Volume 50 — Mississippi Reports

Hon. O. H. Whitfield, Chancellor. The opinion of the court contains a sufficient statement of the case. 1. The court erred in rendering the decree in favor of James D. Tatum for one half of the property belonging to the estate of Harvey W. Allen, as the heir of his wife the widow of Harvey W. Allen, and a devisee under his will, and in decreeing that one half of the proceeds arising from the sale of such property, be paid to Tatum. 2.

' Hon. Geo. E. Brown, Judge. The opinion of the court and brief of counsel contain a sufficient statement of the case. contended (1.) That the limitation of the right of appeal to cases where the amount in controversy exceeds the sum of fifty dollars, affects only such cases as have been carried to the circuit court from j ustices’ courts by appeal, as provided in § 1332 of Code of 1871.

Hon. B. F. Simmons, Chancellor. The facts of the above stated cause are substantially as follows: Elisha M. Watson died in 1852, after having made a last will, leaving considerable real and personal property.

<p>1. Husband and Wife — Purchase of Land — Advancement. —Where the-husband purchases land with his own money, and has the deed made to his wife, if she acquires any right in the land, it is by way of advancement, and this will depend upon the intention of the parties at the time of the transaction. The question of advancement under such circumstance,, though presumed in the first instance, is a question of pure intention, and, therefore, any antecedent or contemporaneous acts or facts may be received, either to rebut or support the presumption; and any acts or facts, so immediately after the purchase, as to be fairly considered a part, of the transaction, may be received for the same purpose; and this presumption is stronger in favor of a wife than a child, for the reason that, she cannot, at law, be trustee of her husband.</p> <p>% Same — Proof of Handwriting. — Experts are allowed to testify whether the signature in dispute is by the same hand as another admitted to be genuine. And while comparison of handwriting by the jury is restricted, in the English practice to writings put into the case for other purposes, it is allowed in the American states to put in the genuine signatures-written before the controversy arose, for the mere purpose of enabling: the jury to judge by comparison.</p> <p>3. Same —Same—Conflict of Testimony. — Where there is a conflict in the evidence in case depending on facts, where no legal question^ are involved, as in the case under consideration, and where the mind cannot repose with entire confidence and certainty upon a conclusion in favor of either party, the action of the court below will not be disturbed.</p>

Hon. W. D. Bradford, Judge. This was a suit by attachment brought by defendant in error against the plaintiff in error in the county court of Chickasaw county, at the March term 1869, thereof. The suit was pending in July, 1870, when the county court was abolished. The case was transferred to a justice’s court at the county seat, which court rendered a judgment for the plaintiff.

Hod. J. E. Simmonds, Chancellor. Edmondson and Wynn filed their bill in the chancery court of De Soto county, alleging that at the August term, 1867, of the circuit court of De Soto county, they obtained a judgment against H. B. Meacham, for the sum of $1,066 and costs, that a ft. fa. was issued upon said judgment, directed to the sheriff of De Soto county, and returned by him nulla bona.

Hon. Orlando Davis, Judge. The opinion of the court contains a sufficient statement of the case. Evidence of provocation in mitigation of damages or in justification of an assault, must show that it was recent, and that sufficient time from the provocation to the assault did not elapse to allow the passions excited thereby to cool. Therefore the evidence of provocation given sometime before the assault was inadmissable and should have been excluded. 2 Greenl.

Hod, E. Gf. Peyton, Jr., Chancellor. The opinion of the court contains a sufficient statement of the facts in the case. It is the settled doctrine in this state, that where an administrator takes a note payable to himself, although it was given for property of his intestate, he may sue in his individual character. The same rule is applicable to guardians. Laugham v. Thompson, 6 S. & M., 259; Eckford v. Hogan, 44 Miss., 898; Trotter v. White, 10 S. & M., 607.

Hon. C. ,C. Shackelford, Judge. The facts in the case are stated in the opinion of the court, and in the argument of counsel. In this case, the simple question involved is, whether the bail bond executed by John Y. Doniphan, as surety for Don Steele, who was indicted for petty larceny in April, 1872, became void by reason of the act of the legislature, entitled “ an act to amend the rules of practice and procedure in criminal cases in this state,” approved April 5, 1872.

Hon. G-. S. McMillan, Chancellor. This is a bill to foreclose a mortgage. The bill alleges that John Nicholson, the husband of complainant, on the 27th of January, 1869, sold and conveyed to Sarah Heiderhoff, wife of F. Heiderhoff, a lot of land in the city of Shieldsborough, for the sum of $1,200, taking therefor their joint-four notes for $300 each, payable at 6, 12, 18 and 24 months from date of deed.

Hon. E. S. Fisher, Judge. The opinion of the court contains a sufficient statement of tbe case. Under section 19 of article YI, of the constitution, which provides that “ the clerk of the chancery court shall be elected by the qualified voters of their several counties,” the authority given by the legislature to the governor to make the appointment to the office is unconstitutional and void.

Hon. Uriah Millsaps, Judge. The opinion of the court contains a sufficient statement of the case. The rule as to the designation of the parties injured is much more rigid and inflexible than that with regard to the name and addition of defendant.

Error, to the Circuit of Noxubee County. Hon. J. A. Orr, Judge. The facts in the case are fully stated, in the opinion of the court and briefs of counsel. The following are assigned for error: 1. Because the jury found contrary to the law and the evidence. 2. Because the court erred in giving the 2d and 8d charges asked for by the state. 3. Because the court erred in giving a qualification to defendant’s charges. 4. Because the court erred in overruling defendant’s charges.

Hon. James M. Ellis, Chancellor. The opinion of the court contains a sufficient statement of the-case. 1. Insisted that the claims of the appellee did not come within the provisions of the act of February 19, 1867, in relation to married women. The act applies only to conversions subsequent to-the passage of the act, and can not affect prior acts of conversion and appropriation by the husband. 1 Black. Com., 46 ; Ledg. Stat.,. 190; Grarrelt v. Beaumont, 24 Miss., 379.

Hon. Austin Pollard, Chancellor. The bill avers substantially that complainant held three promissory notes on Thomas B. Shearer, payable respectively at four, five and six months, for the aggregate sum of $5,361.36; that Thos.

<p>Error to the Chancery Court of Leflore County. Hon. J. J. Hooker, Chancellor.</p> <p>The opinion of the court contains a sufficient statement of the case.</p> <p>1. The court erred in permitting the defendant, Walton, to withdraw his answer filed at a previous term, and interpose a demurrer. The whole proceedings were thus set aside. Amendments of pleadings are liberally allowed when necessary to bring the merits of the cause properly before the court. But this application was not made for that purpose. The demurrer makes a technical objection to the bill, which was waived by the defendant in his answer.</p> <p>2. The court erred in sustaining the demurrer. Kobinson v. Harbour, 42 Miss., 795.</p> <p>1. The settled rule in this state is, in cases like this, that a bill does not lie until after a tender of a deed. 37 Miss., 524; 7 How., 172, 167 ; 10 S. & M. 560; 40 Miss., 477; 28 Miss., 242; 30 ib., 273, 258, 576; 34 ib., 131; 23 ib., 78; 3 How., 398; 13 S. & M., 48.</p>

Hon. W. B. Peyton, Chancellor. ■ This cause was a bill brought by the appellees against the appellant, to enforce a vendor’s lien on lands.

Hon. W. B, Cunningham, Judge. Freeman sued Kellogg and F. ~W. Battaile in the circuit court of Yazoo county, on a draft drawn by Battaile and accepted by Kellogg, April 7, 1871, payable to D. M. Freeman, thirty days-after date, for three hundred dollars. The draft was indorsed by Freeman. The defendants pleaded the general issue.

Hon. Robert Leachman, Judge. This was an action of assumpsit by Shumate against White, before Wilcox, mayor of Meridian, and ex officio justice of the peace. The summons issued on the 20th day of March, 1873, in the usual form — the cause of action is described as defendant’s promissory note due and payable by the 1st of December, 1872, for $131 04-100, dated May 18,1872, with interest from the 13th of January, 1872.

Hon. Thomas Christian, Chancellor. The opinion cf the court contains a sufficient statement of the case. cited the following authorities: Peques v. Mosbey, 7 S, & M., 340; Feemster v. May, 13 ib., 275; Cunningham v. Sharp, 11 Humph, 116. On application of the vendee the contract will be rescinded.

. Hon. E. W. Cabaniss, Chancellor. The facts of the case are sufficiently stated in the opinion of the •court.

Hon-Austin Pollard, Chancellor. The opinion of tbe court contains a statement of the case. 1. The alleged judgments did not bind the property as against* the title conveyed by the deed to Scoggins. At all events the-judgments could only have that effect by Scoggins being made a party as required by the code, p. 828. It is not pretended that-he was so made a party.

Hon. O. C. Shackleford, Judge. The opinion of the court contains a sufficient statement of the ease. 1. The testimony relating to statements made by Wilson implicating Cato Garrard, although such statements were made in his presence, should have been excluded from the jury. Before the statements of codefendants can be given in evidence against each other, there must be a prima facie case established aliunde. Browning v. State, 38 Miss., 47.

