Volume 52 — Mississippi Reports

Hon. E. H. Osgood, Chancellor. All the facts necessary to a full understanding of the case, and the principles announced, are stated in the opinion of the court. The error assigned is as follows : The court erred in rendering a final decree in said cause for appellees, in perpetually enjoining the judgment at law, in the bill described, and granting a new trial at law to the said appellees, in the case in their said bill described, in the circuit court of Amite county. 1.

(In vacation.) Hon. S. S. CalhooN, Judge. A sufficient statement of the facts in this case will be found, in the opinion of the court. The errors assigned -are : 1. The court erred in granting the peremptory writ of mandamus compelling plaintiff in error to pay the money demanded.. 2. The court erred in not dismissing the relator’s petition. The fund in controversy was donated by act of Congress of July 2, 1862. (XT.

<p>1. CoNTrsrtrANCE: Dangerous exercise of judicial discretion.</p> <p>It is a dangerous exercise of judicial discretion to refuse a continuance and a postponement of trial to a future day of the term, where the affidavit alleges material facts, where all diligence has been shown by the applicant, and where it is averred that the same proof can be made by no other than the absent witness. A reversal will not be granted if it is shown by the record that every material fact set out in the affidavit for the continuance was subsequently proved by other witnesses.</p> <p>2. Presence oe the Accused nr Criminal Trials : Recitals of the record.</p> <p>It is well settled that the record must affirmatively show the presence of the accused, when in custody, during the entire trial before the jury. Whether the same requirement exists as to the leaving of questions of law is not definitely settled, but the safer rule is that in all cases of felony the records should show the presence of the accused in every step in the progress of the cause so important as a motion to quash the indictment.</p> <p>3. Murder : Testimony as to antecedent malice, and in rebuttal.</p> <p>On a trial for murder, the state having introduced testimony tending to show antecedent malice and previous preparation for the combat, the accused has the right to introduce testimony tending to show that such preparation was made in anticipation of an expected attack upon himself, and the exclusion of such testimony is error.</p> <p>4. Same: “ Apparent danger” a mixed question of law and fact. Right of the court to instruct thereon.</p> <p>Apparent danger is a legal term, with a fixed and definite meaning. What circumstances constitute apparent danger is primarily a mixed question of law and fact, but when all the facts are ascertained it is a question of law alone. The court has the right to give a charge, which sums up all.the facts relied on by the state, hypothetically, and inform the jury that if they believe that such were the facts, and all the facts attending the killing, the same do not constitute what the law means by apparent danger. Such charges are calculated to mislead and should be rarely given.</p> <p>5. Same: Same: Duty of jury in passing upon action of accused.</p> <p>In passing upon the action of a party who has slain another the jury should not try him by the light of after developed events, nor hold him to the same cool and correct judgment which they are able to form. They should put themselves in his place, and judge of his act by the facts and circumstances by which he was surrounded. They should not give him the benefit of personal timidity or needless fears.</p> <p>6. Same : Previous preparation of weapon.</p> <p>A charge to the effect that he who enters into a combat dangerously armed, and with undue advantage, and slays his adversary, is guilty of murder, is erroneous, because omitting the qualification that the weapon had been procured for the combat, or that the accused pro voked the difficulty, or entered into it with any intention of using the weapon.</p> <p>7. Same : Right of self-defense.</p> <p>That the right of self-defense is derived from nature, and not granted by the law, is a truism which in no manner affected the issue, and a refusal to grant a charge announcing it is not ground for reversal.</p> <p>8. Same : Self-defense. Anticipating attach of adversary.</p> <p>One heed not always await the attack of his adversary, but may, in extreme cases, anticipate the attack, and take the life of his antagonist, if necessary to save his own, but this principle is not applicable to the case at bar, and a charge announcing it was properly refused.</p> <p>9. Same : Same : Flight as a mode of avoiding danger.</p> <p>The real or apparent danger which will justify the taking of the adversary’s life must be imminent, impending, and present, but it need not be unavoidable except by slaying the adversary. A man need not avoid danger by flight, but so long as he is in a place where he has a right to be, and is neither engaged in an unlawful enterprise, nor the provoker, nor the aggressor in the combat, he may stand his ground and resist force by a force proportioned to the attack.</p> <p>TO. Same : Manslaughter. Revised Code, 1871, •§ Sf>88. Code, 1857, p. 60S.</p> <p>Those sections' of the code of 1857 and of 1871 which announce that “ the unnecessary killing of another, while resisting an attempt to commit a felony, or do some other unlawful act, or after such. attempt has failed and been abandoned, shall be manslaughter and not murder,” mean that the unlawful act spoken of must be of a criminal nature, though on& a misdemeanor, and the killing must take place while the act is being resisted, or immediately following its failure and abandonment, and are not applicable to cases of mutual combat.</p>

Hon. E. H. Osgood, Chancellor. The opinion of the court contains a very full statement of all the material facts in the case.

Hon. E. Stafford, Chancellor. The opinion of the court contains a very full statement of all the material facts in the case. The following is assigned for error : 1. The court erred in overruling the demurrer of S. E. White.

dams County. Hon. E. PI. Osgood, Chancellor. The facts in this case are very fully stated in the opinion of the court. The following errors are assigned : 1. The court erred in sustaining the demurrer and dismissing-the bill. 2. In sustaining the demurrer and dismissing the bill on rehearing. The facts bring the case within the jurisdiction of the court. Goulson v. flarris, 43 Miss., 752, and authorities cited; McDonald v. Murphree, 35 Miss., 710.

<p>Chancery Practice : Voluntary conveyances. Insolvent estates.</p> <p>~W., who was insolvent, conveyed, fraudulently, certain real estate to Mrs. H. He died in 1872, and his estate was declared insolvent. A bill was filed by creditors who had probated their claims, as required by the statute, but had no liens to subject the property fraudulently conveyed to their claims. Held, that while courts of equity will not assist a creditor to the satisfaction of his debt out of property fraudulently conveyed by his debtor, until he has exhausted his remedy at law, yet creditors of an insolvent estate, who have probated their claims, being, in effect, prohibited from suing the executor or administrator of an insolvent estate, may resort, in the first instance, to a court of equity to subject to the payment of their claims property fraudulently conveyed by the debtor, as a court of law is inadequate by its powers to do so.</p>

Hon C. C. Shackleford, Judge. A. J. Green sued out a distress for rent, which was levied on the personal property of A. Conn, who replevied and gave bond, with J. C. Green and J. P. McKinney as sureties, conditioned to pay and satisfy the judgment of the court. On the trial of that suit the plaintiff in attachment, A. J. Green, obtained a judgment against Conn for rents ($180), but did not take judgment against the sureties on the replevin bond.

Eeeoe to the Circuit Court of Tippah County. Hon. W. D. Bbadeoed, Judge. The opinion of the court contains all the facts necessary to* a full understanding of the principles announced. The errors assigned are : 1. The court erred in giving the second charge asked by defendants as to the duty of the board of supervisors. 2. The court erred in giving the 6th, 7th, and 10th charges-asked by defendants on the question of fraud. 3.

!Hon. W. D. Frazee, Chancellor. The facts of this case are sufficiently set out in the opinion ■of the court. The error assigned is the dissolving of the injunction on •defendants’ motion. A sale under a judgment rendered against husband and wife on a note made by them during marriage is void. 25 Miss., 22; 33 Miss., 550. A married woman can only be ■sued at law on such contracts as the statute enables her to make. 7 S. & M., 64, 68, 83, 84; 9 S. & M., 435; 33 Miss., 550.

<p>GtjakdiajST: Final Account.</p> <p>G., guardian of Mrs. B., filed his final account, to which Mrs. B. and husband urged some objections, and, at the April term, 1873, G. obtained an order to ‘•'withdraw his final account” and “filean amended final account.” No steps were taken until January term, 1874, when the final account first filed was materially altered, and decree rendered allowing the account and discharging the guardian without further notice to the ward. Held, that the alteration of the account at the third term of the court, without any notice of it to the ward, operated a surprise to her, and entitles her to have the decree of allowance vacated, and that, although this proceeding is called a petition, it is in fact in the nature of a bill of review, and should be so treated.</p>

Hon. J. A. Orr, Judge. The facts of tlie case necessary to a full understanding of -tbe points decided are set out in the opinion of the coürt. The errors assigned are : 1. Giving instructions for the state. 2. Refusing instructions asked by accused. 3. Refusing to grant a new trial. The 1st charge for the state is too broad. The indictment •charges a former marriage with Maria .Calvert and a second marriage with Ann Dawson. These allegations must be proved.

. ErrorTo tbe Circuit Court of Lincoln County. ' Hon. J. M. Smiley, Judge. Tbe facts of the case are sufficiently stated in tbe opinion, ■together with the substance of the pleadings, etc. Tbe substance of the errors assigned are: 1. Overruling motion to strike out special plea. 2. Excluding testimony of plaintiff. • 3. Instructions to tbe jury. 4. Overruling motion for a new trial.

Hon. Dallas P. Coefey, Chancellor. The material facts necessary to a full understanding of this ■case are very fully set out in the opinion of the court. The following errors are assigned, to wit:- . 1. That the demurrer of appellant to the bill was improperly overruled. 2. That the final decree should have been for appellant, instead of for appellee. [Reporters find no briefs in the record on either side.]

<p>Appeal from the Chancery Court of 'Washington County.</p> <p>Hon. E. Staeeord, Chancellor.</p> <p>Appellants’ bill alleges that-John Woodburn and John R. Woodburn purchased the land in controversy from Elliott, and executed a mortgage to secure the purchase • money,, $3,888.58. John Woodburn died in 1858, leaving a will, and,, after disposing of other property, he devised all the rest of his-estate (including his interest in these lands) to his two sons,, John B. and L. Woodburn. The former died in 1861, and! the latter-succeeded to his interests. John-Woodburn declared, in his will that the said estate should be “ subject, however,, to and under the restrictions, conditions, reservations, and incumbrances,” thereinafter mentioned, and he thereafter-expressly charges and incumbers his said residuary estate with the payment of all his debts, etc., and makes them a lien. thereon. The will was probated and recorded in Washington county by John It. Woodburn, his executor, in 1858. The-executor resigned in 1860. The notes held by complainant are six, dated April 1, 1856, and due in six, seven, eight,, nine, ten, and eleven years, each for $1,015, none of which; have been paid. Alleges that these notes were a charge oa the land ; that the executor fraudulently violated his duty by resigning ; that he has been absent most of the time since the-maturity of these notes, and that no further administration on. the estate has been had; that there is no personal property,, and that complainant’s only remedy is in chancery; that in 1866 Bartly Johnson & Co., creditors of decedent, enforced a. foreclosure of the mortgage held by Elliott; that in that bill only J. B. Woodburn and T. D. Elliott were made parties,-, that Elliott knew of complainant’s claim, and should have-made him a party.</p> <p>That, at the sale under the decree of foreclosure, D. B. and. C. M. Bell purchased the lands. The bill prays for a declaration of complainants’ rights; that a trustee be appointed to-carry into effect the trusts of the will in their behalf; that the-different accounts be taken and they be alloAved to redeem, and, after a day for payment, that the interest of John Wood-burn in the lands be sold, etc.</p> <p>The defendants filed their demurrer, and state :</p> <p>1. There is no equity on the face of the bill.</p> <p>2. The court has no jurisdiction of the cause, as stated in complainant’s bill.</p> <p>3. The bill attacks collaterally the judgments, decrees, and proceedings of the probate court ill a subject over which that court had complete jurisdiction.</p> <p>• 4. The bill attacks collaterally the decree and proceedings of this court in the said cause, Bartly Johnson .& Co. v. J. R. Woodburn et al., and does not make the parties to that suit parties to this suit.</p> <p>5. The bill shows the complainant’s claim was barred by the statute of limitations before this bill was filed, and that complainant has slept upon his rights, if any he had, until they . have become too old and stale for this court to enforce.</p> <p>6. Complainant’s remedy, if any he hath, is full, adequate, and complete at law.</p> <p>' 7.' The bill shows that these defendants are innocent purchasers of the lands in question for a valuable consideration, withoxvt notice.</p> <p>. 8. And for other causes, etc.</p> <p>The chancellor sustained the demurrer and dismissed the bill, from which decree this appeal is taken, and this action is assigned for error.</p> <p>Filed an extensive written argument, and cited the following authorities : That the court has jurisdiction, see Story’s Eq., §§ 332, 535; Story’s Eq. PL, §§ 99, 103; Story’s Eq., §§ 975, 976, 506, 1244. As to the right to redeem, Story’s Eq. PL, §§ 185, 186, 193 ; Story’s Eq. Jur., § 1023 ; Phillips v. Hines, 33 Miss., 163; Abbey v. Cent. Bk., 31 Miss., 434; Taylor v. Rees, 44 Miss., 89 ; McRea v. Walker, 4 How., 455 ; 4 S. & M., 707 ; 29 Miss., 57 ; Nat., Story’s Eq. PL, § 193 ; Jack v. Thompson, 41 Miss., 49; 7 How., 127; 1 S. & M., 351; ib., 521; 7 ib., 85; 33 Miss., 382; 5 How., 516, 688 ; 44 Miss., 121, 293; 47 Miss., 543; Campbell v. Brow, 6 How., 106 ; Hemphill v. Hemphill, 34 Miss., 68 ; Helm et al. v. Darling, 3 Dana, 185 ; Clondas v. Adams, 4 Dana, 603 ; Grider v. Payne, 9 Dana, 188 ; 4 Wharton, 455 ; Alexander v. MoMury, 8 Watts, 504; Steele v. Henry, 9 Watts, 526 ; Story’s Eq., § 552. Enforcement of express trusts : Story’s Eq. Jur., § 1058 ; Bev. Code, 1871, §§ 1194, 2175 ; Templeton v. Tompldns, 45 Miss., 424 ; Clarke v. Hornetball, 47 Miss., pp. 532-534 ; Williams on Ex’rs. As to the statute of limitations: George’s Dig., 479 ; Miller v. Trustee, etc., 5 S. & M., 651; Geary v. May, I6OM0, 66-80 ; Burns m Wilkinson, 31 Miss., 537 ;Angell on Dim., §§ 485,488 ; Bk. St. Ala. v. Dalton, 9 How. (U. S.), 522; Mclver v. Eagan, 2 Wheat., 25; Code, 1857, art. 11; Benjamine v. Eobertson, 25 Miss., 502; Pope v. Boman, 27 Miss., 194; Fi’ench v. Davis, 38 Miss., 218; 43 Miss., 212; Angelí on Lim., §§ 25-30, 54-63 ; 29 Miss., 57 ; Story’s Eq., § 1519-20. The heirs and creditors should have been made parties to the bill to foreclose. Story’s Eq. PI., § 193 ; Story’s Eq. Jur., § 427 ; Simons v. North, 3 S. & M., 67; Mony v. Dorsey, 7S.&M..15; 8S.&M.,727; 42 Miss., 18 ; 42 Miss., 267 ; 48 ib., 549.</p> <p>The court has no jurisdiction of the case as presented. Taylor v. Eoute, 48 Miss., 62;. Templeton v. Tompldns, 45 Miss., 424; Code, 1857, p. 455, art. 120. The decree of the court cannot be impeached collaterally in this way. Wall v. Wall, 6 Cush., 409; 31 Miss., 578; Carmon v. Cooper, 39 Miss., 784; Pollard v. Buie, 43 Miss., 140 ; Allison v. Abram, 40 Miss., 747 ; Code, 1857, p. 444. As to the statute of limitations, see Code, 1857, pp. 399, 403, art. 4; Code, 1871, §§ 2150, 2151, 2174; Wood v. Eord, 29 Miss., 57; 5 S. &M., 651; French v. Davis, 38 Miss., 225.</p> <p>Insisted that the court had no jurisdiction of the case, and cited Blanton v. King, 2 How., 856 ; Carmichael v. Browder, 3 How., 252; Hamberlin v. Perry, 7 How., 143; Powell v. Barris, 35 Miss., 60°5 ; Code, 1871, § 2151; 1 Story’s Eq. Jur., § 64; Goff v. Bobbins, 33 Miss., 153 ; Mandeville v. Lane, 35 Miss., 153; Mitchell v. Woodson, 37 Miss., 567 ; Edwards v. McGee, 33 Miss., 143; Fox v. Wallace, ib., 660; Benson v. Stuart, 30 Miss., 49 ; Code, 1857, pp. 438, 439 ; 2 Story’s Eq. Jnr., § 1521; Greenfield v. Girdlestone, 2 Yonnge & Coll., 662.</p> <p>This court will not grant relief against an innocent purchaser. Harper v. Bibb et al., 34 Miss., 472 ; Wyse v. .Dandridge, 35 Miss., 672.</p>

