Volume 53 — Mississippi Reports

Hon. O. Davis, Judge. At the November Term, 1873, of the Circuit Court of Montgomery County, John D. Leflore, for himself and as guardian for his minor children, instituted an action of assumpsit, upon a policy of insurance, which had been issued by the plaintiffs in error on 8th April, 1872, upon the life of Mrs. Fannie S. Leflore, wife of J. D. Leflore, and the mother of the minors, who were joint beneficiaries therein.

Hon. S. S. Calhoon, Judge. This was an action of assumpsit, by Thomas E. Helm, president of the Capitol State Bank, against E. Bloom and James H. Boyd, partners under the firm name of Bloom & Boyd, on an acceptance in the partnership name of a bill of exchange, drawn by L. C. Gunn, on the firm of Bloom & Boyd, in favor of Thomas E. Helm, president, &c., for $300. The bill of exchange and acceptance is set out in full in the opinion of the court.

Hon. Edwin Hill, Chancellor. On the twenty-fourth day of January, 1874, George S. Calvert died in the city of Vicksburg, Warren County, leaving a considerable estate in lands and personalty, which he disposed of by last will and testament.

<p>Error to the Circuit Court of Panola County.</p> <p>Hon. Samuel Puwel, Judge.</p> <p>This was an action of covenant against A. R. Howe and his sureties, W. W. Howe, J. F. Simmons, and A. Warner, upon the official bond of said A. R. Howe, as former treasurer of Panola County, in the name of the State, for the use of the county.</p> <p>The declaration, with which said bond was filed as an exhibit, averred that A. R. Howe, as treasurer of Panola County, during his term of office, between the 1st of January, 1870, and the 1st of January, 1872, received a large amount of money belonging to said county, known as the Common County Fund, which it was his duty to safely keep and disburse and account for, to wit, the sum of $124,162.60, and to pay over to his successor at the expiration of his term of office all the money in his hands belonging to the county. But that said Howe did not account for and pay over a large amount of said fund, to wit, the sum of $1,633.68, but retained the same to his own use, &o.</p> <p>To the declaration the defendants filed two pleas, general performance, and the three years’ Statute of Limitations.</p> <p>To the latter plea the plaintiff demurred. The demurrer was sustained by the court, with leave to the defendants to plead over, which they declined to do, but excepted to the ruling of the court; and thereupon the parties proceeded to trial upon the issues made by the first plea of general performance.</p> <p>The plaintiff then offered in evidence the accounts or reports made by A. R. Howe, as treasurer, to the board of supervisors, from time to time, together with the orders of the board of supervisors thereon, approving and allowing the same. To the introduction of these accounts the defendants objected. The court overruled the objection, and the defendants excepted thereto ; whereupon the said accounts or reports, and orders approving the same, were read in evidence. This was all the evidence introduced and relied upon by the plaintiff. The amount sued for in this action consists of an alleged excess of commissions allowed to said A. R. Howe, as treasurer, by the board of supervisors, as claimed by him in his said accounts, wherein the per cent and amount of commissions claimed by him are distinctly set forth in every account where commissions were allowed.</p> <p>The defendants then offered and read in evidence the opinion or report of the county attorneys, Messrs. Cooper and Hall, made to the board of supervisors upon the examination of the accounts of various ex-treasurers, wherein they reported the alleged delinquencies of A. R. Howe, together with the joint answer thereto of A. R. and W. W. Howe, and the order or decree of the board of supervisors thereon. This evidence was, on motion of the plaintiff, excluded by the court; to which ruling of the court the defendants excepted.</p> <p>The defendants also introduced A. R. Howe as a witness, and proved by him that he was treasurer of Panola County during the time alleged in the declaration; that the question of commissions allowed to him as treasurer was brought to the notice of the board of supervisors at the time they passed on the same, and was canvassed and fully understood by them.</p> <p>This was all the evidence introduced by the defendants.</p> <p>The plaintiff then asked for one instruction to the jury, which was given by the court, as follows : —</p> <p>“ The court instructs the jury that orders of boards of supervisors, allowing to treasurers commissions in excess of the per cent fixed and limited by statute, are, to the extent of such excess, void, and constitute no valid defence to an action for the recovery of such excessive commissions. If, therefore, the jury believe that the defendant, A. R. Howe, as treasurer, retained commissions in excess of the lawful per cent, and that he still retains the same, then he is liable for such excess, notwithstanding there may have been an allowance thereof by the board of supervisors.”</p> <p>The defendants asked for the three following instructions to the jury, all of which were refused by the court: —</p> <p>1. “If the jury believe from the evidence that the amount sued for in this action consists of an excess in the commissions allowed to defendant, Howe, as treasurer, by the board of supervisors, and that the commissions claimed by him, and so allowed, appeared as items, and were set forth in defendant’s reports to said board, filed from time to time as required by law, then the retention of such commissions does not constitute a breach of the bond, and they will find for the defendants.”</p> <p>2. “ If the jury believe from the evidence that the amount sued for in this action consists of an excess in the commissions allowed by the board of supervisors, and that the commissions claimed by him, and so allowed by the board, appeared as items, and were set forth in said treasurer’s reports to said board, filed from time to time as required by law, and that the board entered upon its minutes orders approving said treasurer’s reports, then such orders are judgments final and conclusive, and they will find for defendants.”</p> <p>8. “ If the jury believe from the evidence that the amount sued for in this action consists of an excess in the commissions allowed to defendant, Howe, as treasurer, by the board of supervisors, and that the commissions claimed by him, and so allowed by the board, appeared as items, and were set forth in said treasurer’s reports, filed from time to time as required by law, and that the board entered upon its minutes orders approving and allowing said reports, then this constituted a voluntary payment to said Howe, and the same cannot be recovered back, and the jury will find for defendants.”</p> <p>To the giving of the instruction for the plaintiff, and the refusal of those asked, for the defence, the defendants excepted.</p> <p>The jury returned a verdict for the plaintiff for $2,101.36.</p> <p>The defendants thereupon entered their motion, asking the court to set aside the verdict, and grant them a new trial. This motion the court overruled, and rendered judgment on said verdict against the defendants.</p> <p>The defendants thereupon sued out a writ of error, brought the case to this court, and here assign for error, —</p> <p>1. The court below erred in sustaining the plaintiff’s demurrer to the defendants’ plea of the Statute of Limitations.</p> <p>2. The court below erred in admitting in evidence the accounts or reports of A. E. Howe, as treasurer, made to the board of supervisors, introduced and read in evidence by the defendant in error.</p> <p>3. The court below erred in excluding the report of county attorneys Cooper and Hall, made to the board of supervisors, offered in evidence by the plaintiffs in error.</p> <p>4. The court below erred in giving to the jury the instruction asked for by the defendant in error.</p> <p>5. The court below erred in refusing to give the jury the instructions 1, 2, and 3, asked for by the plaintiffs in error.</p> <p>6. The court below erred in not extending the demurrer to the defendants’ plea of the Statute of Limitations back to the declaration, and sustaining the demurrer to said declaration.</p> <p>7. The court below erred in overruling the motion for a new trial.</p> <p>1. There was no evidence to show a breach of covenant.</p> <p>2. The reports of Howe, as treasurer, the only evidence offered to show a breach of covenant, having been allowed and approved by the board of supervisors, were finally adjudicated, and cannot be collaterally questioned. Code 1871, §§ 1356, 1357, 1360, 1361, 1383, 264, 1382; County of Yallabusha v. Carbry, 3 S. & M. 529; Boss v. Lane, 3 S. & M. 695 ; County of Attalla v. Grrant, 9 S. & M. 90 ; Carroll v. Board of Police of Tishamingo County, 6 Cush. 47; Arthur v. Adams, 49 Miss. 404; Supervisors of Onondaga County v. Briggs, 2 Denio, 26; Commonwealth v. Jones, Am. Law Reg., June, 1875, 385 ; 42 Miss. 237; 47 Miss. 181; 51 Miss. 812.</p> <p>3. The alleged excess in the commissions allowed to A. R. Howe, as treasurer, by the board of supervisors, and which is the foundation of this action, having been allowed by the board, upon his reports setting forth the same, this constitutes a voluntary payment to Howe, and therefore such excess, though illegal, cannot be recovered back. Supervisors of Onondaga County v. Briggs, 2 Denio, 26; Clarice v. Butcher, 9 Cowen, 674; Mowatt v. Wright, 1 Wend. 355 ; 2 Hill, 135 ; 18 Cal. 265; Balee v. City of Buffalo, 3 Clinton’s Dig. N. Y. p. 3095, § 19 ; 2 id. p. 2477, § 149 ; § 264, Code 1871.</p> <p>1. The demurrer to the plea was properly sustained, because the three years’ Statute of Limitations does not apply to official bonds of co.unty officers under seal. Code 1871, § 2169.</p> <p>2. The reports and settlements of the treasurer were the best evidence to show the amount received and disbursed, and the' amount of commissions retained. 1 Greenl. Evid. §§82-84.</p> <p>3. The record and proceedings of a former investigation were not admissible in evidence, and were' properly excluded, because they contained nothing relative to the plaintiff in error more than did the record introduced by the plaintiff below. It is a long and tedious report, answer, and irregular order of the board of supervisors, declining to reopen this matter; and could only tend to confuse the jury, by showing that, if he had done wrong, other persons had also done wrong before him.</p> <p>4. The instruction asked by the plaintiff below, and given by the court, was correct. It instructed the jury that the order of the board of supervisors, allowing excessive commissions, was void, and was not a valid defence to this action. This was correct,—</p> <p>(1.) Because the board had no authority to allow the commissions, no jurisdiction to make them binding.</p> <p>. (2.) His compensation was regulated by law at three per cent, and only once on the same funds.</p> <p>(3.) So long as he retained funds belonging to the county, he has not performed the conditions of his bond.</p> <p>(4.) It is a query whether a board of supervisors is a court or a quasi corporation.</p> <p>(5.) Its acts may be inquired into, not being judicial acts. 42 Miss. 245; 3 S. & M. 529.</p> <p>(6.) The orders of the board are judicial acts, and amount to judgments only in certain cases provided by the statute, and from which appeals may lie. 49 Miss. 404; 51 Miss. 68.</p> <p>(7.) If the board is a court for the purpose of making such an order, and the order is a judgment, the court is limited in its jurisdiction; and the record shows that the court exceeded its jurisdiction; and the order of judgment is void, because the jurisdictional facts do not appear affirmatively on the record. 31 Miss. 578; 39 Miss. 784; 44 Miss. 394 ; Walker, 75.</p> <p>5. It was not a voluntary payment for want of authority to make such a payment. A voluntary payment cannot be made by one acting as a trustee of a public fund; and, if it has been misapplied, and has gone into the hands of another wrongfully, such wrongful holder having notice of the character of the fund, it may be pursued.</p> <p>The demurrer of the appellee to the appellant’s plea of the Statute of Limitations was properly sustained. Instruments under seal are not barred in three years, but in seven. Code, § 2151; Laws 1873, p. 42.</p> <p>The second assignment of error is not well taken. The official reports of the appellant, as treasurer, were clearly admissible as evidence against him. They were record evidence, made by himself, bearing upon the very point in controversy, and showing the manner in which he had performed his duties as treasurer. They were the best evidence which could have been introduced upon that point.</p> <p>The third, fourth, fifth, and sixth assignments of error are equally untenable. The orders of the board of supervisors, allowing the appellant illegal commissions as treasurer, were void. The board, except as to roads, ferries, and bridges, exercises power and jurisdiction only by virtue of the statute. Const., art. 6, § 20. “ With a limitation on its power, it can only act within the limit, and any excess is void.” Klein v. Board of Supervisors, 51 Miss. 812. The jurisdiction of the board may always be inquired into. It has been the primary question determined in every case decided in our courts, from Yalobusha County v. Corbry, 3 S. & M. 529, to Files v. M’ Williams, 49 Miss. 578. If it had jurisdiction, no mere abuse of the discretion confided to it, or simply defective execution of its power, invalidated its judgments. But where the board had no jurisdiction, or exceeded the limit fixed by statute, or, having authority to act, had not complied with essential statutory requirements, its orders have been held to be nullities. Beauman v. Board of Police of Leake County, 42 Miss. 237; Vernon Board of Police of Tippah County, 47 Miss. 181; Ballard v. Davis, 2 George, 525 ; Files v. M' Williams, 49 Miss. 578. And the same principle is held in other States. State v. Yeatman, 22 Ohio St. 546 ; English v. Smock, 34 Ind. 118 ; Foster v. Coleman, 10 Cal. 280; Washington County v. Parlier, 5 Gilm. 232; County of San Joaquin v. Jones, 18 Cal. 329. The Klein Case, cited supra, is conclusive on this point. It was there said that “ an illegal or excessive allowance, or warrant issued upon such allowance, being void, may be questioned anywhere, by anybody, and in any proceeding.”</p> <p>The treasurer’s commissions in this case were fixed at three «per centum on disbursements. Code 1857, p. 133. The board had no power to allow either more or less. Their authority was not only limited by this statute, but it was a criminal offence for them to allow, or the treasurer to demand, more. Code 1871, §§ 1379,1382; Laws 1870, p. 83; Code 1857, p. 590. Even, therefore, if the board had acted judicially, the orders upon which the appellant relies would have been void. But the board did not act judicially in this case. In examining and allowing the reports of county treasurers, the board acts only as the fiscal agent of the county. Its acts in such cases are purely ministerial. Washington County v. Parlier, ubi supra.</p> <p>The principle of voluntary payment has no application here. The prime essential of a voluntary act is, of necessity, the authority to do the act said to be voluntary. The board had no authority to make the payment here, and the appellant was bound to know that, as public agents, its members had no such authority. Story on Agency, § 307 a, and note; 1 Addison .on Contracts, § 86, note 1. If a private agent pays money to one who knows he has no authority to pay it, the principal may recover it back. Amidon v. Wheeler, 3 Hill, 137; 1 Story on Contracts, § 270. A fortiori may it be recovered where the agent is a public one, and his. authority a part of the law of the land.</p> <p>There was no error in not extending the demurrer of the appellee back to the declaration. Even if it was necessary for the board to order suit, such order need not have been set forth in the declaration. It was matter of proof only when the issue was properly raised by plea or motion. Lewenthal v. State, 51 Miss. 645. The appellant raised no such issue, but took issue on the merits of the case. The demurrer cannot now be extended back, except for a defect which is “ radical, going to the right of recovery.” State v. Bowen, 45 Miss. 349. But in reality no authority of the board was necessary. The treasurer might sue without an order. Code, § 262.</p> <p>The motion for a new trial was properly overruled. The orders of the board being void, the appellant should be held amenable for his gross frauds in office, as shown by his reports. We ask an affirmance of the judgment.</p>