<p>Appeal from the Chancery Court of Panola County. Hon. J. 3?. Simmons, Chancellor.</p> <p>The opinion of the court contains a sufficient statement of the •case.</p> <p>contended that the note formed no part of the consideration for the land and was, therefore, not a lien upon it. It is always competent to show the true consideration, and even a different one from that expressed on the face of an instrument. 3 Pars. Cont. {5th ed.), 14. Smith on Contracts (4th ed.), 43. Our statute does not require the consideration to be expressed ; hence it is not a violation of the statute of frauds to show the true consideration. •4 S. & M., 91. 34 Miss., 173. 45 ib., 129. Patterson v. Edwards, 29 Miss., 67. The lien which is the incident of a note given for land grows out of the peculiar relations of vendor and vendee; and there must exist between them the relation of debtor and creditor as to the note. 25 Miss., 88. 44 Miss., 247. Revised Code of 1871, § 1086. The agreement therefore had the •effect to supersede the lien. If the vendor of land, who executes & deed, assigns the note for the purchase money,.it is well settled that no lien passes, and that if a vendor who has only given bond for title, assigns the note, and afterwards makes a deed, the assignee may still proceed against the land, his security being affected by the conveyance. The mere act of conveying to Cummings did not damage or affect Oglesby; his security remained the same. Parker v. Kelly, 10 S. & M., 184. Walker v. Jeffries, 45 Miss., 160.</p>

Hon.. D. P. Coffey, Chancellor. The bill of Hardy M. Griffin, complainant below, shows: That, in the latter part of 1868, he sold and conveyed the following lands to J. W. Hill, to wit.: North half of southwest quarter of section three, township nineteen, range eleven east, together with other lands, for $1,200, the receipt of which sum is acknowledged in the deed of conveyance, but only $400 was paid. Said deed of conveyance was never recorded.

Hon. Robert Leachman, Judge. The plaintiff in error was indicted at the April term, 1869, of court below for an assault upon one Sandy Woods with intent to kill. At the Jollowing October term he was tried and convicted of assault and battery.

Hon. Geo. E. Brown, Judge. On the 20th day of February, 1872, a writ of garnishment was issued by J. Alexander, justice of the peace, on a certain judgment theretofore obtained in his court, wherein Thos. J. Bolton was plaintiff, and John L. Deterly was defendant.

Hon, Samuel Young, Chancellor. The opinion of the court contains a sufficient statement of the case. 1. Horn being tenant, from year to year, of Neal, and failing to pay rent, an attachment lay. Taylor’s Landlord & Tenant, p. 423, § 564. Continued occupancy with consent of the landlord, after one year at fixed rent, fixes the rate for the continued lease. 2.

Hon. O. Davis, Judge. The facts in this case are fully stated in the opinion of the court. It is conceded on all hands that it is the duty of a railroad company to construct its road so as to be safe. The instructions of the defendant below concede this point. We insist that the same duty devolves on the company to keep its road in repair that controls it in its construction. Why not?

Hon. Austin Pollard, Chancellor. The opinion of the court contains a sufficient statement of the case. Contended that section 1148 of the Rev. Code of 1871 is merely cumulative, and does not interfere with other modes of proceeding against the estates of decedents. Independent of this statute, a creditor in behalf of himself and other creditors can file his bill to have the lands sold for the payment of debts.

Hon. J. W. Watts; Judge. The facts of the case are fully stated in the opinion of the ■court. cited 1 Greenleaf on Evidence (12th edition Redfield), §§ 577 to 581, pp. 622-625; 1 Greenleaf Ev., § 52; ib., § 440, note 3 on page 488; Walker v. Com’r Sinking Eund, 1 S. & M., 372. cited Norfleet v. Ligman, 41 Miss., 631; Burns v. Kelly, ib., 339; Baker v. Justice, ib., 241; Lombard v. Martin, 147 ib., 39; Herndon v. Bryant, ib., 836 ; Fairly v. Fairly, 38 ib., 280 ; Wright v.…

<p>Error to the Circuit Court of Alcorn County. Hon. Orlando Davis, Judge.</p> <p>Defendant in error brought suit on the 10th of June, 1872, against plaintiff in error, before K. M. Harrison, justice of the peace in Alcorn county, in an action of unlawful detainer, to recover possession of a house and about forty acres of land (described in the proceedings). On the 14th of June, 1872, and on the day set for the trial, the defendant Moss moved to dismiss the cause, and set up five separate and distinct grounds. The motion, to dismiss was overruled. On the 17th of Juue, 1872, the justice of the peace issued a writ of venire, and impaneled a jury to try the issue, and the jury found for the plaintiff. On the 18th of .June, 1872, the defendant prayed and obtained an appeal to the circuit court.</p> <p>At the October term of the circuit court of Alcorn county, the appellee in that court filed his motion to dismiss the appeal and discharge the supersedeas, both of which motions were sustained, from which judgment of the circuit court, the case is brought here upon a writ of error.</p> <p>The following are assigned for errors :</p> <p>1. The circuit court erred in sustaining the motion to dismiss •defendant’s appeal.</p> <p>2. The circuit court erred in overruling defendant’s motion to •dismiss the suit.</p> <p>8. The circuit court erred in sustaining plaintiff’s motion to vacate and discharge the supersedeas granted by Hon. R B. Boone, one of the circuit judges of the state.</p> <p>4. The magistrate’s court erred in overruling the defendant’s motion to dismiss the suit of the plaintiff.</p>

Hon. E. W. Cabaniss, Chancellor. The facts in the case are substantially stated in the opinion of the court. If it was the intention of O. D. Hamilton to defraud whoever might become the purchaser of the lands under the execution sale in his favor, he thereby forfeited all right to enforce his lien as vendor of these lands as against such purchaser at the execution sale, and all right to the aid of a court of equity for any of the relief prayed for in the original bill.

Hon. W. B. 'Cunningham, Judge. The facts in the case are sufficiently set forth in the opinion of the court. The appeal was not taken in time. The appeal bond does not ■comply with the law literally nor substantially. Rev. Code 1857, p. 353; Rev. Code 1871, § 1594. The special court organized to try unlawful detainer cases cannot entertain a motion for a new trial. The cause was tried by a jury, under the Code of 1857.

Hon. W. B. Cunningham, Judge. The plaintiffs in error brought their action of ejectment against the defendants in the circuit court of Madison county, to the October term, 1872, thereof, to recover a part of lot No. 3, described in the declaration, as twenty-seven feet front on Liberty street, and running back fifty-six feet, on square No. 1, in the town of Canton.

<p>1. Guardian and Ward — Final Settlement — Rate on Interest.— The guardian must account for interest, where he has consented to take the ward’s money as borrower; where he has loaned it out with the sanction of the probate court, or without its permission, or has used it in his own business, or has in any way made profit out of it. Bo, where he has failed to account for the profits and income of the estate, and thereby prevented a profitable investment of such income. Where funds come to the hands of the guardian after the ward had attained her majority, his powers as statutory guardian had ceased, and the principle as to interest would 'not apply. But where the guardian files his final account as guardian, according to the statute, and, in such account, includes the funds so collected, then the rule relative to interest must obtain as to such funds.</p> <p>2. Same — Same.,— JELe cannot be permitted to claim that he can account, on this settlement, for the principal, and settle the interest, if liable, in another form. It was in his hands as a trust fund, and the rule applicable to trustees is, if they neglect for a long time to settle their accounts, or to pay over money when they ought to do so, they are liable for the legal rate of interest.</p>

<p>j. Circuit Court — Jurisdiction — Corporations.— Corporations are artificial persons, existing only in contemplation of law. They must dwell iu the place of their creation, and cannot migrate to another state. But they are liable to be sued like natural persons, in transitory actions, arising ex contractu or ex delicto in any state, where legal service of process can he had. Where the defendants in the court below appeared and pleaded to the action, they cannot object to the jurisdiction, and it is too late after the plea of the general issue, to raise the question of the authority of the court finally to dispose of the case.</p> <p>2. Practice — Pleadings — Notice.—Where an improper notice is attached to a plea of the general issue, the mode of avoiding the special matter proposed to be proved under it is, not by demurrer, but by an objection to the introduction of the testimony. Wren v. Hoffman, 41 Miss., 616.</p> <p>3. Same — Instructions — Rule oe Law. —As corporations can only act in conformity with the law of the state by which they are created, such corporations are responsible as carriers only to the extent, and in conformity to the law of the state, where the contract is made or the duty undertaken, and it will make no difference whether the action is inform ex contractu or ex delicto. This is in conformity to the general rule of law upon the subject of contracts and torts, and where railroad corporations are sued out of the jurisdiction by which they were created, and under whose laws alone they can act, the extent and degree of their responsibility must be determined by the law of the place of the existence and action of such corporation.</p>

Hon. W. D. Bradford, Judge. Taylor brought an action of debt in the circuit court of Chickasaw county against Robert and H. Y. Pulliam, on a… Held: where a party defendant pleads several pleas, to which demurrers are sustained, and afterwards pleads a further plea subject to demurrer, but upon which the plaintiff takes issue, that the judgment of the court, even if erroneous, was not error prejudicial to the defendant. To the same effect is Crane v. French, 38 Miss., 503.

Hon. Uriah Milsaps, Judge. The facts of the case sufficiently appear in the opinion of the court. The error assigned is, that the judgment of the court below, upon the agreed facts, should have been for the defendant. 1. That the act of congress of 28th Sept., 1850, vested in the state title to all the swamp and overflowed land in the state.

