the name of all of the defendants. If one party wishes to prosecute, he must bring the writ in the name of all the defendants, and if the others will not join in assigning errors and prosecuting the suit, he may then have a summons, and severance will be allowed, if the other parties still refuse to prosecute.</p>

<p>When a motion to set aside a verdict and grant a new trial on the ground of excessive damages, is refused by the court below, and the cause is brought up under the statute, it seems the appellate court will not award a new trial, unless the weight of evidence is clearly against the vebdict or the jbet.</p>

IN error from the circuit court of the county of Claiborne. This was an action of assumpsit. Judgment was rendered against the plaintiffs in error, as the drawers and endorsers of a promissory note: .Eight persons were declared against in the declaration, and denominated by the general name of defendants, after the commencement.

<p>A forthcoming bond becomes forfeited on the day appointed for the delivery of the property, if the property is not produced; and has the effect of a judgment from that time.</p>

IN error from the circuit court for the county of Warren. The plaintiffs, (the defendants here,) declared upon a note against the defendants below, for the sum of five thousand seven hundred and four dollars and twelve cents, in assumpsit. Process was executed, and the defendants appeared and pleaded in abatement, a variance between the endorsement of the cause of action on the writ, and the sum set out in the declaration. The plaintiffs amended.

-APPEAL from the iprobate court of the county of Claiborne. This is ..an appeal from ¡a judgment of-the probate court of the county of Claiborne. ,It appears by the record that in the year •1839, the appellants applied to .the court below for an order of distribution of the slaves belonging to the estate of the late Drury W. Brazeale,-deceased. That appellants and appellees are. the legal distributees of said estate.

<p>Where the action was debt brought by the assignee of the payee of a bill single, and the breach did not aver that the money had not been paid to the original payee, the court held that after judgment upon nil didt, the defect was cured by the statute of jeofails.</p>

Moses Wanzer brought an action against Samuel Barker, in the Jefferson Circuit Court, at the December Term, 1835, on a promissory note, and recovered judgment thereon.

The appellees, Anderson & Orne, filed their bill in Chancery, to enjoin proceedings in a possessory action, instituted by the appellants, Niles & Lewis. The allegations of the bill are as follows: Anderson & Orne on the 7th October, 1837, purchased by contract in writing, of Taunacha, a Chickasaw Indian woman, her reservation of land, being section twenty, township three, range two west.

<p>A bill of exceptions taken to the opinion of the court, overruling a motion for a new trial, may embody the evidence given at the hearing of the cause, and the appellate court will consider it, so far as the motion is involved; although it was not objected to when introduced.</p> <p>The statement of the bill of exceptions, as to the time when taken, will prevail over the memorandum of the clerk.</p> <p>The presumption of payment of an open account, of prior date to the note of the party tendering it as a set off, is a question for the jury.</p> <p>In a suit by an administrator, it is sufficient that a set-off came legally into the hands of the defendant before the action was brought.</p> <p>The law restraining judges from charging juries must be liberally construed.</p>

ERROR from the circuit court of the county of Hinds. On the 6th day of March, 1S37, a capias ad respondendum issued from the circuit court of Hinds county, wherein Wilkins and others, commissioners of the sinking fund of the s.tate of Mississippi, were plaintiffs; and Plummer, Lynch, and Puckett, were defendants, in an action on the case,¡¡founded on “defendants’ promissory note for $10,000, dated the 6th July, 1835, and payable to the plaintiffs twelve months after date…

This was a petition of forcible detainer commenced before two justices of the peace, and after decision by them and a jury, taken to the circuit court of Claiborne county. The record was very unskilfully made up. After the caption, the record states that an appeal was filed in that court on the 4th September, 1837. . Then follows the caption of the record sent from the justices’ court. Then an order of continuance on agreement, set out.

IN error from the circuit court of Lafayette county. This was an action of debt brought in the circuit court for Lafayette county, at the November term, 1839, on two several bonds executed by the plaintiff in error in favor of the defendant in error, for the sums of five thousand, and fifteen thousand dollars, respectively. There were two pleas filed to the declaration.

This was a proceeding in the court below by motion under the statute which gives a summary remedy to a surety against his principal, for whom he has paid' money.

<p>Sealed instruments are made negotiable by statute, and are entitled to days of grace.</p>

IN ERROR from the circuit court of the county of Yazoo. This was an action of assumpsit, founded on defendant’s promissory note, for the sum of four thousand dollars, in favor of James C. Harley, and payable at the Commercial Bank of Natchez, and endorsed to plaintiffs in error.

<p>IN ERROR from the circuit court of the county of Yazoo. Proceeding on motion before the Hon. D. O. Shattuck.</p> <p>At the May term of said court, 1839, a motion was made by the defendants in error, in the court below, for a judgment against George Torrey, as sheriff, Dugal Torrey, Guilford G. Torrey, and Charles T. Miles, his sureties, for the amount of the fine imposed by law, for making a false return upon an execution in their favor, which had been placed in his hands for collection; and also, for the amount of the execution and the damages allowed by the statute. There is upon the record a notice of the motion directed to all the plaintiffs in error by the attorney of Jordan & Smith. It is returned executed upon George Torrey and Charles T. Miles only. There is a recital in the record that “issue being joined upon said motion, it is ordered by the court that a jury come, Sic.” There was a verdict and judgment for the defendants in error against all the plaintiffs — the jury having found that the return was false, which stated that the execution in favor of Jordan & Smith for $12,826 24 was levied on certain slaves and subsequently sold under an older judgment. The judgment on the motion for the fine was, that the plaintiffs recover of Torrey and his securities, for themselves and the literary fund of the state, the sum of 500 dollars, that the plaintiffs have one moiety to their own use, and that the literary fund of the state of Mississippi have the other moiety to its use, according to the form of the statute in that case made and provided: together with double costs, &c.</p> <p>The errors assigned were, 1st. The court had no right to pronounce judgment against Dugal Torrey and Guilford Torrey, who had no notice of the proceeding.</p> <p>2d. The legality of the form of the judgment, inasmuch as the statute of 1839, gives the fines assessed in Yazoo to the “Yazoo Library Association,” instead of the “Literary Fund of the state.”</p> <p>The statute under which this proceeding was had, in obedience to an universally recognised principle of jurisprudence, required the parties to be notified, before then- liability could be fixed. As notice in fact was not given to two of the securities, the only question which arises, is whether the recital by the clerk that “ issue was joined upon the motion,” can be regarded as an appearance on their part. In 3d Littell, Moore v. Parkex-, approved by this court in 1 Howard, 530, it was determined that an entry in the record, that “ the said parties come, &c.” would not be construed to include a party upon whom the writ had not been executed. The case at bar, is believed to be stronger than either of those cited. George Torrey and Charles T. Miles may have jointly or separately “joined issue upon the motion,” without the appearance of either of the other sureties — the appearance of the latter cannot therefore be inferred from the fact that “ issue was joined upon the motion.” It may be well doubted, whether an entry by the clerk that the parties appeared, &c. would be of any avail in support of the judgment against those not notified, unless a plea on their part was contained in the record. There is no plea, here, either by the defendants or their attorneys, and there is nothing to show that two of the sureties ever had “ a day in court.”</p> <p>In regard to the form of the judgment, the statute (page 39,) of 1839, gives the fines, &c. assessed in Yazoo to “ the Yazoo Library Association,” instead of the “Literary Fund of the State.” Judgment should have conformed to the change made by this statute.</p>

IN ERROR from the circuit court of the county of Hinds. In this case, the original writ and declaration, are in the names of “ The Mississippi & Alabama Rail Road Company, which sues for the use of Isaac F. Alexander” against «John B. Catlett, principal, and Alfred A. Catlett, security,” and the action is founded on a promissory note for #1,100, payable to said Company at their Banking house, in Brandon.

.IN ERROR. This writ of error from the circuit court of Yazoo county, was prosecuted to reverse a judgment of that court, overruling a motion to quash a forthcoming bond. A motion was made by the plaintiff in error, who was one of the obligors in that bond. The errors assigned are, that the court erred in not quashing the bond, and in discharging the supercedeas. It appeared, execution of fi.fa. issued at the suit of the defendants in error against G-.

IN ERROR from the circuit court of Warren county. This action of ejectment was commenced at the May term, 1836, of the Warren circuit court, against the defendant, Helen D., (then Glass.) The premises claimed by plaintiffs, in virtue of a British grant, dated in 1776, and a United States patent issued in 1820, are described in the several demises from the lessors of the plaintiffs, as follows: “a certain messuage and lot, or tract of land, being a part of section nineteen,…

<p>ERROR from the circuit court of Warren'county;</p>

IN ERROR. This was an action of assumpsit on the promissory note of Lock-hart, to Chewning & Dawson, for six thousand and two hundred dollars, endorsed by the payees to R. Crozier, and by him endorsed to H. &. S. Dawsori, and by them to the plaintiifs. The action was brought against all the parties, under the act of 1837. At the trial it was admitted that Dawson was a partner in both firms of Chewning & Dawson, and H. &.