Mottopt to discharge supersedeas. The facts are stated in the opinion of the court. contended that the supersedeas should be discharged both as to the land and mesne profits. Code, § 1557; Davis v. Doe d. Delpit, 25 Miss. 447 ; and the minute entry in said case, Records of the High Court of Errors & Appeals, Minute Book, G. 29, which reads : “ There is no error in the judgment, so far as the same relates to the term. This part of said judgment is affirmed.

Hon. C. C. Shackleford, Judge. The facts of the case appear in the opinion of the court. 1. The plaintiff in ejectment, in order to recover, must ¿how a complete title, good against the world. 2. A link in the plaintiffs chain of title, the sale by which the title was sought to be divested out of the heirs of Elias Pharr, was fatally defective, because, — (1.) The Probate Court did not acquire jurisdiction over the subject-matter.

Hon. R. Leachman, Judge. R. W. Maxey, the plaintiff in error, instituted a proceeding by attachment for rent against E. E. White, the defendant in error, under § 1622 of the Rev. Code of 1871.

<p>1. Vendor’s Lien. Passes with note. When.</p> <p>If the vendor of land retains the legal title until payment is made, or if he creates an express lien in his deed to secure the purchase-money, an assignment of the notes given therefor carries with it the security to the same extent as it existed for the benefit of the vendor.</p> <p>2. Same. How created.</p> <p>Whatever words distinctly convey the idea that the vendor retains or reserves a lien on the land create an express security. No formula of words is necessary to create such security. If the vendee accepts a deed, with the stipulation that the “land shall be bound for the notes,” or “be security for them,” or any other words expressing the intention that the land is pledged as a security, they are quite as effectual as the usual form reserving a lien as security for the notes.</p> <p>3. Same. Imperfect or equitable mortgages.</p> <p>It is not necessary that a security on land for the purchase-money should be a technical mortgage or deed of trust. There are various sorts of securities, which, because they cannot be classified as mortgages or deeds of trust, are denominated “imperfect” or equitable mortgages.</p> <p>4. Same. Express reservation. Runs with land. Passes to assignee.</p> <p>When the vendor expressly reserves a lien on the land for the purchase-money, it is a matter of bargain and contract, and runs with the land, and operates as an incumbrance upon it, not only for the vendor, but for his assignee of the purchase-money.</p> <p>5. Same. Power of sale conferred. Title. Case in judgment.</p> <p>C. conveyed certain lands to M. In the deed the parties stipulated that, if M. failed to pay the notes for purchase-money when due, the sheriff of the county acting at the time of default in payment should sell the land, give title to the purchaser, and pay the money to C., or any assignee or holder of said notes. Held, that C. ’s deed conferred a power on the sheriff, in a certain event, to sell the property and pay the notes; but that the title to the land was in M., and not in the sheriff.</p>

Hon. C. Cullens, Chancellor. This was a bill filed by B. F. Johnson to enjoin the defendants, heirs-at-law of John Cole, who died owning the lands in controversy, from further prosecuting an ejectment suit against said Johnson, to recover said lands, which Johnson had purchased and paid for at a void probate sale, the purchase-money having been applied to pay off the debts of the decedent by the administrator in good faith, and said Johnson having put valuable improvements…

Hon. W. D. Frazee, Chancellor. This was a bill in chancery, filed by J. A. P. Kennedy against the heirs-at-law of Alexander Armstrong, to enjoin the execution of a judgment in ejectment, which said heirs had recovered .against the complainant. The case comes to this court from a decree overruling a demurrer to the bill. The allegations of the bill are very fully stated in the opinion of the court. 1.

Hon. O. H. Whiteield, Chancellor. This was a bill in chancery, filed by Samuel Billingsly against the heirs-at-law of Thomas Williams, deceased, to restrain them from prosecuting an action of ejectment.