. Error to the Circuit Court of Rcmldn County. Hou. Wm.' M. HaNCooic, Judge. • The facts necessary to a full understanding of this case will be found in the opinion of the court. • The following errors tire assigned, to wit: 1. The court erred in overruling plaintiff’s motion for a new trial. 2.

Hon. J. A. Orr, Judge. A Arery full statement of the case will be found in the opinion ■of the court. It is assigned lor error : 1. That the court erred in affirming the judgment of the •court below in this cause. 2. That the court erred in the law of this case as presented by the bill of exceptions therein. An appeal will lie in this case. Statute of H. & IT., p. 453 ; Yallabusha County v. Carbry, 3 S. &M., 529 ; Dismukes et ■al. v. Stone, 41 Miss., 431; Adams &.

Hon. J. M. Ellis, Chancellor. Appellees held a judgment against C. E. Dobyns. They sued out an execution and levied on the land in controversy. Appellants enjoined the sale, claiming that the land belonged to them, and that the sale would be a cloud upon their title.

<p>1. Fraud : Administration. Sale of realty. Tax title. Statute of limitations..</p> <p>If an administrator suffers lands in his possession to be forfeited for taxes, and then repurchase it, the money, if refunded, would go to him or his representatives. The Ee'vised Code, \ 2173, applies to invalidities which have-crept into probate court sales, made in good faith, where the purchase money has been paid.</p> <p>2. Same : Sam® : Multifariousness.</p> <p>"Where a bill to recover lands is, as to'all the lands, by the same parties against, the same parties, and as to the same subject-matter, the complainant has a. right to unite the entire demand in one suit, and the bill is not multifarious..</p> <p>3. Same : Equity jurisdiction. Remedy at law. Fraud.</p> <p>The legal remedy must he full, adequate, and unembarrassed. The possibility of relief at law is not sufficient to defeat the jurisdiction of equity, and especially will equity take jurisdiction if complainant’s legal remedy has become embarrassed by the fraud of defendant. A court of equity cannot inquire into the proceedings of the probate court with a view of correcting them; but in the investigation of the acts of a trustee, with a'view of declaring him or his privies clothed with the legal title to property for the benefit of the cestui que trust, it will not stop the pursuit because it leads into a court of probate. Fraud vitiates everything, and may be collaterally attacked, and this applies to the j udgments- and decrees of all courts. ’</p>

the Circuit Court of O difax County. Hon. J. A. Orr, Judge. Plaintiff in error brought her suit in forma pauperis to the February term, 1875, of the circuit court of Colfax county, against defendant, to recover damages for the wrongful killing of chickens and other poultry, and laid her damages at $5,000. Defendant filed an affidavit to require plaintiff to give security for the costs of suit. This motion was sustained by the court, .and a rule of sixty days entered.

Hon. JohN J. DENNIS, Chancellor. Appellant claimed exemption from taxation of its road and detached lands upon the following grounds: Section 3, of the charter of incorporation is in following words : ‘ ‘ That whenever any portion of said railroad shall be completed, through this state, and is paying an interest of eight per cent, per annum on its cost, and not before, such portion may be-, taxed the same percentage, and no more, upon the capital expended in the construction…

Hon. Wm. M. HANCOCK, Judge. The only facts necessary to a full understanding of this case are stated in the opinion of the court. The errors assigned are as follows : 1. Because the court erred in dismissing plaintiff’s appeal. 2. Because the court erred in holding that plaintiff’s affidavit for an appeal was not made in due form of law. This was an action of replevin under the Code, 1871, § 1530. Judgment for plaintiff for $25 damages and costs.

Hon. W. B. CuNNINGHam, Judge. All the material facts in the case are stated in the opinion:, of the court. It is assigned for error : 1. The court below erred in giving judgment for the plaintiff' below. 2. In entering two judgments in one and the same case. 3. In not giving judgment for the defendants. 4. In overruling the motion for a new trial.

Hon. E. Gr. PeytoN, Jr., Chancellor. The material facts appear in the opinion of the court. Appellants assign for error that portion of the decree herein which orders a sale of the real estate involved, inas-mucb as the heirs of the said, decedent are not all parties hereto, and for the further reason that said decree blends the jurisdiction of probate and chancery.

Hon. W. B. CuNNING-ham, Judge. This was an action by Tucker against White as administrator of Huntington, deceased, for breach of the conditions of title bond for land. Tucker proved eviction of himself, and had verdict and judgment for the $700 of purchase money originally paid by him, and interest thereon, aggregating $1,414.

Hob. Geo. E. BrowN, Judge. . A sufficient statement of :this case will be found in the opinion of the court. Errors are assigned substantially-as- follows : ■ 11 The court erred in permitting the witness McAlpine to be called- to the stand a second time, counsel protesting against it. ■ ■ ■ '2. ;In -refusing-to allow defendant below to testify as-to the, bona'fides of his purchase and possession.- ■ - 3.

<p>1. Mortgage : Rent. Lien on crop. Lessee. Sub-tenant.. . , .</p> <p>A lessee becomes the owner of the property for the term, and may sell it in. part or in toio, and the purchaser would become the assignee of the term p and if he sells á part of it his assignee becomes responsible pro tanto for alll the burdens proportionally which .the'lease imposed upon his immediate-lessor. . --</p> <p>At common law, if the entire interest in different parts or parcels of the land, passed by assignment to separate and distinct individuals, a covenant which., runs with the land will attach on each parcel.pro tanto. . .</p> <p>2. Same: Same: Case in-¡judgment. '</p> <p>H. leased his plantation to N. for the year 1873, for $1,240.rent,-secured by mortgage on the crop. FT. leased thirty:five acres of it tó T. for four bales of' cotton. T. made a mortgage to F. & K. for supplies. H. claims the cotton produced by T. and mortgaged to F. & K. Held, that :the, entire premises, demised to ÜST. were subject to the burden of $1,240 rent; that the lease by N. to T. assigned thirty-five acres, part of the entire plantation,' cum onere of its. proportional part of the rent, which was an - incumbrance common to the entire premises; and. that is the measure of the right of H., the original lessor-</p>

Hon. W. B. CuNNING-ham, Judge. Judgments were rendered in the court below and writs of ■error prosecuted to this court. The Mississippi Central Eail-road consolidated with the New Orleans, St. Louis & Chicago Eailroad Company. A scire facias was issued to revive the ••actions against the consolidated company, and the case came before the court on a motion to quash the scire facias. [The arguments were oral; no briefs found in the record.]

Hon. C. C. Shackleford, Judge. . The sufficiency of the sheriff’s return on the summons is the only question involved, and the return is set out in the opinion of the court. It is assigned for error that the judgment was rendered upon an insufficient return of the summons, and that an alias summons should have .been awarded. Cited Code of 1871, § 701.

Hon. W. B. Cunningham, Judge. The facts in this case are sufficiently stated in the opinion of the court. It is assigned for error : 1. The proof shows that Allen had no lien. 2. The proof fails to show the property was subject to the lien. 3. Necessary parties were not before the court. 4. A personal judgment was rendered. 5. An execution was awarded. 6. No issue was made up ; no finding of a lien in verdict. 7. The case was tried in the absence of Hester’s agent. 8.

Hon. E. Stafford, Chancellor. A sufficient statement of the case, will be found in the opinion of .the. court. The foil owing, errors are assigned: 1. The court erred in not applying the, payment made by the complainants to the mortgage debt. 2.

Hon. J. 11. GaltNey, Chancellor. The material facts in the case are stated in the opinion of the court. The action of the court in dismissing the bill is assigned for •error.

Hon. E. S. Fisher, Judge. The facts of the case are fully stated in the opinion of the •court.

Hon. Uriah Mill saps, Judge. Joseph Speed was indicted for retailing by the grand jury of Covington county. The record only shows that the grand jury returned into-court certain numbers therein set forth, without indicating what those numbers represent, whether indictments or not, or whether the indictment set forth in the record was represented by any one of those numbers.

Hon. Gteo. F. BrowN, Judge. The facts of this case sufficiently appear in the opinion of the court. The error assigned is the refusal of the court to take up and consider the motion. insisted: 1. That the legislature had the power to define, by law, the practice with regard to the hearing and continuance of motions for new trials in any given case at any time, and that the act of March 6, 1875, was constitutional, and should have been obeyed by the circuit court. 2.

Hou. Sam. Yotustg-, Chancellor. The facts of the case sufficiently appear in the opinion of the court. insisted: 1. That a deed in trust, executed since the 18th day of April, 1873, by a married man without the joinder of his wife, conveying his residence in a town, which exceeds in value $2,000, is not wholly void, but is merely invalid as to such part as is worth $2,000 (the maximum value of a homestead). 2.

Eeeoe to the Circuit Court of Lauderdale County.. Hon. Robeet LeachmaN, Judge. The opinion of the court contains a statement of the case sufficient for a full understanding of the principles announced. It is assigned for error 1. The court erred in sustaining- the demurrer of plaintiff,. T. M. Horne, to the second plea of defendants, Jacobson, Wolffe & Co. 2. In rendering judgment in favor of plaintiff, Horne, against-defendants.

Hon. Uriah Millsaps, Judge. The facts in this case are stated in the opinion of the court. The following errors are assigned : 1. The court erred in not granting a' continuance in this-cause. 2. In granting instructions for plaintiff below. 3. In refusing instructions asked by defendant in the court, below. The court below should have granted a continuance of the cause for reasons stated in the affidavit.

<p>Error to the Circuit Court of Attala County.</p> <p>Hon. W. B. CUNNINGHAM, Judge.</p> <p>The facts in this case are sufficiently stated in the opinion of the court.</p> <p>It is assigned for error :</p> <p>1. That the.court admitted in evidence the pretended execution levied on the property in controversy.</p> <p>2. In overruling motion for a new trial.</p> <p>The levy made by the sheriff shows that the mule is the property of plaintiff in error. The execution should not have been admitted in evidence. It was “ void upon its face,” having no parties who could claim the money.</p> <p>The frivolous objection to the execution as evidence was properly overruled and the fieri facias admitted. The sheriff had done his plain duty and was entitled to a verdict. The fieri facias was neither void, nor voidable. It was certain as to amount and as to the party out- of whom the money was to be made.</p>

Hon. AustiN Pollard, Chancellor. The opinion of the- court contains a sufficient statement of the case. Errors are assigned as follows : 1. The decree of the court is entirely unsupported by the evidence in the cause. 2. There should have been a decree for an account.