<p>APPEAL from Chancery.</p> <p>cited Com. Dig. Tit. Piscary, (33.) Ib. Tit. Nuisance. 1 Nott & McCord’s Rep. 387. 3 Bit. Com. 219. 5 J. C. R. 101. 4ib. 150. 9 J. Rep. 507. 2 Sand. 172. 11 Peters’ R. 539, 620. 2 Story’s Eq. 203-4. lb. 206. 17 J. R. 585.</p> <p>cited Const. Art. 4, sec. 20. 3 Howard, 254. Laws of 1833, p. 393, sec. 30. Ib. 573, sec. 3.</p>

This was a motion against the sheriff; Willis P. Coleman, and his sureties, for a failure to return an execution. Held: that where a statute authorizes a judgment on motion, and is silent as to notice, none is necessary. Cooke’s Rep. 258. These cases have never been overruled; but have been uniformly sustained by many subsequent adjudications, all recognizing, expressly or impliedly, the validity of the laws on which they are founded.

<p>Where duplicate writs were issued, and the officer of the "county to which the duplicate was directed, returned the precept executed upon all the defendants, and the sheriff of the county where the suit was instituted, returned his part not found as to all the defendants, the court dismissed the cause for want of jurisdiction, on affidavit that all the defendants at the time of the institution of the suit were resident citizens of the eounly of Hinds, and not of the county of Warren, where the suit was instituted.</p>

<p>A variance between the contract, as described in the endorsement ori the writ, and as set forth in the declaration, cannot be taken advantage of on a writ of error, after judgment by default. The objection is cured by the statute of Jeofails, it being properly the subject of a plea of abatement, or special demurrer, in the court below.</p> <p>It is too late, after judgment by default, to assign as error, that the endorsement on the writ does not state the sum actually demanded by the suit.</p> <p>Where the declaration in stating the date of the note sued on, and the time of payment, showed it to be payable on á day anterior to its date, it was held to be merely a clerical error. '</p>

<p>Where a judgment was against two partners jointly, the chancellor refused to marshall the securities by decreeing that the partners should each satisfy one-half of the judgment ; inasmuch as such a decree would render a joint judgment several in its character, and delay the judgment creditor..</p>

<p>In declaring on a contract which is not sufficiently explicit in itself, and where its validity depends upon intrinsic matter, either referred to or necessarily arising out of the terms of the contract, the deficiency must he supplied by proper averments in the declaration.</p> <p>When contracts of doubtful import are susceptible of a legal interpretation, by which they can be enforced, such interpretation must prevail.</p>

F. A. Browder married Mrs. Hook, who was in possession of a considerable estate. A marriage contract was made to secure this property to the wife and her heirs. She died before Browder, who administered. He afterwards died, and Wood, the plaintiff below, administered on his estate, and brought this action against the appellant, who had administered on Mrs. Browder’s estate, to recover certain personal property under the marriage contract.

<p>After the sheriff and his sureties have appeared and contested a motion against them on its merits, it is too late to object to the regularity of the notice, or the sufficiency of the motion.</p> <p>The return of the sheriff upon the execution, of “ no property found,” furnishes no evidence, that the process was returned into court upon the return day. The return of the execution into the office of the clerk, is a matter in pais, to be shown by parol.</p>

IN ERROR. This was a motion in the Wilkinson, circuit court against William T. Lewis, as sheriff, and the other plaintiffs in error as the sureties on his official bond, to recover the full amount of an execution, with interest at the rate of thirty per centum per annum, according to the statute, and was-grounded on the return of the sheriff, Lewis, on the execution, which was in the following-words, “not levied to April, 1839,” and signed by “W. T. Lewis, sheriff.” After…

The complainants filed their bill in chancery, and alleged that John F. Broadnax and R. H. Broadnax purchased of respondent, Randolph, a tract of land in Louisiana, containing about six hundred and thirty acres, and took a deed with covenants of warranty; also nineteen slaves on the plantation, and the stock of cattle, horses, &c. and also the crop of cotton then in the field; for the sum of sixty-six thousand dollars.

<p>A court of chancery will entertain jurisdiction to decree that family servants be specifically delivered up.</p> <p>The jurisdiction of the probate court is exclusive over all matters expressly confided to it by the constitution; but where the powers of that court are inadequate to do full and ample justice between the parties, either on account of the subject matter, or the want of authority to compel the appearance of parties, a court of chancery will relieve.</p>

The executors of James Luckett, deceased, who departed this life on the 24th or 25th of December, 1837, presented his will for probate to the probate court of the county of Claiborne, which was resisted by J. T. Brock, in behalf of his two children, the legal distributees of the estate of Luckett, being his grand children, on the ground of the insanity of the testator. The judge of probate established the will, and Brock appealed from the decision.

The bill charged that in March, 1837, the appellant bought of appellee, Rowe, a certain tract of land, known as the north half of the south-east quarter, the east half of the north-west quarter, and the south half of the west half of the north-west quarter of section twenty-six, and the east half of the south-west quarter and the north half of the south-east quarter of section twenty-seven, all in township eleven, range six, east, containing three hundred and sixty acres,…

The complainant’s bill states: That William H. Johnson is administrator of the estate of Thomas Land, deceased, who died intestate. That most of the estate of said Land appears to be advertised for sale on the fourth Friday in March, 1840, by Charles A. Lacoste, as trustee under a deed of trust executed by Land, December 10, 1836, to secure the payment of several notes therein mentioned to Levin R. Marshall.

IN ERROR from the circuit court of Yazoo county. In February, 1838, Arthur Beaty recovered a judgment in the circuit court of Yazoo county against John R. Head as principal debtor and Y. M. Sublett, John C. Turner, and Alexander Smith, as his sureties. Execution was issued and levied upon certain slaves as the property of Head, who gave a forthcoming bond which was forfeited. Execution was afterwards issued on the bond against the obligors thereon.

IN ERROR from the circuit court of the county of Rankin. This was an action of assumpsit by William B. Woodley against Rice, Wells and others, as endorsers of a promissory note for four thousand dollars. There was judgment by defeult-against the defendants. The note, including days of grace, fell due on the 29th of January, 1837.

The bill in this cause was filed in the court below against the defendant as the administrator of Foster Cook, deceased, to set aside several sales made by him, and others, of the property of his intestate, on the ground of fraud, and to compel him to restore the property which he had purchased at such sales, and for an account.

ERROR from the circuit court of the county of Hinds. This was an action of assumpsit in the court below, to recover the amount of money paid on an agreement for the sale of land, which it was insisted had been rescinded.

IN ERROR from the circuit court of Lowndes county. Action, trespass on the case.

IN ERROR from the Circuit Court of the county of Yazoo. This was a proceeding under the statute for the trial of the right of property. Hiram Selser recovered judgment in the circuit court of said county against Geo. R. Carradine, H. F. Carradine and D. S. King, in May, 1838, for the sum of about eight thousand dollars. In the following September an execution from the judgment was levied upon twenty-five slaves, the property of G. R. Carradine.

<p>APPEAL from the circuit court of the county of Madison.</p>

<p>ERROR from the circuit court of the county of Warren.</p>

IN ERROR from the circuit court of the county of Marshall. This was a suit between the plaintiff in error, as a judgment creditor of Philip G. Tucker, and the defendant, Williams, as to the title of a negro girl which was seized, under an execution against Tucker, to satisfy the plaintiff’s judgment. The slave was in the possession of Tucker at the time of the levy. It appeared in proof, that Tucker was the son-in-law of Williams.

ERROR from the circuit court for the county of Bolivar. Trial before the Hon. F. W. Huiing. Held: which is easily susceptible of ascertainment. But again, however this question might be, it is a question of formality, one that concerned the government alone; the government is satisfied and has directed this Locado a. Who else has a right to complain ?

IN ERROR from the circuit court of Warren county. Held: only where the regular term of the court wholly failed, no term of the court in November, 18S9. And the January special term was the first term after the service of process on Henderson at which he could enter his appearance and plead.

The complainant, who is the appellee in this court, filed his bill in the circuit court of Holmes county, in which he alledges that the appellant had recovered a judgment against him in that court for the sum of three hundred and fifty-six dollars and seventy-five cents. Judgment was obtained at a special term in January, 1838.

This was an appeal from an order of the Chancellor, dissolving an injunction which had been granted to the appellant, to restrain and enjoin further proceedings at law by Henry B. McDonald, one of the appellees, to recover the amount of a promissory note, which had been made by the appellant.