<p>1. Power. Deed. Trustee and cestui que trust. New appointment.</p> <p>Upon a conveyance in trust, the deed is the source and limit of the powers, duties and rights of trustee and cestui que trust. There is no inherent right in the creditor secured by trust deed to appoint a new trustee. It is only by express authority conferred on the cestui que trust to name another trustee that such power can be exerted.</p> <p>2. Trustee. New appointment, when no provision therefor in the deed. Chancery Court.</p> <p>If the trustee dies, bécomes unable, or declines to execute the trust, and no provision is made for a successor, the vacancy can only be filled by the Chancery Court, which never permits the trust to fail because the appointee of the grantor cannot or will not execute it.</p> <p>3. Power. Should designate what. Acts of new appointee invalid when.</p> <p>When a power is granted, the authority should designate the person by whom, as well as the event or circumstances upon which, it may be exerted. If a person not named or distinctly described by his office or character makes the appointment, or if the circumstances do not warrant it, or there be serious irregularities in executing the power, in all these cases the acts done by the new appointee will be invalid, and the original trustee will not be exonerated or discharged.</p> <p>4. Same. Not assignable when. The debt carries the security. Case in ’ judgment.</p> <p>C. executed a deed of trust on certain lands to M., to secure a debt to H. & M. The deed contained this provision: “ Should said second party (M.) fail from any cause to act herein, then said third parties (H. & M.) may appoint, in writing, any one else to execute this «trust, with every power, title, and right, as well as duty, touching the same.” Held, that no power was conferred on the assignee of H. & M. to appoint a new trustee, that no estate was granted to II. & M., and that they could transfer none distinct from the debt. The assignment of the debt carries the security.</p> <p>5. Same. Cestui que trust. Personal. Not assignable.</p> <p>A power conferred on the cestui que trust is personal or in gross, and is a confidence reposed in him which he cannot delegate to another, unless expressly authorized by the donor.</p> <p>6. Bankrupt Law. § 43. What passes to trustee.</p> <p>Under § 43 of the bankrupt law, unless property or estate is beneficially in the bankrupt, and may be applied for creditors, it does not pass to the trustee. Property held by the bankrupt purely in trust for another does not pass. The trustee takes the property, rights or interest in or to property, choses in action, &e., precisely as the bankrupt was owner, or had interest in the same, but only such as may be valuable to or made available to the creditors. A power to the bankrupt purely in personal trust and confidence, not being in its nature assignable, does not vest in the trustee.</p>

Motion, by E. J. Eoss, the plaintiff in error, to set aside the order of dismissal, made in this case at the present term of court, and reinstate the case on the docket; and for a certiorari, to perfect the transcript of the record, because the case was not tried here on its merits, but was dismissed, on the ground that the transcript showed no judgment in the record proper, whereas, in point of fact, there is a-judgment regularly entered on the minutes in the court below,…

<p>Supreme Court. Practice. Motion to docket and, dismiss. Neglect of clerk to send up record.</p> <p>It is the duty of a plaintiff in error to see that the transcript of the record is filed in this court on or before the first day of the term, and, if the clerk of the court below fails to send it, to move here for a rule on the clerk to show why he has not transmitted the record. Where this has not been done, a motion to docket and dismiss the case, made in the sixth week of the term, cannot he successfully opposed on the ground that the clerk has failed in his duty.</p>

Hon. W. B. Peyton, Chancellor. This was a bill filed by Mrs. E. A. Miazza, to enforce a trust in certain real estate alleged to arise out of'the contract mentioned in the opinion of the court. The arrangement to get the money from Mr. Helm, wherewith to make the purchase, and the agreement with Yerger to attend the sale and bid in one-half the property for her, were in anticipation of a trustee’s sale of the property, which subsequently took place.

<p>Appeal from the Chancery Court of Panola County.</p> <p>Hon. J. C. Guay, Chancellor.</p> <p>The seven years’ Statute of Limitations runs against the complainant from the time the judgment was paid off, and not from the date of the judgment. Code 1871, §§ 2158, 2258, 2251; 5 Cushman, 94; Johnson v. Pyles, 11 S. & M. 189; 48 Miss. 189; 31 Miss. 201.</p> <p>1. The complainant cannot go into equity to enforce a judgment which is barred at law. Bdwards v. Mo Gee, 31 Miss. 143 ; Fox v. Wallace, 31 Miss. 660; 31 Miss. 201.</p> <p>2. At the date of filing the bill there was no judgment in favor of the complainant capable of being enforced in any known legal mode. Dozier v. Lewis, 27 Miss. 679 ; Gonway v. Strong, 24 Miss. 667; Bowen v. Moslems, 45 Miss. 186 ; Code 1871,§ 2153.</p> <p>3. The judgment having been rendered more than seven years before Samuel Mathews’s death and not kept alive by any legal means, the action is barred, and the demurrer was properly sustained. Code 1857, p. 400, art. 8; Code 1871, § 2153; Pollard v. Fclcford, 50 Miss. 631, 637 ; Palmer v. Jones, 50 Miss. 657 ; Magee v. Leggett, 48 Miss. 139.</p>

Hon. S. S. Cadhoon, Judge. This was an action of assumpsit by J. and T. Green against the State to recover on certain auditor’s warrants issued by the State through her auditor to certain State (civil) officers during 1862, and several years thereafter, for services rendered the State, and assigned to the plaintiffs fora valuable consideration by the holders thereof.

Appeal, and cboss-appeal, from the Chancery Court of Hinds County. Hon. H. R. Wabe, Chancellor. J. H. Sims died on the 19th of April, 1860, leaving a widow and several minor children. He was seised and possessed of a tract of land, containing five hundred and forty acres, which he gave by last will and testament to his heirs-at-law. His brother, Thomas Sims, was appointed sole executor of the will.

Hon. George F. Brown, Judge. On 2d April, 1874, Samuel Burns filed this petition under the statute, to enforce a mechanic’s lien against a certain brick building described in said petition, and the* lot on which the building stands.

Hon. J. A. Orr, Judge. cited Arbuclcle v. Nelms, 50 Miss. 560, contending that the landlord had no lien for money rent. contended that the act of 1878 gave the landlord a lien for money rent.

Hon. O. H. Whitfield, Chancellor. filed an able and elaborate brief of fifty-two pages, making, among many others, the following points: — 1. The exceptions to the answer were well taken, and should have been sustained. Story Eq. PI. §§ 852, 853; Gresley Eq. Ev. 17. 2. The injunction was improperly dissolved. (1.) The bill charges that the copartner was making away with the firm assets. (2.) The complainant avers that he was to receive two-thirds of the profits.

Hon. E. W. Cabaniss, Chancellor. The complainant, as administrator and as a creditor of the estate of Michael Blake, Sen., deceased, filed… Held: that “ his independent right as creditor to have sued Fry, in such a case as the bill imputes, as executor of his own wrong for the negroes in question, does not attend him in his new character of administrator; it is merged in that character and ceases to exist.” In Oully v. Hull, 31 Miss. 29, this court said: “Where a party has…

Hon. E. G. Peyton,-Chancellor. J. E. Coker recovered a judgment before a justice of the peace against R. Y. Coker, who appealed to the Circuit Court, and on the fourth day of November, 1873, gave his appeal bond, with T. N. Jones and H. E. Glasscock as sureties. On the thirtieth day of September, 1875, the case was tried in the Circuit Court, and judgment rendered against R. Y. Coker and the sureties on his bond.

<p>1. Railway Company. Duty of conductor to protect passenger from, insult and injury.</p> <p>It is the duty of the conductor of a passenger train to preserve order on his train; to protect passengers from insult and injury from their fellow-passengers; and, if it be. necessary to enable him to discharge this duty, he should stop the train and summon to his aid his fellow-employes on it and passengers who are willing to assist, and eject from the train any person or passenger guilty of disorderly, insulting or threatening conduct; and a failure to discharge this duty, so far as he has the means and power, renders the railway company liable in damages to the insulted or injured passenger.</p> <p>2. Same. Evidence. Conductor's knowledge of injury threatened, and power to prevent.</p> <p>To render the company liable, however, it must be shown that the conductor had knowledge, or opportunity of knowing, that the injury was threatened, and also that by his prompt interposition he could have prevented or mitigated it; and it must be shown, also, that, with the power at his disposal, namely, his own exertions and the assistance of the other employes on the train and willing passengers, he could have prevented or mitigated it; for all that is required of him is a fair and honest effort, with the best means in his power, to prevent the wrong.</p> <p>3. Punitory Damages. When allowed.</p> <p>Punitory damages should not be allowed in such a case, unless there has been a wilful refusal or absolute failure to interpose, when called on for assistance, or when the injury occurs in his presence. Weak and inefficient action, not resulting from want of sympathy on the part of the conductor for the person aggrieved, or from indisposition to aid him, may render the company liable to compensatory, but not to punitory, damages.</p> <p>4. Damages. Compensatory. Exemplary. Case in judgment.</p> <p>In this case, four or five persons in the employ of the railroad company, but not employes on that train, were co-passengers with the plaintiff on a special train, improvised to meet the demands of travel to and from the State fair. They and the plaintiff were riding in the baggage car, and they rudely deprived the plaintiff of his hat; the plaintiff went in search of the conductor to get redress, and informed him of the injury; the conductor went with the plaintiff to the baggage car, and asked for the hat to be returned to the plaintiff; very insulting language was immediately used by one of these parties towards the plaintiff, and immediately a fight ensued, in which the plaintiff was shot, and the plaintiff, retreating from the car, knocked two of his assailants senseless with a hatchet. The conductor retreated in advance of the plaintiff, so that when the plaintiff reached the platform of the car he found the conductor there. Immediately the conductor hurried the plaintiff through a car window and through several passenger cars, to get him beyond the reach of the assailants, some of whom followed into the car next to the baggage car, and there, after the plaintiff and conductor had left it and not in the hearing of the plaintiff, heaped abusive epithets on him. The conductor did nothing more to quiet the assailants, or to eject them from the car, but left them in the baggage car, where the plaintiff’s luggage was, and in the car next to it, to the end of the journey, which was less than twenty miles. The plaintiff was slightly injured, being able to go about the next day, and was not prevented from attending to his business for more than ten days. The jury found a verdict for $6,000 damages. The company did not discharge any of these employes from its service, but promoted one of them. Held, that the conduct of the conductor, up to the time of his retreat from the fight to the platform of the car, was such as to render the company liable for compensatory damages; and that his allowing the assailants to continue in the baggage car, where the plaintiff’s luggage was, and a part of them to go into a passenger car, and there use abusive language towards the1 plaintiff, without making any effort to stop it, or to eject these parties from the train, coupled with the fact that the company had not discharged any of the assailants, but had promoted one of them, made a ease where exemplary damages were allowable.</p> <p>5. Exemplary Damages. Discretionary with the jury.</p> <p>The awarding of exemplary damages is always discretionary with the jury, and an instruction which informs them that under any state of facts it is their duty to award them is improper.</p> <p>6. Same. Instructions erroneous. Verdict correct.</p> <p>It is especially desirable that the jury should be correctly instructed as to the awarding of exemplary damages, as to which their finding will not ordinarily be disturbed by the court; but, even where they have been erroneously told that it is their duty to award them, the verdict will not he set aside if the facts were such as fully justified their imposition and the sum awarded is not excessive. In such case the verdict will be attributed to the facts which make it right, rather . than to the instructions which would make it wrong.</p> <p>7. Bonds. One seal adopted by several signers. Case in judgment.</p> <p>It is not necessary that all the obligors in a bond should seal it with his separate seal. If there be one good seal and several obligors, this seal may be the seal of all of them, if they have adopted it as such. Whether the recital in thebond, “sealed with our seals,” will constitute such adoption, quaere. But this recital, and, in case of a supersedeas bond, an affidavit of an obligor who has no seal opposite his‘name indorsed on the bond, that he is. worth the penalty of the “ bond,” and his allowing the clerk to issue a supersedeas on it as if it were his bond, and his failure to object in the Supreme Court that it is his “ bond,” until judgment of affirmance is entered on it, do make out this adoption.</p>