<p>1. Practice — Statute oe Limitations. — J. & P. brought an action of assumpsit against D. for $400, attorneys’ fee. D. interposed the statute of limitations. D., with his family, left for Europe in the spring of 1870, and returned in the fall of the same year. Deducting the period of his. absence, and the claim was not barred; otherwise, it was barred. He had left his home and furniture. The plaintiffs testified, that on the return of D., they demanded $250 for their services, for which the suit is brought for $400, These questions were presented for the consideration of the jury: 1. Should the period of D.’s absence be deducted, or could he have been legally served with summons during that period ? 2. Whether, by the demand of $250, J. & P. intended to fix the value of their services at that sum ?</p> <p>2. Same — Instructions. — The court instructed the jury: “ If the jury believe that D. had a home here, with his furniture at such home, but went abroad for his health, and remained in Ireland from April, 1870, until November, 1870, then the jury may find that such absence from Mississippi in Ireland, was an actual residence there for the time above stated; and, if they so find, they are then authorized by the law to deduct said time from the statute of limitations, and find for the1 plaintiffs.’” Held, that this was error. Rev. Code, 1857, 489; art. 64, Rev. Code of 1871, § 701; French v. Davis, 88 Miss., 218-25; Ingersoll v. Morse, 88 ib,, 667.</p>

Hon. ~W. M. Hancock, Judge. . The plaintiff in error was indicted for the murder of one Henry Young. On the first trial was convicted, and a new trial granted. The second trial was had in the October term of the circuit court of Nankin county ; upon this trial prisoner was also convicted and sued out a writ of error to this court. The only point discussed in the opinion of the court was as to the qualification of one Maxey as a juror.

Hon. Austin Pollard, Chancellor. The facts of the case sufficiently appear in the opinion of the court. The only error assigned was decreeing for defendant in error and making the injunction perpetual. That the recent MSS. opinion of Reed, Adm’r, v. Ballentine, et al., Opinion Book “ D,” p. 414, was conclusive in the matter for appellant. 1.

Hon. O. H. Whitfield, Chancellor. The facts in the case fully appear in the opinion of tbe court. 1. The company is not bound by the contract of submission made by Wicks. He acted under an express authority. Such authority does away with all implied authority. This authority is introduced by the appellee. The authority is this: “Eesolved, that tbe president is authorized to receive the hotel at valuation as provided in the contractthis confers no power to make a new contract.

<p>1. Practice — Office Confession of Judgment — Its Effect. — Under tbe statute (Code of 1857, p. 523), an office confession of judgment must be confirmed by the court before it becomes a judgment. When confirmed, tbe lien thereof does not relate back to the time of confession, but only to its confirmation.</p> <p>2. Same — Deeds in Trust — -Registration.—A deed in trust, which was not acknowledged although registered, is no notice to third parties, and. is a nullity as to all tbe benefits conferred by the statute upon a properly registered instrument. Workv. Harper et al., 24 Miss., 517; Tillman v. Cowand, 12 S. & M., 262. But such an instrument is valid as to all parties who have actual notice of its contents. Wailes v. Cooper et al., 24 Miss, 328.</p> <p>3. Partnership and Individual Creditors — Rights Thereof. — The creditors of a partnership have a preference to the exclusion of the creditors of an individual member, tbe rights of the latter extending no further than to the surplus interest of the individual member after tbe joint liabilities have been satisfied. Irby v. Graham, 46 Miss., 425.</p> <p>4. Same — Marshaling Assets — Case in Judgment. — B., tbe judgment creditor, having notice of tbe trust deed of E. & F. and E. & Son; held, , that the conveyance confers a preference to the extent of $5,000 —the sum named in it — to all the property embraced in it, both joint and several. The cotton being the fund first appointed to pay the trust debt, that must first be exhausted, then other joint assets, and, lastly, tbe individual property of E. When the trust creditors have been satisfied out of the joint assets, the judgment creditor has the right to the proceeds of the individual property of E., and also to the surplus interest of E. in both firms.</p>

Hon. Austin Pollard, Chancellor. This was a bill to set aside a fraudulent conveyance by one who was not a debtor at the time of making the conveyance. The party was suing for damages, but had not recovered a judgment when the deed was executed. The errors complained of are: 1. The court erred in rendering a decree setting aside the transfer of the real estate as fraudulent. 2. The court erred in adjudging the complainant a creditor. 3.

Hon. J. M, Smiley, Judge. The facts in this case are sufficiently set forth in the opinion of the court. The question presented by the demurrer is, do the facts admitted by the demurrer, not ODly as to what they prove, but what they tend to prove, also, justify the plaintiff in recovering or not, not the amount of the recovery, but the right to recover under the law ? M. & O. R. R. v. McArthur, 43 Miss., 184. Do the facts show a cause of action?

Hon. E. S. Eisher, Judge. Plaintiff in error recovered, a judgment in the justice’s court against one Thomas Minter, had execution issued and placed in the hands of defendant in error, as sheriff, with directions to le.vy the same on certain personal property in the possession of Minter, which was accordingly done. Doubts arose as to the right of the property, and defendant took an indemnifying bond.

<p>1. Chancery Practice — Cross Bill —Its Functions. — If the defendant, in his answer, relies for any cause, upon the voidness of the instrument relied upon by the complainant for recovery, ho cannot have affirmative relief of cancellation, unless” he makes 'his answer a cross bill. But if it be shown that such instrument, from whatever cause, cannot support a right of recovery, the court should refuse a decree to enforce the instrument and dismiss the bill. The effect of such decree on final hearing is conclusive upon the parties, on all the matters properly put in issue.</p> <p>2.' Promissory Notes — Alterations — Effct Thereof. — Words written on the back of a note are no part of the body thereof ¡jrimafnaie, but are presumed to be done after the note is completed. The test of the materiality ot any indorsement or memorandum on the back or foot of a note is the time and the intent of it. If made before or at the time of the execution, it forms a part of it and may control the obligation in some important particulars. But being disconnected from the body of the instrument to which the maker’s name is signed, it forms no original part of it, until shown to have been upon it when executed.</p> <p>8. Same — Case in Judgment. — S. gave B. two promissory notes for $500 each, secured by an'agricultural mortgage. At the time of the execution, B. indorsed on one of the notes $250 to be paid on the 1st of January, 1872, and $250 to be paid on the 1st of January, 1873. These indorsements were subsequently erased : Held, that the note so erased could not be the foundation of a suit to recover.</p>

Hon. Geo. E. Brown, Judge. The only material facts in the case, and upon which the case was disposed of, are stated in the opinion of the court. filed a very elaborate brief, and argued the ease orally, citing the following authorities : R 0., 1871, §§ 2759-2806; Const. Miss., art. 1, sec. 7; Rev. Code, 1871, § 2631; Cotton v. The State, 2 George, 501; Eev.

Hon. Green C. Chandler, Judge. This is an action of ejectment brought to the November term, 1858. Plea of not guilty filed November 28, 1858. Held: that as the sole object to be guarded against was the influence of the husband, it was sufficient to show a'n examination separate and apart from him.

Hon. C. C. Shackelford, Judge. This was an action of assumpsit brought to recover on a bill of exchange in the following form: $2,255.79. New Orleans, 11th July, 1870. On the 10th day of October next, pay to the order of ourselves twenty-two hundred and fifty-five 79-100 dollars, for amount due Crawford '& Gfaither, value received, and charge to account of Prince & Morrow. By T. L. Morrow. To Hadden, Overton & Bunch, New Orleans, La. Indorsed Prince & Morrow.

<p>1. Practice — Chancery — Answer Must be Sworn to. — In this state an answer to a bill in equity must be sworn to, otherwise it will, upon motion of complainant, be stricken from the files, and if the respondent declines to plead further, the eause may proceed regularly to final decree. This is the established practice in England and America. 1 Daniels Oh. Pr., 749, et seq. and notes. It is also the established practice in this state. Code of 1857, p. 547, art. 55; Rev. Code, 1871, § 1039.</p>

Hon. James M. Ellis, Chancellor. In June, 1868, appellants recovered separate judgments against appellee. On the 27th March, 1871, v&nAitioni exponas was issued upon each of said judgments commanding the sheriff to sell lots one and two, in the town of Port Gibson, the same having previously been levied upon as the property of appellee under writs of fi.fa. The sheriff advertised the lots for sale.

Hon. D. P. Coffey, Chancellor. The facts of the case sufficiently appear in the opinion of the court. The error complained of was the dismissing of the bill. 1. That Stafford, by virtue of his marital relation, was a trustee for the wards of his wife, and that in law he will be held to account as strictly as though he had been the actual guardian. 2.

Hon. W. M. Hancock, Judge. The facts in the case sufficiently appear in the opinion of the-court. The following is assigned for error : 1. The court erred in entering final judgment by default, without a writ of inquiry. 2. The action is under' a statute, and not authorized by the-statute. 3. The statute does not authorize this form of action for failure-to collect taxes. 4.

