Volume 51 — Mississippi Reports

Hon. E. G. Peyton, Jr., Chancellor. The facts in this case are fully stated in the opinion of the court. The dismissing of the complainant’s bill is assigned for error. filed an elaborate brief, insisting that the guardian is not estopped, by his annual accounts, from enforcing his lien against the defendant in the court below, and cited the following authorities, to wit: Baines v. McGee, 1 S. & M., 208 ; Lambeth v. Elder, 44 Miss., 80; How. & Hut.

<p>Hawkeks and Peddlers : See. 1735, et seq., Code of 1871.</p> <p>The license tax imposed by tbis and the following sections is a personal privilege, conferring authority upon the individual actually selling the goods. It is the occupation that is taxed and not the goods, and it is incumbent upon him who engages in the business, whether he be agent or owner to take out the license. The statute contemplates in its policy both the raising of a revenue and protection to resident traders.</p>

Hon. E. G. Peyton, Jr., Chancellor. Mary Garland filed her bill against her husband, W. H. Garland, and charges that she is the owner in her own right of certain real estate and personal property; that she is a housekeeper; describes the estate, real and personal, which yields no revenue; that she has no means to be used in the support of herself and daughters; that a sale of a portion of her property is absolutely necessary; that at this time, and sometime previous, the…

Hon J. M. Smiley, Judge. All the important facts in this case will be found in the opinion of the court. It is assigned for error that the court refused to grant a new trial.

Hon. H. O. Davis, Judge. Defendant in error brought suit in the justice’s court against plaintiff in error as tax collector of Carroll county to recover $73.37, the amount of taxes by him illegally paid. The justice gave judgment for plaintiff in his court, and the defendant took an appeal to the circuit court, where a trial was had, with a like result, and the case comes to this court on writ of error.

Hon. Geo. F. Brown, Judge. Defendant in error presented his petition to the circuit court of Warren county, representing that on the 16th day of March, 1875, he was duly appointed city judge of the city of Yicksburg by the governer, and that he soon thereafter qualified himself as such. That one Bichard O’Leary now usurps the said office, and excludes petitioner. The petition closes with the usual prayer in quo warranto. Bespondent demurred upon these grounds: 1.

Hon. Dallas Coffey, Chancellor. This was a bill filed by appellants against appellee for a partnership account between them in relation to their firm, in the livery stable business. The appellants, now regarded jointly as one member of the partnership, the appellee as the other, each being interested one-half. The bill states a dissolution of the partnership on the 16th of April, 1872, and a partial settlement.

Hon. J. M. Smiley, Judge. All the material facts in this case are stated in the opinion of the court, together with the assignments of error. The plea is predicated on the Code of 1871, §§ 844, 845, and neither requires the bond to be “filed” with the attachment papers.

Hon. B. B. Boone, Judge. The facts in this ease are very fully stated in the opinion of the court. The only question considered by the court being, whether it had jurisdiction of such cases. It is unnecessary to enumerate the various assignment of errors. 1. The writ of habeas corpus does not show that it was issued by the officer appointed by the fiat of the judge to issue it. 2.

Hon. W. D. Bradford, Judge. One Rawls recovered judgment, Nov. 2, 1866, against W. B_ Bucbannan, as maker, and C. C. Dibrell, as indorser. A.'H. Taylor recovered judgment November 8, 1868, against said Bucbannan and E. M. James. Dibrell paid off tbe judgment against Bucbannan and bimself, October 21,1867, and made affidavit that be was indorser on tbe note, tbe foundation of tbe suit, and bad paid tbe judgment in full.

Hon. J. A. Orr, Judge. Defendant in error brought suit in the circuit court of Lowndes county, against the plaintiff in error, in assumpsit, for $600.

Hon. Uriah Millsaps, Judge. Defendants in error filed their declaration in the circuit court, demanding judgment for the amount of pauper tax levied and collected by the county for the year 1869. A detailed account of the taxes paid was filed as an exhibit, showing the amount claimed to be $689.91.

Hon. J. F. Simons, Chancellor. Appellant’s bill alleged that he, as the administrator of Martin, paid off a judgment held by Trahorn of $1,674.80. That Allen & Co. afterwards recovered a judgment against him as administrator ; that, acting upon the belief that there were sufficient assets to pay both judgments, and that there were no other debts, paid with his own money, on compromise, about one-half of the' Trahorn judgment in full discharge thereof.

<p>1. Liability of a railroad for obstructing water course, and overflowing lands.</p> <p>Where a railroad company, by filling up a trestle under their road, and by malting ditches, cattle guards and culverts too small to carry off the water, overflows adjoining lands, and the owner of such lands sustains damages by reason thereof, the railroad company is liable to the owner of the lands for the amount of the damages actually sustained.</p> <p>2. S^me : Verdict for excessive damages. Buie on the subject.</p> <p>In actions sounding in damages, where the law furnishes no rule of measurement, save the discretion of the jury upon the evidence before them, courts will not disturb a verdict upon the ground of excessive damages, unless it be so flagrantly improper as to evince passion, prejudice, partiality or corruption. Upon a mere matter of damages, where different minds might, and probably would, arrive at different results, and nothing inconsistent with an honest exercise of j udgment appears, the verdict should be left as the jury found it.</p>

Hon. Gr. C. Chandler, Judge. The district attorney filed his declaration in Marion county circuit court against J. W. Fortenberry, tax collector of said county, and eighteen others, sureties on his official bond as such, alleging a defalcation, suing for the use of said Marion county, and demanding $1,880.55, with interest, damages, etc. To this declaration, B. Taylor, one of the sureties (and the only party who defended in the court below) filed a demurrer substantially as…

Hon. J. F. Simmons, Chancellor. The facts in this case are very fully stated in the opinion of the court. It is assigned for error that the court granted the relief prayed for in the bill of complainant, and in refusing the relief prayed for in defendant’s cross bill, and in dismissing the cross bill.

Hon. J. A. Orr, Judge. The facts of this case are very fully stated in the opinion of the court. The following errors are assigned, to wit: 1. The court erred in giving precedence to the judgment of Lampkin & Conner over the judgment of Curry. 2. The court erred in giving precedence to the judgment of David Pressly, county superintendent, over the judgment of Curry. 3. The court erred in instructing the sheriff to apply the funds in his hands: 1.

Hon. W. D. Erazee, Chancellor. The bill charges that complainants, Dibrell and Klaws, are creditors of intestate. David Ansley had probated their respective claims. The estate was insolvent.

Hon. J. A. Orr, Judge. The facts in this case are very brief and fully stated in the opinion of the court. It is assigned for error: 1. The court erred in not sustaining the motion made by defendant in the court below to dismiss this case for want of jurisdiction in the justice of the peace. 2. The court erred in rendering judgment for plaintiff in the court below. 8.

Hon. J. M. Smiley, Judge. This was an action of trespass by Green against Storm & Co., for the wrongful taking of three bales of cotton valued at $175, the damages claimed is $2,000. The jury rendered a verdict for $1,500. On motion for a new trial, plaintiff entered a remittitur of $1,058, when the court overruled the motion for a new trial, and let the judgment stand at $442.

Hon. Geo. E. Brown, Judge. ' These were three mandamus suits (submitted together) to enforce the payment of interest upon municipal bonds issued by the city of Vicksburg. One hundred thousand dollars were issued as a loan to the Vicksburg and Pensacola Railroad, by virtue of the law and an election authorized by it. Five hundred thousand dollars were issued under the charter acts of the city, and are known as the “improvement” bonds.

<p>Error to the Circuit Court of Washington County.</p> <p>Hon. C. O. Shackelford, Judge.</p> <p>The facts in this case are very fully stated, and instructions examined in the opinion of the court.</p> <p>The following are the assignments of error, to wit:</p> <p>The court erred in admitting the deposition of Z. C. Offutt.</p> <p>The court erred in allowing so much of said deposition as speaks of the declaration of McFarland, and the acts of McFarland, to go to the jury.</p> <p>The court erred in allowing each one of the exhibits to said deposition to go to the jury.</p> <p>The court erred in refusing each one of the instructions asked by plaintiffs, and also erred in modifying the same.</p> <p>The court erred in granting the instructions asked by defendants.</p> <p>The court erred in refusing plaintiff’s motion for new trial.</p> <p>The rule of this court in such cases where more than one trial is had is, that on a complicated state of facts, a second verdict is entitled to great weight and should stand, unless manifestly against the law. Stamps v. Bush, 7 How., 255. The statute is express that no more than two new trials shall be granted to either party in the same cause. Bev. Code 1857, p. 505, art. 165 ; id. 1871, § 647. And it has been held that the court has no jurisdiction to hear a motion for a third new trial, but it is restricted to setting aside the verdict for error of law, committed by the court during the trial. Bay v. McCary, 26 Miss., 404. The only exception taken was to the ruling of the court upon the motion for a new trial, and we therefore insist that the instructions of the court cannot now be inquired into. Special bills of exception could and should have been taken to them, to warrant this court in reviewing them under the peculiar circumstances of the. case. Bay v. McCary, supra; Thornton v. West Feliciana B. E. Co., 29 Miss., 143. The mere consent of court to the setting aside of the second verdict cannot affect the plain provision of the statute. The verdict was set aside by the court, undoubtedly at the instance of plaintiff and by consent of the defendant, for the plaintiff was suing for $3,600, and had the right to that or nothing upon the whole theory of the case. In any event, the second verdict for the defendant must stand, unless manifestly against the law.</p>

<p>Error to tbe Circuit Court of Alcorn County.</p> <p>Hon. B. B. Boone, Judge.</p> <p>Tbe facts in this case are sufficiently stated in the opinion of the court.</p>

Hon. Uriah Millsaps, Judge. This was an action of assumpsit brought by plaintiffs in error against the defendant to recover the sum of $350, attorney’s fee. The declaration contained four counts: the first being upon a special contract; the second indebitatus assumpsit; the third upon a quantum meruit; and the fourth, a count for money had and received. The testimony then being introduced, the cause went to the jury, who gave a verdict for the defendant.