Hon. O. Davis, Judge. The facts necessary to an understanding of the principles of law decided are fully stated in the opinion of the court. The following instructions were given for the plaintiff below: — 1.

Hon. Thomas Walton, Chancellor. The question presented in this case is the constitutionality of an act of the legislature, authorizing the town of Durant to donate interest-bearing bonds in aid of a railroad. The pleadings which raise the question are set out in the opinion of the court. Harris $ Gteorge, on the same side, filed a brief, in which it was urged, — 1.

Hon. Uriah Millsaps, Judge. This was an action of replevin by the railroad company against C. E. Buck, sheriff and tax-collector, to recover a locomotive engine levied on for a privilege tax alleged to be due from the company to the State, under the act of 25th February, 1875 (Acts 1875, p. 67), which the company refused to pay, claiming exemption under its amended charter (Acts 1866, p. 137). It was tried by the judge, in lieu of a jury, on an agreed state of facts.

Hon. Edwin Hill, Chancellor. This was a bill in chancery filed by Thomas A. Gleason, to foreclose a deed of trust on land. The facts are stated in the opinion of the court. 1. The balance due on the old note, secured by the trust deed, for which the new note was given, is secured by the same trust deed, and the bona fide holder of the new note may foreclose the trust deed as a mortgage, the trustee having refused to act.

Hon. George F. Bro.wn, Judge. At the January Term, 1873, the plaintiffs McGrath & Compton filed a declaration in assumpsit against E. Bloom, founded on an open account. With the declaration was filed a mere statement of the balance claimed to be due, thus, “ To amount of bill rendered, $294,” without any itemized account whatever.

Hon. W. B. Cunningham, Judge. Ejectment by E. J. Bowers against the defendants for a parcel of land in Madison County. Pleas by Chambers, the defendant, tenant, and E. Virden, his landlord, “ not guilty.” Jury, verdict and judgment for the defendants, and a motion by the plaintiff for a new trial overruled, and exception taken.

Hon. Peter P. Bailey, Chancellor. T. H. Somerville, administrator de bonis non of Henry Royall, deceased, filed a bill of interpleader, asking the direction of the Chancery Court in the payment of certain money arising from the sale of some land of the estate, and alleging that M. A. Whatley and J. P. Hughes, administrator, are claimants for the money. Whatley answers that he is a creditor of the estate, and sets forth his claim to the money.