<p>Appeal from the Chancery Court of Jefferson County. Hon. James M. Ellis, Chancellor.</p> <p>Upon the final settlement of the guardian account of Mary Shaw, as guardian of Yalencia Millsaps, rendered after her marriage with Horace M'llsaps, she was found indebted to her ward in the sum of $2,386.09, for which sum a decree of the probate court of Jefferson county was rendered at the February term, 1869 ; a ven. exponas was issued for the sale of certain lands on the 20 th of August, 1870, and 1,100 acres of land was advertised to be sold on the first Monday of October, 1870. Mary Ann Shaw filed her bill, joined by her husband, Wm. Shaw, for conformity, setting out the above facts, and that the land levied on was to the extent of 860 acres, her land having been purchased by her, in 1868, at a trust sale made by J. J. Warren, as trustee in a deed made by Mary Shaw (the defendant in the judgment oí Yalencia Millsaps) to J. J. Warren^ trustee to secure Wm. Shaw a debt of $9,330. At the sale under this trust deed, Mary Ann Shaw, the appellant, purchased 860 acres of the 1,100 included in the trust deed to Warren, and .Warren conveyed to her. Yalencia Millsaps, her husband and the sheriff, were made defendants, and an injunction asked to restrain the sale of the land as belonging to Mary Ann Shaw, and not the land of Mary Shaw, the defendant in execution. This bill was subsequently amended, stating that Mary Shaw had died, and one William Shaw was her administrator, and also alleging the probate decree against Mary Shaw, in her life time, had never been enrolled, and was no lien upon the land under which they were seeking to sell it, and that no one but the administrator could sell it, if subject to sale at all, without the heirs or administrator of Mary Shaw, deceased, the judgment debtor to Yalencia Millsaps, and the grantor in the deed to J. J. WarreD, trustee, being made parties, either .complainants or defendants in the suit, or making Warren, trustee, a party.</p> <p>Yalencia Millsaps and husband answered this bill of injunction, making their answer a cross bill against Mary Ann Shaw, and charging fraud in the execution of the trust deed of Mary Shaw, deceased, to J. J. Warren, trustee, and also fraud in the sale from Warren to Mary Ann Shaw. To this cross bill appellants filed their answer, denying the fraud, and setting up a demurrer, general and special, for want of proper parties to justify the relief prayed for in the cross bill.</p> <p>The decree declared the deed in trust from Mary Shaw to Warren, as trustee, to secure the debt of William Shaw, to be fraudulent, and to be cancelled, and the injunction to be dissolved From which decree an appeal was taken, and the following errors complained of.</p> <p>1. The court erred in overruling the demurrer of appellants to the cross bill of appellees, for want of the necessary parties thereto, as preventing the court from granting the relief prayed for therein.</p> <p>2. The court erred in rendering a final decree dissolving the injunction and declaring the deed from Mary Shaw to J. J, Warren, trustee, and the deed from Warren to appellant void, for fraud, without the grantor in each deed, and the grantee in the first being parties to the proceeding, and without the administrator and heirs of Mary Shaw, deceased, being parties to said proceeding.</p> <p>1. That the merits of the question as to the deeds could not be properly investigated for want of the proper parties to the cross bill, and from the fact that this issue was presented on a cross bill, the necessary parties could not be made owing to the restrictions thrown around proceedings by cross bill as to new parties, other than those to the original bill. The general rule in equity as to parties is, that all persons who are interested in the object of the bill are necessary parties. Story’s Eq. PL, § 77; Snodgrass v. Andrew et al., 30 Miss., 472 ; Butler v. Spann, 27 ib., 234; Love-joy v. Irelan, 17 Md., 526; Gaylord v. Kelshaw, 1 Wallace, 81; Bump on Fraud. Convey., 522. And as the necessary parties were not and could not, in this proceeding be brought before the court, the demurrer should have benn sustained, and the injunction made perpetual.</p> <p>1. That by the general rules of chancery, a defendant has no right to make new parties to the suit by his cross bill. Ladner y. Ogden, 31 Miss., 332.</p> <p>2. That the court has a right to decree that new parties be introduced as often as it is discovered that they are interested in the suit. Carman v. Watson, 1 How., 333. And such a decree will be presumed correct. Pass v. McRea et al., 36 Miss., 143. That if the complainant desires that certain parties, having interest in the suit be made parties, that desire can be gratified by an amendment to the bill .of complaint. If necessary parties, the original bill ought to have made them parties. This is a prerogative which complainants can always resort to, and so protect themselves should it in any case become necessary to introduce 'new parties for their protection.</p> <p>3. If there is any error in the decree, it is not an error of which the appellants can complain, or one that can do them any harm or injury. Those in interest, who were not parties to the suit, do not have their rights affected by the deeree.</p>

Hon. J. A. Orr, Judge. P. H. Pepper. & Co., recovered a judgment against Joseph Jacobson, execution was levied on personal property claimed by C. Jacobson, wife of defendant, who gave bond and took possession of the property. Issue was presented, the right of the property tried and judgment for claimant. In the time of the levy, the sheriff had taken a bond to indemnify, with J. N. Miller as surety.

Hon. A. Pollard, Chancellor. This was a bill filed in the chancery court of Chickasaw county, at the December term, 1873, by the creditors of J. Y. Thompson, deceased, in the nature of a bill of review, setting up the insolvency of the estate, and that the only property remaining was the real estate, set aside as exempt, and that the same was not at the time it was set aside, and has not been since, occupied by the minor heirs to whom it was set aside in 1870 as a homestead,…

Hon. B. B. Boone, Judge. The facts of the case sufficiently appear in the opinion of the court. The errors complained of are: 1. In permitting the execution read to the jury. 2. In giving the second charge asked for by defendant. 3. In overruling plaintiffs motion for a new trial. 1.

<p>Appeal from the Chancery Court of Tallahatchie County. Hon. B. F. Simmons, Chancellor.</p> <p>The predecessor of appellant filed bis bill alleging that on the 1st of February, 1867, Jane F. Davis borrowed from the board of trustees of the 16th section, etc., $667.64, money belonging to said section. That at the same time she executed to the president of the board and his successors in office, her note under seal for said sum, payable on the 1st of January, 1868, with interest at 10 per cent, per annum; that the note expressed upon its face that it was given for the purchase money of certain land; that at the same time said Jane F. executed to said president a deed which purports upon its face to be an absolute conveyance in fee simple with warranty of title; that the deed was in fact intended as a mortgage to secure the payment of the note under seal; that said Dote and deed came to the hands of the board of school directors as successors of the board of trustees; that said Avery was superintendent, etc.; that only a part of said note was paid, and that balance remains due and unpaid; that said Jane F. was sued ou the note, judgment obtained, execution issued and returned no property found; that Jane F. is totally insolvent, etc. ; that before said judgment was obtained, said Jane F., in consideration of a debt she owed appellee, B. F. Priddy, executed to said Priddy a warranty deed to said land ; that although, the deed to said president was never recorded, the said Priddy, before.and at the time of the said conveyance to him by the said Jane F., well knew that said mortgage had been executed to said president, and that the said debt the said mortgage was made to secure, had never been paid ; that said deed from said Jane F., to said Priddy was made to defeat said mortgage. The bill prays for summons for a sale of the land and for general relief.</p> <p>To the bill a demurrer was filed, assigning the following causes of demurrer:</p> <p>1. That complainant does not showequitable title to the instruments filed with the bill in exhibits A. and B.</p> <p>2. That complainant does not show that he is entitled to maintain his bill because the contract between defendant, Jane F., and the board of trustees, was not authorized by law, and therefore void.</p> <p>3. Substantially the same as 2d and 4th. That the facts alleged in the bill do not operate as notice to defendant, Priddy, of the existence of the mortgage executed by said Jane F. Davi3 to said president.</p> <p>Upon the hearing this demurrer was sustained, and appellant declining to amend on permission of the court to amend, the bill was dismissed, from which decree an appeal was taken to this court, and the following assigned as error:</p> <p>1. The court below erred in sustaining the demurrer of appellees and in dismissing the bill.</p> <p>1. That although the statute did not, in terms, authorize the taking of a mortgage to secure a loan of school funds, yet it did not render void a mortgage so taken. Lindsey et al v. Marshall, 12 S. & M., 587; Hutch. Code, p. 218, sec. 4; Angelí & Ames on Corp., §§ 253, 254,263; Haynes v. Covington et al., 13 S. & M., 408.</p> <p>2. That the loaning of the fund upon other security than that allowed by the statute, was a misapplication of the fund for which the trustees would be personally liable, and for which they might have been deprived of their franchises, but did not vitiate the mortgage taken for the loan'.</p> <p>3. That the board of school trustees were not necessary parties to the bill for foreclosure because the title to the property was taken in their fiduciary capacity as manifested by the terms of the deed.</p> <p>The writings show a sale by Mrs. Davis to Eoan, supt., and the purchase money paid by him to her, and her bond to him reciting a verbal sale by him to her for the amount of that bond; he retained the title.. The bill charges that the whole arrangement was security for a debt:</p> <p>1. The security must be enforced according to the writings; they are the exponents of the agreement. These make Eoan a vendor, Mrs. Davis vendee, by verbal agreement, Mrs. Davis’ bond only showing the terms of the parol agreement, Eoan holding the the legal title. The remedy must be according to the written terms in Mrs. Davis’ bond.</p> <p>2. Upon such security, Eoan’s remedy, as vendor, was by bill for specific performance of the executory agreement shown by Mrs. Davis’ bond. Upon that remedy, he must have tendered a title, so that when she paid her money she would get title, the whole agreement would thereby have been executed, not one side of it only. 4 S. & M., 294; 6 J. C. E., 409 ; 2 S. & M., 590.</p> <p>3. The foregoing principles are specially applicable to this case, because Eoan holds the title and is not a party to the suit, the complainant cannot make title, and Mrs. Davis has no writing from Eoan, and against him, is without remedy.</p> <p>4. Complainant must, by his bill, show readiness and ability to have the contract executed by giving Mrs. Davis title before he can compel defendants to pay the money; if complainant thinks this can be done, it is for him to make the necessary parties with proper allegations, so that when the court requires defendant to pay tbe money, it shall also decree conveyance of title to them in due and proper manner. 9 S. & M., 244; 7 S. & M., 268; 2 Wheat. B, 336 ; 12 Vesey, Jr., 425 ; 33 Miss., 269.</p> <p>5. The court, by its decree sustaining the demurrer, gave complainant leave to amend his bill, which complainant refused to do, and thereupon the bill was dismissed. If the demurrer was properly sustained, the court, on complainant’s refusal to amend, could not do otherwise than dismiss the bill.</p>

Hon. E. Hill, Chancellor. Appellees filed their bill in the chancery court of Warren county, February 28, 1871, alleging, substantially, that they are the owners, and have occupied certain lands in said county since 1887, and have bad the continuous and uninterrupted possession oí-the right of way over a small tract of land lying contiguous thereto, now owned by the defendant, N. B. Lanier, that the land they now own was owned by one Nathan White in 1810, next by Edward…

Hon. Uriah Millsaps, Judge, presiding. This was a suit brought by plaintiffs in error against defendant in error, before a justice of the peace. Defendant filed a setoff larger than plaintiffs’ demand, and obtained judgment for the excess. An appeal was taken to the circuit court, by Brooks, who made the affidavit and executed the required bond, but the signature of the affiant did not appear on the affidavit for appeal.