Hon. A. Alderson, Judge. The facts in this case are sufficiently stated in the opinion of the court. The following is assigned for error, to-wit: 1. The court below erred in permitting the defendant in error to introduce in evidence the transcript from the chancery court of Adams county, in a cause entitled J. S. B. Thatcher v. W. H. Dunbar and wife. 2.

<p>Appeal from the Chancery Court of Panola County.</p> <p>Hon. J. F. Simmons, Chancellor.</p> <p>The administratrix of Charles H. Johnson, deceased, in 1863, sold the personal property belonging to said estate. In 1864, she presented her first annual account to the probate court of Panola county, which was approved by the court, showing a balance in her hands of $1,735.02.</p> <p>In 1871, she preseflted her final account and claimed that the balance due, as reported by her, in her annual account, was in •confederate money, and that the same ought not to be a charge against her, and claimed credit for the amount so held in worthless funds. Exceptions were filed. The chancellor overruled the exceptions, and permitted the administratrix to prove that the said sum was received and held by her in confederate money, and decreed that she was not liable for the same, and the case comes to this court upon appeal. The action of the chancellor in rendering the decree is assigned for error.</p> <p>The annual account of a guardian is conclusive as to assets in his hands of whatever character. If in money, it will be presumed to be lawful money. McEarlane v. Eandle, 41 Miss., 411; Bailey v. Dilworth, 10 S. & M., 404; Coffin v. Bramlitt, 42 Miss., 194. Parol evidence will not be admitted. Adams v. Westbrook, 41 Miss., 385. The administratrix, the widow of deceased, claims $500 balance for money received by her husband from her, as an item in her account. He received $1,999 of her, bought a share for her at $1,499, which was emancipated. 'She cannot now amend and claim the $1,999. She is estopped. Josl'in v. Caughlin, 4 Cushm., 134; Bohannon v. Fulton, 31 Miss., 348; Martin v. Tarver, 43 id., 517.</p> <p>The claim is barred except the $500, which was probated. Pickett v. Ford, 4 How., 246; Branch Bank of Alabama v. Rhew, 8 George, 110; Miller v. Jefferson College, 5 S. & M., 651; Helm v. Smith, 2 id., 403 ; Perry v. West, 40 Miss., 233 ; Brown v. Hill, 4 Cushm., 643.</p> <p>There are two things complained of:</p> <p>I. The administratrix was permitted to show that the sum reported was in confederate money.</p> <p>2. She had credited herself with $500, and on final account claims $1,999.</p> <p>The statute of limitations did not run against this claim. 1 Cushm., 88 ; 2 George, 426 ; 5 id.,- 322 ; 44 Miss., 229.</p> <p>It is not barred when the administrator knew of its existence. Perry v. West, 40 Miss., 233; Sims v. Sims, 1 George, 333. See George Dig., p. 297, § 277.</p> <p>It was not error to permit proof that the sum was in confederate money. McFarlane v. Randle, 41 Miss., 411 ; Bailey v. Dilworth, 10 S. & M., 404; Coffin v. Bramlitt,-42 Miss., 194.</p> <p>These cases relied on, are different from the case at bar. Appellee kept the identical money on hand, and brought it into court, and she ought not to be compelled to account for it in good money. The case is within the rule in Coffin v. Bramlitt, as laid down by Peyton, C. J., and to the same effect is the act of 1865, p. 143. In Williams v. Campbell, 46 Miss., 57, the court held Williams liable for the value of the money at the time he received it, but he had been guilty of a breach of his trust. In the case at bar, she was not bound to pay her own claim with the confederate money, because others would not take it.</p>

Hon. Edwin Hill, Chancellor. On December 29, 1866, Samuel Marly, one of the defendants below, and father of Annie Marly Cowen, wife of the appellant, Warren Cowen, made a contract with Warren Cowen, by which he executed his note for $18,000, payable five years after date to Mrs. Cowen. In consideration of this, Cowen obligated himself to erect immediately, on a lot belonging to Marly in Vicksburg, a brick storehouse, to be worth at least $6,000 or $7,000.

Hon. Samuel Young, Chancellor. Complainants filed their bill to remove a cloud from their title to the land in controversy, and to have the legal title divested out of defendants and vested in complainants. The litigation arises from what is admitted to be a void- sale of the land in controversy, under a decree in the probate court, in January, 1853.

Hon. E. Stafford, Chancellor. The facts in this case, necessary to a full understanding of the principles announced, are set out in the opinion of the court. The statutes do not apply where the separate estate is held under a deed of settlement. Doty v. Mitchell, 9 S. & M., 435; Andrews v. Jones, 32 Miss., 274; Montgomery v. Bank, 10 S. & M., 566 ; Bank of Louisiana v. Williams, 46 Miss., 631.

<p>Municipal Corporations: Liability for the unauthorized acts of its officers or agents.</p> <p>A municipal corporation cannot be made liable for the illegal acts of its officers or agents, unless those acts are done under its authority previously conferred, or are subsequently ratified. As a general rule a corporation is not responsible for the unlawful acts of its officers or agents, though done colore officii. To make them liable it must appear that they were expressly authorized to do the acts by the corporate authorities, or that they were done bona fide, in pursuance of a general authority to act for the corporation on the subject to which they relate; or that in either case the act was adopted or ratified by the corporation.</p>

Hon. O. H. Whitfield, Chancellor. The facts in this case are very fully set forth in the opinion of the court. It is assigned for error, that “ the court erred in sustaining the demurrer of defendant to complainants bill of complaint.” The description of the land is sufficient. Nixon’s Heirs v. Carco’s Heirs, 28 Miss., 426; 1 Story Eq., §§ 168, 169. Parol evidence is admissible.

Hon. O. H. Whitfield, Chancellor. Complainant filed his bill in the chancery court, March 26, 1874, against defendant, McWilliams, county treasurer, to enjoin the foreclosure of a mortgage executed by Phillips to secure the payment of a note. The note recites that it was given for money borrowed of the “ school fund.” The mortgage recites the same fact.

Hon. W. D. Bradford, Judge. The facts of the case sufficiently appear in the opinion of the court. It is assigned for error that the court below refused to allow defendants to withdraw their rejoinder to plaintiff’s replication, and to file a demurrer to the said replication, to test its sufficiency in law, the defendant being a married woman. It will be admitted that the statute of limitations does not run against a feme covert.

Hon. B. B. Boone, Judge. This was an action brought by plaintiff in error against defendant in error in the justice’s court, on a receipt given for a note for $48.20. Plaintiff recovered a judgment for $49.30 and costs. Defendant in error appealed to the circuit court of Monroe county and there recovered a judgment for his costs, and the case comes to this court on writ of error.

Hon. Orlando Davis, Judge. This is an action of ejectment by the widow and heirs of R. J. Moore, deceased, to recover lands in the possession of defendants and claimed by them under sheriff’s sale. J. S. Jones was the administrator in De Soto county of R. J. Moore, deceased. He filed his final account, showing a balance due him of $954.53 ; of this amount $840 was commissions, $100 confederate money, and $15.70 court costs.

Hon. W. H. Frazee, Chancellor. The facts in this case, necessary to a full understanding of the case, are set out in the opinion of the court. The following is assigned for error: 1. The court erred in overruling the exceptions of K. S. Moffatt, creditor, etc., to the report of Allen White, commissioner, etc. 2. The court erred in confirming the report of Allen White, commissioner, and discharging J. A Loughridge, administrator of the estate of H. Kunath, deceased.

Hon. W. D. Frazee, Chancellor. The bill charges that the complainant, Ann A. Gladney, is the only child of Absalom Barton, deceased, J. B. Gladney is her husband, and Martha Barton is her mother. That Absalom Barton died intestate, leaving property, real and personal; that letters of administration were granted to Martha Barton; that the personalty is sufficient to pay the debts; that Wm.

<p>Error to the Circuit Court of Montgomery County.</p> <p>Hon. Orlando Davis, Judge.</p> <p>The facts in this case, as well as the instructions given and refused, are very fully stated in the opinion of the court.</p> <p>The case hinges entirely on the correctness of the instructions to the jury. 49 N. Y., 616; Redf. on Car., §§ 182-3, 189 note; 24 N. Y., 269 ; 34 111., 389 ; 43 N. Y., 514. The contract was in writing, and must be construed by its face. See .¿Etna Ins. Co. v. Wheeler, 49 id., 616. A railway carrier may lawfully make a contract to carry goods beyond the line of their own road. Redf. on Car., § 183; Burtis v. B. & S. L. R. R. Co., 24 N. Y., 269; Vansantwood v. St. John, 6 Hill, 158 ; Camden & Amboy R. R. Co. v. Forsyth, 61 Penn. St., 81; Central Railways. Johnson, 34111., 389 ; Eedf. on Car., 155, note 16. These authorities announce the doctrine which the court refused to charge. 49 N. Y., 616; 45 id., 524.</p> <p>The plaintiff, by the charges asked, proceeded on the idea that the whole contract was in the writing, and that its construction was for the court, and that defendant, as carrier, was bound to deliver the goods at Birmingham, Ala. The contract was to forward, not to carry. There is a well defined and marked distinction between the words. If the carrier had made arrangement with other carriers, by which they became partners in the transportation of goods over both lines, he would be liable to the end of the line. If the carrier receive freight for the whole line, this is evidence of a contract to carry to the end of the line. We think plaintiff’s charges were properly refused. Defendant’s charge was correct. Defendant was only bound as forwarder from its terminus. The court is referred to 2 Eedf. on Eail., 112; Gray v. Jackson, 51N. H., 9 ; 12 Am. Eep., 1.</p>

Hon.- James M. Ellis, Chancellor. This was a bill filed in the chancery court of Jefferson county, by appellees against appellants, to enforce the vendor’s lien of T. E. Orr, the wife of W. J. Orr, against land purchased from her by Kate Doyle, also a married woman, to whom the title had been conveyed by T. E. Orr and her husband W. J. Orr, to get satisfaction of the purchase money to the amount of five hundred dollars remaining due and unpaid at the date of the bill…

Hon. Orlando Davis, Judge. Defendant in error brought suit in Benton county circuit court against plaintiffs in error, to recover damages, alleged to have resulted to bis lands in consequence of tbe obstruction of tbe water and tbe overflow of bis farm.