IN ERROR. This was an action of detinue brought by Elizabeth Evans against Lewis Mitchell, to recover a negro girl, a slave, of the al-ledged value of one thousand dollars. The plaintiff to show title in herself, read in evidence a bill of sale for the slave by H. S. Craig to G. Burnham, dated the 4th day of April, 1834. She then proved by one Lewis, that the slave was in her possession for several months, early in the year 1835.

This was an action of assumpsit against the drawers and endorsers of a promissory note, which was payable at either of the banks in Vicksburg. The proof offered on the trial in the court below, consisted of the testimony of the notary, who was the only witness in the cause.

IN ERROR from the circuit court of Warren county. • At the October term of the Warren circuit court, 1840, George Brungard obtained judgment on a promissory note against William Moore et al. drawers, and Morris Emanuel endorser. It appeared that the consideration of the note was part purchase of a lot of ground sold by Thomas F. Walker to Wm. Moore and Morris Emanuel. Walker endorsed this note to Brungard.

<p>APPEAL from the probate court of Wilkinson county.</p> <p>cited Rev. Code, 62; 3 Howard, 258; How. & Hut. Dig. 472; S. & Lef. 300; Cooper’s Equity, 97; Ambler, 229; 2 Vernon, 206; 9 Vesey, 289; 3 Day’s Rep. ■326; 7 Pick. 1.</p>

<p>Where an execution, nppn a release of errors, was agreed to he staid until a subsequent term, unless the defendants consented for its issue sooner, and it was issued without any regard to the agreement, and property sold; on motion for an appropriation of the money to the satisfaction of a junior judgment, it was held, that the presumption must be, that thc.execution issued with the consent of the defendants.</p>

IN ERROR from the circuit court of the county of Jefferson. At the June term, 1837, of the circuit court of Jefferson county, the Planters’ Bank recovered a judgment against Samuel Barker for the sum of @1385 26.

This was an action of assumpsit, brought by the defendant in error, as the holder of three bills of exchange, against Carmichael as the endorser thereof. Said bills were drawn by J. Thompson, on Gabriel Tichenor, payable to J. L. Trask, in eighteen and twenty:four months after date, endorsed by said Trask and Carmichael and Lewis Evans, and dated at Philadelphia, September 16,1822.

<p>To constitute usury, there must be an agreement between the lender and the borrower of money, by which the borrower knowingly gives or promises, and the lender knowingly takes or reserves, a higher rate of interest than the law allows, and with an intention to violate the statute.</p> <p>It seems, that if a special verdict of a jury find that there is an agreement by which the lender knowingly taires illegal interest, the court may infer an intention to violate the statute; but this inference can only be indulged, when no other conclusion would be consistent with the facts found in the verdict.</p> <p>Where it appeared that a Bank had used Rowlett’s tables in the calculation of interest, which reckoned three hundred and sixty days to the year; but the jury found in a special verdict, that, this mode of calculation had never been sanctioned by the directors, or stockholders directly, and was only adopted by the officers of the Bank, because it had been uniformly used by Banks, and that there was no intention to violate the law, the object being convenience in business; and that there was no design to gain by the tables, held their use did not constitute usury.</p> <p>It seems, that the universality of the custom of using Rowlett’s tables, and the small excess of interest gained thereby, repel the usurious interest.</p> <p>Where in the adjustment and renewal of a claim, an additional amount was voluntarily paid, and included on account of expenses, and not as the condition of the loan, it was held not to affect the contract with usury.</p>

ERROR from the circuit court of the county of Jefferson. This was an action of assumpsit against the drawers and endorsers of a promissory note. , On the trial for the purpose of charging the endorsers, the plaintiff offered in evidence the notarial record of the notary, sworn to under the statute. It was objected to on the ground that the certificate of oath of the notary was not sufficient.

MOTION of defendant in error for a certiorari to bring up a more perfect record, which was resisted, 1st. Because the defendant in error had pleaded in nullo est erratum and could not move afterwards. 2d. The plaintiff in error required the defendant to show that the defect existed in a material part, and could be corrected. The counsel produced a letter stating the fact, but could not as an officer of the court state the fact as of his own knowledge.

This suit was commenced by attachment in the court below. Upon the return of the writ, the defendants moved the court to set aside the attachment, on the ground that there was no bond, as required by law. The court sustained the motion, and dismissed the suit.

ERROR from the circuit court of Claiborne county. Held: but all that should afterwards come into or pass through their hands.

IN ERROR from the circuit court of the county of Hinds. Held: “ that there was nothing in the instrument itself, or in any part of the record, which shows that William A. Baughan was a member of the firm, or who in reality composed the firm. The declaration, it is true, is against him as such ; but is not something more required to create a liability?

IN ERROR from the circuit court of the county of Wilkinson. Trial at the October Term, 1840, before the Hon. Geo. Coalter. This was an action of ejectment, brought by Theodore Stark against Francis Gildart and George Morris, to recover a tract of land, situated in said county, called the Ashley tract, containing about seven hundred and two acres.

IN ERROR from the circuit court of Rankin county. Motion in the court below, at the November term, 1840, to erase from the execution, to the last May term of that court, the following credit endorsed thereon, to wit: “Received on this fi. fa. the sum of nine hundred and seven dollars, in bills of the Mississippi Union Bank, 27th February, 1840, John Powell, sheriff.” At a previous term, the plaintiff moved against the sheriff; which was overruled.

McGehe obtained a judgment on the 19th of November, 1839, in the circuit court of Pontotoc county,’ against Handley et al. for four hundred and thirty-seven dollars and sixty cents. A fieri facias issued on this judgment on the 18th of December, 1839, which was levied on the property of Handley, and a forthcoming bond taken, with W. W. Leland, surety, which was returned forfeited.

<p>APPEAL from the circuit court of Adams county.</p> <p>This was an action of assumpsit against the appellants, as the makers and endorsers of a promissory note. Judgment by default was entered against Falconer and Jemison, and a general verdict against W. C. Wade' and F. Walker. The defendant, Samuel Cotton, filed the general issue, and a special plea, which alledged in substance that after the maturity of the note on which he was sued as endorser in this case, the plaintiffs received a bill of exchange drawn by Wade on Grenot & Page, in favor of Gillett & Leonard, for five thousand and five hundred dollars, and which was endorsed by them, and payable twelve months after date. The bill was delivered to the plaintiffs by Wade, - who took a receipt which stated that the bill was to be collected by them and the proceeds applied to the credit of the note sued on. That this arrangement was made without any consultation with Cotton. The plea avérred also that this bill was taken in payment of said note.</p> <p>On the trial, Cotton offered a witness by the name of Lane, to prove that Jemison who subscribed the name of the firm of Cotton & Jemison to the endorsement of the note, was not authorized to do so, and that the firm was dissolved prior to said endorsement, and that the plaintiffs knew that fact, and that the endorsement, was for the sole accommodation of W. C. Wade, and was done without the knowledge or consent of Cotton. But the court refused to receive his testimony. Wade was also offered as a witness, but was likewise rejected on the ground that he was a joint defendant to the action, and therefore interested in the verdict. On the issues as to Cotton, the jury found a special verdict which contained in substance the facts stated in the special plea as to the delivery of the bill of exchange, except the fact that the bill was not received by the plaintiffs as a payment of the note, but only as collateral security. That the note sued on was the only consideration of the bill, and that it did not appear what has since become of the bill, nor what steps were taken by the plaintiffs to collect it. On this verdict the court gave j udgment for the plaintiffs.</p> <p>Two questions of law arise on this verdict:</p> <p>1. Upon the facts. Was not time given to Wade, the drawer of the note and bill of exchange, by taking his bill of exchange as collateral security for the note, payable a year after the note was due, and agreeing to collect and apply the proceeds of the bill to payment of the note. 8 East, 576. 2 .Bos. & Pul. 61.</p> <p>2. Staunton, Buckner & Co. having failed to account for the bill of exchange, have they not thereby made the bill a payment of the note, or in the absence of any proof on their part, that they took the necessary steps to collect the bill, or that the bill has not been paid or passed away, which they might have proved by the production of the bill, does not the law as well as the sense of the contract, make, it a payment. Canudge v Allenby, 6 Barnwell & Cresswell, 373. 18 Eng. Com. Law. Rep. 203.</p> <p>As a general rule, it is not denied, that giving indulgence to the maker of a promissory note, on a valid contract for valuable consideration, without the consent of the endorsers, will discharge them from liability. But it must be a valid and binding contract. No indulgence from liberality, or a spirit of accommodation, will operate a discharge of the liability of an endorser. Chitty on Bills, 441-4, see the notes. Merely taking a new bill or note without an express agreement to give indulgence, will be considered as collateral security; and the taking such security does not discharge the endorsers. 1 Barn, and Cress. 14. 8 Eng. Com. Law Rep. 10-1. Collateral security may be sued on concurrent with the principal liability. Chitty, 84, 85.</p> <p>The evidence of Lane was rightly rejected; because Cotton had not denied the partnership of Cotton and Jemison, as charged in the declaration, by plea sustained by affidavit, as is required by statute. Howard and Hutch. 595. Besides, Cotton had plead the general issue; which admits the character in which he was sued, viz. as a partner of Jemison at the time the note was endorsed. 3 Howard’s Rep. 105, 120-1.</p> <p>Wade was also properly rejected. He was a joint defendant, and was on trial with the other defendant, who had him called. Besides, the fact he was called on to prove was a full defence to the action against himself, as well as the other defendant. He was not only interested in the verdict, but his testimony was to operate directly in his favor. He could have rendered himself a competent witness by confessing judgment. If Wade had been called to prove facts which could not have affected his interests we admit he would have been competent.</p>