Hon. J. M. Smiley, Judge. The opinion of the court contains a sufficient statement of tb'e case. The errors assigned are : 1. The court erred in refusing to allow plaintiff in the court below to introduce in evidence the bond sued on. 2. In refusing to grant plaintiff’s application to set aside the judgment before entry, and for leave to dismiss as to one defendant and to amend the declaration. 3. In overruling the motion for a new trial.

Hon. Geo. E. Brown, Judge. The facts in the case are sufficiently stated in the opinion of the court. On the trial of this cause the court, among other instructions, gave for the plaintiff the following : 1. “ That railroads, as carriers of passengers, are bound to the utmost care and diligence of very cautious persons, and are responsible for any, even the slightest, neglect.

Hon. J. A. Orr, Judge. The facts in this case are sufficiently stated in the opinion of the court. The assignment of error is substantially as follows : 1. The court erred in withdrawing the case from the jury. 2. In allowing the indictment amended. 3. In the action shown by 2d bill of exceptions. 4. Same set out in 3d bill of exceptions. 5. In forcing defendant to trial on amended indictment. 6. In not discharging defendant. 7.

Hon. J. J. DeNNIS, Chancellor. The opinion of the court contains a sufficient statement of the case to a full understanding of the principles announced. The case is before this court the second time, and for the facts in the case, as originally presented, reference is made to the case as reported in 49 Miss., 33. The following errors are assigned: 1.

EitROR to the Circuit Court of Golfax County. Hon. J. A. Orr, Judge. At the March term, 1876, of the circuit court of Colfax ■county, plaintiff in error was indicted jointly with one Margaret Givens, charged with the murder of Belle Givens, the infant child of Margaret Givens. He was tried at the same term of the court, convicted, and sentenced to the penitentiary for life.

Hon. Geo. E. BrowN, Judge. A very full statement of tbe case, as bearing on tbe points considered, will be found in tbe opinion of tbe comt. Tbe errors assigned are as follows : 1. Said circuit court erred in overruling tbe motion of tbe plaintiff in error, wbo was tbe defendant in said cause in said circuit court, for a transfer of said cause or suit to tbe circuit court of tbe United States for tbe southern district of tbe state of Mississippi. 2.

<p>1. Gttakdiait’s Boiro : Power of the court.</p> <p>"Where the probate court appointed B. guardian of a portion of the minor children of W., and who gave bond as required, the court had no power at a subsequent term to appoint him guardian of another of the said minors, without bond, and simply make an order that the bond executed on behalf of the other children should stand as a bond for the latter also. The court could not so convert the bond.”</p> <p>2. Same : Sale of real estate by a guardian. Code, 1857, arts. 150, 151, p. 468.</p> <p>"Where a guardian is directed to sell lands, under the Code of 1857, arts. 150, 151, p. 468, the court may require an additional bond for the faithful application of the proceeds, and, when so required, if he fails to give the bond the sale will be void.</p> <p>3. Same : Bill to remove cloud upon title. General relief. Surrender of possession.</p> <p>Where the only prayer in the bill is for cancellation of a deed alleged to be a cloud on complainant’s title, and for general relief, the court, upon rendering-a decree canceling the deed, cannot decree a delivery of the possession of' the lands.</p>

Hon. J. A. Orr, Judge. The facts necessary to a full understanding of the case are ■stated in the opinion of the court, and also the substance of the instructions involving the principles announced. Errors are assigned as follows : 1. The court erred in refusing to grant a new trial. 2. In refusing tbe 6th instruction asked on behalf of the> plaintiffs. 3. In the instructions to the jury on behalf of the defendants.

Hon. J. J. Hooker, Chancellor. There is a very full statement of the facts in the opinion of bhe court. The following errors are assigned: 1. The court erred in ordering an account for defendant. 2. Ill not ordering an account for rents and profits for the-complainant. 3. In not awarding restitution to complainant. 4. In overruling complainant’s exceptions to the account of' the master, showing $5,260 due defendant. 5.

Hon. J. N. Campbell, Chancellor. The facts in this case appear in the .opinion of the court. It is assigned for error : 1. In proceeding in the case to a decree ordering a sale, before the Albright infants were before the court by process', served. 2. The parties defendant to the amended bill were not brought before the court by notice, process served, or publication made' and proved. 3.

<p>1. Principal and Surety : Release of surely by action or non-action of creditor.</p> <p>It is well settled that no mere indulgence by the creditor towards the principal debtor will release the surety, provided the creditor does not by any affirmative act diminish the value of any security that he may have, or tie up his-own hands against the principal debtor, or release any claim he may have acquired against the property of the latter.</p> <p>2. Same: Property of pmncipal debtor held as collateral. Claim against third persons held as collateral.</p> <p>The principle that non-action or passiveness on the part of the creditor will not release the surety, applies as well to outside property of the principal, deposited or pledged as additional security for the debt, as it does to non-action, upon the original obligation. The rule is the same as regards claims against third persons, deposited by the principal debtor as additional and collateral security for the debt. As to such collaterals, in the absence of special circumstances making prompt action a duty, no mere 'laches, short of such as will cause a bar of the statute of limitations, will release the surety on the original obligation.</p> <p>3. Same : Non-action and improper action as to the collateral securities.</p> <p>While indulgence and passiveness by the creditor with regard to collateral1 placed in his hands by the principal debtor will not release the surety, yet if, by any improper or unskillful dealing with such collateral, he impairs its-value, or if he so treats it as to make it his own, the surety will be, pro tanto, released.</p> <p>5. Pleading: Duplicity.</p> <p>A plea, setting up improper action by the creditor with regard to collateral placed1 in his hands, is not made double because it details also that the creditor for a. long time forebore to take any action, whereby loss accrued. Both aver-ments present but a single issue. Such a plea is bad for duplicity when coupled with an allegation that the creditor had promised, but failed, to bring suit on the collateral.</p> <p>6. BaNkrottot or Principal : Release, of surety.</p> <p>"When the principal debtor is adjudged a bankrupt, a failure by the creditor to present his claim for a dividend does not release the surety.</p>

Hon. C. C. Shackleford, Judge. The material facts proved in the case are stated in the opinion of the court. It is assigned for error : 1. In sustaining demurrer to defendants’ 2d and 3d pleas. 2. In overruling objections to the introduction of evidence to sustain the account, it not being properly itemized. 3. In giving each charge asked by plaintiff below. 4. In refusing the charges asked by defendants below. 5. In modifying plaintiff’s charge and refusing a new trial.

Hon. E. S. Fisher, Judge. This case was before this coxirt at a former term, and is. reported in 50 Mss., 648. It was then reversed because the record did not show that the mortgage executed by Allow Minice to Payne & Baines, by virtue of which they claim the cotton, had been recorded.

Hon. OrlaNdo Davis, Judge. This was a proceeding, commenced in the supervisors’ court of Marshall county, against plaintiff in error, where it was adjudged that it was liable and should pay taxes on $32,000 of the capital stock of the company. From this judgment an appeal was taken to the circuit court, which court affirmed the judgment, and the case comes to this court on a writ of error.

<p>1. TSstate: Distribution of. Deedby minor. Statute of limitations. Estoppel..</p> <p>An infant who makes a deed conveying realty has until such time as will complete the bar of the statute of limitations, after maturity, to disaffirm the deed, and bare recognition or silent acquiescence will not be regarded as a •confirmation of the sale unless prolonged for the period required to bar him, and he will not be estopped. The rule between legatees, in the distribution •of an estate, is that one who has not been paid cannot make those who have been paid refund, if the assets were originally sufficient to pay, unless the ■executor is insolvent; and the same principle applies to the distribution of an •estate among heirs under like circumstances.</p>

Hon. B. B. BooNe, Judge. A sufficient statement of this case will be found in the-opinion of the court. The assignment of error is as follows : ‘ ‘ The court below erred in sustaining the motion to dismiss the appeal from the .justice of the peace.” The only question presented is the dismissing the cause by the circuit court. We will consider the several grounds upon which the motion was predicated: 1. Because there was no suffi cient affidavit for appeal.

Hon. Geo. F. BrowN, Judge. On the 7th day of December, 1869, the defendants in error, Levi Simon & Co., brought an action of assumpsit in the circuit court of Warren couiffy against Caroline Loewenhaupt, ■as executrix of Isaac Loewenhaupt, deceased, to which she pleaded non-assumpsit, and on the 29th day of October, 1873, there was a judgment for the plaintiffs for the sum of $2,020.87 and costs, to be levied de bonis testatoris.

Hon. E. Staffobd, Chancellor. The facts in this case are very fully and sufficiently set out in the opinion of the court.

<p>Appeal from the Chancery Court of Hinds County.</p> <p>Hon. W. B. PeytoN, Chancellor.</p> <p>All the material facts in this case will be found in the-opinion of the court.</p> <p>The 14th section of Perry Cohea’s will provides for a sale-of his land in Hinds county; 17th gives his estate -to his. children and grandchildren; 18th appoints J. Stowe, Samuel. Matthews, and D. A. Cohea his executors.</p> <p>The purpose of the bill is to charge the heirs, upon an-alleged agreement of Samuel Matthews and D. A. Cohea,. executors, with John Echols, made in June, 185.9, for sale to Echols of the land in controversy, and to procure title.</p> <p>The power to sell has never been executed, and a court of ■ chancery has no power to execute it. Code, 1857, pp. 309 ; 2 "Washb. on Real Property, pp. 608, 609, 619, 628, 629.</p> <p>The deed claimed to have been deposited with Potter is relied on as a memorandum to take the case out of the statute of frauds. The proof leaves it in doubt if Matthews ever •signed it; but, even if he did, it was not deposited as an -escrow, and was no written memorandum of the contract sued on.</p> <p>Complainants try to make out a memorandum of the contents, signed by the executors, by secondary proof of the contents of a map, a hand-bill advertisement, and a pencil memorandum, all three burned in Potter’s office, in February, 1864. It has not been done. The proof does not show it.</p> <p>It is apparent that, under the statute of frauds, there are several fatal deficiencies in the proof. The signature required by that statute is not proved. As to the map, there is no proof that any person signed it. As to the printed advertisement, the proof is positive that Matthews never did sign it. The only proof is that his name was printed on it, as one of the persons advertising the sale. lie says a copy of it was sent to him in Panola county, and he signed two or three deeds, but only after full payment in good money. As to the pencil memorandum, Boyd, the auctioneer, proves that he did not make that memorandum. Matthews was at his residence in Panola county at the time of the sale and never saw the memorandum.</p> <p>But if the signing had been proved, the terms of the contract have not been proved, and there is no price proved. ■ The identity of the lot, by proof of the contents of the writing, is also wanting under the statute of frauds. Take the contents of the writing as made out by secondary evidence as the basis of adjudication, and that is the only correct basis under the statute of frauds. The proof is very deficient as to ; signature and as to price, as to terms of sale and as to the identity of the lot. Apply the rules of law, and we reject all ■.the proof except as to the contents of the writing as recol-lectecl by the witnesses. Brown on Frauds, 399 ; 3 Pars, on Con., 14; 8 S. & M., 681; 42 Miss., 730; 3 Pars, on Con., 13 ; Brown on Frauds, 374 ; 27 Miss., 828 ; 8 S. & M., 861; 23 Miss., 295 ; Hill on Frauds, 95, 96 ; 4 Br. Cb. Cases,' 138 ;. 8 S. &M..484.</p> <p>Tbe points we insist on are :</p> <p>1. The evidence shows that the contract of sale was suffi--ciently evidenced by a memorandum in writing, according to ■ the established rule in auction sale. 5 Strobh. (S. C.), 129 ; 1 Hilliard on Vendors, 88, 89, citing 2 Taunt., 38; Hilliard, on Sales, 638 ; 47 Miss., 678 ; 48 ib., 23.</p> <p>2. The execution of the deed by the executors, drawn according to the memorandum, is sufficient to take the case out of the statute of frauds. 6 Graft., 78; 9 ib., 1; 1 Sugden on Vendors, 57; 4 Munf., 77 ; Hilliard on Vendors, 115-119, § 23.</p> <p>3. Part of the money having been paid and the contract, recognized, the vendor holds the legal title as a mortgagee, and a court of equhw will hold the contract open until demand is made for the balance. Bellamy v. Shelton, 26 Miss., 250 ; Johnson v. Jackson, 27 ib., 498; Stewart v. Yates, 30 ib., 100; Walton v. Wilson, ib., 576; Arthur v. Pearlson, 32 ib., 131; Profit v. Robinson, 34 ib., 141; Jones v. Loggins, 37 ib., 546.</p> <p>4. No specific or definite steps were ever taken by the executors to put an end to the contract, or by their successors. The former continued to recognize it, and the latter have taken no steps to put an end to it.</p> <p>5. On the principles announced in the cases cited we maintain that the receipt of a part of the purchase money, and the acts of the vendor in treating the time of payment as not material, by granting indulgence, impose .on him positive duties, as well to the purchaser as to the vendee, and if he chooses to-put an end to the contract he must take specific steps to do it. To delay these steps and then sue in law would be taking an unconscionable advantage. Authorities already cited.</p> <p>6. There is no demurrer to the bill and that its material allegations are sustained. The proof shows a contract of sale, valid under the statute of frauds : 1st. A map of the land sold. 2d. A printed advertisement by the executors of the terms of the sale, with their names printed to it. 3d. A memorandum on the back of the advertisement of the names of the purchasers, price per acre bid, and the number of the lot sold to him, corresponding with the numbers on the plat. These were ■delivered by Cohea, one of the executors. 4th. He prepared deeds, acknowledged and sealed. Among these was one to ■ John. H. Echols for lot No. 12 of the Cohea survey. The map and memorandum gave full information how to draw the deeds.</p>

Hon. Harvey E. Ware, Chancellor. The facts necessary to a full understanding of the case are stated in the opinion of the court. The overruling of the demurrer to the complainant’s bill is assigned for error. Every material fact to which complainant means to offer evidence ought to be distinctty stated. Story’s Eq. PI., §§ 28, 32. The pleadings in chancery must be as certain as at law.