Hon. O. H. Whitfield, Chancellor. The facts in the case are very fully stated in the opinion of the court. The following is assigned for error: That the court erred in sustaining the motion to dissolve the injunction.

<p>Error to the Circuit Court of Colfax County.</p> <p>Hon. J. A. Orr, Judge.</p> <p>Plaintiff in error, Robert Bell, brought suit before A. H. Taylor, a justice of the peace, against the city of West Point, defendant in error, on a demand for damages, and filed the following bill of particulars, to-wit:</p> <p>“The City of West Point to Robert Bell, Dr. 1875. March 1. To amount of damages to horse, caused by the negligence and failure of the city to keep in repair a certain bridge on Main street within the corporation, whereby plaintiff’s horse was injured and afterwards died, $150.”</p> <p>By leave of the court an amended bill of particulars was filed, which added to the above the following:</p> <p>“ By means of which plaintiff was damaged to the extent of the value of the horse, and in the subsequent loss and injury of his crop resulting therefrom, $150.”</p> <p>The case was tried by the justice of the peace, and judgment rendered for the defendant.</p> <p>Plaintiff in error took an appeal to the circuit court of said county; a demurrer was interposed, to the effect “ that the cause of action stated by plaintiff was insufficient in law, and that the city of West Point was not liable for damages caused to private individuals, for the failure to maintain and keep in repair the bridges upon the public highways or streets within the incorporated limits of the city.”</p> <p>The circuit judge sustained the demurrer, granting plaintiff leave to amend, which he declined to do, and judgment was entered, dismissing the cause at the cost of plaintiff, to which plaintiff excepted, and tendered his bill of exceptions. A motion for a new trial was made and overruled by the court, and the case comes to this court on a writ of error.</p> <p>The following is assigned for error, to-wit:</p> <p>“ 1. The court erred in dismissing the cause, and in holding that the defendant was not liable for the injury complained of.</p> <p>“2. The court erred in refusing to set aside the judgment on the motion for a new trial.”</p> <p>The plaintiff was entitled to a trial before the jury under the instructions from the court, or the defendant could have demurred to the evidence with the same effect.</p> <p>The judgment of the court operated as a compulsory nonsuit, which cannot be done in our courts. After the case goes to the jury, the court can do no more than to instruct them. 12 S. & M., 551; 3 How., 332. There is no such thing as compulsory nonsuit in this state. Hudson v. Strickland, 49 Miss., 591; 3 How., 332; 2 S. & M., 521; 5 id., 602; 12 id., 550. The question in the case at bar is the liability of the corporation for the damages. Sutton v. Carroll County, 41 Miss., 236. Quasi corporations are not liable in the absence of a statute. Dillon on Mun. Corp., §§ 761, 785 ; 11 Am. Rep., 65 and notes on page 66.</p> <p>Inasmuch as municipal corporations have ample means for keeping their streets in repair, it is but justice to the citizen, who pays his taxes, performs his street duty, and otherwise performs his duties and bears the burdens of citizenship, that he should receive a reciprocal benefit, and have recourse for damages caused by neglect. In the United States,- municipal corporations are liable for damages under the state of facts here alleged, with some exceptions to the rule. Waltham v. Kemper, 55111., 346. 8 Am. Rep., 652, is relied on by counsel. By reference to the facts of that case, it will be seen that the suit was brought against a town that was not incorporated. Hence, it was held that the town stood upon the same legal footing as a county, and was not liable.</p> <p>The next case relied upon by defendant is Oliver v. Worcester, 3 Am. Rep., 485, in which the court held that the city was liable for an injury that was caused to plaintiff by falling into an excavation made by the authorities upon a common, and not upon a public street.</p> <p>The plaintiff charges not only negligence, but malfeasance and negligence in its construction and notice to the authorities is expressly charged. Outside of New Jersey, only one decision is found in the United States, w.here corporations have been held exempt from liability. That one is Detroit v. Blackby, 21 Mich., 84. The decisions in point are numerous. This question has been fully adjudicated by the supreme court of the United States, and no doctrine is more finally settled in that court than that municipal corporations are liable for negligence in case, like the one at bar. See Weightman v. Washington, 1 Black, 39.</p> <p>The Charter.— The original charter, approved Nov. 20, 1858, sec. 9, gives the major and selectmen, general powers to pass all needful ordinances, etc.; sec. 10 makes persons liable to work on streets; sec. 11 confers powers to pass by-laws to preserve the health, and to prevent and remove nuisances, etc.; sec. 12 may keep in good repair streets, sidewalks, etc.; sec. 7 confers power to raise revenue. By amended charter of March 14, 1872, the powers were greatly extended. See Charter.</p> <p>City Ordinances.— Sec. 21. All streets and extensions of streets, now opened and laid off in the city, * * * are</p> <p>hereby declared to be public streets, subject to be regulated and disposed of by the city authorities. Code of West Point, p. 48, § 21. All males over 18 and under 50 are liable to street duty. may be required to work six days in the year or pay six dollars. Street commisioners shall keep the streets in good repair.</p> <p>These ordinances are binding on the city, and the court will take notice of them. Dillon on Mun. Cor., §§ 288, 289, 290.</p> <p>The street commissioner is required to give bond in $1,000 for the faithful performance of his duty. This is given for the benefit of the city, and is required by the city, not by law. It is for the benefit of the city, not the citizen, whether the duty of maintaining the streets is-a safe condition for public travel; and use is specially imposed on the corporation or is deduced in the manner stated, it rests primarily as respects the public upon the cor' poration, and the obligation to discharge this duty cannot be evaded, suspended or cast upon others by any act of its own. Dillon on Mun. Cor., § 791 and notes; 17 N. Y., 104; 9 Mich., 165. In this view the principle indicted by the maxim respondeat superior applies to municipal corporations. Dillon, § 766. Independent of express statutes, see Manderschid v. Dubuque, 29 Iowa, 73; Collins v. Council Bluffs, 32 id., 324; Oliver v. Worcester, 102 Mass., 489; Basset v. St. Joseph, 53 Mo., 290 ; 40 id., 569 ; 51 id., 454 ; 45 id., 449. Por further authorities in the absence of express statutes, see, Dillon Mun. Cor., § 789 ; 1 Black (U. S.), 39 ; 5 Bing. (S. C.), 91; 3 Barn. & Afiolph, 77; 2 Black, 418, 590 ; 4 Wall. (S. C.), 657 ; 4 Wall., 189 ; 9 N. Y. (5 Seld.), 163, 170; 6 Sandf., 289; 9 N. Y., 456'; 5 id., 369; 3 Hill, 612; 16 N. Y., 162; 5 Seld., 168, 458; 1 Denio, 595; 16 N. Y., 158, 161; 17 id.‘, 104; 37 id., 568 ; 45 id., 129; 22 Penn. St., 384; id., 389 ; 40 Mo., 569 ; 45 id., 449 ; 8 Minn., 154; 3 id., 297 ; 5 Kans., 425 ; 11 Humph. (Tenn.), 217 ; 24 Ala., 112 ; 17 111., 143 ; 35 id., 58 ; 42 id., 503 ; 44 id., 295 ; 53 id., 91, 407; 6 Iowa, 443 ; 29 id., 210, 229 ; 26 id., 264 ; 21 id., 409 ; 4 Ohio St., 80; 3 Fla., 19 ; 9 Md., 174; 15 id., 12 ; 14 id., 227; 17 Minn., 308 ; 6 Nev., 90 ; 5 La., 17 ; 7 Bush (Ky.), 248 ; 30 Wis., 394; 34 Iowa, 41. The doctrine in support of this is found in the English cases; 6 Q. B., 214 (1871); .1 H. L., 93 ; 11 House of Lords Cases, 686.</p> <p>There is but one point in this case. It is a new question in this state, and one of importance, however small the amount involved. Is a municipal corporation liable at common law, in the absence of statute, in a private action for an injury to a horse, caused by the neglect or failure to repair bridges or highways within its corporate limits ? The liability of an incorporated city and a county are the same. The boards of supervisors are charged with the duty of keeping the public roads in repair, but the counties are not liable for a failure so to do. Sutton v. Board of Police, 41 Miss., 237. It is impossible to draw a rational distinction between cities, counties and towns in this particular. It is competent to give towns and counties powers and privileges as large as those granted to cities. 4 Am. Rep., 452, 460 ; Detroit v. Blackby, 21 Mich., 84. Dillon says the ground for the distinction is not as clear as could be desired. 2 Dillon Mun. Cor., § 785. They differ from towns and counties only in the extent of their powers and duties. 4 Am. Rep., 452, supra. The municipal authorities are public servants, and not agents of the corporation. In case of a vacancy in any office in West Point, the governor fills the office as in state and county offices. 41 Miss., 237; 2 Dillon Mun. Cor., § 785. On this point, almost three-fourths of the decisions cited by Dillon are New England decisions, and based upon statutes, and not applicable to this case. 2 Dill. Mun. Cor., §§ 786-89, and authorities. The same argument applies to Iowa, Wisconsin, Massachusetts, Maine, Illinois, New Hampshire, Pennsylvania and others. Collins v. Council Bluffs, 32 Iowa, 324; Cook v. Milwaukee, 24 Wis., 270; Billings v. Worcester, 102 Mass., 329 ; 2 Fairfield (Me.), 246 ; 8 Metcalf (Mass.), 388 ; 2 Appleton (Me.), 246; 2 Shepley (Me.), 198; Chicago?;. Gallagher, 44 111., 295 ; Rapho, etc., v. Moore, 68 Penn. St., 404; Conway v. Jefferson, 46 N. H., 521; Commissioners v. Martin, 4 Mich., 557; Providence v. Clapp, 17 How. (H. S.), 161; Stanton v. Springfield, 12 Allen, 566 ; Shea v. Lowell, 8 id., 136 ; Payne v. Lowell, 10 id., 147 ; Johnson v. Lowell, 12 id., 572 ; Gilbert v. Roxbury, 100 Mass., 185 ; Nason v. Boston, 14 Allen, 508; Luther v. Worcester, 97 Mass., 268 ; Hutchins v. Boston, 97 id., 272 ; Stone v. Hubbardston, 100 Mass., 49; Cook v. Milwaukee, 1 Am. Rep., 183.</p> <p>Judge Cooley says: There is an implied contract on the part of the city in accepting its charter, that it will keep in good repair all streets, bridges, buildings, etc., submitted to its care by such charter. In support of this position he cites the rule as established by English authorities, but in the English cases there had been certain rights and privileges granted to the corporators, such as constituted a private benefit to them, and these benefits were a.sufficient consideration for the demand made upon them by the government, that they should keep in repair their houses, * * etc. 9 Am., 345-7 ; Waltham v. Keneper, 8 id., 652; 55 111., 346 ; 11 Am., 65; 58 111., 297. Sound reasoning is never at variance with itself, and how counsel for appellants can take in the conflicting arguments of their authorities, and still claim to hold a logical position in the case, we are not able to see.</p> <p>The weight of authority is in our favor. The charge of malfeasance against the city is farfetched and insufficient. In fact, the statement of the cause of action shows simple negligence on the part of the city. The mere charge of malfeasance avails nothing, since the facts fail to substantiate the charge. A city is not liable in a private action, to an injured person, for neglect or failure to repair the public highways. To render municipal corporations liable to private actions for omissions to perform corporate duties imposed by general law on all cities and towns alike, and from the performance of which they derive no benefit in their corporate capacity, an express statute is doubtless necessary. 3 Am. Rep., 487-90 ; Oliver v. Worcester, 102 Mass., 489 ; 4 Am. Rep., 452-60 ; Detroit v. Blackby, 21 Mich., 84; 1 Am. Rep., 183 ; Cook v. Milwaukee, 24 Wis., 270 ; 3 Harr. (N. J.), 108.</p>