<p>A release of errors for a valuable consideration will estop the par(y from prosecuting a writ of error.</p> <p>Forbearance is a sufficient consideration for a release of errors.</p>

This is an appeal from an order of the probate court of Claiborne county. In February, 1839, the appellant filed a bill in the court below against the appellee, former administrator of Wheeler C. Green, deceased, and his sureties in the administration bond, for a discovery of assets, an account and distribution.

<p>ERROR to the circuit court for the county of Adams.</p>

<p>Where a note on a third person was given in exchange for a slave with warranty of soundness, and the vendee subsequently gave his own note and other property to the vendor, in exchange for the note previously given for the slave; it was held’ that, the vendee might give in evidence the unsoundness of the slave as a bar to a recovery on the note of the vendee so substituted, the original consideration being the purchase of the slave.</p>

This was an action of assumpsit brought by the defendants in error against plaintiff in error to the April Term, 1839, of the circuit court of Adams county, for the sum of four hundred and twenty dollars, for horses sold and delivered. The declaration contained two counts j the first indebitatus assumpsit for four hundred and twenty dollars, for “ horses and mares” sold and delivered and money lent and advanced.

ERROR from the circuit court for the county of Bolivar. The defendant in error instituted an action of trover for the unlawful conversion of a quantity of cord-wood, and obtained a verdict for two hundred and fifteen dollars and fifty cents.

<p>Judgment on the forfeiture of a recognizance for appearance, will be reversed, if there is a material variance between the recognizance, the scire fadas, and the judgment of the court.</p>

-APPEAL from the circuit court for the county of Lowndes. This suit was commenced by warrant before a justice of the peace, for the sum of forty dollars, upon two bank notes, in the usual form, of twenty dollars each, issued by the Commercial Bank of Columbus. Process was served upon the President and Cashier of the Bank. The appearance of the defendant not being entered by defendant, but default made, the appearance was entered by the plaintiff, and judgment rendered.

<p>A writ of certiorari to remove a judgment from a justice’s court, is barred by statute after twelve months*</p> <p>The statute allows a writ of certiorari to remove a judgment from a justice’s court for proceedings dc novo, only when the judgment is alledged to be unjust*</p>

IN ERROR from the circuit court of the county of Jasper. Action of assumpsit by the defendant in error against the plaintiffs in error. The error relied on was the insufficiency of the sheriff’s return on the writ, which was as follows5: “ executed on the within named John D. Fatheree, on the 1st of April, and on John D. McRea, on the 15th. On Fatheree by delivering him a copy of the within writ, and on McRea by leaving a copy at the house of the said McRea.

<p>IN ERROR from the circuit court of the county of Wilkinson.</p> <p>This was an action of assumpsit brought by Hugh Connell, Arthur Daniel, William A. Chisholm, Daniel Woodard, and William T. Mayes, trustees of schools and school lands in township number two, range number two, west, in Wilkinson county, state of Mississippi, for the use of Arthur Daniel, president of the board of trustees for schools and school lands in said township, against Daniel Woodard, William T. Mayes, and J. L, Wall, in four promissory notes, made by defendants to plaintiffs in their official capacity, as trustees, &c.</p> <p>There were filed pleas of the general issue, and also two special pleas, which went to show that Mayes and Woodard were both plaintiffs and defendants. The plaintiffs demurred specially, and assigned the following causes:</p> <p>.1. That the plea is in substance and effecf a demurrer in form of a plea. 2. Said plea sets forth no matter of fact, if true, which is not apparent on plaintiffs narration. 3. Said plea proposes only an issue in law, and tenders it as an issue of fact. 4. Said plea proposes a defence for all of said defendants, Woodard, Mayes and Wall, yet avers no matter of law or fact in defence of said Wall. 5. Said plea is joint as to all defendants, yet offers no sufficient bar to the action, or joint ground of defence.</p> <p>The demurrer to the pleas was overruled, and judgment for defendants, and writ of error to this court.</p> <p>It was insisted on the argument in this court, that the trustees of schools and school lands had no authority under the legislation of Congress to dispose of said lands.</p> <p>The court below erred in overruling the demurrer to defendants’' pleas.</p> <p>1. The pleas were plead jointly by Woodard, Mayes and Wall, and surely they furnished no evidence to the demand against Wall, who was not one of the plaintiffs.</p> <p>2. The court has already decided in the case of Carmichael ¶.- The Trustees of School Lands, reported in 3 Howard, 84, that these trustees are a corporation aggregate, or a quasi corporation, so that the legal rules applicable to other corporate bodies, apply to them.</p> <p>In this view of the case, there can be no difficulty in deciding that any one of the corporators may be sued by the corpoxation on his notes or obligation properly made to them. The suit might doubtless have been brought in the name of the corporation simply, without setting out the names of the corporators individually. Their individual names are mere surplussage, and the-transaction likens itself to a similar dealing with a bank. A note made by one of the stockholders of a bank to the corporation, certainly is the every day subject of a suit, and it would not be the less liable to be sued, if all the names of the corporators should be set out in it at length.</p> <p>The fact that Woodard and Mayes, two of the defendants, were corporators, and so plaintiffs, is no answer to the legal obligation of the note.</p> <p>This case would doubtless never have came before the court, had the decision in 3 Howard been known. That decision was made in December, A. D. 1838, and the case now under consideration was submitted for final adjudication, at the November term of the Wilkinson circuit court of the same year, and the judge below delivered his opinion long before the decision of this court was published.</p> <p>The death of Woodard has been suggested. As to him, so far as he is a defendant, the suit will abate; and proceed against the others. So far as he is a plaintiff, by being one of the corporators, his death can have no effect on the suit. Indeed, as the case stands, the action being brought in the name of the corporators, for the use of A. Daniel, the death of all of them would not be the subject of any notice. See sec. 48, circuit court act.</p> <p>A question, not open for examination in the present state of the pleadings, has been made in the argument at bar. It is said the notes in suit were given in consideration of a lease for ninety-nine years of the sixteenth section as directed in the acts of our legislature, passed in 1833, and that the title to the school sections remaining in the United States, the lease conveyed no right, and the notes were without consideration.</p> <p>This question cannot properly arise, but it is too important to be passed without notice.</p> <p>By the 12th section of the act of Congress, passed in 1803, (2 Story’s Laws, 899,) the sixteenth section in each township in the Mississippi Territory is to be reserved from sale for the support of schools within the township.</p> <p>By the 3d section of the act of-1817, (3 Story’s Laws, 1638,) the Surveyor General, who is appointed for lands south of Tennessee, is directed to make his surveys so as to designate and reserve this sixteenth section. The acts of 1815, 1822, 1826, and all subsequent acts directing or requiring sales of the public domain, provide for a similar reservation. 2 Story’s Laws, 1512, 1846. 3 lb. 2032.</p> <p>In the act last referred to, passed in 1826, there is a clear intimation of the kind of interest acquired by the state in virtue of this reservation. Sections one and two, give the authority to the Secretary of the Treasury to select, in fractional townships, a proportionate amount of land in lieu of the sixteenth section, and after this selection, it is to be held for the support of schools, by the same tenure and on the same terms, in each township, as the sixteenth section is or may be held in the state where the township may be. So, in a particular case, the Secretary of the Treasury is compelled to locate another section, where the sixteenth has been covered by an older grant. 2 Story’s Laws, 1028. And the approval of the Secretary vests the right. 2 yol. Pub. Lands, 606, 543, note.</p> <p>Our legislature has always acted on this view, which has been taken by Congress and officers of the proper departments. See How. & Hutch.- Digest,' p. 125, 127, 129, 130, 131. It is said, however, that a reservation under all these circumstances does not amount to a grant, and that the legal title still remains in the United States. And further, if the grant were otherwise, perfect, still there is no grantee named, in the acts of Congress.</p> <p>There is something-more than a mere reservation. The acts of Congress, coupled with the settled policy and history of the' go vernment, and the interpretation of the law officers'.of the proper department, will show that the reservation is in eifect, an absolute renunciation of the right to sell, or otherwise use,-on the part of the government, as between the state and the government. ■ And certainly, an .entire relinquishment of the power of sale, or other disposition or use of a thing, is well nigh equivalent tó a grant. But, further than this, the United States have not only abandoned their right, but they have declared the use and purpose'to which’ the land in question shall be appropriated.</p> <p>Here, then, is an abandonment' of the right of property, and a declaration of trust, and this comes still nearer to a complete legal title. Is there, then, a trustee cápable of taking, although none be named in the acts of Congress ?</p> <p>The public.is tire party beneficially interested, ánd perhaps the defect, if any exist, might, in their favor,- not be incurable. One' thing, however, seems clear; the general government, having no power to administer such a trust, and' being the grantor, can not be the trustee or grantee. The particular township iir which the section lies may or may not be inhabited, and of course would not be in a situation to take at the time of the grant. The state, then, is and must be the proper trustee, with unlimited discretion as to the means necessary and proper to effect the object of the reservation. It is a, matter of no, moment that she is not named in the acts of Congress.' Whatever belongs to' the citizens generally, and is the, subject of regulation, management, or adminis-, tration, must be, in the absence of other provisions, under the control of the state. The difficulty as to. the want of a trustee is really an immaterial matter. ’ . ,‘</p> <p>In addition to all this is- the fact, that from 1824 to the present time, the state, by legislative enactments, has assumed and exercised the right in question, with the implied consent of Congress. This would appear to remove all doubt.</p> <p>Another consideration. It is placed beyond doubt, that, under all the circumstances, the right to the sixteenth section in each township is perfect in the state; and whether to be enjoyed at one time or another, or whether to be received and held according to the original reservation, or to be the subject of compensation, still this right of the state, especially if weighed with long possession, and a quiet, uninterrupted and permitted control and enjoyment of the usufruct, would constitute a valid consideration for a contract of lease or otherwise. No one but the general government would gainsay it, and her right to do so could not be maintained.</p> <p>1. The same parties are both plaintiff and defendant, and the same parties cannot be plaintiff and defendant. 1 Ala. Rep. 103, 106. Ib. 418, 420. Allen v. Gray, 1 Monroe Rep. 98. Thomas v. Thomas, 3 Littell, 8. Saunders v. Saunders, 2 Littell Rep. 321. 2 Constitutional Rep. S. C. 428. 1 Howard, 82. And so if one defendant be one of the plaintiffs and there be another defendant who is not plaintiff, the rule is the same. 1 Ala. Rep. 418,420.</p> <p>2. If plaintiffs be regarded as a corporation quasi, the rule is the same as to plaintiffs’ legal right. The case in 3 Howard, p. 84, only determines that trustees of school lands are quasi corporations, and not corporations proper. See Constitutional Rep. South Carolina, 428. Plaintiff’s remedy is in equity, 1 How. Rep. 82.</p> <p>3. But if it should be admitted that a quasi corporation can sue one of the corporators, the plaintiffs do not sue as and in the character of a corporation quasi, and as trustees of school lands. How. & Hutch. Dig. 125, sec. 25. Ib. 131, sec. 30. Bonds or notes taken, p. 132, sec. 31, p. 137, sec. 49.</p> <p>There is no law authorizing plaintiffs, as trustees of school lands, to sue for the use of any person whomsoever, and if they be a corporation quasi, they can only sue as the law directs. 3 How. 98.</p> <p>4. But the sixteenth section never belonged to the state of Mississippi, and the state could not, by law, legally give the trustees' of school lands any authority over the sixteenth section. The United States reserved the sixteenth section from sale, and have never conveyed- or disposed of any title to the same whatever. Revised Code, 511, sec. 12. Trustees as a corporation, can only sue on account of the school lands, and there is no law then, giving them a right to dispose of the School lands.</p>