<p>Error, to the Circuit Court of Panola County.</p> <p>lion. E. S. Fisher, Judge.</p> <p>argued the case orally, and filed a brief, insisting that a covenant of general warranty does not include within its scope a covenant against incumbrances or any of the special covenants. Blydenbury v. Gotheal, 1 Duer (N. Y.), 195 ; Griffin v. Fairbrother, 1 Fairf. (Me.) 95 ; Patton v. McFarlane, 3 Penn. 422 ; Soys. Taliaferro, 8 S. & M, 738; Duncan s. Lane, 8 S. & M. 752. Even, however, if it did contain such a covenant, the assignee could not maintain an action (as in this case), covenants against incumbrances being broken, if at all, as soon as made, and the right of action becoming a chose in action, which does not pass by sale to the assignee. Rawle on Covenants, 90, 318, 333, and authorities cited.</p> <p>The covenant in the case at bar is that of general warranty only. Before an action can be maintained for a breach of such a covenant there must be (1) an actual eviction by paramount title; or (2) the covenantee must be held out of possession by a paramount title ; or (3) he must surrender possession to a paramount title, and take upon himself the burden of proving that the title to which he surrendered was actually paramount. I am aware that there is great conflict as to this doctrine. Rawle holds that a covenantee may maintain an action without any change of possession. Covenants for Title, 158. Washburn holds that he must be actually evicted. 2 Wash. Real Prop. 406. Georgia, Massachusetts, Maine, Virginia, Illinois, Ohio and Vermont courts hold the doctrine laid down by Rawle. 4 Ga. 593 ; 17 Mass. 588; 1 Fairf. (Me.) 170 ; 11 Leigh, 88 ; 41 111. 422; 10 Ohio, 382 ; 1 Aiken, 233. The courts of New York, Pennsylvania, Tennessee, Alabama, Indiana and Nebraska hold the doctrine here insisted upon. 58 Barb. 49 ; 58 Penn. St. 480 ; 1 Yerg. 16 ; 17 Ala. 198; 14 Ind. 311; 8 Neb. 84. Turning from such a mass of conflicting authorities to our own State, we find that our courts have for thirty years uniformly held to the doctrine contended for in behalf of the plaintiff in error. Wilty v. Hightower, 6 S. & M. 348; Hoy v. Taliaferro, 8 S. & M. 727; Duncan v. Lane, 8 S. & M. 744 ; Heath v. Newman, 11 S. & M. 205; Dennis v. Heath, 11 S. & M. 206 ; Grlenn v. Thistle, 23’ Miss. 51; Burrus v. Wilhinson, 31 Miss. 537; Kirkpatrick v. Miller, 50 Miss. 521. And the principle is too well settled to be shaken now. In this case the covenantee was not evicted, nor could he have been evicted by any one at the -time he bought in the outstanding incumbrance. The outstanding title was still inchoate and had not ripened into a perfect title by which he could be evicted. He might, it is true, have brought assumpsit for money paid in protecting the title, and by that proceeding recovered, as he equitably ought, any actual necessary outlay in perfecting his vendor’s title. He chose rather, while still in possession, to repudiate his vendor’s title, and to seek, in the more technical action of covenant, the full measure of damages flowing from a breach of the covenant upon actual eviction. This he could not do. Even in a court of equity he would not be allowed to repudiate his vendor’s title while in quiet possession. Astor v. Bobinson, 49 Miss. 353. Much less will he be permitted to do so in the case at bar. A relaxation of the rule now held might work great hardship; for then, though an incumbrance might be only nominal in amount, the vendee might buy it in and recover from his vendor the full price of the land. It might be double, treble or ten times the amount of the incumbrance. Burrus v. Wil-Jcinson, ubi supra. There is no hardship as the law now stands, for a vendee may- always reimburse himself for any actual necessary outlay in protecting his vendor’s title by an action of assumpsit. I therefore submit that the judgment should be reversed.</p> <p>The covenant in Keith’s deed, that he will “ forever warrant and defend the title in fee-simple against all lawful claims whatever,” is a covenant for quiet enjoyment, and runs with the land. It is the most effective of all covenants, embraces every thing connected with title, and is synonymous with a covenant for quiet enjoyment. Rawle on Covenants, 203, note, 222,226 ; 2 Greenl. Cruise, 460, note 1; 3 Wash. Real Prop. 391, 392, 396, 398, 399, 403; 1 Smith Lead. Cases, 140, 178,179,181; 2 Wash. Real Prop. 263,264, and note ; 17 Mass. 688, 590; 22 Pick. 494; 1 Mass. 464; 2 Hill, 105; 4 Kent, 473 ; 4 Ga. 593 ; 6 Ala. 61.</p> <p>The authorities which hold that the covenants against incumbrances which do not run with the land, refer to the strictly technical covenant that “ the land is free from incumbrances ” at the date of the deed. Rawle on Covenants, 110, 111.</p> <p>If the intent of the covenant be that the covenantee “ shall enjoy the land free from incumbrances,” then such covenant runs with the land. 17 Ohio, 71; 20 Ala. 157; 8 Johns. 198; Rawle on Covenants, 110, and note, 124, 336; 3 Wash. Real Prop. 396.</p> <p>It was not necessary that Britton should have been actually and physically evicted before he could have resorted to his action of covenant. Constructive or equitable eviction is all that is required. Rawle on Covenants, 269, 270; 3 Wash. Real Prop. 403, 404; 2 Greenl. Cruise, 460, note, 461; 17 Mass. 588, 590, 591; 6 Cushing, 124; Rawle on Covenants, 249, 271-277, and notes, 280-284, 288, 289, and notes.</p> <p>Where there is an outstanding incumbrance, the covenantee need not wait until he is evicted, but may satisfy the incumbrance and resort to his action of covenant. 7 Johns. 358 ; 16 Johns. 254; 4 Mass. 351-353 ; 11 N. H. 74 ; 5 Ohio, 158 ; 4 Halst. 139 ; 39 Cal. '360 ; 9 Ala. 179; 6 Cushing, 124 ; Rawle on Covenants, 272, 273, and notes.</p> <p>Where such outstanding title is actually asserted; the covenantee may yield to it or buy it in. Rawle on Covenants, 280, 281, and notes ; 3 Dean (Vt.), 709.</p> <p>Where premises are sold and bought in by the vendee, or by a third person, to whom the vendee has attorned, or where he has, under pressure, attorned to a mortgagee, the vendee may sue on his covenants. Iierm. on Estoppel, § 365; Evans v. EUiott, 9 Ad. & E. 342; 15 M. & W. 571; 11 Exch. 769 ; 17 Ark. 546 ; 42 Me. 342 ; 6 Dana, 426.</p> <p>The true rules in reference to covenants of warranty are, that vendees should never act on fear of superior title, where its enforcement is not even threatened; that they may act when there is a real threat or effort to enforce a claim, but they do so at their peril, and must show not only the validity of the superior title,.but also good faith; that when they act under judgments against them, to which the vendor is no party, such judgments can amount at most to only prima facie proof of their correctness; and that, finally, when a court has properly settled in a suit all questions of title to or incumbrances on property, to which suit the vendor and vendee and the partjr claiming the paramount title or incumbrances are parties, the vendee can act on the judgment of the court, and all parties are concluded by it. This last position is fully sustained by Rawle in the sixth chapter, fourth edition, of his great work on Covenants, and by the authorities cited. See from p. 145 to 175.</p> <p>The foregoing principles, for which we contend, are sanctioned by the civil law. See citation to this effect in Thomas v. Clement, 11 Rob. 397. They are rules of action in England, Foster v. Brent, 4 Term R. 617 ; Upton v. Townsend, 17 Com. Bench, 30 (84 C. L.); and in nearly every State of the Union, St. John v. Palmer, 5 Hill, 599; Cowdry v. Coit, 44 N. Y. 382; Loomis v. Bedel, 1 Lans. 146; Cobber v. Will-borne, 2 Dev. 390; Leary v. Durham, 4 Ga. 593; Booth v. Starr, 5 Day, 282; Frank v. Creswell, 5 Clark, 86 ; Stewart v. Drake, 4 Hals. 141; Hamilton v. Cutts, 4 Mass. 350 ; Sprague v. Baker, 17 Mass. 590; Drew v. Towler, 10 Foster, 537 ; Loomis v. Bedel, 11 N. H. 74; Brown v. Dickson, 2 Jones (Penn.), 372; Woodward v. Allen, 3 Dana, 164; Huffey v. Burchett, 11 Leigh, 88; Thomas v. Strieker, 32 Iowa, 76; Davenport v. Bartlett, 9 Ala. N. s. 179; Melaneon v. Duhamel, 6 La. 200; Succession of Durnford, 8 Rob. 488; Thomas v. Clement, 11 Rob. 397; Lewis v. Davis, 21 Ark. 235; A?eDermott v. Cable, 23 Ark. 203 ; Nichols v. AAirawcier, 28 Wis. 118; Moore v. FaiZ, 17 111. 190; Middleton v. Thompson, 1 Spears, 67 ; Boyd v. Bartlett, 36 Vt. 9; iTerr v. King, 5 Ohio, 158; McAlpin v. Woodruff, 11 Ohio St. 128.</p> <p>Counsel commented on all the cases decided in the State of Mississippi, commencing with Not/ v. Taliaferro, 8 S. & M. 727, and ending with Bums v. Wilkinson, 31 Miss. 537, and insisted that these decisions are not in harmony with the decisions of the civil and common law of every other country and State, and asked the court to overrule them.</p> <p>The decisions of this State seem to rely on the principle “ that the lessee shall not dispute the title of his landlord.” This principle grew up under the feudal system, and was applicable to strict tenancies by lease.</p> <p>By the ancient feudal warranty the lord was compelled to give the vassal an amount of land equivalent to that which he lost, and the same judgment which ousted the tenant gave a judicial remedy against the lord when he was a party. Rawle on Covenants, 2, 14, 15.</p> <p>These warranties were gradually changed, mostly by statute : first by the Statute De Donis, in 1285 ; then by Statute Quia Emptores, in 1290; then by that of 11 Henry VII. c. 20, in 1494; then by 4 & 5 Anne, c. 16, in 1705; and then by the final abolition of warranties, by act of Parliament, in 1834.</p> <p>Warranties during all this period were falling into disuse, and after the Statute of Uses were gradually' superseded by conveyance to use by deed with general covenants of warranty. The present method of conveyance came into general use about two hundred years ago, and attained perfection in this country much sooner than in England. Our courts of Mississippi therefore adopted the feudal reason long after the feudal rule ceased to exist, and now in this a less liberal practice obtains than existed in feudal times under the action of voucher to warranty.</p> <p>The decision of this court in Kirkpatrick v. Miller, 50 Miss. 521, has relieved from some of the hardship of previous decisions, and has left the whole rights of parties on the usual covenants of warranty, a matter of pleading and not a rule of property. See also Cwyn v. Me Carroll, 1 S. & M. 35.</p> <p>Counsel also insisted that the title being in the County of Panola, as conveyed to it by Keith, that this was equivalent to an eviction. The rule applicable to a State is also applicable to a county, which Dillon on Municipal Corporations, 32, says is “ an involuntary political or civil division of the State, created by general laws, to aid in the administration of government,” and “ are purely auxiliaries of the State.” See also Hamilton Co. v. Mighels, 7 Ohio St. 109; Cooley on Constitutional Limitations, 240-242; Coals v. Madison, 1 Breese, 116 ; Granger v. JPulasJci Co., 26 Ark. 37 ; Pag v. Bently, 40 Mo. 236.</p> <p>At common law a suit will not lie either for or against a county. Anderson v. State, 23 Miss. 459; Sutton v. Carroll Co., 41 Miss. 238; Lyles v. St. Clair Co., 3 McLean, 580; Rockland v. Steele, 31 111. 543.</p> <p>The title to land in counties must therefore be regarded in the same light as if they were in the State, and force could be used to eject trespassers therefrom. Burr v. Norton, 25 Conn. 103; Sparks v. Purdy, 11 Mo. 219.</p>

Hon. S. H. Terral, special judge, by agreement of parties, Hon. A. G. Mayers having been of counsel for the plaintiff below. E. A. Strong & Burt, the plaintiffs in the lower court, sued D. B. McKee and W. S. Maxey, formerly merchants in Jackson, Tenn., under the firm name of D. B. McKee & Co., the firm being composed of McKee, Maxey and J. S. Chiles.

Hon. George E. Brown, Judge. This was an action of covenant by the Southern Express Company against George F. Swann, and E. Virden and G. T. Swann, sureties on his bond, given to the express company as route messenger, conditioned that he would well and truly perform the duties required of him in said employment, and account for all money or property which might come into his control by reason of said employment, and indemnify the company against all loss or damage which…

Hon. Thomas Walton, Chancellor. The facts appear in the opinion of the court. 1. The right to declare the estate insolvent is barred by the Statute of Limitations. Bramlet v. Wehb, 11 S. & M. 439 ; H. & H. Dig. 407, § 76 ; Parker v. Whiting, 6 How. (Miss.) 360 ; Moore v. White, 6 Johns. Ch. 385; Fx parte Allen, 15 Mass. 58 ; Ferguson v. Scott, 49 Miss. 505; Code 1871, § 2155. 2.