Hon. C. C. Shackleford, Judge. Petition by defendants in error to enforce a mechanic’s lien for $200 on the real estate of plaintiff in error.

Hon. Theoloric O. Lyon, Chancellor. Appellee purchased of appellant a tract of land, executed two notes, one for $3,500, the other for $875 ; afterwards consolidated the notes, and gave a deed in trust on lands to secure their payment. While thus indebted, he loaned to appellant $1,500 in gold, to be paid in $2,100 “ greenbacks ” in Mobile when called on. The appellee never called for the $2,100, but paid a portion of the note secured by the deed in trust.

Hon. E. Gf. Peyton Jr., Chancellor. This action was brought against the supervisors of Pike county by the voters and tax payers thereof to test the validity of an act .of the legislature passed in 1873, and the proceedings under it, for the permanent location of the seat of justice of Pike county.

<p>Appeal from the Chancery Court of Yalobusha County.</p> <p>Hon. L. C. Abbott, Chancellor.</p> <p>Complainant filed her bill against the defendants, B. H. Collins, J. O. Hendricks, E. Badley, C. Montgomery and Bobert Prophit, that on November 27, 1867, she intermarried with the defendant Collins, and is now his lawful wife; that at the time of their marriage he was the owner of the real estate described therein and used as a hotel, in the town of Water Yalley, which she now occupies, in part. That in 1872, her said husband neglected and insulted, and refused to support her; and, with intent to deprive her of a support, in February, 1873, confederated with the defendant J. O. Hendricks, and executed to him a deed of trust on the said property, closed up the said hotel, under the pretense of having failed; and ceased to do any business, and removed his personal property to some place, to her unknown, and abandoned her without any means of support; and, in 1871, rented the hotel to one Cook, to whom he sold the furniture in the house, calls for a discovery of the debt due by Collins to Hendricks. That, in 1875, the property was sold under the deed of trust, when Hendricks became the purchaser, at a nominal sum, and, as complainant believes, for the benefit of the said Collins. That she now occupies rooms No. 9 and 10, formerly occupied by herself and husband, prays for an account of rents and profits and alimony out of the same, etc., and a lien for alimony on the property during her natural life, and that she shall not be disturbed in the possession and occupancy of the said two rooms; alleges that she did not sign the deed of trust to Hendricks. That the said Collins has confederated and colluded with the said Hendricks to commence proceedings to put her out of the possession of the said two rooms and to turn her out, penniless and friendless, into the street. That said cause is pending before E. Badley, a justice of the peace, who has summoned two other justices to sit with him in the trial of said cause, to wit: C. Montgomery, Esq., and Bobert Prophit, Esq., who are also made parties defendant. Prays for an injunction, discovery, and that the sale of the real estate to Hendricks be set aside, and for alimony and for general relief.</p> <p>The answers deny the fraud and other material allegations, and upon the hearing, it appeared that the deed of trust had been interlined on the record after the filing and recording of the same, as appears from the record, in these words: “Also for one note for $300, due March 24, xA D. 1873.” This interlineation was made in July or August, 1873, and after the approval of the act of April 18, 1873, requiring the wife to join in the deed conveying the homestead, etc.</p> <p>The deed of trust was to secure $1,800, and was recorded March 3, 1873. It bore date February 13, 1873. After the recording of this deed, Hendricks made to Collins a temporary loan of $300, which he failed to pay, and by consent of parties, the attempt was made in July or August to add the $300 to the deed of trust on record for the $1,800, by the aforesaid interlineation.</p> <p>The chancellor decreed that this was a material alteration; had created a new contract or deed, bearing date at the time of the interlineation, and could not affect the homestead rights of complainant, and that so far as the deed of trust was concerned, her possession was quieted.</p> <p>From which decree this appeal is prosecuted.</p> <p>The following is assigned for error:</p> <p>1. The court erred in deciding that the alteration or interlineation of the deed in trust was a material alteration.</p> <p>2. The court erred in deciding that the alteration or interlineation of the deed ‘n trust made the same operate as a new contract or deed in trust, taking effect from the date of the interlineation or alteration.</p> <p>3. The court erred in deciding that said deed in trust does not affect complainant’s, Mrs. Emma F. Collins’ homestead rights, and that the same is, as to her, inoperative and void, so far as her homestead rights are concerned.</p> <p>After the injunction was dissolved, an issue was agreed upon and submitted to the chancellor, to-wit: “ Was the interlineation of the deed in trust a material obliteration of the same, and if so, did it thereby make the deed in trust a new contract, dating from the date of the alteration or interlineation?” The legal title vested in the trustee. Gully v. Hull, 31 Miss., 20; 1 Greenl., § 566; 2 Barb. Ch., 119 ; 6 Eng. L. & Eq., 153. The validity of the deed is not affected by the alteration. Croft v. White, 36 Miss., 455; Wilson v. Henderson, 9 S. & M., 375 ; Com’l & Railroad Bank of Vicksburg v. Lum, 7 How., 414; Byies on Bills, 253 (note a.); 1 Bouv. L. Die., 117; 1 Pet., 552; 7 Serg. & R., 508; 2 N. H., 543. If not affected, there can be no new contract. Woolley v. Constant, 4 Johns., 54; Speake etal. v. H. S., 9 Cranch, 28; Barrington v. Bank of W., 14 Serg. & R., 405; Stephens v. Graham, 7 id., 505; Smith v. Weld, 2 Barf, 54; Willard v. Clarke, 7 Met., 435-7; Hills v. Barnes, 11 N. H., 395; Humphreys v. Guillow, 13 id., 386-8 ; Beary v. Haines, 4 Whart., 17. The deed could not take effect from the date of the alteration, and must affect the homestead rights. Gould v. Duckett, 47 Miss., 115 ; Summers & Brannin v. Roos & Co., 42 id., 782 ; Gully v. Hull, 31 id., 20; 45 id., 226; 2 Pars, on Con. (2d ed.), 231; 9 Wheat., 680; Hibblewhite v. M’Morine, 6 M. & W., 200; Coit v. Starkweather, 8 Conn., 290 ; Code 1871, § 2308.</p> <p>Cited and commented on the following authorities as against the decree. Croft v. White, 36 Miss., 455; Wilson v. Henderson, 9 S. & M., 375; 4 Johns. R., 54; 9 Cranch, 28; Barrington v. Bank of W., 14 Serg. & R., 405 ; 7 id., 505; 7 Met., 435 ; 11 N. H., 395; 7 Blackf., 413.</p> <p>Cited and commented on the following authorities: act of April 18, 1873, Code of 1871, § 2295, p. 501; 1 Greenl. Ev., 746-7; Chitty on Contracts, pp. 677-8-9; 1 Greenl. Ev., p. 611, §§ 569, 611; Hudson <v. Revett, 5 Bing., 388; West v. Steward, 14 M. & W., 47; Hartley v. Manson, 4 M. & G., 172; Story on Bailments, 55; Byies on Bills (4th Am. ed.), pp. 253-4-5; Miller v. Stewart, 5 Condensed U. S., 727 ; Master v. Miller, 1 Smith’s Lead. Oases, 963; 4 Johns., 54; 9Cranch,28; 14Serg. & R, 405; 7 id., 505; 7 Met, 435, 437; 11 N. H., 395; 13 id., 386, 388; 9 Cow., 255; 18 Johns., 499.</p> <p>Cited the following: Code of 1871, § 2135 ; id., §§ 1956, 2140, 2143; Norris v. Moulton, 34 N. H., 392; Atkinsson v. Atkinson, 40 id., 249; 37 id., 437; Meader v. Place, 43 id., 307; Act of April 18, 1873.</p>

Hon. O. H. Whitfield, Chancellor. This case was before the court, and finally decided on its merits and reported in 49 Miss., 762, which contains a full statement of the facts and law of the case, and affirming the decree of the court below, to which reference is here made. The following are the assignments of error, to-wit: 1. The chancery court erred in overruling the exceptions to the report of R. B. Little, clerk and master. 2.