Hon. B. B. Boone, Judge. Scruggs, Donegan, & Co. brought suit, by attachment, against Thomas Irion and W. M. Irion, for $52,370.78, in the circuit court of Tishemingo county, on the 12th day of March, 1861, alleging, as a ground for the issuance of the attachment, that the debtors bad assigned and disposed of their property, or were about to do so, with intent to defraud their creditors, or give an unfair preference to some of them.

Hon. J. A. Orr, Judge. The facts of this case are very fully set out in the opinion of the court. The only question involved in this case is, did the agreement-between the parties, accompanied by the voluntary surrender of the office in January, 1874, operate as an abandonment thereof, and estop the plaintiff in error from asserting bis rights as the lawful clerk of Winston county ?

). Hon. Geo. E. Brown, Judge. .Plaintiff in error brought his suit against the defendants in error, to the December term, 1865, of the circuit court of Hinds county, in trespass to recover the value of seven barrels of whisky destroyed by the defendants. Defendants pleaded the general issue at the return term, and filed a notice of certain proof which they could offer under the general issue at the trial term.

Hon. E. Stafford, Chancellor. The record shows that on the 22d of October, 1872, the board of levee commissioners of the counties of Bolivar, Washington and Issaquena filed their bill in chancery court of Bolivar county, against “ All persons having or claiming any interest, either legal or equitable, in and to the lands herein described,” as defendants, without naming any individual.

Hon. E. S. Eisher, Judge. The facts of the case sufficiently appear in the opinion of the court. The following errors are assigned: 1. The court below erred in. rendering judgment against the sureties on the replevin bond, because no property had, in point? of fact, been attached, as is shown by the -sheriff’s return on the writ of attachment. 2.

<p>1. Criminal Law — Party may be Convicted oe an Inferior Constituent Offense. — Tbe Kev. Code of 1871, § 2809, provides that a defendant in a criminal prosecution may be convicted of any offense necessarily included in tlie offense charged in the indictment; held, that under an indictment for an assault with intent to kill and murder, the accused may be convicted of a common assault.</p> <p>2. Same — Unnecessary Descriptive Words in a Verdict will not Vitiate it— Case in Judgment. — The accused was indicted for an assault with intent to kill and murder, the jury found the accused not guilty as charged in the indictment, but guilty of “ assault in an attempt . to commit manslaughter:” held, that the verdict is good as a finding as to tlie “.assault,” leaving off, as surplusage, the descriptive words “in an attempt to commit manslaughter,” hence the finding, under the law, was for a misdemeanor only, and accused should have been so punished.</p>

Hon, Robert Leachman, Judge. This was an appeal from a justice’s court to the circuit court of Lauderdale county, and there tried at the May term 1872, of said court.

Hon. Geo. E. Brown, Judge. The facts of the case are sufficiently set out in the opinion of the court. The following are the assignments of error, to wit: 1. In overruling claimant’s objection to, and admitting in evidence, the copy of the collector’s permit. 2. In refusing claimant’s second instruction. 3. In granting plaintiff’s instruction, the fifth in the record. 4. In overruling claimant’s motion for a new trial. 5.

Hon. O. H. Whitfield, Chancellor. Appellant as executrix of N. B. Jones, deceased, filed ber petition, making Asa B. Daniel, Mary Daniel, and others, beirs of her testator, defendants thereto, asking for a sale of real estate under the provisions of her testator’s will. She renounced her right to sell, and all joined in asking that E. H. Bristow be appointed commissioner to sell the land. The sale was made. W. de B. Hooper, appellee, became the purchaser.

<p>1. Superintendent of Education — Term of Office. — The constitution, art. 8, sec. 5, limits the terms of office of county superintendents to two years, and makes no provisions for their holding over until their successors are appointed and qualified. It was, therefore, ultra vires of the legislature to increase or extend their term of office beyond the constitutional limitation.</p> <p>2. Same — Qualification—Act of April 17, 1878.— Sec. 27 of the act of April 17, 1873, requiring an applicant, before he can be appointed county superintendent of education, to submit with his application a certificate from the board of examiners, setting forth his educational qualifications, habits and moral character, and executive ability, is constitutional, and an appointment made by the state board of education without such cer. tificates is invalid.</p>

Hon. Orlando Davis, Judge. ’Plaintiff’s declaration in the court below alleged that defendants’ intestate, in his life time, sold to plaintiff’s testator a tract of land, executing a deed thereto, with covenants of warranty. That under said deed the testator took possession.

Hon. Samuel Young, Chancellor. R J. Edmonds, being indebted to the township school fund, in 1859, and having mortgaged his land to secure the debt, and desiring to free his land from this mortgage, induced his sister, E. N. MeDuff, and her husband, R. F. MeDuff, to assume his debt and mortgage the lands in controversy to secure it. This bill was filed to foreclose this mortgage. The decree was for the sale of the land embraced in the mortgage by a commissioner.

' Hon. E. Gr. Peyton, Chancellor. The facts in this case will be found sufficiently stated in the opinion of the court. “Taking property in payment of a pre-existing debt does not make the buyer a purchaser for valuable consideration, in the eye of the law, as against one holding a prior equity.” S. & M. Miss. Oh.

<p>1. Practice — Process — Officers — Power of Court over Them. — The general rule is, that it is inherent power in a court to control its process and officers. When justice demands, it may quash the process or set aside a sale for fraud, made by its officer under a legal process. Nilson v. Brown, 23 Mo., 19. But this power is limited to the return term of the writ. After that the remedy is in equity.</p> <p>2. Same — Same—Proper Grounds for Court of Law to Set Aside a Sale.— Any irregularity of the officer making the sale, or of the plaintiff, or of either party, whereby competition was prevented at the sale, or gross inadequacy of price in connection with other circumstances, will be grounds for setting aside the sale. Borer on Jud. Sales, § 855.</p> <p>3. Same — Same — How Sales Set Aside by a Court of Law.— The party injured can have relief by a summary application to the court under whose authority the officer acts, or through the medium of a court of equity. A motion, to the court from which the process issued, to quash the execution and set aside the sale to the plaintiff, will be sustained in proper cases. Upon the hearing of such motions the court can admit evidence, or if demanded, a jury trial may he had; if not the party will be considered as having waived it.</p>

Hon. W. D. Prazee, Chancellor. Complainant filed his bill in the chancery court of Chickasaw county, seeking to vacate and set aside a conveyance of land, alleged to have been fraudulently made. To which bill a demurrer was interposed, and the court overruled the demurrer, and the defendants bring the case to this court by appeal, and assign for error the overruling of the demurrer.

Hon. E. S. Eisher, Judge. The facts of the case sufficiently appear in the opinion of the court.

Hon. B. B. Boone, Judge. The facts of the case sufficiently appear in the opinion of the court. 1.

<p>Error to the Circuit Court of Colfax County. Hon.. J. A. Orr, Judge.</p> <p>This was an action of trespass on tbe ease, brought by defendant in error, in the circuit court of Colfax county, against the Mobile and Ohio railroad company for $500 damages, for the alleged killing of one horse, the property of the said defendant in error.</p> <p>The plaintiff, in tbe court below, introduced bis testimony, to which defendant demurred, and the court overruled the demurrer to the testimony, and entered a judgment against the defendants for $220, and costs, from which judgment the ease comes to this court on writ of error.</p> <p>The following is assigned for error:</p> <p>1. The court erred in overruling tbe demurrer to tbe evidence, and in giving judgment for tbe plaintiff.</p> <p>2. The court erred in rendering judgment for plaintiff without 'submitting the case to a jury to assess tbe plaintiff’s damages on a writ of inquiry.</p> <p>The burden of proof is on the plaintiff to show negligence or misconduct; it will not be presumed. N. 0., J. & G. N. R R Co. v. Enochs, 42 Miss., 603; M. C. R R. Co. v. Blakeney, 43 ib., 218; Raiford v. M. C. R R Co., 43 ib., 233; M. C. R. R Co. v. Miller, 40 ib., 45. The killing is not prima facie evidence of negligence. Terry v. N. Y. C. R. R. Co., 22 Barb., 574; Herring v. Wil. & Ral. R R Co., 10 Iredell, 402; 13 111., 548; 17 111., 580 ; 35 Maine, 422; 4 Rich. R, 329 ; Pierce on Am. R R. Law, 357; 1 Hilliard on Torts, §§ 125, 126. The demurrer admits everything the evidence proves and everything it tends to prove. 43 Miss., 233; 1 Johns., 29.</p> <p>1. It is well settled that a demurrer to evidence admits the truth of all that the evidence proves or tends to prove, and admits the force of such inferences as the jury might reasonably draw, from the testimony. Phil, on Ev., 1 vol. (2 Am. Ed.), p. 313; Chewning et al. v. Gatewood, 5 How., 552; M. & O. R R Co. v. McArthur, 43 Miss., 180.</p> <p>2. The second ground of demurrer is, rendering judgment without a writ of inquiry.</p> <p>This question arose in the case of M. & O. R. R. Co. v. McArthur, 43 Miss., 180. In that case there seemed to be no proof of the extent of injury, and the court held that a writ of inquiry should have been awarded. In this case, there was proof of the value of the horse, aod that is admitted by the demurrer.</p>

Hon. Thomas Christian, Chancellor. The facts in this case are stated sufficiently full in the opinion of the court.