<p>APPEAL from an order in Chancery, overruling a motion to dissolve an injunction and appoint a receiver.</p> <p>The bill filed in this case, stated that Moss, the complainant, on the 89th of February, 1836, purchased of Davidson, a plantation and negroes; paid the purchase money down, except forty-six thousand five hundred and eighty-nine dollars and sixty-eight cents, for which sum he gave his two bills of exchange, drawn on jByrn, Herman & Co., one for six thousand dollars, and one for five thousand six hundred and forty-seven dollars and fifty cents, the first payable the 1st day of January, 1837, the other on the 1st day of March, 1837; and three promissory notes payable to Davidson on the first days of March, 1838, 1839, and 1840, Loach for eleven thousand six hundred and forty-seven dollars and forty cents. And that to secure the payment of the aforesaid bills of exchange and promissory notes, made a deed of trust to Wm. H. Shelton, James Y. McNabb and Etheldred May, on the plantation and negroes aforesaid. Bill charged that said deed was never signed and executed by said Davidson and said May, and that said May never gave his assent to take under said deed, and that said deed was acknowledged by Moss, his wife, and Shelton, but no acknowledgment had taken place as to the other trustees, and that on this probate alone the said deed was recorded. And that said Davidson agreed in express terms, before the sale of said ne-groes, to warrant them sound. And the. bill avers that if said warranty was not inserted, the deed did not carry out the agreement of the parties; and that if said warranty was not inserted it was omitted by mistake.</p> <p>Complainant averred, that after the execution of the agreement for the purchase, he took'possession of the plantation and negroes, and from time to time paid sums of money on said agreement. That now there is but one payment of eleven thousand six hundred and forty-seven dollars and forty cents due, which fell due 1st March, 1840, and is yet unpaid except as is hereafter mentioned, and that after taking possession of the negroes, he first discovered the warranty to be false as to two of the negroes, Lewis and Rose, who were both unsound at the time of the sale, and that neither of them ever did any material service and were not worth their support. That Lewis died crazy, and that Rose was at the time of the sale unsound, and is still so; and that said Davidson, before he required more money to be paid on said note, should allow him a credit on said note for the prices and expenses of said unsound negroes. And that Davidson has no right to enforce said deed of trust. That said deed was incomplete in its execution. That said Davidson has attempted to sell under said deed, and has inserted an advertisement in the Mississippian, a newspaper printed in the town of Jackson, for the sale of a portion of the negroes, to be sold on the 25th of April, 1840, and that said advertisement purports to be made and signed by all the grantees in the deed of trust, and that he believes, from an inspection of the manuscript, that it was not signed by said trustees, but by said Davidson’s counsel, and that Etheldred May never gave said Davidson any right to sign his name to any such manuscript, or to make said advertisement in his name. And aliedged, that as there was no authority from one of the trustees, a sale cannot be made by the others. And that there is no authority to sell any of the slaves, under said deed, in the event of default; and that in the event it should be necessary to sell any part of the estate, that they could only advertise and sell the land, as the term used in the deed was “ premises,” which can only apply to the land. And that if this court does not interfere, that said Davidson will sell, without giving him credit for the unsound negroes. And further prays that said Davidson, Shelton, and McNabb, may be made defendants, and that a decree may be rendered to ascertain the value of the negroes, or such damages as he has sustained by the false warranty, and the amount deducted from the balance due on the note aforesaid, and that said Davidson be restrained from selling under the deed of trust, until all the grantees join in the same; and if it is only necessary that part of the property be sold, that the trustees be confined to the land as provided in the deed of trust, and if he is mistaken in the relief and decree asked, that such other relief as the nature of the case requires may be granted.</p> <p>The answer admitted, that on the 29th of February, 1836, Moss and his wife made a deed of trust on certain land and negroes as stated in the bill, to secure the payment of certain moneys in it mentioned, and that all said moneys have been paid, except the last instalment for eleven thousand six hundred and forty-seven dollars and forty cents, with interest from 1st March, 1S40, when it fell due, but it is wholly unpaid. That the deed of trust and notice of sale are believed to be correctly exhibited with the bill, and the statements of the bill are substantially correct, but that the bill does not state that when.the sale was made the respondent gave to the complainant a statement, in writing, of the qualities and conditions of the negroes sold, to the best of the knowledge he then had, nor has he ascertained any mistake therein, and that of the two negroes particularly complained of, Lewis and Rose, that ■he had owned them but a short time, when he sold them, and was not able to judge of them, as he was of the others; and that as well as he recollects he represented that Lewis was not of a good disposition, though sound in mind and body; that Rose appeared delicate, and caused some doubt whether she was healthy, and that as to these two negroes, nor any other portion of the property was any fraud practised, but that he took great care to make a full exposition, so as to preclude all cause for subsequent complaint, nor had he ever heard any complaint, of the said negroes or any other part of the property, until the filing of the said bill, either directly or indirectly. And that although a hope was expressed in the bill that defendant would not press collection until this matter was settled, yet he never had any intimations of it, or opportunity for such settlement, but that from the tenor of the complainant’s conduct, he was led to believe that no cause of complaint existed. As proof, ho filed a letter from complainant, after he had used the property for two crops, in which he says he would not sell the negroes, and intimates no objection to any of them. And in further negation of this part of the bill, respondent shows that complainant proposed a sale of the same property to William H. Shelton, and furnished a list of the negroes with their estimated value, in which he valued said Lewis at fifteen hundred dollars, and Rose at one thousand dollars, and this was late in the second year after the purchase of the said property, which appears in the list itself, which was filed, with the affidavit of said Shelton attached; that soon after this Shelton made inquiries of respondent as to the valuation, and that thus he obtained knowledge of its existence, and further shows that the trustees named all indicated a willingness to act in the trust, and that none of their names are used without authority to justify it; that said May is now at a distance, but long ago approved of the use of his name as trustee, and no doubt would now attend to this matter if specially called on; that the other two trustees reside near complainant and are ready and willing to act, having given express consent for the advertisement exhibited with the bill. Respondent further showed that, on or about the 10th day of March last, complainant applied to him, not to advertise the property till the 30th of April, 1840, by which time he would be able to pay the money, and that if he did not obtain this indulgence he could get an injunction and might take the case to the Court of Errors and Appeals, and obtain much time; that upon these considerations he granted the indulgence, and did not advertise till the 24th of April, 1840, when it was made as exhibited in the bill; that this was in the presence of the counsellor, now one of the solicitors of the respondent; and that he had hoped, in consideration of time granted in the new indulgence, and even after the advertisement, that the money would be paid without a sale ; and that if a sale was necessary it would not be prevented by complainant; and that complainant had pursued an evasive course of conduct till the day before the sale, when he is informed application was made to one of the judges of the circuit court, and obtained an injunction; that he had delayed giving an answer to one of the trustees, as to whether he would give up the negroes for sale, as he is informed by said trustee, McNabb; that the indulgence given and assurance of paying at the necessary time for advertising, postponed the day of sale, so that opportunity was afforded for getting this injunction at so late a day of chancery court, that it could not be dissolved during that term; and that since the commencement of this term he has threatened a supplemental bill, pretending to doubt- the title of part of the negroes sold him, which doubt is raised on a marriage contract between this respondent and his present wife; and that on receiving this information he obtained a certified copy, (not knowing where the original was,) of said marriage contract from Jefferson county, where the contract is recorded; and that your respondent and his wife executed and acknowledged a deed of sale of such negroes embraced in that contract, and of such as were embraced in that sale to complainant, and that he procured a deed for the same purpose, confirming the sale of said negroes to complainant, from his only children who are over twenty-one years old, and these deeds being from the only persons living in whom any present or contingent interest could be, he caused to be tendered to complainant, .who would not accept them.