Hon. O. H. Whitfield, Chancellor. January 8, 1874, appellant filed her bill in the chancery court of Lee county, alleging that on June 26, 1870, she was the owner in her own right of the lands in controversy; that she was a feme covert; that her husband was a violent and dissipated man, spending his time in drinking and gambling; that she was afraid to disobey him; that she was in constant fear and duress; that on said day, June 26, 1870, her husband ordered her to accompany…

Hon. E. Hill, Chancellor. The opinion of the court contains a very full statement of the facts and quotations of the statutes involved in this case. The error assigned is as follows: “ The court erred in refusing to dissolve the injunction granted therein, and in retaining and continuing the same as stated in the order and decree, November 10, 1873.

<p>Error to the Circuit Court of Marshall County.</p> <p>Hon. Orlando Davis, Judge.</p> <p>All the essential facts are stated in the opinion of the court.</p> <p>It is assigned for error:</p> <p>1. The court erroneously charged the jury on motion of plaintiff below.</p> <p>2. The verdict is contrary to law and evidence.</p> <p>The single question in the case is, Does the testimony establish the account sued on as an “ account stated ?” If not so established, the account is barred by the statute of limitations of six years. The cause of action, if any, accrued prior to January 1,1868. The testimony establishes these facts, that defendant insisted all the time, that upon a fair settlement, there would be nothing due to the plaintiff, and that both the parties had agreed to leave the matters of difference to arbitrators, and that it was unadjusted when the suit was brought, the arbitrators having disagreed. The verdict is manifestly contrary to the law and the evidence. Stebbins v. Niles, 25 Miss.. 267; Bussey v. Gant, 10 Humph., 238 > Stevens v. Tuller, 4 Mich., 387.</p> <p>The court instructed correctly. The action was brought upon an “account stated.” See Stebbins v. Niles, 25 Miss., 268. This being a question of fact for the jury, this court will not disturb the verdict unless manifestly wrong. McAlexander v. Puryear, 48 Miss., 420; N. O., J. & G. N. B. B. Co.». Field, 46 id., 573 ; Haber v. Lane, 45 id., 608 ; Head v. The State, 44 id., 731. The second assignment of error is not well taken. Upon a proper view of the case the testimony sustains the verdict. The jury are the sole judges of the testimony, and their verdict should not be disturbed by this court unless the testimony is overwhelming, or so strongly antagonistic to the verdict as to do flagrant injustice to the parties, or so in conflict with the law of the case, as to invoke the interposition of the court.</p>

Hon. O. H. Whitfield, Chancellor. The opinion of the court contains a sufficient statement of the facts in the case. The following is assigned for error, to-wit: 1. The court below erred in setting aside the sale made by the commissioner, and in refusing to confirm his report of sale. 2. The court below erred in ordering a resale of the land by the commissioner. 8.

Hon. Orlando Davis, Judge. Plaintiff in error was arrested and tried by a justice of the peace, charged that he “ did shoot and wound a horse,” the property of the prosecutor, Nellums. The justice fined him $50. He appealed to the circuit court, was there tried, and the verdict is “guilty of mischievously wounding the horse without intent to Trill.” A motion was made in arrest of judgment, which was overruled, and the case comes to this court on a writ of error.

Hon. Arthur E. Reynolds, Chancellor. All the material faets are stated in the opinion of the court. It is assigned for error: 1. Said chancery court erred in ordering his said bill of complaint to be dismissed, and in refusing the relief prayed for. 2. If it was deemed that other persons should be parties to the suit, the cause should have been remanded to the rules, with leave to make them parties. 3.

Hon. W. B. Peyton, Chancellor. The bill was filed by the attorney general to enjoin the said railroad company from receiving, and the state treasurer from delivering, state bonds to the said company amounting to the sum of $218,000, held by the state as the fund arising out of the sale of the agricultural land scrip, granted by congress for a “perpetual fund,” the interest to be used and devoted to the endowment and support of one or more colleges wherein the leading object…

Hon. B. B. Boone, Judge. The facts in this case and the assignments of errors are sufficiently stated in the opinion of the court. The following is assigned for error, to-wit: 1. The court erred in dismissing plaintiff’s suit without having first made an order requiring an issue to be made up. 2. The court erred in rendering judgment, as in case of detinue, the judgment rendered was erroneous. 3.

Hon. C. C. Shackleford, Judge. The defendant in error, a married woman residing in Tennessee, owned and possessed a separate estate, real and personal both in Tennessee, and in Tunica county, Mississippi. During the war she was planting cotton on her farm in Mississippi.

Hon. W. D. Bradford, Judge. The plaintiffs in error were jointly indicted for larceny of one bale of cotton of the value of one hundred dollars. A motion was made for a severance, which was refused by the court, and they were put on trial jointly -and both convicted. A motion for a new trial was made, and by the court overruled; and the case comes to this court on a writ of error.

<p>Error to the Circuit Court of Hinds County.</p> <p>Hon. Geo. F. Brown, Judge.</p> <p>Plaintiff in error filed his petition for mandamus against defendant in error, alleging that he was entitled to a reward of two hundred dollars under the provisions of the Bevised Code of 1871, § 2786, for the arrest of one Dempsey Taylor, who had killed one Thad. Nelson, of Lee county, and' was fleeing from justice. He presents an order of the circuit court of Lee county, ordering the payment of the sum of two hundred dollars. The governor had offered a reward of six hundred dollars for the apprehension of the offender, and which sum had been paid by the auditor of public accounts, under the provisions of a special act of the legislature for the relief of plaintiff in error.</p> <p>Defendant in error answered that the $600 paid by him was intended as a full compensation for the services. The case was tried on this issue in the court below, and judgment rendered for the defendant in error, and the case comes to this court on writ of error.</p> <p>The following is assigned for error, to wit: “ That the court</p> <p>erred in dismissing the petition for mandamus.”</p> <p>1. The testimony of ex-Gov. Powers shows that the reward offered by him had no reference to, and was independent of the statutory reward of $200. The act of the legislature for the relief of plaintiff in error clearly shows by its recitals that the amount paid ($600) was only the reward offered by the executive, and does not interfere with the operations of the Code of 1871, § 2786. See Crawshaw v. Roxbury, 7 Gray. (Mass.), 374. The public offer of the reward creates a liability. Deslondes v. Wilson, 2 La. Dig., 1001.</p> <p>2. The plaintiff in error, having complied with the requirement of the statute, is entitled to the relief sought. Code, 1871, § 2786. The circuit court of Lee county allowed the claim, and the presumptions are in favor of its action, and the correctness of the order of allowance. Pollock v. Buie, 43 Miss., 151; Scott v. Porter, 44 Miss., 366. The auditor has no right to refuse to issue the warrant. Hendricks v. Johnson, 45 Miss., 649.</p> <p>Insisted that the reward claimed had been paid by the auditor under act of March 15, 1873 (Acts 1873, p. 270). The Code offered a reward of $200. This increased it to $600. The legislature authorized the payment of the $600, thus ratifying the action of the governor. The relator, having received the $600, is not now entitled to the $200 in addition; he cannot claim both. Code 1871, § 2786; see Crawshaw v. Roxbury, 7 Gray (Mass.), 374: The act for his relief became the law of the case, and that law has been satisfied by the payment. The preamble to the act clearly indicates the intention of the legislature, and the judgment should be affirmed.</p>

Hon. Robert Leachman, Judge. The petition for mandamus by Holmes and others against the Board of Supervisors of Scott county alleges, that in 1873, W. S. Haskins and others applied to the board to change road (No. 35) near Forest; that he complied with the law. Commissioners were appointed to -examine and report as to the change of the road. They reported in August, 1873, and their report was confirmed, and the change was made.

Hon. C. C. Cullens, Chancellor. The facts necessary to a full understanding of the questions involved and decided are set out in the opinion of the court. The following is assigned for error: 1. That the court below erred in not sustaining the demurrer to the bill, and in not dismissing the bill. 2. The court erred in overruling the demurrer to the bill.

Hon. W. H. Hancock, Judge. On the 24th of August, 1874, plaintiffs filed their declaration in the circuit court of Jasper county, using their partnership narne only, and setting out therein a note executed in the county of Jasper and state of Mississippi, and filed with their declara'tion a note executed and payable in the city of Mobile, Ala.

Hon. E. G. Peyton Jr., Chancellor. Complainant filed his bill in the chancery court of Copiah county, in which he alleged that in 1860, one William A. Kilpatrick conveyed to Thomas Stuart and others, trustees of the Methodist Episcopal Church South, in the town of Hazelhurst, a certain lot of land, in said conveyance mentioned, to be held in trust for the benefit of the said church; that a house of worship was erected on said lot in accordance with the terms of said grant,…

Hon. Bobert Leachman, Judge. The only question arising in this case involves the power of the circuit judge to sign and seal a bill of exceptions in vacation. The facts are sufficiently stated in the opinion of the court.

Hon. ¥i. H. Hancock, Judge. This was an indictment found in the circuit court of Clarke county against John Shanks for drunkenness in… Held: and answer this indictment. Motion was made to quash the indictment, and overruled by the court. The accused was, at the special term, arraigned and pleaded “ not guilty,” was tried by a jury and found guilty. The court then passed sentence upon him by removing him from office, andtthe cause comes to this court upon writ of error.

Hon. W. B. Cunningham, Judge. This was an action by the Canton Cotton Company against E. B. Pratt, to recover the amount of his subscription to the organization of said company. Issues were joined and the case was submitted to a jury. The case turns entirely on the evidence and instructions.