Hon. W. B. CuNNINGI-iam, Judge. The opinion of the court contains a sufficient statement of the case, with the facts necessary to a full understanding of' the principles. The errors assigned are substantially as follows : 1. In refusing to admit W. S. Rushing to testify in this case. 2. In overruling motion for a new trial. 3. In rendering judgment. 4. In granting 3d instruction for defendant in error. 1.

Hon. Geo. E. Brown, Judge. Defendants in error brought suit in the circuit court of' Warren county against plaintiff in error, for loss under a policy of insurance made by plaintiff in error. An application was made to remove the cause to the United' States circuit court, which was refused. The defendant in the court below pleaded the general issue and several special pleas. Plaintiffs below filed three replications to defendant’s. 4th plea, without leave of the court.

<p>1. Judgment : Conclusiveness thereof.</p> <p>The general rule is that a judgment or decree is conclusive between parties and privies. It is conclusive both as to the law and fact in issue, and it is immaterial whether the final decision was rendered by a court of law or equity. It is conclusive, not only of the rights of parties in the particular suit, but of every fact which is affirmed positively or by necessary implication. But that the one or the other may become effective as a plea in bar, or, -where that is not admissible, conclusive in evidence, the fact must have been directly in issue.</p> <p>2. Samis: Same:</p> <p>A fact in issue is that upon which the plaintiff relies and avers a cause of action, and -which the defendant denies or admits by his pleadings. Collateral matters, which either party may offer in evidence to-estahlish the controverted issue or fact, are not facts in issue.</p> <p>3. DAE-crtra Babbit Treaty : Reservation thereunder.</p> <p>A reservation under this treaty separates the land reserved from the public lands, and operates as a grant to the reserve, which takes effect upon the particular parcel, when specified and located, as completely as if the treaty had assigned the particular parcel. The grant being complete in itself, a patent is unnecessary, and a patent which attempts to convey land previously reserved or appropriated is void.</p> <p>4. Same: Registry. Removal.</p> <p>The application to register satisfies the treaty, although the agent may fail to do his duty. In order to work a forfeiture by removal from the land within the five years, the removal must be voluntary and not forcible.</p>

Hon. O. H. Whitfield, Chancellor. The opinion of the court contains -a sufficient statement of the case. The following errors are assigned : 1. The court below erred in sustaining the demurrer. 2. In dismissing the bill. 3. In sustaining the demurrer and dismissing the bill. 4. Same. 5. In not allowing complainant to amend his bill. The statute of limitations commenced running in April, 1867.

Hon. J. M. Smiley, Judge. All the material facts in this case necessary to a full umler-•standing of the questions decided are'found in the opinion of the court, and also the substance of the assignment of errors. The plaintiffs were heirs not only of Bartlett Ford but •also of their mother, both of whom were dead, and they were clearly entitled to their mother’s part of the land.

Eruor to the Circuit Court of Jefferson County. lion. Uriah Millsa:ps, Judge. All the material facts aré stated in the opinion of the court. The following errors, are assigned : 1-. The court below erred in not allowing plaintiff in error to read in evidence the deed from Robert Duncan, administrator of S. B. Owen, to H. C. Lindsey. 2.

Hon. Dallas P. Coeeey, Chancellor. The facts of this case are sufficiently stated in the opinion of the court. The action of the court in rendering the decree is assigned for error. The principle which underlies this proceeding was discussed in Wilie v. Brooks, 45 Miss., 542, to which it bears some resemblance or analogy. Were the Stallings bona fide purchasers? See 2 Kent, 405 (ed. 1867); Leonard v. Corley, 43 Miss., 705.

Hon. O. H. Wiiiteiell, Chancellor. The material facts in this case, and the errors assigned, are-very fixity stated in the opinion of the court. 1. The court could not property entertain the bill without making Nabors, the trustee, a party. Hill v.. Boyland, 40' Miss., 618. 2. It was error to enter decree against Jane Thomas, without taking pro covfesso against her. Cameron v. Watson, 1 How., 333; Beville v. McIntosh, 41 Miss., 516. 3.

Hon. Thomas ChristiaN, Chancellor. The facts in this case are very fully stated in the opinion of' the court. The following is assigned for error : ‘ ‘ The court below erred in dissolving the injunction in this case and dismissing the bill filed by complainants and entering judgment against them for costs.” The question presented is, was there a dedication of Mississippi street to the public use by Ragsdale, the proprietary owner of the soil ?

Ekroh to the Circuit Court of Union County. ’• Hon.W. D. BualpoRD, Judge. The opinion of the court contains a sufficient statement of the case, to give a full understanding of the principles announced. It is assigned for error : 1. The record does not show that the jury were of the county in which the killing was done. 2. The court erred in overruling defendant’s motion in arrest of judgment. 3. In overruling defendant’s motion for a new trial. 4.

<p>Appeal from the Chancery Court of Ohiclcasaw County.</p> <p>Hon. W. D. Feazee, Chancellor.</p> <p>The opinion of the court contains a sufficient statement of ■this case.</p> <p>It is assigned for error that ‘ ‘ The court erred in sustaining the complainant’s bill of injunction and in dismissing defend.ant’s cross-bill.”</p> <p>Where the husband invests his means for his wife and ■ children, it may or may not be fraudulent, according to the facts. Edmondson v. Meachum, 50 Miss., 39. If to hinder and delay creditors, see 9 S.&M.,394. The transaction must be in good faith. Hunt v. Knox, 34 Miss., 656 ; ib., 377. A trust deed fraudulent on its face is notice to the purchaser. Douglass v. Bank, 11 S. & M., 471; 7 Paige, 568; 9 S. & M., 447. Any stipulation in a deed of trust for benefit of the debtor or his family renders it fraudulent and void. 2 Kent. ■Com., 535 ; 5 Cow., 347 ; 23 Miss., 75 ; 6 Wall. (U. S.), 78.</p> <p>The innocence of the creditor, or cestui que trust, will not ;protect the fraudulent acts of the grantor. Harney v. Pack & ■ Clifton, 4 S. & M., 229 ; Pass v. Pass, 4 Miss., 516 ; Farmers’ Bank v. Douglass, 11 S. & M., 469 ; 27 Miss., 167.</p> <p>Fraud may sometimes be established by strong circum,stances, even against positive proof denying-it. 6 S. & M., 647.</p> <p>An insolvent debtor may prefer a creditor or a class of creditors. Ingraham v. Grigg, 13 S. & M., 22; Hunt v. Knox, ■34 Miss., 655 ; Mangum v. Finncane, 38 ib., 354. The mortgage of property consumable in its use is not fraudulent per ■se, or notice to purchasers of fraud. Farmers’ Bank v. Douglass, 11 S. & M., 469 ; Harney v. P.ack, 4 ib., 229 ; Ewing v. ■Cargill, 13 ib., 77. A trust deed to secure future advances is valid. Hillard v. Cagle, 46 Miss., 309-341; Summers & Branin v. Koos, 42 ib., 749.</p> <p>A conveyance is not void -merely because it may binder or ■delay creditors. It is not so except where to hinder and delay is the main intent. 11 S. &M., 469 ; 13 ib., 22.-</p> <p>A sale will not be set aside as fraudulent in fact merely because it is doubtful and suspicious. White v. Trotter, 14 ■S. & M., 30 ; Foster v. Pugh, 12 ib., 416.</p> <p>’ A bona fide purchaser for value at a trust deed sale will be protected, notwithstanding there may have been fraud between the original parties, of which the purchaser had no notice. Price v. Martin,'46 Miss., 489 ; Harrington v. Allen & Co., 48 •ib., 491; Ewing v. Cargill, 13 S. & M., 79, 83. Purchases made with an insolvent debtor’s means or money, in the name ■of a third person, are not within the statute of frauds. Carlisle ■v. Tindall, 49 Miss., 229 ; Edmonson & Winn v. Meachum, 50 ib., 34.</p> <p>Possession of property by the grantor, after a public forced ■sale, is no evidence of fraud. 11 S. & M., 337 ; 12 ib., 416 ; 13 ib., 79; 42 Miss., 749. See George’s Dig. (“Fraudulent Assignments”), p. 326, § 35 a.</p> <p>Fraud must be charged and proved as laid. It must be ■stated in the bill. Pinson v. Williams, 23 Miss., 64-67; Carney v. Hubbard, 2 S. & M., 108; Kidd v. Mauley, 26 Miss., 156; Bowman v. Reilly, 31 ib., 261; Fatheree v. Fletcher, 31 ib., 265 ; Shaw v. Brown, 35 ib., 146; Par-hurst v. McGraw, 24 ib., 134.</p>

Hon. E. StapeORD, Chancellor. All the material facts in the case are stated in the opinion of the court. The errors assigned are as follows : 1. The court erred in sustaining the motion to dissolve the injunction granted therein. 2. The court erred in rendering the final decree dismissing the bill. The decree should have been in favor of complainant, and granting her a new trial, as prayed. The judgment was rendered for $266.50.- It was enjoined because fraudulently obtained.

Hon. J. A. Orr, Judge. A very full and clear statement of tbe facts in this case will be found in the opinion of the court. It is assigned for error: 1. The court erred in overruling plaintiff’s motion for a new trial. 2. In refusing to-give the first ten charges for the plaintiff. 3. In giving defendant’s two charges. 1.

. Hon. E. Stafford, Chancellor. The bill alleges that on December 21, 1859, Samuel Nelson and Eunice R., his wife, made their trust deed to A. H. Ringgold, as trustee, to secure Mason Pilcher and E. M. Goodrich the payment of six promissory notes, amounting to' $5,250, conveying the lands in controversy; that the trustee has died, and that the notes are due and unpaid; that Samuel and Eunice R. have also died, leaving the heirs at law named in the bill, and making them…

<p>Appeal from the Chancery Court of Monroe Comity.</p> <p>Hon. ü. H. Wiiiteield, Chancellor.</p> <p>The facts necessary to a full understanding of the case are set out in the opinion of the court.</p> <p>The errors assigned are :</p> <p>1. In overruling the demurrer to the bill.</p> <p>2. In rendering decree in favor of complainant, establishing 'the vendor’s lien, and ordering a sale of the land (July 29, 1872).</p> <p>3. In its decree, January, 1875, overruling defendant’s motion to dismiss the case.</p> <p>4. In referring to the clerk and master to ascertain amount •of complainant’s debt.</p> <p>5. In rendering final decree ordering a sale of the land.</p> <p>Bird was an innocent purchaser for value from Tucker and wife, and had no connection with the fraud charged. 46 Miss., 489; 1 Story’s Eq. Jur., §§ 409, 410. The recital in the decree that defendants were served with citation, when ■contradicted by the record, will not sustain the decree. 44 Miss., 235 ; 9S.&M., 613.</p> <p>The decree, July 29, 1872, was final. It established the debt, the lien, and ordered a sale. Such decree is final. 12 S. &M., 726 ; ,13 ib., 307 ; 27 Miss., 768 ; 40 ib., 500; 46 ib., 268; 47 ib., 44. The court had no further jurisdiction, except by bill of review. 3 Greorge, 89 ; 13 S. & M., 226 ; 46 Miss., 45.</p> <p>Bird was not a bona fide purchaser, as he never paid anything — simply gave his notes. Much less can appellant make such a claim. Service v. Beatty, 3 Greorge, 52 ; 43 Miss., 260. 'They took with full notice of the lien of appellee. 6 George, 672, 688. The purchaser at execution sale takes subject to the-vendor’s lien. See cases in George’s Dig., p. 449, § 113. If it was true that some of the parties were not served, nor* appeared, the court would not reverse the decree for that-reason. The}'' had no interest in the suit, and were not prejudiced by the decree. In such a case the court will adopt the practice settled in regard to suits at law in such cases, and consider that the appellee had abandoned his suit. Davis v. Mahorner, 41 Miss., 552; Hunt v. Anderson, 4 George,. 559; Woodhouse v. Lee, 8 S. & M., 161; Henderson v. Talbert, 5 ib., 109.</p>

Hon. John B. Deason, Chancellor. A full statement of the material facts in this case will be found in the opinion of the court. The error assigned is that the chancery court decreed a lien on the land in favor of appellee, and decreed the enforcement thereof. 1. Thompson held the note of McLain, which gave him an implied equity as vendor. Mrs. McLain gave her note to Thompson and took up her husband’s note, which operated as a hen.