</p> <p>■ And respondent further prayed that this may be taken as a cross bill, and afterwards as an original to secure the property and insure the final execution of the trust, and that some one of the trustees or other proper person be appointed a receiver, to manage said property, subject to sale under said deed of trust, according to the terms of it, or of such as the court may make, &c.; and that said Moss be enjoined from removing any of the personal property from Rankin county, where it now is; and that he with his agents be enjoined from interfering with said property to prevent said trustees or any of them from taking possession under the deed of trust to be held subject thereto.</p> <p>The complainant filed an amended bill, which stated that after ■ the filing of the original bill the complainant discovered that defendant Davidson, when he sold the land and slaves mentioned in the original bill, had no right or title, nor any power to sell a large number of the slaves purchased by complainant, the number amounting to eighteen, which were valued at the time of the. contract at eleven thousand dollars, but that he held said slaves by virtue of a marriage contract between himself and his wife, prior to their marriage; that they were held in trust by him for the purposes of said marriage contract; that by virtue of said contract the slaves were held by Davidson in trust for the use of Isabella, his wife, during her life, and then for the purposes mentioned in the deed; that under no circumstances had he any right or title in the said slaves; that he could have acquired no right in them which he could have sold, unless the said Isabella had died in his lifetime without children alive at that time; further, that at the time of the sale, of said slaves the said Isabella was alive and is still so ; and that there were four children of said Davidson, — • Sarah, who married Etheldred May, Caroline, Felix G, and Samuel F. Davidson, by another wife; that said Davidson, when making this contract and after it was made, concealed the existence of the marriage contract, and represented himself as the owner of said slaves; that he would not have purchased them if he had known of the marriage contract, as Davidson was in ill health, and is so still; further, that the concealing of the marriage contract and the claiming the slaves as his own was fraud; that he had no knowledge of the marriage contract till he had filed his bill; and further, that one of the negro women died, and two children have been born out of the slaves mentioned in the marriage contract, since the sale; that said Davidson has within a few weeks, tendered deeds of himself and his wife and of his children for said slaves, which he has declined receiving, as he considers himself entitled to a recission of the contract as to tire said eighteen slaves, on account of the fraud and concealment.</p> <p>The answer to the amended bill stated: that it adopts and reasserts the allegations made in the answer to the original bill; that the respondent discovers no mistake in the names, description, or condition of the negroes, and denies that he was guilty of fraud in not disclosing the marriage contract, as he had been informed that the marriage contract was inoperative as to the right of said property; that he regarded it as a matter of indifference; that no thought of it was in his mind during the contracting for said property with said Moss; that he has never since regarded it as any difficulty in the title; and that, to quiet all complaint^ he has procured and tendered the deeds exhibited with his answer and cross bill, which, with the warranty in the bill of sale, he is advised, preclude all controversy as to the title; that he thinks the aggregate estimate price was eleven thousand five hundred dollars, instead' of eleven thousand, as stated in the amendment ; that he regards this as unimportant, and prays that the answer and cross bill heretofore filed, together with this answer, be taken as a complete answer to complainant’s original and amended bill, and is a cross bill thereto, with all the parties named in the pleading, and prays that the contract may be specifically executed according to its terms; and that the injunction be dissolved, and the property placed in the hands of the trustees, or if necessary that a receiver be appointed.</p> <p>-'Amended bill stated: that since Moss has owned the land and slaves mentioned in the original bill he has greatly improved it, and added to its value; and he asks a recission of the whole contract, and account of the improvements; and that said contract may be cancelled and rescinded entirely, unless he can have a re-cission for the value of the slaves included in the marriage contract.</p> <p>Upon these facts defendant moved to dissolve the injunction, and for the appointment of a receiver; which motions the chancellor overruled; and from this interlocutory order an appeal was prayed and granted.</p> <p>, As a general rule courts of Equity do not interfere and rescind contracts for personal property on the ground of fraud; and although in some cases it may have been done, yet if a contract for land and slaves be entire, as in the case under consideration, the court would be very reluctant to interpose and rescind, where the title of a portion of the slaves only was defective, but would put the party to his action of covenant for the recovery of damages. Story’s Equity, page 194 and notes.</p> <p>The appellee has not been injured by the alledged defect of title in some of the slaves, and cannot be injured; and therefore cannot complain. See 1 vol. Story’s Equity, page 204. The party complaining must-have been «actually mislead to his injury.” Ibid, and cases cited. What injury has or can the ap-pellee suffer ? There must be both a fraud and damage resulting therefrom, to entitle the party complaining to a relief. See 1 vol. Story’s Equity, page 212-13. 12 East, 637-38. 7 John. Ch. Rep. 201. Simon’s Rep. 63.</p> <p>1. The rule of law is well settled, that if a vendor misrepresents a material fact, in relation to' the title or quantity of an estate, though innocently and under a belief of its truth, or if he conceals any material circumstance, which may be calculated to enhance or depress the value of the property in the eye of a purchaser, a court of equity will rescind the agreement; and if encumbrances exist upon property, and are not communicated to the purchaser, he must suppose himself to be purchasing an unin-cumbered title. 1 Yesey, Jr. 224. 1 Dev. Equity, 18. Cooper, 308. 6 Call, 368. 1 Dev. 411. 3 Peters’Rep. 210. 2 Paige, 390. 2 Amer. Equity Dig. 529. 1 Story’s Equity, 393. 3 How. Rep. 114. 13 Peters, 26. 4 How. Rep. 449. 1 Story’s Equity, 218.</p> <p>Fraud vitiates every contract; and it is no answer to a charge of fraud, and admission of a concealment of a material fact, to say the party did not recollect it. 10 Yesey’s Rep. 475.</p> <p>The admission of concealment is not avoided by the statement, that the party deemed it immaterial to give the information; nor is it an answer to say, that the party had been advised that his title was good, and therefore he did not give information in relation to the cloud which covered it. Though if this last statement would constitute such an excuse for the concealment as would obviate the fraud, inasmuch as it is matter in avoidance, it is necessary for the defendant to prove it by evidence aliundi. 2 Stewart, 280. 1 Bibb, 195. 8 Cowen, 387. 14 Johns. Rep. 63. 1 Gill. & Johns. 272. 1 Dev. Equity Rep. 429. 6 Yerger, 108.</p> <p>The contract being fraudulent in its inception, the subsequent tender of the deeds from the wife and children will not wipe away the fraud. 3 Peters’Reports, 210. 2 Vesey, Jr. 155. Gasquet v. Johnson, 2 Louisiana Rep. 517. 1 Wilson, 320. Pralle v. Peele, 3 Louisiana Reports, 282. 4 Johns. Rep. 536. Newland on Contracts, 497. An allegation in a bill not denied by the answer, is taken as admitted to be true, especially on motion to dissolve an injunction. 1 How. Rep. 600. 5 Paige Rep. 85. 6 Cranch, 51. 2 Cond. P. Rep. 300.</p> <p>■ The chancellor compelled complainant to seek an entire recission of the contract, as a condition of continuing the injunction. This was asking more of the complainant than he was bound to consent to, as he had a right to a recission of the contract pro tanto at his election, it being a contract capable of division. Decided repeatedly in Kentucky, in reference to sale of lands, where there have been fraudulent misrepresentations. The continuing of an injunction is a question addressed to the discretion of the chancellor, and he is not bound to dissolve, when all the allegations in the bill are denied by the answer. 1 Dev..Equity Rep. 429. 2 J ohns. Chan. Rep. 204.</p> <p>It is no answer to the allegation of fraud, to say that the marriage contract was upon record. 4 How. Rep. 449. Morgan v. Elam, 6 Yerger, 108.</p>