<p>1. Bent: Recoupment. Replevin.</p> <p>Justification, of torts is not admissible by setoffs, generally, and is excluded in actions ex delicto; but in an action of replevin, testing the legality of a distress, the issue presented as to the “ unlawful taking rests upon the fact, whether the rent is or is not due; and the tenant may show any matter competent to discharge this liability.</p> <p>2. Same: Same: Damages.</p> <p>The right of recoupment exists where the cross demands grow out of the same transaction. In a contract of mutual stipulations, the violation or breach of a covenant and its consequent damages, though unliquidated, may be shown in satisfaction of any demand predicated upon such contract.</p> <p>3. Same: Its incidents. Secs. 1134,1620.</p> <p>Kent is an incident to the reversion, and, before maturity, follows by operation of law, the title to the premises. If accrued before the death of the lessor, it belongs to the personalty of the estate, and goes to the personal representative. If accrued after the death of the lessor, it follows the reversion and belongs to the heir. Sections 1134 and 1620 of the Code of 1871 conform in their theory to this common law doctrine as to the destination of rents, and are merely declaratory of the rule.</p> <p>4. Same : Apportionment of rent. Sea. 1639 of Oode of 1871.</p> <p>There is no provision in our law for the apportionment of rent, except section 1689 of the Code of 1871. The provisions of this section have exclusive application to a tenant for life who has demised lands, etc.</p>

Hon. B. B. Boone, Judge. The facts necessary to a full understanding of the case are fully stated in the opinion of the court. The following is assigned for error, to wit: 1. The circuit court erred in sustaining the demurrer of said plaintiff below, to the second plea of defendant James H. Houghton. 2.

Hon. O. H. Whitfield, Chancellor. The bill alleges that the complainants are judgment’Creditors of S. H. Buckingham, deceased, who, by his last will and testament gave to his widow (the appellant) full control of his estate real and personal, and expressly provided that she should not be required to give any bond or security for the faithful performance of the trust; that the will gave her full power to keep together manage, control, sell or dispose of any and all of his…

Hon. William G-. Henderson, Chancellor. The bill alleges that complainant furnished to the defendant’s intestate, lumber to build a certain water craft, called “ Harry Budding,” and which was used in the construction of the said craft. That the said lumber amounted in value to $771.17. That to secure the payment of the said debt, the defendant, said intestate (Wm.

<p>1. Practice : Circuit Court : Demurrer to decimation.</p> <p>The rule is, that a demurrer to the declaration containing several counts, must be overruled if one count in the declaration be good.</p> <p>2. Lessor and Lessee : Covenant to repair or rebuild.</p> <p>Where D. leased to L. a steam saw mill with implements, etc., for one year for a stipulated price, under the following agreement to redeliver, to-wit: “at the expiration of the twelve months, to deliver to D. the steam saw mill, together with said implements and tenements, and two log carts, the said steam saw mill in good running order, except the usual wear and tear, and the log carts, implements and tenements without damage except the running wear and usage,” and L. took possession of the property in good order. During the tenure, the property was consumed by Are. Reid, that in the absence of proof of neglect or other fault on the part of L., he is not bound to rebuild the mill and tenements.</p> <p>3. Same : Same : Intention of the parties.</p> <p>The intention of the parties is the cardinal rule in the construction of covenants, and the courts will not extend or enlarge the obligations of the ‘lessee, beyond the plain meaning and intention of the parties. In the absence of covenants equivalent to an express simulation to rebuild or restore edifices or structures destroyed by casualty or proof of negligence or fault in the lessee, the loss is on the reversioner.</p> <p>4. Same: Same: 0are. Responsibility.</p> <p>The contemplation of the parties to such a stipulation when applied to houses, a saw mill or machinery is, that the lessee will take ordinary good care of the property, according to its nature, and the responsibility of an insurer is not imposed upon him.</p>

Hon. J. N. Campbell. Chancellor. The complainant was the holder and owner of a note executed by defendant Pittman, secured by trust deed on Pittman’s homestead, ' executed February 1, 1873. It matured November 1, 1873. The deed embraced horses and other personalty. After maturity, the trustee advertised the property for sale.

Hon. D. P. Coffey, Chancellor. The appellant claimed title to the land on which the alleged waste was committed, under a deed made by appellee on the 7th: of April, 1866, by which appellee conveyed to appellant all the fight, title and interest that he had in the real and personal estate of T. Eskridge, deceased.

Hon. J. A. Orr, Judge. This was a suit instituted by Malone against Luckey, a justice of the peace, for damages which he alleged to have sustained by a breach of the conditions of his official bond. The suit was brought before Coggins, a justice of the peace, for $150 damages. The case was tried, and resulted in a judgment for plaintiff for $100.

<p>1. Statute oe Limitations: Suspension thereof; see. 2150, Code of 1871.</p> <p>The statute of limitations was suspended from December, 1862, until April, 1867. A suit in equity to foreclose a mortgage is barred whenever the remedy at law to recover the debt is barred (sec. 2150). The filing of a bill in chancery is the beginning of a suit.</p> <p>2. Same : Oase in judgment.</p> <p>The notes given for the purchase money fell due in 1861, the bill was filed in July 1878, a waiver of the statute was indorsed on the notes in March, 1866: Held, that more than six years, deducting the stay of the statute of limitations, had elapsed from the time the notes fell due until suit was brought; that the only effect of the waiver was to continue the right of action for six years thereafter, and that more than six years had elapsed from the date of the waiver, deducting the time the statute of limitations was inoperative until the bringing of the suit, and that the notes were barred.</p>

Hon. C. C. Shackleford, Judge. Plaintiff in error was indicted for failing to account for certain fines collected by him as justice of the peace. The case was submitted to the court and a jury waived, on the plea of “ not guilty.” He was adjudged “ guilty,” and sentenced to pay a fine of $120. A motion for a new trial was made and taken under advisement, until the next term of the court.

Hon. R. B. Boone, Judge. The facts in the case fully appear in the opinion of the court. The following is assigned for error: 1. The circuit court erred in refusing the peremptory writ. 2. Because the return of the defendants was not sworn to. 3. Because the court erred in refusing to hear the testimony and to consider the sworn petition of relator and exhibits thereto, and certified orders of the board of supervisors. 4.

Hon. George E. Brown, Judge. The facts in this case are fully stated in the opinion of the court. The following errors are assigned : 1. The court erred as to the facts in the case; and the proofs submitted to the court (acting as jury) do not justify or uphold the judgment. 2. The court erred as to the law of the case, and the judgment rendered is contrary to law. 3. The court erred in refusing to grant the motion for a new trial. 4.

<p>1. Vendor and Vendee: Possession under an executory contract of purchase.</p> <p>Tbe general rule is that possession, acquired under an executory contract of purchase, being rightful in its inception, something, ex post facto, must be done to make it tortious. The vendee must repudiate the contract under which he entered, or fail to comply with its terms in order that the vendor may treat the contract as at an end. Demand, of possession or notice to quit are not necessary.</p> <p>2. Same : Same.</p> <p>The covenants of such a vendor and vendee are mutual and dependent and contemplate contemporaneous performance. If the vendor desires to put the vendee in default he must perform his covenants and deliver or tender a deed when payment is demanded. If the vendee is put in default the vendor may either recover possession of the land or enforce his lien for the purchase money.</p> <p>3. Same : Tender of deed; effect thereof.</p> <p>Where the vendor tenders a deed to the vendee, although it may not conform to the terms of the contract, and the vendee makes no objection to the deed either for form or substance, but merely declares his inability to pay for the land, he waives all objections to the deed, and it is too late to raise the objection when sued for the possession of the land.</p> <p>4. Same: Suit for possession; effect thereof</p> <p>When the vendee is put in default and the vendor elects to abandon the contract and sue for the possession of the land by unlawful detainer, such possessory action does not affect any equities that might exist between the parties.</p>

Hon. J. A. Orr, Judge. Plaintiff in error, John Lee, and one David Boykin, were jointly indicted in the circuit court of Colfax county, at the February term, 1875, thereof, charged with the stealing of one bale of cotton, of the value of sixty-ñve dollars. Boykin pleaded “ guilty,” and Lee pleaded “ not guilty.” The court remanded Boykin to jail to await the further order of the'court, and a jury was impaneled to try Lee. On the trial, Boykin was offered as a witness for Lee.

Hon. J. A. Orr, Judge. The facts in this case sufficiently appear in the opinion of the court. The following errors are assigned: 1. That he was not tried by due proces of law, or in due course of law; that he was arrested whilst on bail, and kept in custody and confinement as a prisoner during the trial, by an order of the court. 2.

Error-to the Circuit Court of Colfax County. Hon. J. A. Orr, Judge. The facts necessary to a full understanding of principles decided in this case are fully set out in the opinion of the court. The following are the assignments of error: 1. The judgment is against the estate of the ward when it could only have been rendered against the guardian personally. 2.

<p>1. New County: Liability for its proportion of the debt of the old county. Act of April 15,1873, construed.</p> <p>The act of the legislature of April 15,1873, creating Tate county, of territory derived from JDe Soto and Marshall counties, provides: “ (Sec. 8). That said Tate county shall pay its proportion of the debts of the counties respectively from which said county of Tate is formed, said proportion to be determined by the assessed value of the real and personal property within its limits, and that it shall also receive its proportion, of the county and school fund.” And where the act also provided that, that part of De Soto given to Marshall shall be in lieu of that part of Marshall given to Tate: Held, that since Marshall has not lost by the exchange of territory, but had, after the formation of Tate, as much taxable property as she had before, there is no equitable ground on which she could claim that Tate should pay a part of her debt. Sec. 8 intends that the indebtedness shall be apportioned, and that the population and taxable property which had been withdrawn should carry along with them a just quota of the old county debt. The burden of this debt is imposed on the entire county of Tate, and this imposition is made because De Soto has been deprived of half of her ability to pay.</p> <p>2. Same: Same: Equity jurisdiction.'</p> <p>Where several parties are interested in the account to be taken, to prevent a multiplicity of suits, resort may be had to a court of [equity. 1 Story Eq., ch. 8., § 446.</p>

Hon. George F. Brown, Judge. The facts in this case are very fully stated in the opinion of the court. Defendant assigns for error the following: 1. The circuit court erred in overruling the motion for a new trial, and refusing to grant the same; whereas the court should have sustained said motion, and have granted a new trial. 2. Under the law, upon the legal evidence in the case, the finding and judgment should have been for them, and against said Dixon. 3.