<p>Appeal from the Chancery Court of Bolivar County.</p> <p>Hon. E. Stare ore, Chancellor.</p> <p>The deed of trust which this bill in chancery was filed to enforce on certain equitable grounds was made by the Cole-mans, the plaintiffs in error, to a trustee, for the benefit of Galbreath, Stewart & Co., the defendants in error, and conveyed to the trustee certain real and personal property. The condition of this instrument was that whereas Galbreath, Stewart & Co. agreed to furnish, on the order of the parties of the first part (the Colemans), plantation supplies, money, &c., during the year, to an amount not exceeding $10,000, at Memphis, Tenn., including reasonable charges, and the Cole-mans agreed to repay the full amount of such advances on or before the 1st January, 1868, now if the Colemans should pay the debt on or before the 1st January, 1868, the deed should be void, but on default of payment there was a power of sale in the trustee.</p> <p>The instrument was signed by the Colemans, Galbreath, Stewart & Co., and the trustee, and acknowledged and recorded.</p> <p>made an elaborate oral argument.</p> <p>1. The furnishing of the $10,000 of supplies was a condition precedent to the enforcement of any right under the deed by Galbreath, Stewart &'Co. Having refused in the early part of the year, after advancing $2,000, to advance any more, they forfeited all right to enforce the instrument.</p> <p>2. By their arbitrary refusal to make further advances the planting interest of the Colemans was thrown into confusion, and they were damaged by the breach of contract to an amount greater than the sum advanced by the complainants.</p> <p>argued the case orally.</p> <p>1. There are several answers to the claim for damages. The contract did not oblige Galbreath, Stewart & Co. to advance any specific amount, but only to furnish supplies during the year. There is nothing in the contract to compel the Colemans to receive $10,000 of supplies, and to bind Galbreath, Stewart & Co. to that condition. It should be mutual. The amount of supplies to be furnished not being fixed, we must conclude it was left for future adjustment. Suppose the Colemans had become insolvent, would Galbreath, Stewart & Co. have still been compelled to furnish the supplies ? Or suppose both parties had become satisfied they could not be paid for. Necessarily the quantity and quality of the supplies were left to be determined by future agreement; and such an agreement was made.</p> <p>2. But if liable for damages for not furnishing $10,000 worth of supplies during the year, they are on the facts in evidence only liable for nominal damages. It is not shown that any direct injury, which could not have been avoided by the Colemans, resulted to them from the failure. At most it was a contract to pay money, and the measure of damages is the legal interest. Sedgwick on Damages, c. 8, 233 et seq. ; Mayne on Damages, c. 2,6. But if it was a contract to sell and deliver articles, the measure is the difference between- the contract price and the market price. Sedgwick on Damages, 260 et seq.; Mayne on Damages, 86; 16 Q. B. 941.</p> <p>The court is referred on the general subject of damages as applicable to the facts of this case to the following cases in our own court: Jamison v. Moon, 43 Miss. 598 ; College v. Brown, 10 S. & M. 605 ; Whitfield v. Whitfield, 40 Miss. 352; Vicksburg Railroad v. Ragsdale, 46 Miss. 458.</p>

Hon. J. A. Orr, Judge. filed an elaborate printed brief of forty-six pages, in which, among many others, he' made the following points : — 1.

Hon. George F. Brown, Judge. On the thirteenth day of April, 1875, Thomas H. Christian filed a petition in the Circuit Court of Hinds County against W. H. Gibbs, State auditor, alleging that on the first day of July, 1870, the petitioner was appointed,, with the advice and consent of the State senate, chancellor of the fourth chancery district of the State of Mississippi, for the constitutional term, and until his successor in office was duly elected and qualified; that on…

Appeal and Cross-appeal from tbe Chancery Court of Bolivar County. Hon. E. Stafford, Chancellor. T. H. & J. M. Allen & Co., the complainants in the court below, filed their bill iu the Chancery Court of Bolivar County, on the 16th of December, against Thomas B. Lenoir and Emma S. Lenoir, his wife.

Hon. T. B. Graham, Chancellor. Dora Johnston, by her next friend, J. A. Smith, her brother, filed this bill in chancery against her husband, Thomas H. Johnston, and David Wallace, asking an injunction to restrain David Wallace from enforcing a certain deed conveying the homestead on which she and her husband and children lived, and that on final hearing the injunction be made perpetual.

Hon. Thomas Walton, Chancellor. This was a bill in chancery, filed on the 12th November, 1874, by Mary Watson against William Eggleston, to foreclose a mortgage on “ Wanalaw ” Plantation in Holmes County, Miss.

Eubok to the Circuit Court of Yazoo County. Hon. W. B. Cunningham, Judge. This was an action of replevin by the defendant in error, trustee in a deed of trust given by one Humphreys on some mules. Held: however, that notwithstanding Mrs. Upshaw was an infant and married woman, she was estopped by her acquiescence. The contract of a married woman being void, it cannot be ratified unless by deed in the mode prescribed by statute.

Hon. W. B. Cunningham, Judge. This action was commenced by the defendants in error against the plaintiff in error, on the 16th of July, 1873, upon an open account, dated in 1861, for goods sold and delivered. To the plaintiffs’ declaration in the court below, the defendant pleaded the general issue, payment, and the Statute of Limitations.

<p>Error to the Circuit Court of Marshall County.</p> <p>Hon. Orlando Davis, Judge.</p> <p>The plaintiff in error recovered a judgment on a note of John Falkner and L. J. Capel, in the Circuit Court of Marshall County, on 25th March, 1868, against L. G. Falkner, administrator of John Falkner, deceased, and said Capel.</p> <p>Capel subsequently moved in said court to have the judgment entered satisfied in full, as to himself, because he was only a surety for the debt, and the plaintiff in the judgment had accepted $350 from the administrator of Falkner, the principal, and discharged his estate from all further liability, which operated as a release of the surety.</p> <p>The. motion was sustained, and the plaintiff took her bill of exceptions, which showed that the estate of John Falkner was in fact insolvent, and the pro rata on the judgment clearly less than $200. She compromised, through her agent, the judgment with the administrator, who desired to avoid insolvency proceedings, by receiving $350 from him, and giving him the following receipt: —</p> <p>“Memphis, Dec. 2,1868.</p> <p>“Received of S. Guy Falkner, administrator of John Falkner, deceased, the sum of $350; and we hereby release said administrator and said estate from all habilites on a judgment rendered in the Circuit Court of Marshall County, on 25th March, 1868, in favor of M. O. Anthony, against said administrator and S. J. Capel. This receipt releases said estate from said judgment and costs.</p> <p>“ J. H. Tucker, Agent,</p> <p>“ For M. O. Anthony.”</p> <p>1. The debt was merged in the judgment, and the parties were each liable for the whole, subject to the statutory right of the surety to compel the money to be first taken from the principal. Inasmuch as the estate was insolvent, the compromise was in every way a benefit to Capel, he being now only liable for the balance of the judgment. Code 1857, p. 364, art. 1; Code 1871, § 2263; Hunt v. Knox, 34 Miss. 673; Roberts v. Stewart, 31 Miss. 667 ; Perkins v. Lockwood, 1 Am. Rep. 103.</p> <p>2 The receipt was not under seal, and was without consideration to support it. Authorities, supra.</p> <p>1. The fact that the note was merged in a judgment did not affect the rights of the surety, as they existed before the judgment. Code 1857, p. 363; Curran v. Colbert, 3 Kelly, 239; Bangs v. Strong, 10 Paige, 11; 63 111. 272; 5 Barb. 520 ; McDonald v. Ingraham, 30 Miss. 389.</p> <p>2. The receipt was on valid ■ consideration, and therefore binding. Dubuisson v. Polices, 30 Miss. 433 ; Byrne v. Cummings, 41 Miss. 192; Magee v. Catching, 33 Miss. 672; Whit-worth v. Harris, 40 Miss. 488 ; Craioford v. Avery, 35 Miss. 205 ; 25 Miss. 556 ; 28 Miss. 56; Fells on Guaranty and Surety-ship, 4, 5.</p>

<p>Appeal from the Chancery Court of Scott County.</p> <p>Hon. R. B. Stone, Chancellor.</p> <p>The claim was not barred by limitation. Griffin v. Mills, 40 Miss. 611; Code 1857, p. 899, art. 5, p. 456, art. 126; Code 1871, § 2155 ; Woods v. Elliott, 49 Miss. 168; Code 1857, p. 401, art. 18; Code 1871, § 2162; George’s Digest, p. 487, § 98, note.</p> <p>The limitation provided by § 2155 Code is not a limitation on suits against the estate, but a restriction as to the time, after his appointment, in which any administrator may be sued. Hutch. Code, 881; Brown v. Hill, 27 Miss. 51; Woods v. Elliott, 49 Miss. 168.</p> <p>The claim is barred by § 2155 Code 1871. Woods v. Elliott, 49 Miss. 168; Abbott v. McElroy, 10 S. & M. 100 ; Byrd v. Byrd, 28 Miss. 144; Angelí on Limitations, 56 ; Brown v. Hill, 27 Miss. 45.</p>

Hon. Thomas Walton, Chancellor. 1. The final decree was erroneous. Nothing in the petition, prayer or proof suggests any lien on land. The proceeding is not one in which a decree enforcing a lien can be made. The probate side of the Chancery Court has not jurisdiction to make such a decree. 2. The proceeding was founded in a misconception of the force and effect of § 1142 Code 1871. Accounts against estates must be registered, § 1140; which is presentation sufficient.

Hon. J. A. Orr, Judge. This was a proceeding under Code 1871,. § 227, against A. A. Shattuck, Sheriff of Colfax County, and B. W. Millen, William Mixon and A. P. Shattuck, sureties on his official bond, for failure to return an execution to him directed on the return day thereof.