Hon. James M_ Smiley, Judge. Defendant in error sued plaintiffs in error before a justice of tbe peace, for $125. The jury found a verdict for the “ full amount claimed and the costs of suit.” After the jury had returned their verdict and were discharged, they were recalled by the justice, and added to their verdict the following words: “ The amount claimed being $125,” and judgment was entered accordingly. Prom this judgment plaintiffs in error appealed to the circuit court.

). Hon. George E. Brown, Judge. Plaintiff in error was indicted by the grand jury for the 2d district of Hinds county, at the January term, 1873, of the circuit court of said county, for the murder of Thos. Boatman.

Hon. C.. C. Shackleford, Judge. The facts in this case appear sufficiently in the opinion of the court. It was error to quash the certiorari, and the circuit court bad no-jurisdiction of the case. There was no final judgment in the justice’s court, the case was still in his court undetermined, and the circuit court could not oust the justice of his jurisdiction. See Rev. Code, 1871, § 1336.

Hon. Geo. E. Brown, Judge. Plaintiff in error brought suit in the circuit court of Warren county at the June term, 1869, thereof, to recover one thousand dollars, the value of six thousand brick, alleged to have been taken and used by the defendant. The case was tried at the December term, 1872, and resulted in a judgment in favor of defendants, and the case comes to this court on writ of error. The following is assigned for error, to wit: 1.

Hon. E. S. Eisher, Judge. This was an information in the nature of quo warranto, filed by M. O. Brady, district attorney, against William W. Howe, to inquire by what authority he holds and uses the… Held: he did not know but what his resignation had been tendered to and accepted by the governor. His letter of resignation was not returned to him until after Campbell had held the court at Panola. Campbell had held the various courts, up to the filing of the information.

Hon. L. C. Abbott, Chancellor. The material facts in this case are stated in the opinion of the court. The evidence sustains the bill. The debt existed, the judgment had been obtained on it. The conveyance was without consideration. The debtor divested herself of all visible property. The execution had been regularly issued and returned nulla bona. A voluntary conveyance is not good as to creditors, whatever be the actual intent.

Hon. B. B. Boone, Judge. The material facts in this case appear in the opinion of the-court. It is assigned for error: 1. The court below erred in refusing the 1st, 2d, 3d, 4th, oth- and 6th charges asked by plaintiff. 2. In overruling plaintiff’s motion for a new trial. 3. In rendering judgment for defendant (also defendant in error), under the state of pleadings.

Hon. J. A. Orr, Judge. The facts in this case are fully set out in the opinion of the court. The mayor and selectmen of the city of West Point collected large sums of money from licenses to retail vinous and spirituous liquors, and used the same for ordinary city purposes. They should have paid this money over to the state treasurer as a permanent school fund. Const., art. 8, see. 6.

Hon. E. S. Fisher, Judge. The facts of this case fully appear in the opinion of the court.. It is assigned for error: 1. In giving the instructions asked for by plaintiff. 2. Held: that this lien shall not bind any interest in the land not in the employer. 2.

On March 5, 1867, a judgment was recovered by Bandal Palmer against B. Jones, Wm. Persons and S. R. Spight, for $274.30 in the circuit court of Tippah county. On the 8th day of July, 1874, at the instance of John D. Palmer, administrator of Randal Palmer, a suit of scire facias was issued against the judgment debtors for the revival of the judgment, and for the purpose of obtaining a writ of execution.

Hon. George E. Brown, Judge. Tbe facts qf case appear sufficiently in tbe opinion of the court. I. That the circuit court erred in overruling the demurer to the 2d count of the declaration.

Hon. Geo. F. Brown, Judge. The facts of the case sufficiently appear in the opinion of the court. Reporters find no brief on file on either side.

Hon. B. B. Boone, Judge. This was a suit against Byrne and the sureties on his official bond, dated November 18, 1871, to recover the amount of taxes collected by him as sheriff for Prentiss county, for the fiscal year 1878. The defendants filed two pleas: 1. Nil debit. 2. The sureties plead that they were sureties and Byrne was ■ principal.

Hon. E. G. Peyton, Jr., Chancellor. The pleadings sufficiently appear in the opinion of the court. 1. That the demurrer should have been sustained, as there is no jurisdiction in a court of equity to grant a separate maintenance to the wife, independent of a proceeding for divorce. Ball v. Montgomery, 2 Yesey, Jr., 195 ; Duncan v. Duncan, 19 Yesey, Jr., 396; 2 Story’s Eq. Jur., §§ 1422, 1423, 1424, 1472. The same principle has been recognized in this state.

<p>Appeal from the Chancery Court of Yazoo County. Hon. J. J. Hooker, Chancellor.</p> <p>The bill of appellee was filed in the chancery court of Yazoo county to enjoin appellants from setting up as a defense or plea a homestead exemption, to an action of ejectment brought against them by appellee, in the circuit court of Yazoo county. The bill alleges that Stewart, the appellee, recovered a judgment against William B. and Sarah D.' Partee, in the circuit court of Yazoo county, upon which execution issued and levied by the sketiff on three plantations, called No Mistake, Tyrone and Lake Dick. The No Mistake and Tyrone were sold together, and bought in by James D. Partee, the son of Wm. B. and Sarah D. Partee, for about five hundred and fifty dollars. Dpon these places, there was an incumbrance of about eight thousand dollars. Appellee bought the Lake Dick plantation for about fifty-six hundred dollars. The bill alleges that by claiming a homestead on No Mistake, bidders were prevented from running it up to its full value. The appellee alleges that after they had, by their fraudulent representations and practices, obtained said lands, then the said W. B. and Sarah D. Partee fraudulently set up a claim of homestead in the Lake Dick place; that the appellee would not have purchased said place at the price which he gave. All the facts, except as to fraud and the claim of homestead in No Mistake, are admitted.</p> <p>1. Appellant’s counsel reviewed the testimony, and argued that it was conclusively proved that the appellants were entitled to their homestead exemption. That they had lived on the Lake Dick place continuously, except when temporarily absent, since 1852, and the question was one of occup'ancy or residence,, coupled with the intention to make the place occupied or used as a residence the family homestead.</p> <p>2. That the other property was heavily incumbered, and that the Partees would more likely take their homestead in unincumbered than in incumbered property.</p> <p>3. Reviewed the testimony as to what transpired on the day of the sale by the sheriff. Witness Barkley swears that the sheriff announced that the homestead was in the other land, and not in Lake Dick. In this he is contradicted by positive testimony, and in addition to this, his credibility is quite successfully attacked.</p> <p>4. But suppose what Barkley says is true, how can that affect Mrs. Partee ? W. B. and Jas. D. Partee had no authority to represent'her (she was not at the sale), and she could not have invested them with such authority. A married woman cannot alienate her lands under our laws, except in a, certain manner -T that is, by joint deed of herself and husband, properly executed and acknowledged. The code of 1857, p. 314, provides that no-married woman shall lose her land by the default of her husband. In Treadwell v. Herndon, 41 Miss., 38, it was held that the husband' could not accept or waive service of process for his wife. How then can he act for her in the selection of her homestead ?</p> <p>5. But it is insisted by adverse counsel that the exemption laws do not apply to married women. The exemption laws tolerate no such construction. The act of 1857, which was merely amended by the act of 1865, gives exemption rights to “ every citizen of this state, male or female, having a family.” The code of 1871 employs the same language. The palpable object of these exemption statutes was to provide “reasonable comfort” for the family. It was the family, the great unit of our Anglo Saxon civilization, that was to be protected and shielded from want and suffering. That this was the policy intended to be subserved by our legislature is clearly seen by reference to the case of Mosely v. Anderson in 41 Miss. Exemption laws, like all other statutes, should be construed so as to effectuate the intention of the lawmaking power in enacting them. If the husband owns the homestead it is exempt; if the wife owns it, why should it be taken for debt, and she and her helpless children reduced to beggary and indigence ? See the case of Trotter v. Dobbs, 38 Miss., 198.</p> <p>6. The charge of fraud is expressly denied and is not sustained.</p>

Hon. C. C. Shackelford, Judge. The facts sufficiently appear in the opinion of the court. It is error to give instructions which are not called for by the evidence, because they tend to mislead the jury ; creating in their minds the idea that in the opinion of the court there is such evidence. It is an assumption that such evidence is before them.

Hon. P. P. Bailey, Chancellor. This bill was exhibited by citizens and tax-payers to restrain the issuance and delivery of bonds of Carroll county, to the amount of $125,000, as a subscription to the capital stock of the Greenville, Columbus & Birmingham Railroad Company, and the levy and collection of taxes for the payment of said bonds.