Hon. George F. Brown, Judge. This was a petition in the nature of a quo warranto, against the Mississippi Yalley & Ship Island Railroad Company, on the following grounds, to wit: 1. A failure to prepare and file in the office of the secretary of state a map of its proposed line, as required by the charter of incorporation. 2. Commencing at Yicksburg and running south, contrary to the requirements of the charter. 3.

Hon. W. D. Bradford, Judge. At the December term, 1855, of the probate court of Calhoun county, defendants in error filed their petition for sale of lands (except widow’s dower, which had already been set off) belonging to the estate of Alexander Armstrong, deceased, father of said defendants, for the purpose of distribution.

<p>1. Bill oe Exchange : Payment. Discharge of liability.</p> <p>Whether an order taken on a third person is an absolute or conditional payment, or payment at all, of an antecedent debt, depends on agreement or circumstances, but without express agreement or special circumstances the receipt of the negotiable note of the debtor is not a payment. An order or bill of exchange drawn on a third person would not be in absolute discharge of an antecedent debt, unless it was accepted as such.</p> <p>5. Same : Order to pay out of a specific fund is not a bill of exchange.</p> <p>An order to pay a given amount ont of a specific fund is not a bill of exchange. It is not payable generally or absolutely, and if the particular fund specified should fail or never be realized by the drawer, although he might have accepted, would be under no liability.</p> <p>•3. Same : Proof of payment.</p> <p>It devolves upon the defendant to show that the promissory note of the debtor, or of a third person, or an order drawn against a special fund, was accepted by the plaintiff in payment of the antecedent debt, or the special circumstances out of which the presumption will arise.</p>

Hon. Orlando Davis, Judge. J. J. Thomas sued the Memphis & Charleston Railroad Co., to recover damages sustained by him while acting as engineer on the passenger train of said road, because of serious and permanent personal injuries occasioned by the defective switch, and the running off of the track of the engine and train.

Hon. James M. Smiley, Judge. The facts necessary to a full understanding of this case are set out in the opinion of the court. The following is assigned for error, to wit: 1. In overruling motion to dismiss the suit because not authorized to be brought by board of supervisors or district attorney. 2. In sustaining demurrer to special plea filed by leave of the court. 3. In excluding testimony on the trial to show that the suit was not authorized by proper authority. 4.

Hon. W. D. Frazee, Chancellor. The appellant was tried and convicted at the-term of the circuit court of Colfax county, for unlawfully marking the animals of another, without authority, and was sentenced by the court to three years imprisonment in the penitentiary. From this judgment, he sued out a writ of error, with a supersedeas, which case is now pending and undetermined in this court.

<p>1. Chancery Practice : Judgment creditor, junior and senior. Collateral securities held by senior.</p> <p>In a proper case, a creditor wbo bas a claim upon two funds, may be compelled to go against that one to wbicb be bas an exclusive right, leaving tbe other to a creditor wbo can resort to it alone.</p> <p>2. Same: Case in judgment.</p> <p>W. and D. both held judgments against S. W. beldjtbe senior judgment, and also collaterals to secure tbe payment of bis judgment. D. filed bis bill to enjoin tbe sale of tbe property of S., under W.’s judgment, and to compel W. to make bis money out of the collaterals: Held, that it was not error for tbe chancery court to appoint a receiver, charged with tbe sale of tbe collaterals on tbe market for tbe best price, tbe collaterals having a known market value. But it was error to make disposition of the money upon bill and exhibits alone, without answer or proof.</p>

Hon. Bobert Leachmak, Judge. The facts in this case are very brief, and sufficiently stated in the opinion of the court. J. S. Hamm, for plaintiff in error, cited and commented on the following authorities: People v. Harrington, 42 Cal., 165; 10 Am. Bep., 296-298. O. K Harris, Attorney General, for the state, cited and commented on same authorities and Bev. Code of 1871, § 2791.

Hon. Uriah Millsaps, Judge. The board of supervisors of Jefferson county entered into a contract with Patrick Murphy for the building and maintaining in repair for five years, a bridge. A warrant for the last installment, $2,100, payable in December, 1874, was issued to him and by him indorsed to Frank Arrghi, the relator. This transfer is alleged to have been made in April, 1874.

Hon. J. A. Orr, Judge. Plaintiff in error was indicted at the August term, 1878, of the circuit court of Colfax county, for unlawfully marking an animal, the property of John Thomas Barton, under § 2508 of the Code of 1871. He was tried at the August term, 1874, of said court, convicted, and sentenced to the penitentiary for fiise years, from which judgment he prosecutes this writ of error. The following are the assignments of error: 1.

Hon. Gr. S. McMillan, Chancellor. Stephen A. Douglas, the father and guardian of appellants, sold under a decree of probate court.the lands in controversy, as the property of his wards, when one James Strickland purchased, and who afterwards sold the same to one J. W. Bennett.

Hon. T. B. Cowan, Chancellor. The appellants were appointed jointly as the administrators de honis non of the estate of Wm. H. Brown, who died intestate in 1859. They procured an order of the probate court in November, 1861, directing them to sell certain personalty belonging to said estate. They proceeded to sell, and made report of sales in December, 1861, amounting to $1,514.81.

Hon. Austin Pollard, Chancellor. The facts of this case are very fully stated in the opinion of the court. The following is assigned for error, to-wit: “ The sustaining of the demurrer of the defendant A. Flowers to complainant’s bill.” The first position we take is, that the naked and plain vendor’s lien existed between Green and Gibson, as the word vendor is technically used in the law books. Bouv. L. Die., vol. II, p. 576.

Hon. W. B. Cunningham, Judge. Plaintiff in error, jointly with one Thompson, was indicted for tbe larceny of two mules, property of ¥a Adkins and Lem. B. Sides.

<p>Probate Court : Sale of real estate. Notice.</p> <p>Where a guardian petitioned to sell real estate belonging to the ward, under the Code of 1857,- art. OLÍ, p. 468, the court shall appoint a day for ■ the hearing of the petition, and shall order a summons to issue for the coheirs, and also for at least three of the nearest relatives of the minors, if there be any in the state. Where the service of the summons is defective merely, it could not be impeached collaterally, but would be good so long as the decree remained unreversed. But where the record does not show an order of that court directing three of the “ nearest relatives ” of the minors to be summoned: Held, that the proceeding is purely statutory, and must be conducted in accordance with the directions of the statute, in order to bind the wards by the decree, and the jurisdictional facts must appear affirmatively on the record.</p>

Hon. G-. C. Chandler, Judge. Plaintiff in error presented his claim for professional service as an attorney-at-law, to the board of supervisors of Marion county, for $600. The board disallowed the account, and he took an appeal to the circuit court, where the judgment of the board was affirmed, and the case comes to this court on writ of error.

Hon. G-eo. E. Brown, Judge. Tbis was a proceeding by mandamus in tbe circuit court to ob. tain a peremptory writ of mandamus against respondents, commanding them to grant to petitioner a license to retail vinous and spirituous liquors in tbe city of Jackson.

Hon. O. H. Whitfield, Chancellor. This case was before the court the second time, and the points settled the first time on demurrer, are reported in 48 Miss., 11, in which the case is fully stated, and to which refererence is made for the facts. cited and relied upon the following authorities : Acts 1861, p. 53; Thomas v. Taylor, 42 Miss., 651; Mississippi Central R. R. v. The State, 46 id., 157; Stetson v. Kempton, 13 Mass., 282; Libb} v. Burnham, 15 id., 144; Hayden v.…

<p>1. Mortgage: Equitable estate.</p> <p>Tbe cestui que trust may bind by mortgage or deed in trust, or lawfully dispose of tbe trust estate without tbe assent of tbe trustee, unless forbidden in tbe instrument creating sucb estate.</p> <p>3. Same : Married women's separate estate.</p> <p>A married woman may bind tbe income of ber separate estate, and sbe may also bind the corpus of tbe estate for tbe purposes specified in tbe Revised Code of 1851, art. 35, p. 386.</p> <p>3. Same : Same : Decree by consent.</p> <p>Tbe recital in tbe body of a decree that it was made “ with tbe consent of all tbe parties,” precludes them from complaining of it. . Yet it would only bind those who are “ parties " to tbe suit, and could not affect tbe rights of others not made parties to tbe suit, but who should have been made parties.</p>

Hon. E. Stafford, Chancellor. The opinion of the court contains a sufficient statement of the facts in the case. Held: after the attempted partition, the same interests as before, as tenants in common. Story’s Eq. Jur., §§ 95, 105, 106, 176, 177,178; Jarman on Wills, vol. 1, 890, 891-2, 898, 409; Story’s Eq. Jur., § 1087, 1089, 1092; Melick et ux. v. Darling, 11 Ohio, 848-850; Stratton v. Best, 1 Ves. Jr., 285; Boper on Legacies, 1591; Story’s Eq.

Hon. L. C. Abbott, Chancellor. The facts of the case are very fully set out in the opinion of the court. The following is assigned for error: “ The court below erred in overruling the demurrer filed to the bill by appellants, and perpetuating the injunction.” Strickland, trustee, is a bona fide purchaser for value (Kelly v. Mills, 41 Miss., 267), and stands in a better condition than a judgment creditor.

Hon. William Breck, Chancellor. The relator, James Luckett, on the 12th day of October, 1875, was arrested on a charge of grand larceny, and on the — day of the same month, a preliminary hearing of his case, had before Robert Powell, mayor of Canton, on the same day he was, in default of bail in the sum of $1,000, committed to the common jail of said county.

Hon. George E. Brown, Judge. The facts in this case sufficiently appear in the opinion of the court. 1. That the warrants were issued in excess of the limit of 90 per cent. 2. The warrants were issued for a larger amount than the claims held by Klein. Code 1871, § 1882. 8. The board of supervisors cannot levy the tax demanded, because they have levied the full amount authorized by the law, $20 on every $1,000 of assessed value of property in the county.