<p>IN ERROR to the circuit court of the county of Wilkinson.</p>

<p>APPEAL from the circuit court, for the county of Yazoo.</p> <p>On the 22d day of February, 1838, the appellees recovered judgment against Camp P. Newell, in the Yazoo circuit court, for the sum of $7885 56, and costs of suit; and execution having issued thereon, the 31st of March, 1838, the sheriff of Yazoo returned that he had levied the same on 12 negroes, naming them, and took a bond for the delivery of them, with Marcus Pierce security. Which bond having been returned forfeited, an execution issued thereon against the principal and surety, which execution was sued out by said M. B. Hamer & Co. by their attorneys, on the 21st day of July, 1838, upon which execution (a fieri facias) the sheriff' of Yazoo made the following return: “Received, July 27th, 1838: held up by order of M. B. Hamer & Co. as per letter filed.” Afterwards, on the 4th day of March, 1839, the said M. B. Hamer & Co. by their attorneys, sued out another writ of fieri facias on the forthcoming bond against the principal and surety, on which execution the sheriff returned, “satisfied out of the proceeds of the property sold at sheriff’s sale, as the property of Marcus Pierce, May 28th, 1839.”</p> <p>The first execution which issued on the forthcoming bond, was returnable the 3d Monday in November, 1838. The second execution, on which the property was sold, was returnable the first Monday in May, 1839. On the 28th day of May, 1839, the appellant, Marcus Pierce, moved the court below to quash the execution on the forthcoming bond, and assigned as the ground of the motion, that the plaintiffs in the execution had by holding up a previous execution in the case, without the knowledge or consent of the appellant, and which had operated to his prejudice, released him from any and all responsibility or liability on said execution; he being merely security on said bond, which motion the court overruled. The appellant then tendered his bill of exceptions to the opinion of the court. The appellant produced on the trial, the motion, and read to the court the letter from said M. B. Hamer & Co., dated November 9th, 1838, directed to the sheriff of Yazoo county, as follows: “P. Buford, Esq., sheriff of Yazoo county, you will please hold the execution in our favor against Camp P. Newell, Esq. until further orders from us, Mr. Newell has agreed to deliver us cotton in payment,” which letter was admitted to apply to the execution in this case, then in the hands of the sheriff. The appellant also produced said first execution upon which the sheriff had made the following return: “Held up by M. B. Hamer & Co. as per letter filed.” The appellant then introduced a witness and offered to prove that at the time the former execution was held up, the said C. P. Newell had in his possession and was the owner of sufficient property to satisfy the same, and out of which money could have been made sufficient to satisfy said execution, and that since said execution was so held up, the said C. P. Newell had become insolvent. But the court refused to hear said evidence. Appeal granted.</p> <p>It is conceded that as long as the creditor is merely passive, all his remedy remains, and that he is not bound in the general, to active diligence, as seems to be established by the cases, (among others,) of English v. Daily, 2 Bos. & Pul. 61; 12 Wheaton’s Rep. McLemore v. Powell, 554.</p> <p>But then on the other hand we contend that the doctrine is equally well established,</p> <p>First, that where the creditor makes a valid and binding contract with the debtor, to give further time of payment, (even for one moment as some of the authorities say,) without the concurrence of the surety, it is a discharge of such surety.</p> <p>Secondly, that the surety will also be discharged, where the creditor does any act which is prejudicial to the rights of the surety, without consulting him, for this operates as a fraud upon the surety.</p> <p>Upon the first point, the law is settled beyond controversy. See 2 Paige Rep. 499, Sailly v. Elmore, 10 John. Rep. 593. 2 Caines’ Cases in Equity, Nesbit v. Smith, page 1. 2 JBrown’s Chancery Cases, 579. 2 Yesey, Junr. 540. 4 Vesey, Junr. 824, 833. 17 John. Rep. King v. Baldwin, at page 389. The enquiry arising on the first point, is, not whether the surety has been injured by the arrangement between the creditor and his principal,^ but simply whether an agreement for indulgence, valid and binding, without his consent, has been made; the law will not permit the enquiry to be made, whether the agreement was beneficial, or prejudicial to his rights, for when the agreement is made without his concurrence, he is ipso facto absolved from his obligation.</p> <p>The question arising upon the second point is of a different character. The enquiry here to be made is, hoio has the creditor acted ? What has he done ? Was that act prejudicial to the rights of the surety ? Did he sustain any injury thereby ? The enquiry is not confined to the mere indulgence, but it is directed to- that active interference on the part of the creditor, which from its very nature may prove highly detrimental to the interests of the surety, and which, if the injury should ensue, is considered in law a fraud on the rights of the surety, and he discharged from his liability, because of that fraud. See 2 Paige’s Reports, 499. 17 John. Rep. King v. Baldwin, at page 389. 10 John. Rep. Rathbone & Rathbone v. Warren, page 587.</p> <p>Before applying the law to the facts of the present case, we deem it important to consider the various legislation of the state of Mississippi in relation to securities; the extent of their liability, immediate, and ulterior, as defined by the statutes; the safeguards against loss and ruin that are thrown around them, the great solicitude evinced by the makers of the law, that all the means of the principal should be exhausted before the surety shall be interrupted. And from the intent and object of the different statutes on this subject, we believe that much slighter acts of the creditor, calculated to defeat the provisions of the law, will release a security, than would have had that effect, had not such enactments been made.</p> <p>The first statute we notice is the act of 1832, Revised Code,page 432, sec. 47, which provides that “ when execution shall issue against any principal and security on any bill, bond, note, or other instrument, the sheriff or other proper officer shall be authorised, and he is hereby directed to levy on the property of the principal first, if he have any property in the county where the security resides; provided, the said security make oath or affirmation before some justice of the peace, that he is security,” &c. &c. In this case the execution which issued on the forthcoming bond, shows upon its face that Marcus Pierce was only the security, hence no affidavit would be necessary.</p> <p>The act approved 13th May, 1837, prohibits the levy of an execution on the property of a security, when the principal has sufficient property in the state to satisfy such execution; and if a plaintiff should violate this law, in a suit against him for trespass, the jury who try the cause are required to award exemplary damages. These statutes show the light in which securities are held by the legislature, and the protection intended to be given them.</p> <p>Now, upon the first point, did the plaintiffs below make an agreement that was valid and binding to give Camp P. Newell, the principal, indulgence ? We contend that they did, and we adduce their letter in proof of the fact: the execution was then in the sheriff’s hands against Camp P. Newell, the principal, and the appellant, his security; it was returnable the 3d Monday in November, 183S. On the 9th of November, 1838, the appellees, the plaintiffs in the execution, wrote to the sheriff directing him to hold up the execution till further orders, saying “Mr. Newell has agreed to deliver us cotton in payment.” Here was a good consideration for the contract of indulgence, an agreement to deliver merchants cotton in payment is a valid agreement. Why not? It was a thing to be done; Mr. Newell was to proceed to make the delivery of the cotton. Suppose while he was in good faith preparing to make the delivery, the plaintiffs in the execution had departed from their agreement and had ordered the sheriff to levy the execution, could not Newell have filed his bill in chancery, enjoined them from proceeding on the execution, and have compelled them to receive the cotton according to agreement. If A. agrees to deliver B. his crop of cotton, or as much cotton at a fixed price, or at the market price, as will come to a certain sum of money, and B. agrees to pay him that sum of money, the agreement, we conceive, would certainly be valid and binding, and either party would be liable to the other for violating it. We can perceive no difference between the supposed case and the real one.</p> <p>It is not like the case would have been, if the letter to the sheriff had merely been to hold up the execution till further orders, or till further orders, as Mr. Newell has agreed to pay us at a particular time, naming it. In that state of case, there would have been no consideration, the plaintiffs would have been getting nothing but what they were entitled to before, and they could have disregarded their promise at any moment. But not so here: they were by the agreement, to get what they otherwise were not entitled to, which was a new and a legal consideration, and one that made the agreement valid and binding.</p> <p>Upon the second point, we contend that the plaintiffs in the execution did, when the execution was in the hands of the sheriff, and in obedience to the commands of the Avrit, and of the statute, was about to be levied on the property of the principal, actively interfere and prevent the levy, and so held up the execution till the return day, and in the mean time the principal had become insolvent. And that in law this Avas a fraud on the surety, Avhich will discharge him from his liability.</p> <p>In the case of Sailly v. Elmore, 2 Paige, 449, the chancellor after stating the general doctrine, that if the creditor makes a valid and binding contract with the principal debtor to give further time of payment without consulting the security, it discharges the security, adds “He will also be discharged by any agreement or dealing between the principal debtor and creditor, which operates as a fraud upon the surety. As if the money had been offered to the creditor at the day it fell due, or afterwards, and he had without the consent of the surety requested the debtor to retain it longer, this would operate as a fraud upon the surety and discharge his liability.”</p> <p>So here the creditor is not merely passive, but Avhen the property is about to be levied on and sold to satisfy the debt, the property of the principal debtor which the statute makes primarily liable, the creditor steps forward, commands that it shall not be done, has the execution held up, and returned without being levied, the principal becomes insolvent, and the creditor immediately has a new execution issued and levied on the property of the surety. Is not this a fraud on the surety?</p> <p>In King v. Baldwin, 17 Johnson, at page 389, Chief Justice Spencer says, “ without referring to any other authority, the case of Rathbone & Rathbone v. Warren, decided in this, court, (10 John. Rep. 587,) with entire unanimity establishes the principle, that if the creditor does an act impairing the rights of the surety, or varies the term of the obligation, or enlarges the time of performance without consulting the security, the latter will be discharged.”</p> <p>The indulgence given by M. B. Hamer & Co. under the circumstances, was a waiver of the lien of his judgment on the property of Newell, and gave both to younger judgments or innocent purchasers a preference over his judgment, by one of which means no doubt the property of Newell was exhausted, although it does not appear by what means, because the judge refused any evidence. This very act, therefore, caused the necessity of looking to the- security for payment. See Peck’s Rep. 36, and 4 East, 522 ; 3 Yerger, 481.</p> <p>That a court of law will give redress in a case where the surety is discharged by the improper acts of the creditor. See 17 John. Rep. 390, 394; Rex v. Barrington, 2 Vesey, Junr. 542; 7 John. Rep. 336, People v. Johnson.</p> <p>The surety in the forthcoming bond stands after forfeiture, as any other surety. See the case of Reid et al. v. Watts et al. 4 J. J. Mar., 440, as bearing in analogy and reason on the present case.</p> <p>1. The defendant, if entitled to any relief at all, is not entitled to it upon a motion to quash an execution, which execution was dead at the time, and the money collected under it.</p> <p>2. The motion to quash by one of several defendants, upon the ground that he was surety, and time had been given, &c. is, to say the least of it, novel, and if sustained, necessarily prevents the plaintiff from recovering from the principal.</p> <p>An execution against two or more is an entire thing; it must conform to the judgment. If the judgment is against two, it must issue against them both. It therefore follows, that, the execution being entire, if quashed as to one, must necessarily be quashed as to both. It could not be quashed as to Pierce, because it must issue in the name of both. This subject is well examined by Judge Tucker, in the second volume of his Commentaries, page' 364, 365, and his conclusion is, that an execution cannot be quashed, on the above grounds.</p> <p>3. The forthcoming bond has the force and effect of a judgment, and at law the suretyship is extinguished, and both are considered as principal debtors. 5 John. Ch. Rep. 305; 3 Wheat. Rep. 520; 15 John. Rep. 433; 5 Wendal, 501.</p> <p>4. When a creditor stays an execution for a definite period of time, it is a fraud as to younger executions, as decided by this court in the case of the Planters’ Bank v. Michie. But this principle only applies as between judgment creditors; not to one of several defendants. But even if the rule was in full force, not only as between judgment creditors, but all the world, it could have no application here, for, as in the case of the Planters’ Bank, there must be some fixed and definite period for the stay. The creditor must stop himself from proceeding. Now in this case there was no agreement to stay. The plaintiff says, «it is stayed until further orders.” He could have issued an execution the next moment.</p> <p>5. It is settled that to discharge a surety, the principal must stay his hand, by contract binding on him, (McLemore v. Powell, 12 Wheaton’s Reports,) and it must be for a fixed and definite period of time. (17 Wend. Rep. 501.)</p> <p>When an elder judgment creditor holds up his execution, it is a fraud on a younger execution creditor; and it will let in the younger execution creditor on this ground, although there is no binding contract. But as to sureties, they must show a binding contract. Here there was no contract, or consideration for the contract. The cotton was not delivered, and the execution might have issued the next moment.</p> <p>This precise point has been decided, and it is held that in such a case as the above, a court of equity will not relieve the party. See 1 Leigh’s Rep. 434, and 4 lb. 622, which are precisely in point.</p>