Hon. E. S. Eisiier, Judge. Trie facts in trie case necessary to a full understanding; of' trie principles announced are stated in trie opinion, of trie; court.

Erroe to the Circuit Court of Lincoln 'Count}1-, lion. J. M. Smiley, Judge. The original declaration was filed on the injunction bond by Thomas McMahon and Kate, his wife, and Henry O’Hara, all obligees in the bond. The defendants pleaded nil debit.

<p>1. Agent : Tenant. Attornment.</p> <p>Where an agent is placed in possession of real estate by the owner as tenant, to. hold possession of the property, such tenant cannot affect the rights of his ■ landlord by attornment, or by any agreement to attorn to a stranger. This is. the rule under our statute and at common law.</p> <p>2. Same : Same : Corporations and corporators.</p> <p>A corporation may deal with an individual corporator or stockholder as with any other person, and they may acquire adversary relations towards each other.</p>

W. B. CUNNINGHAM, Judge. On January 18, 1875, J. L. Jordan recovered judgment against M. A. Tate and J. H. Carpenter, in a justice’s court, for $95.29, which was enrolled March 12, 1875; October 1, 1875, execution was levied on fifty bushels of corn, and 500 pounds, of seed cotton, as the property of Tate, being the crop grown by him in the year 1875. W. B. Turnage claimed the property, under a purchase from Tate on September 27, 1875.

Hon. E. S. Fisher, Judge. All the facts necessary to a full understanding of the case are stated in the opinion of the court. It is assigned for error : 1. The court below erred in giving the 1st and 3d instructions for plaintiff below. 2. In modifying the 9th charge asked by defendant below, and in not granting the same without modification. 3.

Hon. E. Hill, Chancellor. ' The facts in this case necessary to an understanding of the principles announced are found in the opinion of the court. It is assigned for error : 1. The court erred in rendering a decree in favor of complainants in the court below. 2. In not rendering a decree in favor of appellant, dismissing the bill. / The contract must be clearly proved, and its terms must bo> specific. 3 Pars.,on Con., 354 ; Buekmaster v. Thompson, 36 N. Y., 558.

<p>1. ATTORmsY and Client : Confidential relations. Privileged communications..</p> <p>The rule requires that the entire professional intercourse between client and. attorney, whatever it may consist in, should be protected by profound secrecy. The exemption is not confined to advice given or opinions stated; it extends to facts communicated by the client — all that passes between client and attorney in the course and for the purpose of the business. The privilege is for the client, and not for the attorney. The interests of justice and the protection of private rights demand the strictest confidence and privacy in this relation.</p> <p>2. Contract : Consideration. Agreement to ship cotton to factor.</p> <p>"Where L. & Co. agreed, for a consideration expressed, as part payment for lands, that their firm would ship all the cotton they contiolled to R. & M., factors in New Orleans, and then declined to ship the cotton, it was a breach of their contract, for which the factors may sue and recover damages.</p> <p>3. Deed ot Conveyance: General or limited warranty.</p> <p>"Where the vendees of lands employed an attorney, as agent, to make a purchase for them, which was consummated in the execution of deed warranty, limited to the extent of the pecuniary consideration or sum paid for the land, and the vendees accept the deed without objection, having full knowledge of the limit of warranty, the failure to warrant generally cannot be afterwards set up in defense.</p>

Cross-abpeal from the Chancery Court of Hinds County. Hon. E. W. Cabikis, Chancellor. J. & T. Green filed their bill and obtained an injunction restraining Horne, tax collector, from selling certain real estate levied upon by Mm for taxes assessed against the complainants.

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

<p>Appeal from the Chancery Court of Warren Comity.</p> <p>Hon. U. M. YouNG, Chancellor.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>Appeal from the Chancery Court of Warren County.</p> <p>Hon. E. Hill, Chancellor.</p> <p>All the material facts in this case are fully stated in the-opinion of the court.</p> <p>The error assigned is as follows : ‘ ‘ The court erred in dismissing the bill. A decree should have been entered in favor of complainant, according to the prayer of the bill.”</p> <p>The original sale by the guardian of the land in controversy is conceded to have been void.</p> <p>Lidia Parmele was born September 7, 1834; she married February 9, 1851; she arrived at age September 7, 1855-; her mother died in 1844 ; McGinty sold the land, January 13, 1840, to Wm. Vick, under whom defendant claims, and it is insisted that she did not bring her suit within ten years after the removal of her disabilities, and that having received the purchase money she is estopped to deny the validity of the sale.</p> <p>The deed exhibited fails to connect the two lots. The guardian’s accounts were never proved, and as the deeds filed as evidence do not sustain the defense, either of ratification or estoppel, it is useless .to discuss this point. The duty of establishing this defense devolves upon the defendants. Mar- • shal v. Hamilton, 41 Miss., 229. The deed made by Mrs. Parmele and her husband was executed the day after she was twenty-one years of age, and while she Avas under coverture, and could not have the effect contended for. Cook v. ToAvmbs, 36 Miss., 685. This could not act as an estoppel. Bigelow on Estop., 485, 493 ; Tyler on Inf. and Cov., 96, 97, 98, 702, '726, 727, 731, 733, 734; Bermis v. Call, 10 Allen, 512.</p> <p>Is the statute of limitations of five years appli cable to this ■ case ? It applies only to cause Avhere the lands of a deceased person or minor may have been sold by an executor, administra- • tor, or guardiem, under decree, bona fide and fairly, and the piirchase money has been paid, and as to minors and married Avomenit does not begin to run until the removal of the disability. Hutch. Code, 830, § 5. It could not relate to cases where there Avas no laAV authorizing a sale. The plea is insufficient; it alleges simply “the actual enjoyment and possession of said property” from the date of the deed. The bill does not - charge an adverse possession in any one. It is only filed to avoid, under Avhich the defendant claims title, and to enforce the trust. The actual enjoyment and possession of the prop- • erty AAras not necessarily inconsistent Avith the title of the complainants, and not necessarily adverse, visible, and notorious ■occupation. Ford v. Wilson, 33 Miss., 490 ; Magee v. Magee, 37 ib., 138. It must be continuous and uninterrupted. Ferguson v. Carpenter, 36 Miss., 404; Mixim v. Partee, 38 ib., 401. The pi-obate court could not have any jurisdiction; the beneficiaries are not orphans. See Const. Miss., art., 4, ■§18 ; Stewart v. Morrison, 38 Miss., 419 : Earle v. Crum, 42 ib., 165 ; Ex parte Atkinson, 40 ib., 17 ; 1 Story’s Eq. Jur., §§59 60. The statute of limitations of five years cannot apply. The statute of ten years is the only one that has any reason or support. The mere fact that the trustee is barred does not bar the cestui que trust. Bacouv. Gray, 23 Miss., 146 ; Eearm-u. Shirley, 31 ib., 301; Pearson v. McMillen, 37 ib., 588 ; Adams v. Torry, 26 ib., 499. In cases of express trusts the statute does not run. Murdock v. Hughes, 7 S. & M., 219 ; Jordan v. McKenzie, 30 Miss., 32 ; Gay v. Edwards, 30 ib., 218 ; Hayne v. Bul-lard, 23 ib., 88 ; Loggins v. Heard, 31 ib., 426. No lapse of' time is a bar to a suit as between trustee and cestui que trust. Dechoucho v. Savetier, 3 Johns. Ch., 190 ; Roane v. Chiles, 10 Pet., 177 ; Provost v. Gratz, 6 Wheat., 481; Oliver v. Pratt, 3 How., 333 ; Manny v. Mason, 8 Port., 211; Bertine v. Varian, 1 Edw. .Ch., 343; Bank v. Beverly, 1 How. (U. S.), 136; Raymond v. Severson, 4 Blackf., 77. If the statute can be invoked at all, when did it commence running? See Dease v. Jones, 23 Miss., 133. Lidia Parmele’s right to sue did not accrue until she was placed under a disability protected by the ■law. See Johnson v. Piles, 11 S. & M., 189; Barnwell v. Barnwell, 2 Hill Ch., 228; Thurman v. Shelton, 10 Yer., 383.</p> <p>The defense relies upon the statute of limitations, and the question is, when did it begin to run ? When the right of action accrued. It is true the right accrued when, in matters of real estate, the party had a perfect right of entry, but that rule does not apply in this case. She was entitled to one-third of the realty when she arrived at the age of twenty-one years, or married. The condition was to be satisfied first.</p> <p>The pleadings attempt to interpret the deed and put their-own construction upon it, and say that the equitable estate vested when the incumbrance, which was before the sale to William Vick by order of the probate court, was discharged. They must be construed most strongly against the pleader, and' they must abide by the case they make. The law do,es not sustain the position that title in equity to the said land did not vest at once, upon the execution of the trust deed by Ball. The incumbrance was to be removed, but it was not upon that condition the right vested. It passed the whole legal title to the trustee, without any condition, for the purpose of securing the benefits thereof to -the cestui que trust, and, to accomplish that, the trustee should remove the incumbrance. The deed vested in the trustee a fee simple absolute. Upon this point authorities are unnecessary. We are only called upon to meet the case made by the appellants.</p> <p>If we are incorrect in our interpretation, then all the appellants can claim is what their pleadings allege, that their equitable estate became vested when the incumbrances were discharged, which was before the sale under decree of the probate court, and their right of action then accrued; and since the purchase at that sale, even if the deed to him was void, claiming under color of title adverse to complainants, and from that time was in actual possession of said property, claiming and treating it as his own, under the decisions of this ■state his possession was sufficient to ripen into a title by limitation. We fail to see that the case cited in 8 Johns. (N. Y.), 262, caii have any application to this case. The cases cited in 9 Humph., 174, and 6 Ala., 589, are no more in point than the first cited case. It is clear that, whether our interpretation of the trust deed or that' put upon it by their pleadings be correct, the conclusion is the same. The right of action accrued during the infancy of complainant, Lidia P. McGinty, and the limitation commenced running at the time of the sale and possession by Vick. If so, the right is barred. The doctrine of successive or cumulative disabilities is untenable, and is so admitted, and does not even allude to the effect of the statute upon an implied trust. The reason of the law upon the latter subject is the presumption of law that the possession of the trustee is the possession of the cestui que trust — is not applicable to an implied trust, even if one could •be here implied. But even in cases of express trusts that ■presumption of law may be rebutted by acts, declarations, or ■conduct of the trustee inconsistent with his fiduciary character. Angelí on Lim., $ 472. And the open and notorious long-continued possession and acts of ownership of defendants and their vendees with respect to this property, claiming under color of title, would be sufficient to set the statute to running. Whatever effect may be given to this, presumption in the case of the trustees under the express trust, or any collusive or fraudulent vendees, we stand in a very different attitude.</p>

Hon. W. B. CuNNINGI-iam, Judge. The facts of the case are sufficiently stated in the opinion of the court. Errors are assigned as follows : 1. The court below erred in striking from the file the 2d and 3d pleas of defendant. 2. The court below erred in excluding from the jury the deed of I. W. Frequa, tax collector, to R. S. Holt, and the deed of K,. S. Holt to I. I. Michie, of the lands in controversy. 3.

Hon. Kobert LeachmaN, Judge. All the material facts in the case are stated in the opinion of 'the court. The errors assigned are : 1. In rejecting testimony of Patrick'.McCall, one of defendant's witnesses. 2. In rejecting testimony of defendant, offered in bis own behalf. 3. In granting instructions for' plaintiff. 4. In refusing instructions asked by defendant. 5. Overruling motion for a new trial.

Hon. E. Stafford, Chancellor. The opinion of the court contains all the material facts in the case. -. : It is assigned for error : 1 1. That the court erred in the interlocutory decree, and also-in the final decree, in holding that appellant was not entitled to the full amount of the two notes held by them, and that. Everman was entitled to a lien for any part of tbe money due ■on said two notes. 2.