Hon. T. C. Lyon, Chancellor. This was a bill in equity filed by the appellee as a judgment action of H. L. Halfacre, deceased, and for such… Held: that such additional matters of jurisdiction conferred by statute, on the court, before the adoption of this constitution and practiced at the time of its adoption, as subjects of equity jurisdiction, will be taken to be embraced in the general terms of the new constitution, and to become matters of equity jurisdiction within the…

<p>Appeal from the Chancery Court of the First District of Hinds County. Hon. E. W. Cabaniss, Chancellor.</p> <p>This was a bill filed by Stewart and McOutchen against William E. Eoss, Joshua and Thomas Green, D. N. Barrows and Geo. A. Smythe; and also against W. B. Eoss, Marion S. Eoss and James B. Eoss, minors, children of W. E. Eoss and Marion SEoss, deceased.</p> <p>Stewart owned an interest in a judgment for $6,369, rendered in the circuit court of Hinds, on the 21st day of November,. 1867, against W. E. Eoss; and McCutchen owns a judgment rendered in said court on the 20th day of May, 1868, against said W. E. Eoss for $731.40, both judgments having been duly enrolled.</p> <p>1st. The object of the bill was to subject to these judgments in-the order íd which they are named, an insurance fund in the hands of Barrows and Smytbe and J. & T. Green, arising from a loss under a policy of insurance covering the dwelling house on the land in controversy.</p> <p>2d. And also to have certain deeds cancelled, by which the title to the land in controversev was placed in the hands of Mrs. Marion S. Eoss, deceased, upon the ground that their conveyances were made to hinder, delay or defraud the creditors of W. E. Eoss, and particularly in fraud of the rights of the complainants.</p> <p>3d. And in the alternative, the bill prayed, in the event that the land was decreed to belong legally and properly to Mrs. Eoss, deceased ; then, that the life estate of W. E. Eoss in this land, as tenant by the curtesy, be decreed to be sold for the payment of the judgments; and that the will of Mrs. Eoss, by which she devised the land to her children, and by which she provided (as contended by respondents) that her husband should not have any estate by the curtesy, or which, in effect, was intended to defeat this estate, should be pronounced void as to the complainants’ ¡rights. * * *</p> <p>The two grounds first stated were abandoned by the complainants.</p> <p>This leaves but one question in the cause for adjudication, viz.: whether the will of the wife divested the husband of his estate by the curtesy as against the judgment creditors of the latter.</p> <p>1. That the estate of Eoss in the land, as tenant by the curtesy, was not divested as against his creditors by the last will of his deceased wife. At common law, upon the birth of issue, the husband became tenant by the curtesy initiate, and, upon the happening of this event, the estate assumed the status of property, and became a vested estate in land.' At the death of the wife, the estate became consummate.</p> <p>2. That the curtesy estate was essentially distinct from the life estate of the husband during the marriage; that is, the right of the husband to the income of the wife’s lands. This estate depended upon two conditions — a valid marriage and the seizin of the wife; the death of the wife ended this estate. Bishop on Mar. Worn., § 529. When all the conditions exist upon which curtesy depends, then this estate is, upon the death of the wife, a continuation of the estate which terminated by the death of the wife. 2 Kent, 130 ; 1 Atk., 609; 1 Bish. Mar. Worn., 473.</p> <p>3. That curtesy initiate is a vested estate, and is regarded in law as property, as a legal estate, and can be taken, under execution in attachment, for the husband’s debts. It is different from dower, in this, that while dower is a mere right in action which may be waived or enforced at the wife’s pleasure, and is not, before assignment, strictly speaking an estate in land, curtesy, on the other hand, is an exact and definite one, covering the whole land, and no assignment is necessary. Bishop, § 511. This estate, by the curtesy, is a freehold in remainder for life, dependent on his survivorship, with remainder in fee to the heirs of the wife, and this estate in him is “ land,” and liable to respond to his debts by execution or attachment. Day v. Cochran, 2 Cush., 274; Lessee of Jas. Oanby v. Porter, 12 Ohio, 80; Lancaster Co. Bank v. Stauffer, 10 Penn., 398; Mattocks v. Stearns’et ux, 9 Yer., 326 ; 2 Washburn’s Real Property, p. 167, § 50; 1 Bishop on Mar. Worn., § 511.</p> <p>And it may be sold by the husband during the life of the wife. Griffin v. Sheffield, 38 Miss., 359 ; 16 Mass., 189 ; 3 Dallas, 488.</p> <p>And the estate cannot be prevented from vesting by the disclaimer of the' husband. Watson v. Watson, 13 Conn., 85; 2 Wash. Real Property, p. 167, § 50.</p> <p>4. By the code of 1857.(art. 24, p. 336), the income arising from the real estate is taken from the husband and given to the wife. But this does not in any manner affect his estate as tenant by the curtesy. Pora marriage settlement might have secured this income to her separate use, and still the husband would have been entitled to his life estate at her death by the curtesy. But art. 28, p. 337, saves to the husband his right of curtesy to the “extent allowed by law; ” that is to the extent allowed at common law. And art. 29 restricts this estate to one-third of the land if the wife leaves surviving her a child or children of a former marriage or descendants of them. The marital right of the husband to the income of the wife’s realty during their joint lives is taken away ; and where the wife leaves a child or children of a former marriage, the curtesy is restricted to one-third of the wife’s land.</p> <p>The rights of the husband are no further affected or changed, and to'show that the right to curtesy was not intended to be taken away, art. 28 expressly provides, that “ nothing herein contained shall deprive the husband of his right to curtesy.”</p> <p>Thus, under the statute, nothing would defeat the curtesy, that would not have defeated it at common law. And under the statute his right to the estate depended upon the same condition as at common law, viz: marriage; seizin of wife; birth of issue and and survivorship. The power of alienation given to the wife by art. 4, p. 307, and the form of acknowledgment required by art. 33, p. 313, Code, 1857, cannot affect the right of curtesy except by the husband’s consent, for the lands can only be conveyed by the joint deed of the husband and wife ; that is, by his concurrence in the conveyance. These clauses of the statute in no way impaired or changed his right to curtesy as it existed at common law, for at common law he had the right to convey the estate by his own deed; and by the statute his concurrence in the wife’s deed would have the same effect, viz: to pass the title to his estate by the curtesy.</p> <p>The power given by the statute (art. 26), to the wife, of charging her separate estate, cannot affect the husband’s curtesy in this case, for the wife died seized and possessed of the land.</p> <p>5. In Evan v. Freeman, 36 Miss., 177, it was said that the statute act 1846 contemplated all the conditions upon which the curtesy ■depended at common law. And. in Malone v. McLaurin, 40 Miss., p. 163, it was held under the law of 1857, the four common law conditions are stated, and the court, as to the seizin of the wife, the estate was made to turn entirely upon the question, THERE WAS A SEIZIN DURING COVERTURE.</p> <p>Thus treating the estate as at common law, and also in Bedus v. Hayden, seizin during coverture, was made the test. 43 Miss., 635. Thus stood the law in 1857, and under this law upon the birth of issue, the estate vested; and it then became a freehold in remainder for life, dependent upon survivorship with remainder in fee to the heiis of the wife. It was a legal vested estate possessing all the elements of property, and certainly, except where there were children of the wife by a former marriage, as at common law.</p> <p>This estate could be taken on execution, and was subject to the husband’s debts.</p> <p>6. The act of 1867 provides that a married woman may, without the consent of her husband, dispose of her separate estate by last will and testament. This act in so far as it affects the rights of the husband must be strictly construed. His rights will not be construed away by implication. Upon strict construction of this statute, his estate by the curtesy is not affected. The statute would be construed to mean, she could make the devise subject to his estate by the curtesy. But there are other views that are decisive of the proposition that his rights are not affected. This act is in terms an amendment of the prior statutes respecting the same subject matter, and it must, on a familiar principle of construction, be construed, pari passu, with the statute of 1857. In other words, it must be regarded as if it had been in terms contained in the statute o/1857. It does not purport to be, nor is it a repeal of any prior statute, or of any clause in the prior statute, but it is an admendment of the existing statute in reference to the separate property of married women. It must therefore be so taken and construed as if it was embodied in the statute of 1857, this would leave in force the express saving clause in favor of the husband’s estate by the curtesy, and this clause would be considered in conjunction with the amendatory act. It must be considered that the legislature in making the amendment did so in reference to, and subject to this express proviso or reservation as to the husband’s estate. But I submit that the sound rule of construction is to consider together all the various statutes in reference to this subject, in order to see intelligently what changes were designed to be made. When the various statutes were consolidated in the Code of 1871, both the statute of 1867 and the proviso in the law of 1857, were brought forward and reenacted. Sec, 1785, Code 1871, gives the wife the power to make a will, and sec. 1786 expressly provides that nothing contained in the statute should deprive the husband of his right of curtesy to the extent allowed by law. This is a legislative construction of the two former statutes. Properly construed, there was nothing inconsistent between the law of 1857 and the amendment of 1867, and in proof of this, the two provisions are incorporated side by side in the Code of 1871. This general rule of construction was followed in Apple v.-Ganoug, 47 Miss., 199.