Hon. E. Hill, Chancellor. The complainants, appointed under a recent act of congress, as commissioners to take charge of the assets of the Freedman’s Savings Institution, collect its debts, etc., filed this bill in chancery, to foreclose the mortgage to pay the notes- of the defendant. These notes and mortgages are the property of the Freedman’s Savings Institution, and came to the possession of complainants as commissioners for coll ection.

Hon. Orlando Davis, Judge. The facts of this case sufficiently appear in the opinion of the court. 1. That defendant in error had only a lien on the cotton for his rent, and this claim could only be enforced by bill in equity or in law, strictly according to the terms of the statute giving him the lien ; that there was no writ of seizure prayed for or granted in this case, and no judgment with writ of possession rendered. Acts of 1872, p. 182 ; Acts of 1878, p. 79. 2.

Hon. Orlando Davis, Judge. The facts of the case and the instructions of the court commented upon, are sufficiently set out in the opinion of the court. 1. That the defendant, in subscribing to the capital stock of the plaintiff in error, must look alone to the charter, and in making the subscription, is governed by the terms of the charter. And subscribers are presumed to know the provisions of the charter under which the subscription is taken.

<p>Appeal from the Chancery Court of Jefferson County.</p> <p>Hon. J. M. Ellis, Chancellor.</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p> <p>In the case there are two questions to be settled:</p> <p>1. Is it sufficiently established that the conditions upon which, and the purposes for which the notes were executed are of such a character -as to charge them upon the separate estate of Mrs. Wood; and, 2. If this is not true, is the "trust deed operative to pass the use of the property until its income pays the debt ?</p> <p>1. The parties litigating are the heirs at law of Mrs. Wood, and, of their own motion, forced the defendants into and before the court, as their own witnesses, to impeach the consideration of the notes, and the answers, being responsive to the allegations of the bill and the interrogatories propounded, constitute the very highest possible evidence. It is not permitted to a party to call in and examine a witness whose mouth the law stops in his own behalf, and, after obtaining his evidence, to ignore it because unfavorable. The complainants cannot thus get rid of their own proof. The competency of the witnesses was waived; the compulsory production of the evidence rested in discretion and judgment, and while Eeed could not probably have introduced the witnesses, the complainants, at their peril, were privileged to do so. Brought in by them, the testimony of the witnesses was proper. 13 S. & M., 295 ; 9 id., 613 ; 43 Miss., 383 ; 6 S. & M., 647; 24 Miss., 134; 31 id., 42. Greenfield and Logan were partners of the house of Eellowes & Go., had no interest in the matter at all, and their testimony fully makes out the case if any proof was needed after the answer was filed denying all the equity in the bill. The peculiar business of their house was to furnish supplies for planters, and that business was transacted by contract, in the mode indicated: by giving notes to the factors for indorsement and sale, the proceeds of which, credited in account, formed the basis of dealings between the parties. No objection to the depositions of these witnesses was made at the hearing, and they were competent. 4 How. (Miss.), 396; 12 S. & M., 130 ; 13 id., 295; 9 id., 613. The complainants evidently rely upon the statement in the trust deed that the notes were given for “ money loaned,” as avoiding both the deed and the notes, but the reverse of this is true. If the feme covert could contract for supplies, she could manifestly contract for the money to purchase them; and the fact being conceded that these notes were given to factors whose peculiar business it was to furnish supplies, it must be presumed that they were given to raise the means with which to purchase supplies, and that the proceeds of the notes ^were so used. It must be presumed that Mrs. Wood intended to make a valid contract, and did make a contract authorized by law. Certainly it cannot be contended, in the utter absence of all evidence, that the contract is void. Partee v. Silliman, 44 Miss., 272.</p> <p>2. But if the corpus of the property is not chargeable with the debt, its income is. This has so often been decided by this court that it is only necessary to refer to the authorities. They all hold that a feme covert may charge, by mortgage duly acknowledged, the debts of her husband upon her separate property, and this power is restricted, by the revised code of 1857, to the income, until the debts are paid. There is not a solitary adjudication in conflict with this statement, and the bill proceeds upon the postulate that the trust deed was given to secure the husband’s debt. Noxworth v. Magee, 44 Miss., 430.</p> <p>I. That the pleadings and proofs show that the assumed contract of Mrs. Wood was an attempt by a married woman to contract for borrowed money, and being prima facie void, is no charge upon the corpus of her real estate, and before that can be bound, tbe parties seeking to subject it must clearly show that the money so borrowed by her has been applied in payment for such articles for which, by statute, she can legally contract. Yiser v. Scruggs, 49 Miss., 706; Brown et ux. v. Helm et al., MSS. Op.</p> <p>' 2. That the evidence by which this is attempted is not competent, as being an attempt by Logan and Greenfield, defendants, to establish a claim against her estate in this case. 37 Miss., 458 ; 44 id., 289; 47 id., 575.</p> <p>3. That if competent, it is so vague and uncertain as to afford no clear and definite ground on which to judicate a decree for the amount for which she is liable, so as to make such amount, “used by her,” a charge on her separate estate.</p> <p>' 4. That being void as to her does not necessarily make it the •separate debt of her husband, and appellants disclaim that it is ¡such debt, and if it was his debt, the same vague uncertainty and indefiniteness as to amount taints the proof as to James Wood, that characterizes the case as to Mrs. Laura Wood.</p> <p>5. That this court, from the record, could not render a different decree than that rendered by the chancellor, nor does the record disclose any hope of a different case being made if'it is remanded.</p>

Hon. E. Stafford, Chancellor. The facts of the case sufficiently appear in the opinion of the court. 1. The appellants are bona fide purchasers without notice and for a valuable consideration, and there was no lien existing on. the cotton in favor of the appellees ; that the mortgage stipulated for supplies to be furnished during the year, and for a payment by the first day of October.

Hon D. N. Walker, Chancellor. The facts sufficiently appear in the opinion of the court. 1.

Hon. O. H. Whitfield, Chancellor. October 15, 1868, J. A. Green filed bis bill against B. A. Beard, to confirm tax title to the land in controversy, which he had purchased from the state May 29, 1868. It had been sold for the taxes of 1861; sold July 7, 1862. A demurrer was filed and was sustained, and the bill was dismissed. An answer was filed September 30, 1873, setting up payment of taxes, the existence, of the war, that the taxes were for the support of the war.

<p>Appeal from the Chancery court of Washington County.</p> <p>Hon. E. Stafford, Chancellor.</p> <p>The facts sufficient for a correct understanding of the case appear in the opinion of the court.</p> <p>1. That a married woman had no power to buy property on credit; and if she did so, such contracts were not voidable merely, but absolutely void ; and she has no power to make an election either to retain the land and pay the balance of the purchase money, or to reconvey the land, citing and commenting on Whit-worth v. Carter, 43 Miss., 73 ; Pollen v. James, 45 id., 129; Foxworth v. Bullock, 44 id., 457 ; Cordon v. Manning, id., 761 . Staton v. New, 49 id., 309 ; Nicholson v. Heiderhoff, 50 id., 56 ; Magruder v. Snell, MSS. Opinion.</p> <p>2. That all proceedings in the cause after the first appeal was taken were coram non judice and void ; that the defendants had the right to rely upon their appeal, and if there was anything irregular in it, they should have had notice of further proceedings before the pro confesso was taken.</p> <p>3. That the notes were payable to the order of the makers, and by them indorsed in blank. This made them transferable by delivery ; and in the hands of a bona fide holder for value, no defense against the first holder could be set up. 2 Parsons on Notes and Bills, 18, 19, 279, 436 ; Murrell v. Jones, 40 Miss., 565. And that it is not averred in the bill that the complainants are the holders or owners of the notes. This is essential.</p> <p>1. That, under a prayer for general relief, any relief will be granted that the facts alleged and proved justified. Dease v. Moody, 31 Miss., 617; Dodge v. Evans, 43 id., 570.</p> <p>2. That the contracts of a married woman by purchase of property on credit are not void ab initio, but merely voidable. And that she has the election to affirm or disaffirm the contract. But she cannot disaffirm the contract and still retain the legal title to the land. Gordon v. Manning, 44 Miss., 756 ; Staton v. New, 49 id., 309 ; Warren v. Beddy, MSS. Op.: Nicholson v. Heiderhoff, 50 Miss., 56.</p>

Hon. O. H. Whitfield, Chancellor. Spencer filed his bill, alleging that, on September 18, 1869, he was the owner of an equitable interest in the land in controversy, having purchased the same from one Williams, agent, and paid a part of the purchase money, and executed his note for the residue; that complainant at that time sold the said land to the defendant, J. M. Anderson, who was to pay the balance due to Williams, and executed his note to complainant for $450, and…

Hon. W. B. Cunningham, Judge. This was an action on the bond of J. W. Bates as administrator of Jesse Bates, deceased. J. W. Bates died, and suit was brought against the sureties on his bond as administrator.

<p>Error to the Circuit Court of Warren County.</p> <p>Hon. Geo. E. Brown, Judge.</p> <p>The facts of this case sufficiently appear in the opinion of the court.</p>

Hon. W. B. Peyton, Chancellor. Lowry exhibited his bill, alleging that Wilkinson executed to him as trustee for Jayne a deed of trust on November 16,1867, to secure a debt of $642.65, due December 18,1867, conveying “ all the stock of goods, wares, merchandise and groceries, and all other articles of any and ail description whatever then in the store of the said Wilkinson, and all goods that the said Wilkinson might afterwards add to his stock from time to time in the house…

Hon. E. Stafford, Chancellor. The facts in the case sufficiently appear in the opinion of the court. The following errors were assigned: 1. Because complainant’s demurrer to defendant’s petition was overruled. 2. Because complainant’s plea to the application to reopen this cause was overruled. 3. Because the chancellor erred in reopening the case. 4. Because the chancellor erred in dismissing complainant’s bill.