<p>Appeal from the Chancery Court of Holmes County.</p> <p>Hon. Thomas WaltoN, Chancellor.</p> <p>A very full statement of the case will be found in the ^opinion of the court.</p> <p>It is assigned for error :</p> <p>1. The court erred in sustaining the motion to dissolve the injunction. The injunction should have been retained until the final disposition of the cause.</p> <p>2. The notice for the dissolution of the injunction was not sufficient.</p> <p>When notice of the motion to dissolve was given, the complainants should have been served with a copy of the answer. Code of 1871, § 104=9.</p> <p>Do the allegations of the bill make a case for relief ? Are 'the appellants the owners of the specific fund by reason of the alleged assignment? See Fitch v. Stamps, 6 How., 495.</p> <p>In the case above cited the question herein involved has been, definitely settled, and in that case Judge Siiaekey cites 5 Pet.,, 598; Alger v. Scott, 54 N. Y., 14; Conway v. Cutting, 51 N. H., 407 ; Lewis v. Berry, 64 Barb., 593 ; Superintendent,, etc., v. Heath, 2 McCart'. (N. J.), 22; Moody v. Kyle, 34 Miss., 506.</p> <p>But counsel rely upon two authorities as being sufficient to-overturn and unsettle the law of the state, announced by Chief Justice Siiaekey and affirmed by Chief Justice Smith, in Moody v. Kyle, supra, and, as they insist that this court should reopen the question, it may be necessary to analyze the adjudications cited. With respect to the statement drawn from Mr. Bispham, I have only to saj^ that it does not touch the question involved. Counsel are equally at .fault with reference to the case of Kodorick v. Gandrell, 59 Eng. Ch., 763. In that case, page 778, Lord Teueo expressly decides that an agreement between a debtor and a creditor that the debt owing ■ shall be paid out of a specific fund coming to the debtor, or an order given by the debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid equitable charge upon such fund, or operate as an equitable assignment of the debt or fund to which the order refers. This doctrine is sustained by the following authorities. 5 Wheat., 28,5 ; 3 Grreeul., 346 ; 1 Wash. C. C., 424; 1 Pick., 461; 16-Me., 252; 17 ib., 401; 4 Md. Ch., 75 ; 21 Pick., 317 ; 20 Vt., 25 ; 6 Cush., 287 ; 18 Mo., 564 ;. 3 Paige, 375 ; 26 Me., 114 ; 6 How., supra.</p> <p>The order or letter of Lightcap was not drawn on or directed to his debtor, but on his attorney or agent, H. S. Hooker, to receive, to collect, and to pay over certain funds when collected. And we insist that an order so drawn is not such an assignment of , a chose in action as will enable the assignee to maintain an action either at law or in equity; in fact, that it is no assignment whatever, though given for a. valuable consideration, and may be revoked at the pleasure of the part}'' giving such order or letter, whether the agent or attorney has or has not agreed to apply the money, when collected, in accordance with the directions of the order. Even though the attorney had so promised, it is no assignment of a chose in action. To constitute an assignment the order must be drawn and directed by the creditor to his debtor, directing the debtor to pay to a third person the debt. Mr. Bispham, in his treatise on principles of equity, p. 174, says : “ A more direction to an agent to collect money and hand it •over to a third party will not amount to an assignment.” The directions to the agent are revokable at pleasure.</p> <p>In the case of Roderick v. Gandell, 1 De G. M. & G., ■763, and 15 Eng. L. & Eq., 22, to which we earnestly invite the attention of the court, the bill was filed by Roderick, as a public officer representing a joint stock company or bank, under the firm name of the “ Liverpool Union Bank,” against Pinninger & Westmacatt, attorneys, and Gandell & Brenton, the debtors of the bank; that Gandell & Brenton, to induce the bank to forbear enforcing the payment of the debt due by them, amounting to about £3,000, and to obtain further advances from the bank, agreed to give a charge by way of equitable assignment upon certain debts due to them from the several railway companies named in the bill; that Pinninger & Westmacatt wore solicitors to the railway companies, and were employed in the settlement of the claims of Gandell & Brenton against the railway companies. Gandell & Brenton wrote to said attorneys as follows :</p> <p>“ We hereby request of you that you will pay into the bank of Cuntiffe, Brooks & Co., for the Liverpool Union Bank, all moneys now due to us from the Chittenham, Oxford & London Junction Railway, * * * and we hereby authorize you to receive such moneys in our name, for the purpose, from the different committees. We will thank,you to write to the bank saying you will act on this letter.”</p> <p>The attorneys wrote that they would pay the money as directed. The bank advanced about £9,692 in payment of drafts. The attorneys collected large sums of money from the railways, but refused to pay it over as requested in the letter.</p> <p>The question decided was whether they constituted an equitable assignment, and Lord Truro held that an order or letter, to constitute an equitable assignment, must be drawn upon and directed to the debtor, and not to a third person, as agent to collect and pay over. This case is precisely in point, .and announces the doctrine upon which we insist.</p>

. Hon. JasoN Niles, Judge. This was an action of ejectment by Martha E. Scarborough ¡and her husband, afterwards prosecuted by plaintiff in error, as sole heir, against Mary Smith, wife of J. J. Smith. The case-was tried, and resulted in a verdict for defendant. On the trial, among other instructions for the defendant, the court gayo the following: “10th.

Hon. Orlando Davis, Judge. All the facts necessary to a full understanding of the principles announced are found in the opinion of the court. The errors assigned are : 1. The court erred in sustaining the demurrer of respondents to the alternate writ. 2. The court erred in dismissing relator’s petition and •alternate writ.

Hon. Thomas WaltoN, Chancellor. Tlie opinion of the court contains a statement sufficient to present the merits of the case. The action of the court in rendering the decree is assigned for error. There was no privity between Boyd and appellants, and 'Gibson had no right to subject the labor and crops of appellants to the payment of his debts. Pars, on Con., vol. 1, pp. 199, 427; 2 East, 575; Taylor’s L. & T., § 448; 12 Wend., 555.

<p>1. BANKRUPTCY: Discharge from fraudulent debts.</p> <p>To prevent a debt from being discharged in bankruptcy on account of fraud of bankrupt in creating it, the debt must be tainted with fraud in its inception. If the contract was fair and honest when made, although the debtor may subsequently be guilty of fraudulent conduct in respect to it, yet such conduct does not destroy the benefit of the discharge.</p> <p>2. Partnership: Dissolution thereof . Note by one of old firm.</p> <p>After the dissolution of a partnership none of its members have power to issue notes in the firm name, so as to bind the firm, without their consent. Such paper only binds the members who sign the partnership name.</p> <p>3. Discharge in Bankruptcy : Pleading thereof.</p> <p>It is’bad pleading to aver in the declarations.the grounds relied on to avoid a discharge in bankruptcy. Such matter should be set up in the replication to the plea of discharge.</p>

Hon. B. B. BooNE, Judge. C. A. Orr sued the Memphis & Charleston Eailroad Company in trespass for the value of his horse, killed by defendant’s train, to which the railroad company pleaded : 1. Not guilty. ■ • ■ ■ 2. Statute of limitations, non, etc., infra ires annós. ■■ 3. Statute of limitations, non, etc., infra sex annos.

Hon. O. H. Wi-iiteield, Chancellor. The bill of Loughridge & Bogan alleges that they in good faith, and for value, purchased of J. N. Chears the land in •controversy; that afterwards Chears confessed judgment to Bowland, who had- the land levied on; that Bowland had .knowledge of their purchase, and that it was in good faith for value. They ask that the sale be enjoined. Deed from •Chears is made an exhibit. It is not acknowledged.

Hon. J. A. Orr, Judge. „ Tbe facts in tbis case are sufficiently stated in tbe opinion of tbe court. It is assigned for error that tbe court erred in sustaining tbe demurrer to tbe plaintiff’s declaration. Insisted that tbe declaration was sufficient to show tbe devas-tavit, and cited Code of 1871, § 611; 39 Miss., 785; 23 ib., 291; Code, 1871, § 1180; 50 Miss., 575; ib., 766; 6 How., ‘73; 12 S. & M., 439.

Hon. O. H. Whitfield, Chancellor. The material facts in the case are sufficiently stated in the opinion of the court. It is assigned for error : 1. In admitting the record of the attachment suit of Bamberger, Bloom & Co. v. Rhodes & Bright. 2. In holding said attachment suit an estoppel to T. P. Park to set up his claim to the lot in controversy, when said Park was no party to said suit. 3.

Hon. Ü. Davis, Judge. The material facts in this case are very fully stated in the-opinion of the court. It is assigned for error: 1. The verdict of the jury is contrary to the law and the testimony in the case. 2. The court below erred in refusing to admit the testimony offered by plaintiffs in error as to the time cotton would reach New Orleans, shipped from Holly Springs. 3. The court below erred in giving the defendant’s 3d charge.

Hon. DeWitt StearNS, Chancellor. All the material facts in this case are fully stated in the ■opinionof the court. The following are assigned for error : 1. The court erred in sustaining the demurrer of J. W. Clapp et al. to the bill of the complainants. 2. The court erred in overruling the exceptions filed by the • complainants to the answer of W. M. Strickland. 3.

Hon. Wm. M. HANCOCK, Judge. The facts in this case necessary to a full understanding of the principles announced are set out in the opinion of the court. It is assigned for error: • 1. In impaneling T. J. Magee and J. W. Speed as jurors. 2. In sustaining objections to testimony offered by the plaintiffs'. ■ ■ • . 8. In'refusing instructions asked by plaintiffs. 4. In giving instructions for defendant. 5. In overruling the motion for a new trial. 1.

<p>Error to the Circuit Court of Alcorn County.</p> <p>• Hon. B. B. BooNE, Judge.1</p> <p>A sufficient statement of the case will be found in the opinion ■of the court.</p> <p>The errors assigned are as follows :</p> <p>1. In admitting in evidence for defendant the receipt of William L. Duncan.</p> <p>2. In admitting the testimony of defendant that he had paid to William L. Duncan $100.</p> <p>3. In giving instructions for defendant.</p> <p>4. In refusing 5th instruction asked by plaintiff.</p> <p>5. In overruling the motion for a new trial. .</p> <p>Án' attorney at law is the agent of his client and has the authority to act for him, but he (the attorney) cannot delegate that authority to another so as to bind the client by the acts of such other j)erson. It has grown into a maxim, delegata fpotestas non ¡potest delegari.</p> <p>The authority of an attorney in collecting extends no further than to receive the amount in legal currency. Garvin v. Lowry,.. 7 S. & M., 26.</p> <p>A collection in bank currency is not authorized. Gas que t et al. v. Warren, 2 S. & M., 518 ; Clark & Co. v. Kingsland,, 1 S. & M., 256; 2 U. S. Dig. (1st series), § 239. See-Mississippi authorities, George’s Dig., 42, 24-26 ; Story on. Ag., § 13 ; 2 Kent’s Com., § 41.</p> <p>It was clearly error to refuse the following instruction askedi by plaintiff: “ That an attorney at law, as such, who has a. claim for collection has no authority to appoint a sub-agent to collect or settle such debt, and a payment to such sub-agent is not binding upon the principal or, client unless the money went into the hands of the principal or client.”</p> <p>The fact of the payment of the money to Duncan is clearly » proved. It was not a sending of the money by Duncan to E. A. Reynolds, the attorny who held the note, but it was a payment of the note by the defendant to that attorney-, in the mode and through the person suggested and agreed upon by the-, attorney himself. The words are that Reynolds was to ascertain and give to Duncan the amount due on the note, and that defendant “ could thenycw/ the same to said Duncan.”</p> <p>Duncan was present, and understood, the arrangement. The receipt of Duncan was properly, admitted in evidence., 1 Greenl. onEv., §§ 147, 148. . .</p> <p>-The 5th instruction asked by defendant was properly refused. Story on Ag., § 14 ; Commercial Bank, etc., v. Morton, 1 Hill (N. Y.), 501. . . ...</p> <p>An attorney at law holding a note for collection, may. appoint-an agent- to receive the money, aud a payment to such agent will bind the principal. McEwin v. Mayzyck & Bell, 3 Rich. . (S. C.), 210 ;-Briggs v.-Georgia, 10 Yt., 70;, Story onAg.y. .§ 14; Mead v. Engs, 5 Cow., 308 ; Edwards on Notes, 628.</p>

Hon. B. B. BooNE, Judge. Suit was brought in the circuit court by plaintiff in error on the following receipt: “Received, Monroe county, October 26, 1864, of J. C. Mc-Nairy, three thousand dollars, in full payment for five (5). thousand pounds of lint cotton, to class middlings. The said. McNairy is to furnish the bagging and rope, and I promise to gin and bale, as soon as convenient after gathering my corn.

Hon. W. B. CUNNINGHAM, Judge. This case is quite fully stated in the opinion of the court. The errors assigned are substantially as follows : 1. The court erred in sustaining defendant’s objection to plaintiff’s reading in evidence the sheriff and tax collector’s ■deed, and in refusing said deed to be read in evidence. 2. In excluding the testimony of J. W. Jinkins. 3. In refusing to allow in evidence the assessment roll. 4.

Hon. T. E. McGowaN, Chancellor. The facts in this case are fully stated in the opinion of the-court. The error assigned is the overruling of the defendant’s, demurrer to complainant’s bill. Insisted that the demurrer should have been sustained that-the bill is vague and uncertain. Commented on the allegations-, of the bill, and cited, Story on Par., § 286, 287,288 ; Story’s-Eq. PL, § 255, 259 ; East India Co. v. Henchman, 1 Yes., jr.,, 287, 288; Story’s Eq.

Hon. Georg-e E. Brown, Judge. Tbe facts in tbis case necessary to a full understanding of tbe principles announced are stated in tbe opinion of tbe court. Tbe errors assigned are substantially as follows : 1. Tbe court erred in overruling demurrer to pleas. 2. In excluding testimony offered by plaintiffs. 3. In deciding that said contract was terminable at tbe end of one year. 4. In excluding parts of Jones’ deposition.

Hon. W. B. CUNNINGHAM, Judge. The facts necessary to a full understanding of the principles .-announced will be found in the opinion of the court. It is assigned for error : ■ 1. The court erred in proceeding further in the .cause after “the confession of the plea to the jurisdiction. 2. In not disposing of the plea to the jurisdiction. 3. In proceeding to try the cause on an amended declaration without iin issue. 4.

Hon. W. Gr. HENDERSON, Chancellor. It is assigned for error : 1. That the court below erred in overruling the defendant’s 'demurrer to the complainants’ bill. 2. The court below erred in not dismissing the bill. Tbe scope of the bill is to arrest a sale’which would, as-alleged, cast a cloud upon complainants’ title. The judgment binds the interest of Borden ■ & Elder in the property, though it be only an equity of redemption.