<p>Ebbob to the Cii’cuit Court of Rankin County.</p> <p>Hon. A. G. Matees, Judge.</p> <p>This was an indictment for grand larceny. The defendant Finch pleaded “ not guilty,” was tried by a jury, and found guilty. The entry shows that the verdict was received and the jury discharged while the prisoner was in jail. After-wards the prisoner was brought into the court-room, and the jury, being recalled to the jury-box, then, in presence of the prisoner, reaffirmed their verdict. A writ of error was taken to the Supreme Court, and the error assigned is, that the Circuit Court erred in receiving the verdict in the absence of the prisoner.</p> <p>1. The verdict having been received while the defendant was in prison, was void. Price's Case, 36 Miss. 542.</p> <p>2. This was not cured by recalling the jury to the jury-box after they had been discharged for a few minutes, and having them reaffirm their verdict. Bine's Case, 8 Humph. 602; Brister's Case, 26 Ala. 131, 132; Mill's Case, 7 Leigh, 751; Tilton's Case, 52 Ga. 478; Kelly's Case, 46 Cal. 356; Sargent's Case, 11 Ohio, 472.</p> <p>3. The record does not show that either the prisoner or his counsel knew of the first verdict and discharge of the jury until after the second verdict. But had they known it in time, it would not have altered the result in this court, for neither of them, nor both of them together, could waive the prisoner’s right to poll the jury. Bose's Case, 20 Ohio, 32; Prine's Case, 18 Penn. St. 104.</p> <p>■ 1. The error committed by the court, in receiving the verdict in the prisoner’s absence, was corrected by recalling the jury, while they were in a body in the court-room, and re-submitting the case to them, when they returned the proper verdict in the prisoner’s presence.</p> <p>2. There was no opportunity for harm to the prisoner. The jurors had. been discharged only “.a few minutes,” were still in presence of the court and had not even dispersed.</p> <p>3. When the verdict was finally returned to the court, neither the accused nor his counsel attempted to poll the jury, although at that time both were present, and the prisoner had full opportunity to avail himself of all his constitutional' orlegal rights, by polling the jury or otherwise.</p> <p>4. Although present, neither the accused nor his counsel objected to the proceeding, nor took any bill of exceptions, and no such point was made in the court below. As he did not avail himself of his rights when opportunity was given, he waived them. It is too late now to come into this court and insist he has been deprived of valuable rights by the action of the court below.</p>

R. W. Williamson, Chancellor of the Fifth District of Mississippi, on habeas corpus, granting bail to Marion Walker. The Chancellor should have discharged the appellant without bond. Code, §§ 1406, 1407; Hurd on Habeas Corpus, 252 ; Bac. Abr., Hab. Corp., § 9 ; 10 S. & M. 618. Having performed the judgment of the Chancellor by giving the required bond, nothing is to be accomplished by the appeal, and it should be dismissed.

Hon. W. B. Cunningham, Judge.. • This was an indictment against Frank H. Russell, for the murder of Charles E. Fawn, to which the accused pleaded “ not guilty,” and a special venire was drawn. On motion of the defendant this special venire was quashed, for the reason, stated in the motion, that the special venire was not drawn from a legal jury-box.

Hon. WVB. Cunningham, Judge. The indictment was insufficient, and could not support the verdict. Lewis v. State, 49 Miss. 355. The indictment is good at common law, both in form and substance. Code 1871, § 2864; 2 Bishop Criminal Procedure, §§ 50, 51, 52 and note; 2 Russell on Crimes, 563, 564.

Hon. J. W. C. Watson, Judge. On the twenty-fourth day of December, 1875, George Corn-well was brought before a justice of the peace of Union County, on a charge of grand larceny. After examination, the justice of the peace entered judgment that the accused should enter into recognizance of $250, for his appearance at the Circuit Court; or, in default thereof, should be committed to jail.

Hon. James M. Arnold, Judge. At the September Term, 1876, of the Circuit Court of Clay County, Moses Cooper, alias Moses Dunlap, was indicted for the larceny of a double-barrelled shot-gun, of the value of fifteen dollars, and was tried and convicted as charged.

Hon. A. G. Maters, Judge. Ben Skinner was indicted for the murder of Taylor Brown, tried by a jury and convicted of manslaughter. A motion for a new trial was made and overruled. The defendant took a bill of exceptions, and on being sentenced to four years’ imprisonment in the penitentiary brought the case to this court.

Error, to the Circuit Court of Madison County. Hon. S. S. Calhoon, Judge. 1. The amendment of the indictment was error. Me Quire v. State, 35 Miss. 367. 2. The statute, § 2799, Code 1871, is unconstitutional. § 31, Bill of Rights; art. 1, Const. 1869. 3. The indictment was bad, because it did not charge an assault and battery with a deadly weapon. Williams v. State, 42 Miss. 329. 1.

<p>Error to the Circuit Court of Pike County.</p> <p>Hon. J. M. Smiley, Judge.</p> <p>Indictment for grand larceny, in the usual form, alleging that the defendant stole certain small articles of merchandise from Ben. Hilburn & Co., on 21st August, 1876. The values of the articles, no one of which exceeded four dollars, together made the sum of one hundred dollars. Plea, not guilty, and trial by jury.</p> <p>The testimony was, that the store of Ben. Hilburn & Co., merchants, in Summit, Pike County, Miss., had been clandestinely opened, by adroitly raising the bolts, so as to escape observation. The articles mentioned in the indictment were identified, when produced on the trial, as bearing the private mark of Ben. Hilburn & Co., and being their goods from the store, and the values fixed as in the indictment alleged. No ^/witness could say when the articles aforesaid were stolen; but f the stealing had been going on in said store from November, i 1875, at least, up to Aug. 2, 1876, and it was impossible to say whether said articles were all taken at one time or at , different times, or whether enough to constitute grand larI ceny had been taken at any one time. The articles were found, when the defendant Scarver was arrested, in his trunk and under the bed in his house in Summit, on or about the 2d August, 1876. Scarver had not purchased any of the articles from the store of Ben. Hilburn & Co.</p> <p>The instructions for the State were: —</p> <p>“ 1. Although the articles may have been taken at different times, yet, if they were all taken by the defendant, and ■when thus accumulated the entire lot was retained and possessed by him, such detention and possession is a continued asportation of the entire lot.”</p> <p>“ 2. The court instructs the jury that where a person has different articles stolen from him, and such articles are all found in the possession of another person, the presumption is that they were all stolen at the same time, and by the person in whose possession they are found.”</p> <p>The foregoing instructions were not qualified by others, except that the jury were informed that the possession of stolen property must be recent, to raise the presumption of guilt.</p> <p>Scarver was convicted of grand larceny, and sentenced to five years’ imprisonment in the penitentiary.</p> <p>1. On the question whether the crime developed by the testimony was grand or petit larceny, the first instruction could not fail to mislead the jury.</p> <p>2. No such presumption arises on the facts of this case as that mentioned in the second instruction.</p> <p>3. The possession of stolen goods must be soon after they are stolen, to raise the presumption of guilt at all.</p> <p>cited Mask's Case, 36 Miss. 77; 39 Miss. 613; 28 Miss. 687; 44 Miss. 731.</p>

Hon. W. D. Bradford, Judge. This was an indictment against William Pollard, for the murder of Frederic Carpenter, of which charge Pollard was convicted. The testimony for the State was altogether circumstantial, and the circumstances were these: On the 10th March, 1875, about eleven o’clock A.M., the dead body of Carpenter was found, shot through the head.

Hon. A. G. Maters, Judge. The plaintiff'in error was indicted at the June Term, 1876, in the Circuit Court of Simpson County. The errors relied on question the correctness of the finding of the indictment by the grand jury, and the separation of one of the jury from his fellow-jurors.

T. B. Graham, Chancellor of the Eighth District of the State of Mississippi, denying bail. Unless the prisoner is guilty of a capital offence of which the proof is evident or the presumption great, he is entitled to bail as a matter of right. Const. Bill of Bights, § 8 ; Wray v. State, 30 Miss. 673. By a capital offence, we understand one punishable with death.

Hon. Robert Leachman, Judge. 1. The first error which the plaintiff in error alleges to have been committed by the court below was the action of the court in overruling the motion of the defendant to quash the special venire, because the same was not executed according to law, and the order of the court in regard to summoning said venire.

Hon. G. C. Chandler, Judge. The motion in arrest of judgment should have been sustained, because the defendant was out of office before rendition of the judgment. The election was in the fall of 1873, for a term to end Jan. 1, 1876, and the conviction was subsequent to the latter date. 1. The plaintiff in error insists that his term of office had expired before he was tried on the indictment. No such thing is shown by the record. 2.

Error, to the Circuit Court of Montgomery County. Held: and reversed it and quashed the indictment, and when he is again indicted, to set up in defence that his first conviction was lawful, and plead it in bar of a further prosecution ? That is what is here attempted. See Wharton on Homicide (2d ed.), § 889. There are three counts in the indictment. Each one is for murder: 1.

Hon. H. R. Ware, Chancellor. In this suit a bill was filed to subject certain lands held in trust to the payment of services rendered by an agent employed by the trustees to take care of and manage the trust estate. A demurrer was filed to the bill, which was overruled, and the defendants were required to plead; and an order of reference to a commissioner was made, to have an account stated between the trustees and their agent.