<p>Verdict and judgment against one of the several joint defendants, who has not been served with process nor entered his appearance, is error for which the judgment will be reversed.</p>

ERROR from the circuit court of Warren county. The defendants, Thatcher and Bodley, were sued as endorsers of a bill of exchange drawn by John F. Broadnax, and protested for non-acceptance, of which they had due notice. Upon the trial a verdict was found for them under the instructions of the court, and plaintiffs have brought the case into this court, by writ of error.

The judgment in this case applies to another suit growing out of the same transaction, the case of Marshall v. Morton et al. Complainant filed his bill in… Held: that if the party be ignorant:i)f his title, his silence under such circumstances, will not compromit his rights. > , Ainslié v. Medlycolt, 9 Vesey, 13, was á bill filed by a husband to have his wife’s portion, part of which was in stock, made up money, on the ground either of express contract, or representation.

<p>The written memorandum of a deceased notary public, stating the time and manner of demand and notice of protest, is admissible in evidence.</p>

IN ERROR from the circuit court of the county of Hinds. The plaintiff in error was indicted for the murder of James M. Farrar, and found guilty of manslaughter, at the November term of said court, 1839.

This was a proceeding to revise a decree of the Orphans’' and County court, on the' ground of mistakes, &c. in the administrator’s account. The case is sufficiently stated in the opinion' of the court. ' Cited 11 State Tr. 268. I Phil. Ev. 222. Ib. 226, 234. Ib. 242-44-45. 1 John. Cases, 436-92. Ambler’s R. 763. Rev. Code, 27, 52, 30, 42. Laws 1824, 107. Rev. Code, 89. 1 S'tar-kie’s Ev. 195.

IN ERROR from the circuit court of the county of Madison. Action'of detinue for a slave by a trustee against his cestui qut trust. Verdict for plaintiff below.

IN ERROR from the circuit court of the county of Adams. Action of covenant in the usual form, on the defendant’s policy of insurance for damages to cotton shipped on board the steamboat Fort Adams, for New Orleans. The policy was a valued one. A trial was had at the July special term of said circuit court, in 1838, and a verdict for ten thousand two hundred and twenty-six dollars.

-This was an action of ejectment, brought by Morgan McAfee, against the appellants, in the circuit court of the county of Washington. The plaintiff claimed title from the United States, under a patent certificate issued to him by the Register of the land office, at Mt. Salus, by virtue of an act of Congress for the relief of Jéfferson College.

<p>Contracts for slaves introduced into tlie state as merchandize, since the adoption of the revised constitution, are void, being against public policy.</p>