' Appeal from, the Chancery Court of Madison County. Hon. William: Breck, Chancellor. The facts in this case necessary to a full understanding of the principles announced are found in the opinion of the court. An answer to the discovery required in this bill must prevail unless disproved by evidence. Wigram on Dis.; 6 (margin) ; 11 Law Lib.; 1 Story’s Eq.

<p>Appeal from the Chancery Court of Holmes Comity.</p> <p>Hon. Thomas.WaltoN, Chancellor.</p> <p>The facts in the case are fully stated in the opinion of the-court (also in 41 Miss., 248).</p> <p>It is assigned for error as follows:</p> <p>1. Because the bill charges, and the answer admits, that, complainant was only surety on the notes on which judgment was confessed, May 7, I860, and under which execution was; levied April 23, 1861, on property of-the principal -sufficient to satisfy the same, which property was not sold, nor was-there any legal amotion of the levy.</p> <p>2. Because complainant properly made and filed an affidavit that he wás only surety on said notes, and on April 23; - 1861, a levjrwas made as above, but no sale made or amotion of levy, nor did T. S. Wright consent to a non-sale of the-1 property.</p>

Hon. J. B. DeasoN, Chancellor. . The opinion of the court contains a sufficient statement of the facts in the case. It is assigned for error: ‘ ‘ That the court erred in rendering the final decree in the above cause, dismissing the bill of' complainant, when the decree should have been for the relief' prayed in the bill.” No boundaries of the 100 acres of land are given in the deed, and it is either a mistake in the deed or it is void for uncertainty.

Hon. E. Hill, Chancellor. All the important facts of the case are fouúd in the opinion of the court. Errors are assigned as follows : 1. The court erred in rendering the decree pro confesso against the appellant, on the 9th day of January, 1873. 2. In entering final decree against the appellant, January 13, 1873, and in ordering a sale of the railway and its property, subject to the mortgage therein.

Erroe to the Circuit Court of Washington Comity. Hon. C. C. Shackleford, Judge. The opinion of the court contains a very full statement of all the material facts in the case. The errors assigned are substantially as follows : 1. The court erred in allowing plaintiff to read in evidence the lease of ,E. A. Eobb. 2. In construing the lease as a mortgage to Eobb. 3. In allowing proof that the cotton had been delivered to claimants before the sheriff levied on it. 4.

<p>1. Quo Waeranto : Tax collector. Official bond. Forfeiture of office. Act of March IS, 1876.</p> <p>Where a sheriff and tax collector qualifies himself for entering upon the duties of the office, by taking the oath and executing the bond required at the time, it is within the constitutional power of the legislature to require a new bond in a larger amount, and require the sureties on such bond to justify as to their sufficiency in a different manner from that prescribed by the statute at the time of the election and qualification, and also to prescribe, as a condition, that in case of failure to execute such .new bond ho shall forfeit the office.</p> <p>2. Same : Same : How forfeiture declared.</p> <p>Where a failure to qualify works a forfeiture of the office, quo warranto is the ancient and appropriate, and usually the exclusive, mode of procedure to judicially ascertain the fact and to oust from office an unlawful incumbent; and where the statute requires the board of supervisors to order an election in case of such forfeiture, this provision does not carry with it the power of judicially ascertaining the forfeiture and the necessity for the election, of if it did, still that would not preclude the state from resorting to her action of quo warranto upon the petition of the proper officer.</p> <p>•3. Same: Same: Term of office. Holding over until successor is duly qualified. State constitution, art. 18, § 88.</p> <p>The provisions of our state constitution, permitting certain officers to hold for the term for which they are elected and until their successors are duly qualified, applies only to such officers as have filled out the full term, but not to such officers as have been adjudged to have forfeited their offices by the judgment of a court of competent jurisdiction. The judgment will take effect from its rendition, and produce an instantaneous vacancy in the office.</p> <p>-4. Same : Same : An office is not a contract. Constitutional prohibition.</p> <p>An office is not a contract, and the incumbent is not protected in it by the prohibition of the federal constitution against the impairment of the obligation of contracts. He has no such vested interest in the term, fees, . salarj', or dutiesas will prevent such legislation on these subjects as the public interests demand, provided the constitution is not infringed, and a person taking an office takes it subject to such regulations as the legislature may constitutionally enact.</p> <p>35. Same: Same: Mode of removal. Constitutional provision, art. 6, $ 86.</p> <p>Our state constitution provides for the removal of officers, upon conviction, for “willful neglect of duty” or “misdemeanor in office,” and this is the exclusive mode of removal. When indicted for the offenses therein enumerated, . then the principle obtains expressio unius, exclusio alterius. But a failure to execute a bond cannot fall within either of these offenses. For such failure the officer is not indictable, and the provisions of the constitution do not apply to such a case, so as to exclude other modes of removal.</p>

Hon. G-eo. E. BrowN, Judge. The facts in the case are very fully stated in the opinion of the court. It is assigned for error : 1. The court erred in awarding judgment against said bank, and in not rendering judgment in favor of the bank. ■ 2. In overruling motion for a new trial. Upon the facts in the case Lane is not entitled to recover.

Hon. W. B. Cunningham, Judge. For a fall understanding of the principles announced, the; opinion of the court sets out a sufficient statement of the case- Errors are assigned as follows : 1. In refusing instructions asked for by plaintiff. 2. In granting instructions for defendant. 3. In rendering judgment against defendant for the full value of the property instead of amount of defendant’s interest, in the same.

lion. Robert Leaci-imaN, Judge. The facts of this case material to the principles announced ¡are fully stated in the opinion of the court. The rulings of the court below, the verdict of tbe jury, and the judgment rendered are assigned for error. Any tax payer may institute suit against a tax collector. See Code 1871, § 1752. Harris was tax collector in 1866-7-8. ■Coulson enjoined the collection of his taxes.

Hon. W. D. Bradford, Judge. The opinion of the court contains a sufficient statement of the case. Filed a written argument in extenso upon the facts in the case and the state of the pleadings. [The reporters find no brief on file for defendant in error.]

Hon. S. S. CalhouN, Judge. The facts in this case, and the instructions commented upon, are stated in the opinion of the court. Errors are assigned as follows : . 1. The court erred in granting the 1st instruction for the state. 2. In refusing the 3d instruction for the defendant. 3. In qualifying the 3d instruction asked by the defendant. 4. In overruling the motion for a new trial.

Hon. Geo. F. BrowN, Judge. The opinion of the court contains all the facts necessary to a full understanding of the principles announced. It is assigned for error: 1. That the court below erred in sustaining the motion of defendant for verdict in favor of defendant, notwithstanding the evidence offered in behalf of plaintiff. 2. In refusing to grant the motion for new trial. 3.

Hon. Robert Leaci-imaN, Judge. The only material facts in the case appear in the opinion of the court. It is assigned as error: 1. It was error to render judgment by default without proof that E. Y. Early was mayor of the city of Meridian at the time the process purports to have been served upon him. 2. It was error to refuse to set aside the judgment and allow the defendant to plead to the action.

<p>1. Partnership : Surviving partner. Administrator. Mortgage.</p> <p>When a widow and administratrix of a deceased partner joins with the surviving partner in executing a note for a partnership debt, and a mortgage to secure the payment of the same, conveying the real estate of the firm, such anote is without consideration as to the widow, and as administratrix she has no authority to execute a mortgage upon the real estate.</p> <p>2. Same : Foreclosure. Necessary parties.</p> <p>In a suit against the surviving partner, to subject firm assets, the administrator of the deceased partner is not a necessary party to the proceedings, where the object is solely to reach the property of the firm. If the suit is to subject the individual property of the partners, then the administrator of a dead one is a necessary party.</p> <p>3. Same: Same: Personalty of the firm. In whom vested.</p> <p>The personal property of the firm, upon the death of a partner, vests in the survivor, and the realty vests in the survivor in common with heirs of the decedent, but in no event does the title to the partnership property devolve upon the administrator of the deceased partner.</p> <p>4. Same : Minor heirs. Homestead exemption.</p> <p>' Neither the partners nor the heirs can acquire any interest in the partnership property, real or personal, adverse to the trust imposed upon it by law, for the payment of the partnership debts. The widow of a deceased partner is only entitled to dower in the partnership realty, after the payment of the firm debts, and the right to a homestead exemption stands on no higher ground-</p>

Hon. G-eo. E. Brown, Judge. The facts of the case will be found in the opinion of the court. Errors were assigned as follows : 1. The court erred in overruling the demurrer of defendant to plaintiff’s amended declaration. 2. In rendering the final judgment for defendant in error. 3. In overruling the defendant’s motion for a new trial. 1. The demurrer to the amended declaration should have been .•sustained.

Hon. J. J. DeNNis, Chancellor. The bill alleges that Mrs. Phillips sold the land to Eiland for part cash, and his note on long time for the residue. The note matured, default was made, a deed was tendered, and payment refused. The bill seeks a specific performance; alleges that the land is insufficient to pay the debt, and that the vendee is personally insolvent, and prays for a receiver to take and receive the rents and profits pendente lite.

Hon. J. J. DENNIS, Chancellor. The opinion of the court contains a very full statement of the material facts in the case. The error assigned, is the overruling of defendant’s demurrer to the bill. We submit that J. A. Campbell is a necessary party, complainant or defendant, to the bill filed in this cause, to enforce the collection of the note given for the purchase money in the hands of the assignee. Turner v. Hicks, 4 S. &.

<p>Eiíeor to the Circuit Court of Lawrence County.</p> <p>Hon. Uriah Millsaps, Judge.</p> <p>The facts in this case necessary to a full understanding of' the principles announced are fully stated in the opinion of the court.</p> <p>It is assigned for error:</p> <p>1. The court erred in allowing defendant below to read in evidence the proceedings, judgment, execution and returns thereon,, and sheriff’s deed, notwithstanding plaintiff’s objection.</p> <p>■ 2. In overruling the motion for a new trial.</p> <p>Insisted that the sheriff’s deed should not have been read in evidence, because the sale of the land was made a month and a half after the return day of the execution ; that the sale was-void, and the deed conveyed no title.</p> <p>Is the return day fixed by the cleric, or does the law fix it? If it is fixed by law; the misrecital of the cleric, whether it results from accident or mistake of the law, cannot make the writ returnable at any other than the proper time. See Code,, 1871, § 839. As to time of holding the court, see Index to-Code of 1871, p. 736 ; Acts of 1872, pp. 43,44.</p>

Hon. W. B. CÍuNNIngham, Judge. A full statement of the case, relating to the points considered by the court, is found in the opinion of the court.

ERROR, to the Circuit Court of Hinds County. Hon. S. S. CalhooN, Judge. Eli Whitney brought suit in the circuit court of Hinds 'County against the state of Mississippi. The declaration was filed on the 21st day of March, 1874, demanding judgment for $4,260 and interest on the following-bill of particulars, to wit: ‘£ The State op Mississippi 1860. , To DU Whitney Dr. May 17. To 1 new model Mississippi rifle and saber bayonet.$ 14 “ 2 army andnavy revolvers. 12 -- $ 38-.

<p>1. Ohastcbbx Pbactice : Appointment of a receiver. Power over them.</p> <p>It is common practice in chancery to appoint, in proper cases, a receiver. Nothing-is thus adjudged other than that it is deemed improper for either party to hold the fund or property. The appointment is provisional. The receiver is regarded as an officer of the court, and the fund as in custodia legis. "Where the court takes the fund from a defendant, pending litigation, and afterwards becomes satisfied it cannot grant relief, and dismisses the bill, it still has-power to retain the bill for the purpose of repairing the wrong. Bquity courts can compel receivers to pay a fund into court, or to account, etc.</p> <p>2. Jotis-dictioít op this Vabious Ootjrts: Constitution of 183$. Act of 1858. Scire facias.</p> <p>In considering the distribution of powers among the courts of original jurisdiction, the convention of 1832 had reference to an existing body of jurisprudence, which had its original in the mother country, but had been greatly modified in adapting it to the circumstances of a new country, as well as by legislation. It retained, however, its essential features, both in respect of its principles and modes of procedure. Those subjects which pertained to superior common law courts were confided to the circuit court; those which belonged to equity, to a chancery court. To the circuit court the grant is “original jurisdiction in all matters civil and criminal;” to the chancery court, “full jurisdiction in all matters of equity,” etc. In construing a constitution or statute, meaning must be given to every word, for each was used to aid in giving complete expression to legislative will. The word “full” — “full jurisdiction” — implies that nothing is reserved; whatever is a matter of equity, as to that the power to adjudge is full. This court was established to administer that system of equity jurisprudence which then existed — unwritten and positive — and such enlarged dimensions as it might attain to by an ample development of its principles, and a more enlarged application of them to the new circumstances of an advancing civilization. However this system may expand, the “full jurisdiction” conferred gives the court capacity to fully administer it.</p> <p>3. Same: Power of legislature to confer jurisdiction on chancery court.</p> <p>The legislature cannot abstract from one, cognizance conferred by the constitution, and give it to another. It cannot take from the chancery court a subject purely and exclusively equitable, and transfer it to the circuit court. But there is on the confines of'tbis court a shadowy margin, about which courts cannot pronounce with confidence, and which legitimately belongs to the domain of legislation. “Bull jurisdiction” indicates that where the court takes hold of a subject it ought to dispose of it fully and finally. That suggests an appropriate field for legislation within constitutional limits. If the subject of litigation be a matter of equity, the legislature can give to the chancery court cognizance over all incidental and dependent matters, so as to give to the respective litigants the full benefit of their rights, and enable the court to pronounce finally. The' legislature has power to authorize the chancery court to entertain jurisdiction over the bond of areceiver appointed by the court, and the sureties thereon, in a prescribed formula, holding the sureties to the same measure of liability as would a court of law in the same circumstances. Such jurisdiction is in aid of its authority over the principal matter. That was what was done by the act of .1858. It gave a new remedy on the bond. It empowered the chancery court to administer, in behalf of any person who had been damaged by its breach, redress by the assessment of damages. The formula was the scire facias. This is the equivalent of, and substitute for, the suit at law. . The legislation which was condemned by the decision of Smith v. Bverett, 50 Miss., 575, and cases predicated upon it, is valid and constitutional.</p>

<p>Error to tbe Circuit Court of Grenada County.</p> <p>Hon. E. S. Fisher, Judge.</p> <p>Tbe facts sufficiently appear in tbe opinion of tbe court.</p>

Ereor to tbe Circuit Court of Tate County. Hon. E. S. Fisher, Judge. A statement of tbe case necessary to a full understanding of all tbe points decided will be found in tbe opinion of tbe court, and also tbe assignments of error. Tbe indictment should be signed by tbe district attorney,, and not by the grand jury. Tbe foreman of tbe grand jury indorses on it, “a true bill,-, foreman of tbe grand jury.” This is tbe only evidence that it is a true bill.