</p> <p>It is clear that the devisees of Mrs. Boss, deceased, took the fee simple in the lands subject to the life estate by the curtesy of the husband. It is certain that the disclaimer of the husband could not prevent this estate vesting in him. Watson v. Watson, 18 Conn., 85; 2 Wash. Real Prop., 167, § 50. His conveyance of this estate, or formal release after the estate had become consummate by the death of the wife, would not have been good against the liens of judgment creditors.</p> <p>1. That the curtesy of the husband at common law was essentially different from what it is under our statute. By the common law the husband is jointly seized with the wife, and has a freehold estate. 1 Wash, on Real Estate, p. 140, sec. 47; pp. 141, 276, sec. 2. By the statute it remains hers as fully as if she were unmarried. Code of 1857, p. 335, art. 23. By the common law curtesy before the wife’s death as well as after her death, is liable for the husband’s debts. 1 Wash, on Eeal Estate, p. 141, sec. 51, By the statute her land shall not be subject or liable for his debts or incumbered by lien. Code of 1857, p. 335, art. 23. By the common law the husband during the wife’s life, may sell his estate by curtesy, and deliver possession of the property to his vendee. 1 Wash, on E. E.,p. 137, sec. 31. By the statute he can neither sell, convey, mortgage, or in any manner incumber the property without the wife’s consent. Code 1857, art. 23. By the common law the husband alone is entitled to the rents and profits during coverture, and if rents are due when the husband dies, they go to his administrator and not to the wife. 1 Wash, on E. E., p. 276, sec. 2. By the statute they enure to the wife as her separate property, and are not liable for the husband’s debts, and if he buys property with them in his own ñamé, he holds it as trustee for the wife. Code of 1857, p. 36, sec. 24 The common law gave everything to the husband but the fee. The statute reserves the use and fee to the wife. The reserved curtesy is personal to the husband for the benefit of himself and children, and beyond the use of it for himself and children the husband has no more power over the estate than he had before the death of the wife.</p> <p>2. That curtesy at common law was an estate of inheritance and not by purchase. “ It is part of the inheritance and is not by purchase ; a part of the wife’s estate continuing the inheritance to the children through the father as an intermediate for the family benefits. Hence the common law necessity for thehusbsnd and wife’s joint seizin during coverture, for without which he could not enter under her estate.” 1 Wash, on Eeal Estate, 140, sec. 44, p. 14Lr sec. 50; 2 Crab on Eeal Property, 119; 2 S. & M., ch. 249; 1 Eoper on H. & W., 35; 2 Atk., 247; 1 Wash on E. E , p. 159, secs. 23 and 30, p. 501, sec. 61; 13 Conn., 33 ; 3 Atk., 697. The rule as to what constitutes seizin has been relaxed. 9 B. Monroe, 39; 13 ib.3 467; 15 ib., 591; ib., (Ky.), 000; 3 Hill, 186; 5 ■Case, p. 98 (N. Y.); 23 Mo., 115; 25 ib., 349; 40 Miss., 163. These authorities decide that curtesy is inheritance and not purchase, and hence it follows that curtesy like any other inheritance can and will be defeated by a valid will, or the valid exercise of auy other power to dispose of property. 1 Wash, on R. E., p. 128; sec. 2, p. 152, secs. 9 and 10, etc. ; 1 Pr. Williams, 109; 5 Modd. R, 410; 7 Rb. Island, 383; 24 Barb., 581 (N. Y.); 9 Barb. (N. Y.), 360; 28 Barb. R., pp. 343, 378.</p> <p>3. That the wife has the power to dispose of her separate property. The act of 1867, p. 725, declares “that a married woman may, without the consent of her husband, dispose of her separate ■estate by last will and testament.”</p> <p>4. That Ross, as executor, under the will of his wife, being in possession of the property, and conducting it for the purposes of the will and as executor, and in his name, as executor, having insured the dwelling house thereon for the benefit of the estate, the policy of insurance can not be subjected to the payment of Ross’ debts as husband.</p> <p>The question presented for decision, arises under the woman’s law of the Code of 1857, as amended by the act of 1867. The property of Mrs. Ross was acquired and her will was made under this amendment.</p> <p>The Code act declared that nothing therein should “deprive the husband of his right of curtesy to the extent allowed by la w;” but it expressly limited this right to lands of which the wife ■should “die seized or possessed.” It gave to the wife the exclusive possession and use of her estate during the coverture, and left the interest of the husband contingent upon his survivorship and her dying seized. It seems a misnomer to call such a dependent interest, which can be a mere possibility during the coverture, a “ right of curtesy.” Doubtless the word “curtesy” was retained to indicate that this new right of the husband was further dependent, like the old right of curtesy, on the birth of issue capable of inheriting.</p> <p>The Code of 1857 not only gave to the wife the exclusive possession and usufruct, but it also enabled her to enter into a class •of contracts without consent of her husband and without limit of amount, and these might be enforced by legal process, and her whole estate might be sold to pay them; and thus this alleged “ vested estate ” of the husband might be sold away, under process upon the separate contracts of the wife. It is impossible to imagine a thing more unlike the old common law curtesy interest of the husband, than is this contingent privilege of survivorship secured to him by the Code of 1857.</p> <p>But by that Code the wife could not directly convey her lands except by joint deed of herself and husband. To this extent, he might protect his contingent right of survivorship by refusing to join her in a conveyance of her estate; but the act of 1867 enlarged her power of disposal, and gave her the right to “dispose -of her separate estate by last will and testament, without the consent of her husband.” These last words clearly indicate that in thus devising her estate, the wife is to act asa feme sole; and they further show the intent to subject to such will of the wife, any contingent interest the husband may have in her estate.</p> <p>Under a similar statute of New York, pamphlet acts, 1849, p. •528, it was held that the power given to the wife to convey or devise her separate estate would, if exerted as allowed 'by the statute, •exclude all claim of the husband. Eansom v. Nichols, 22 N. Y., 111-12; Hurd v. Cass, 9 Barb., 368-70; Sleight v. Eead, 18 Barb., 164. The court likened it to the case of a trust estate held for the use of the wife, with a power in her to dispose of the same by her appointment. If she makes no appointment, the surviving husband takes his curtesy; but if she exercises the power, he is excluded. Clark v. Clark, 24 Barb., 582.</p> <p>It has been urged that under the Code of 1857, the husband had, during the marriage, a vested interest — a right of property to be enjoyed in future, and contingent only upon his survivor-ship. If this was true, the law of this case would still be with the appellees, for the act of 1867 interposes another contingency ; the wife must not only die seized, but she must also die intestate as to the estate, or the husband is excluded. But under that code, the husband could have no such vested estate during the coverture. If such an interest existed then, like all such vested rights, it might be conveyed by the husband, and it might be subjected to pay his debts; but the Code of 1857 expressly forbade this; p. 335, §23. As we have shown, this so-called “vested right” of the husband might also be divested upon the simple contracts of the wife. The law knows of no such mode of divesting a vested estate by the act of a third party. The fact that, in the matter of her separate estate, the wife might so contract against the will of her husband, as to cause the entire destruction of her estate, gave significance to the provision which restricted the claim of the husband to cases where the wife should “ die seized or possessed.”</p> <p>By the common law, the husband, immediately upon the marriage, had a joint seizin with the wife of all lands of which she was seized in fee, and he was entitled to the rents and profits during the marriage, but this right was so far inchoate, before birth of issue capable to inherit, that it washable to be defeated by her act forfeiting the inheritance, such as treason. 1 "Washb. Real Prop., 312-13 (276); Pender v. Dicken, 27 Miss., 255.</p> <p>The interest of the husband as tenant by the curtesy initiate in the lands of his wife, was “a freehold estate,” and might be sold under execution. Day v. Cochran, 24 Miss., 273-4. But all this was changed by the Code of 1857, whereby the interest of the husband, like the dower interest of the wife, became contingent— dependent both upon survivorship and the dying seized, by the husband or wife, as the case might be.</p> <p>Being thus contingent, and not vested, a change in the law during the coverture would defeat the claim of husband as well as wife. Magee v. Young, 40 Miss., 164.</p> <p>Under the New York law before referred to, the wife had, during the coverture, both the exclusive possession and the separate ■usufruct of her estate, and therefore it was held to be legally impossible for the husband to acquire an estate by curtesy in it. The logic of the decision is conclusive against any like pretense in this case. Billings v. Baker, 28 Barb., 347-50 ; ib., 365-70.</p> <p>There being nothing “ vested ” in the husband during coverture, it is vain to talk about “carving ” an imaginary estate, as was attempted in Knott v. Lyon.</p> <p>It is vain to urge that the act of 1867 does not extend to the contingent claim of the husband. It empowers the wife to “dispose of her separate estate ” — meaning the whole estate. The Code of 1857 employs the words, “ separate property,” “ separate estate,” interchangeably to describe the whole estate of the wife, p. 335-36, §§ 23-4-5.</p> <p>It is also vain to insist that the claim of the husband attached upon the estate at the instant the wife died, and that therefore her will is inoperative. That sort of logic, if allowed, would defeat all devisees.</p>

Hon. C. C. Shackeuford, Judge. Erwin, the plaintiff in error, was a garnishee, against whom a judgment by default was rendered for $475, at the November term, 1872, of the Washington county circuit court, in a suit by attachment, wherein John Heath was plaintiff and E. P. Tyree was defendant. Heath sued out an attachment against Tyree to tbe July term, 1871, of said court, on the ground that Tyree had removed himself out of the state.

Hon. George F. Brown, Judge. The pleadings sufficiently appear in the opinion of the court. That the act of April 21st, 1873, which abolished the office of state engineer, was void and of no effect, because it was approved by the executive after the adjournment of the legislature.