, Hon. E. Stapeord, Chancellor. The point raised in those two cases is upon a motion to-docket and dismiss the cases upon the grounds stated in the following motion: ‘ ‘ And now comes the appellees by their solicitor and moves the court • to docket this cause and dismiss the appeal taken from the decree of the chancery court of Washington county, overruling the demurrer filed by appellants to the bill of the appellees in said chancery court, for want of prosecution.”

EeROE to the Circuit Court of Jackson County. Hon. G-. C. ChaNdleb, Judge. All the facts in the case necessary to a full understanding of the principles announced are set out in the opinion of the court, together with the errors assigned. Filed a written argument on the facts, and argued the case ■orally. Filed a written argument, citing and commenting on the Code.

Hon. B. B. Booke, Judge. The facts in this case and the assignments of error are fully .■set out in the opinion of the court. Defendant in error is only entitled to expenses in getting to his ■destination by other conveyances, and damages for delay and inconvenience and pecuniary loss incurred. Chitty on Car., •311; 2 Greenl. on Ev., 228 ; Theobald v. E. W. Ins. Co., 26 Eng. L. &Eq., 438. Some early Mississippi cases have carried 'the doctrine to the extent of oppression.

Hon. Wesley Drane, Chancellor. The facts necessary for a full understanding of this case are fully set forth in the opinion of the court. The following are the assignments of error, to wit : 1. The court erred in rendering the final decree. 2. The court erred in making the injunction perpetual. 3. The court erred in decreeing that the deed of trust be canceled. 4.

Hon. ClaeeNCe Cullexs, Chancellor. The facts in this case necessary to a full understanding of the questions considered are set forth in the opinion of the ■court. It is assigned for error : 1. The process was made returnable to a day less than ten •days from its issuance. 2. There was no account taken of the indebtedness existing between the complainant and defendant. The court had no jurisdiction of the parties, the process being void.

Eeeoe to tlie Circuit Court of Hinds County (1st Dist.). Hon. Geobge F. BeowN, Judge. Plaintiif in error sued in ejectment to recover possession of the land in controversy.

Hon. E. Stafford, Chancellor. The complainant alleged that he was the owner of the lands for which he prayed a confirmation of title; that he derived title as follows : That the same was sold for levee taxes, and ¡struck off to the levee treasurer, April 12, 1870, and that complainant purchased from the said levee treasurer March 25, 1872. That the time for redemption has expired, etc. To this bill defendant filed a demurrer, setting up the following : 1.

Hon. DeWitt StearNS, Chancellor. Complainant Cook filed his bill in the chancery court of Benton comity, to enforce a lien which he claimed on the crop ■of P. H. Leak, grown during the year 1872. The instrument relied on as creating the lien was executed April 6, 1872, and filed with the clerk of the circuit court April 13, 1872. Defendant P. H. Leak’s answer admits the lien, but sets-up a prior lien in favor of P. T. Leak.

Hon. It. Boyd, Chancellor. The facts presented by the record in this case are very fully stated in the opinion of the court. It is assigned for error : 1. Said chancery court erred in dissolving the injunction granted herein. 2. Said court erred in awarding statutory damages, and costs, against appellant and sureties, and execution for the same.

• Hon. Uriah Millsaps, Judge. The facts of this case necessary to a full understanding of the principles announced, and also the assignments of error, will be found in the opinion of the court. 1.

Hon. C. A. Sullivan, Chancellor. All the material facts in this case are stated in the opinion -of the court. The following is assigned for error : “ Said decree only allowed a part of appellant’s debt. The ■decree should have been for the whole debt claimed.” Two questions are presented : 1. Had Perkins a prior lien on the crop. 2. Should part of appellant’s account be rejected as not -embraced in the statute.

Hon. B. B. BooNE, Judge. The opinion of the court contains a very full statement of the case. Sundry errors are assigned, in substance as follows: 1. The court erred in dismissing the complaint. 2. In excluding tbe trust deed offered in evidence. 3. In excluding tbe deed made by tbe trustee. 4. In excluding tbe evidence of Burris, the real beneficiary in tbe trust deed. • 5. In excluding proof of tbe execution of tbe deed. 6. In excluding proof of sale and conveyance. 7.

Hon. William D. Frazee, Chancellor. The facts in this case are very fully set out in the opinion of the court. Errors are assigned as follows : 1. The court erred in sustaining the allegations of complainant’s bill, and granting the relief sought upon the proof adduced on the trial of the cause in the court below. 2. The court erred in overruling defendant’s demurrer to complainant’s bill.

Hon. Geo. F. BrowN, Judge. Plaintiff in error brought suit against the defendant in error ■on a promissory note for $3,750. The note was executed by ■defendant in error and one B. T. Jones (as to whom the suit was dismissed). The testimony shows that the consideration ■of the note was the sale of an undivided interest in the Clarion newspaper office to Power & Jones by one J. J. Shannon,, and, at the request of Shannon, the note was made payable to. A. It.

<p>1. Oottcial Acts dtjeijstg ¥ae : Validity thereof.</p> <p>All the public acts of the insurgent states, legislative, executive, and judicial, done after the overthrow of the national authority, within their respective limits, are valid, if within the limits of state power, unless repugnant to the constitution of the United States, the laws passed in pursuance thereof, or in aid of the war against them. "When an official act of those then in the state or municipal administration is brought into question, if it shall be determined to be purely of a domestic, internal character, parcel of the ordinary civil administration, it should have force and effect as if done now or before the war. All taxes imposed and collected during the war, for military purposes, were illegal.</p> <p>2. Taxes : Where part legal and part illegal.</p> <p>Where the taxes are mixed, part being legal and part illegal, they cannot be separated, and a sale for the collection of such mixed taxes is void.</p>

Hon. A. AldersoN, Judge. The facts in the case necessary to a full understanding of it are stated in the opinion of the court. The following is assigned for error, to wit: 1.

Hon. C. C. Shackleford, Judge. The opinion of the court contains all the'material facts in •the case, together with the assignment of errors.

Hon. Bobert LeachmaN, Judge. Tbe facts in tbis case are fully set forth in the opinion of tbe court. Tbe question arises on motion to dismiss tbe bill of exceptions, because it was signed by the circuit judge in vacation. We submit that the paper purporting to be a bill of exceptions is a nullity. See Code of 1871, §§ 648-652, 644-646, 534.

<p>1. Mabuied Women: Separate estate.</p> <p>"Where the husband uses the money belonging to his wife in the purchase of land, under an agreement that he will take the deed to land in the name of his wife, but refuses to do so, and takes the deed in his own name, he holds the land in trust for his wife, and a court of equity will, after the death of the husband, afford the proper relief to her as against his heirs.</p> <p>’2. Same: Same: Case hi judgment.</p> <p>Mrs. 0. being the owner of a separate property, consisting of real and personal estate, it was agreed between her and her husband that she should purchase a • certain tract of 240 acres of land for $3,000, and pay $1,500 in cash, and sell a small tract of land which she owned to raise money to meet the deferred payment of $1,600. Accordingly she handed to her husband the $1,500 in cash to consummate the purchase, which he did for her, but took the deed in his own name, and refused to convey to his wife. She then refused to sell her land to raise money to meet the deferred payment. O. thereupon sold eighty acres of the land so purchased by him for $1,600, and paid out the balance due on the 240 acres, and died soon thereafter. Held, that the trust was fully established by these facts, and that the widow is entitled to relief as against the heirs of her deceased husband.</p> <p>:3. Same : Same : Delay. Abandonment.</p> <p>Where the claim to set up a resulting trust has been delayed for an unreasonable length of time, and the defendant sets this up as a defense, and claims that the complainant had abandoned the claim to the trust, it becomes a question of intention on the part of the claimant, and testimony in explanation of the-long delay and silence is admissible.</p> <p>4. Same: Same: Testimony of solicitor for complainant. When admissible. For what purpose. Case in judgment.</p> <p>Mrs. 0., the widow of 0., deceased, applied to S., her solicitor, to file a hill to-set up for her a resulting trust in the lands to which her. deceased husband held the legal title, and S. advised her to not file the hill, but to claim as the widow, which she attempted, and in which she litigated for several years, and then filed her bill to set up th.e trust. Held, that so far as the delay in the-prosecution of the claim is a defense thereto, the evidence of S. is admissible in explanation of the reason of delay, but not as evidence of the claim itself.</p>

Hon. William Breck, Chancellor. This is the case formerly before this court, on appeal from the decree oyerruling a demurrer to the bill, and the decision •of which is reported in 46 Miss., 157. The decree overruling the demurrer having been affirmed, an answer was put in' which does not vary the case from that presented by the bill, but is an ingenious argument to justify the payments made •and prevent recovery by the state.

Hon. E. W. CabaNess, Chancellor. The material facts in this case are fully stated in the opinion of the court. The dismissing the bill in the court below is assigned for error. This case might well be rested upon the former adjudications in this court upon the demurrer.

Hon. Uriah Millsaps, Judge. Parham & Blunt, merchants in New Orleans, brought suit-against Irene Mallett and her husband, James B. Mallett, to-recover the amount of an account for merchandise sold and delivered. The declaration charges that the goods, wares, and merchandise were for the necessary apparel and other necessaries for the said Irene Mallet and her children, and for supplies for' her plantation, and at her instance and request. Defendants pleaded non assumpsit.

<p>ERROR to the Circuit Court of Marshall County.</p> <p>Hon. OrlaNHO Davis, Judge.</p> <p>The facts in the case are sufficiently stated in the opinion of the court for a full understanding of the principles of law •decided.</p> <p>The following are the assignments of error, to wit:</p> <p>1. The court erred in refusing to quash the bill of indictment upon defendant’s motion.</p> <p>2. The court erred in giving the several charges on the part •of the state.</p> <p>3. The court erred in refusing charge number 5, asked by the defendant, and in giving, upon its own motion, as a substitute therefor, charge also number 5.</p> <p>4. The court erred in refusing to set aside the verdict of the 'jury, and grant a new trial upon the defendant’s motion.</p> <p>1. Insisted that the court should have quashed the indictment, because it was intended by the Code of 1871, § 2794, that, after the defendant had been arrested, the clerk shall 'indorse upon the indictment the fact that it was presented to the court by the foreman of the grand jury, in the presence of at least twelve of such jury, including such foreman, and that the clerk should furthermore mark such indictment “filed,” and date and sign the same.</p> <p>2. Charge number 5, refused by the court, is to the effect •that no legal conviction can be had on the testimony of an ¡accomplice alone. The court instructed the jury, in substance, that the jury should take into consideration the situation of the witness, and the temptation he may have to swear falsely, and give it such consideration as they may deem proper; that "they might adopt or reject the whole, or any part, as they may ■.think it worthy or not of belief.</p> <p>This was error. Keithler v. State, 10 S. & M., 192; George’s ease, 39 Miss., 192; 1 Greenl. onEv., § 350; Eos--coe’s Cr. Ev., 121, 122, 123 ; Wharton’s Am. Cr. Law, 301, 302, 303; Earn on Eacts, 161, 165, 166, 167, 168 ; 1 Archb. Cr. Pr. &P1., 502, 503; United States v. Keepler, 1 Bald.,, 22; Eay v. The State, 1 Iowa, 316.</p> <p>The indictment was properly returned into court; hence the motion to quash was properly overruled. Code, 1871, § 2794 ;■ Code, 1857, p. 614.</p> <p>The 5th instruction asked for the accused is not the law. It would instruct the jury that they cannot convict upon the-testimony of an accomplice, unsupported by other testimony-. The doctrine is, as laid down by the court below, that such-testimony should be received and considered with caution, considering the situation of the witness, his temptation to-swear falsely, and give it such consideration as the jury may think proper. They may reject or adopt the whole, or any part, as they may think it worthy or unworthy of belief; and-this does not conflict with Keithler’s case, 10 S. &M., 192. But the statement of the accomplice is corroborated by the other facts in the case. If a witness swears falsely in one-thing the jury are not bound to disregard him in all things. The maxim, falsus in uno, fdims in omnibus, does not preclude-the jury from believing a witness if they choose to do so.</p>