<p>Appeal from the Chancery Court of Monroe County.</p> <p>Hon. O. H. Whitfield, Chancellor.</p> <p>James H. Haughton and John C. McNairy were executors of the last Mull and testament of Thomas Brandon, deceased. In the years 1865 and 1866 they delivered to the law firm of Davis, Haughton & Gholson for collection a great many- claims, aggregating a large amount due the testator, Thomas Brandon. This law firm brought many suits in the various courts of the State with due diligence, skill and success, and in all respects gave prompt and proper attention and care to the said claims, for the purpose of collecting them. But nearly all of the claims proved to be worthless, and after applying the whole amount collected in payment of their fees there was still due the attorneys several thousand dollars. The fees charged were usual and legitimate, according to the custom and standard at the Aberdeen bar in said county of Monroe. The executors, James H. Haughton and John C. McNairy, both died, the former in 1868 and the latter in 1870; but McNairy had resigned his executorship some time before his death. In the yáta 1869 W. H. Clopton was duly appointed administrator cum testamento annexo of the estate of said Brandon, deceased.</p> <p>On the twenty-third day of April, 1873, Samuel J. Gholson, S. B. Haughton and L. Haughton, as owners and holders of the claim of Davis, Haughton & Gholson, filed their bill in chancery against W. H. Clopton, administrator, to subject the assets of the estate of Thomas Brandon, deceased, to the payment of their claim. The defendant demurred to the bill of the complainants, because, as alleged, if the complainants had any remedy, it was at law, and not in equity, and because the bill showed no equity upon its face. The demurrer was overruled, and the defendant answered. Upon final hearing a decree was rendered for the complainants, from which an appeal was taken to this court.</p> <p>The bill shows on its face that the complainants have no right to implead this defendant, the administrator de bonis non with the will annexed, in the first instance, in any court.</p> <p>The special contracts by which the firm of Davis, Haughton & Gholson was retained, and under which the account for their compensation here sued for was created, were made directly and expressly with one of the executors, James H. Haughton, and most of the services charged for were rendered and dated during his administration. Unless specially authorized by the will, he could create no debt legally binding upon the estate, or upon which his successor in the administration could be sued at law. He should either have paid for all needful services or expenses with the money or other assets of the estate in his hands, or, if practically compelled to contract a liability about the business of his trust, he should have retained for his own reimbursement, and claimed credit on his settlement. He alone is primarily liable for such contracts, both in law and equity, however bona fide they may be, and those who deal with him must look to him personally, in the first instance at least. They must first sue to judgment and insolvency him with whom they directly contracted. Then, if the debt contracted be just and bona fide, and a legitimate expense of the estate, they may proceed in equity against the administrator de bonis non to subject the non-administered estate in his hands as equitable assets. In the case at bar, the complainants have no equity against the administrator de bonis non until they first sue James H. Haughton’s estate to insolvency. Hence the present bill lacks equity as against this defendant. For the settled principles of this doctrine in every phase of fact see the following eases, many of them exceedingly emphatic : Sims v. Stilwell, 3 How. (Miss.) 176 ; Woods v. Ridley, 27 Miss. 119; Greening v. Sheffield, Minor (Ala.), 276; MeJEldery v. McKenzie, 2 Porter, 33; Johnson v. Gaines, 8 Ala. 791; Kirk-man v. Benham, 28 Ala. 501; Jones v. Dawson, 19 Ala. 672, overruling Goopwood v. Wallace, 12 Ala. 790, which see also; Wade v. Pope, 44 Ala. 690 ; Lyon v. Hays, 30 Ala. 430 ; Muchall v. Williams, 32 Ala. 489; Savage v. Benham, 11 Ala. 49; Kessler v. Hall, 64 N. C. 60 ; Livingston v. Gaussen, 21 La. Ann. 286 ; Worrall v. Harford, 8 Yes. Jr. 4; Lewin on Trusts, 454, 455 ; Hill on Trustees, 567 ; 3 Wend. 244 ; 7 Cowen, 58 ; 12 Johns. 349; 41 N. Y. 315; Austin v. Monroe, 47 N. Y. 360 ; Guerry v. Gapers, Bailey Eq. (S. C.) 159; Sloan v. Johnson, 14 S. & M. 47.</p> <p>The office of an administrator is that, so to speak, of a statutory trustee, or trustee under the statutes of the State; and these statutes creating the office define his authority. The office of an executor may under the will be different, or modified as to his powers and liabilities, but there is in this case nothing to vary the rule governing both under our laws.</p> <p>It is important to note that the strict rules and technical restraints applicable to trustees under the laws of England are neither a necessary nor a safe guide in settling questions arising under our statutes on this subject. Hill on Trustees (3d Am. ed.) 65, after defining in its widest meaning the term “ trustee,” as embracing executors, administrators, guardians, bailees, factors, &c., adds, “ But the term ‘ trustee,’ in its more defined acceptation, has acquired a meaning distinct from any of these characters. ... It is not intended that those branches of the subject should be objects of discussion in the following pages, which will be confined to the law relating to trustees in the usual and more restricted meaning of the term,” &c.</p> <p>Among the duties imposed by our Code upon administrators and executors is, that he shall collect debts due the estate, both those originating out of transactions with the deceased and with the administrator. The debts must be collected, if practicable, with or without suit, as the case requires. The administrator or executor has no choice or discretion. Authority or power given to do any particular act necessarily carries with it the authority and power to employ the means to accomplish this object. If an administrator is authorized and bound to do' certain things, he must be privileged to use the appropriate means for this purpose. If in the management of estates, in the custody of the law and in the custody of the chancery courts, clerks, sheriffs and lawyers become indispensable for the benefit of creditors, heirs and distributees, then of course creditors, heirs and distributees must pay for such agencies ; or, rather, the court is in good faith bound to see that before the estate is distributed the services of such agents are paid for out of the fund to be distributed. The true and correct principle of justice would not only bind the estate, but also the administrator personally, for services under such circumstances, giving the creditor an election. Short v. Porter, 44 Miss. 583 ; Farley v. Hord, 45 Miss. 96.</p>

Hon. Charles Clark, Chancellor. This case comes up on the pleadings, which are substantially set forth in the opinion of the court. 1. In a proper proceeding and in the proper forum the appellees would have recourse for reimbursement of the amount expended by Wicks, for taxes on the one-third interest of Davidson in said lands, and for one-half the amount expended in improvements upon said land.

Hon. H. R. Ware, Chancellor. Flora Watson filed a bill against Sun Byrd, Nancy Mitchell, and Molissa McFerrin, on the sixth day of August, 1875, and alleged that on the day of a.d. 18 , Bryant Byrd died, leaving a personal estate ; that the defendant, Sun Byrd, took possession of said estate,'and converted it to his own use ; that the deceased left no heirs of his body, but the complainant and the defendants are his brother and sisters, except Molissa McFerrin, who is the…

Hon. J. C. Gray, Chancellor. In the year 1871, J. N. McLeod and his wife sold to W. D. and D. A. Champlin, the wife’s land for $8,600, of which $1,000 was paid in cash, and for the balance W. D. and D. A. Champlin gave two notes, and McLeod and wife gave a bond for title. In the year 1873, J. N. McLeod formed a mercantile partnership with one M. B. Jones, under the firm name of McLeod & Jones.

<p>1. Evidence. Glaim against decedent. Wife witness for husband.</p> <p>If a husband, having a claim against a deceased person, brings suit upon it, the wife is a competent witness to establish such claim in favor of the husband.</p> <p>2. Same. Final settlement. Executrix competent witness. Case in judgment. L. B. was the sole executrix of the will of her father, deceased. W. B.,</p> <p>her husband, had a claim against the decedent, which was duly probated and paid by the executrix, his wife. On final settlement this item of the account of the executrix was objected to by parties interested, and the Chancellor ruled that neither L. B., the executrix, nor her husband, W. B., was a competent witness to establish such claim against the decedent. Held, that the executrix was a competent witness in this case.</p> <p>3. Will. Codicil. Construction. Case in judgment.</p> <p>S. made his last will, and gave to his several different children all of his property. He afterward added this codicil: “I confirm to my daughter L. M. all that I heretofore willed, and all the stock, crop, &c., I may die possessed of, to her and the heirs of her body, requesting her to make such presents to any of my children as she. may think proper, as mementos that they may esteem.” Under this codicil L. M. claimed all the property before willed to the other children. Held, that the codicil only confirmed to her the property previously willed to her, and gave her the additional property mentioned in the codicil.</p>

Hon. Thomas Christian, Chancellor. The facts of this case appear in the opinion of the court. 1. There was error in the court below in permitting the witnesses to testify to establish the will. There is no claim that the alleged testamentary words were written down within six days after the speaking of the same. They were spoken on the twentieth day of January, 1873. It is not pretended that they ever were written down before the seventh day of February thereafter.

Hon. William D. Frazee, Chancellor. 1. We submit that this affidavit by the solicitor in the case is not sufficient. Bank of Orleans v. Skinner, 9 Paige Ch. 305 ; 1 Daniell’s Ch. Pr. 399, and notes. 2. The bill is multifarious. Story Eq. PI. 271; Daniell’s Ch. Pr. 451; Jones v. Foster, 50 Miss. 51. 1. No affidavit was necessary to the bill. Code 1871, §§ 1015, 1048. 2. If required, the affidavit by the solicitor was sufficient. Code 1871, § 687. 3.

Hon. L. Haughton, Chancellor. 1. The bill is not one to remove clouds alone; but it is to establish the equitable title of the complainants to the land, and therefore the grounds of demurrer, that the complainants do not show title and the like, are inapplicable. 7 Johns. Ch. 114; 12 S. & M. 191. 2. The complainants are not barred. There was no concurrent jurisdiction of this cause in a court of law. It is a trust cognizable peculiarly in a court of equity.

<p>1. Chancery. Practice. Receiver. Bow appointed. Notice. Case in court.</p> <p>On 7th January, 1874, on the ex parte petition of M., vendor of land then in possession of the heirs of H., the vendee, asking for a receiver to rent the land and collect rent, an order appointing a receiver was made by the Chancery Court. On 17th of same month, on motion of attorneys for the heirs, the order appointing the receiver was set aside, the vacating order reciting that “ notice was then given by the complainant, and received by the solicitors of the defendants,” some of whom were minors, “ in court,” and “ ordered that the application be heard in vacation ten days from this date.” On 23d October, there being no parties and no notice, except as above, a decree was made appointing a receiver to take charge of and sell cotton raised on the place on which H. lived at his death, and hold the proceeds subject to order of court. In April, 1875, in a case in the same court, styled M. v. H.’s Heirs, on motion of the complainant, an order was made on the receiver to pay the complainant the amount in hand. On petition of the widow of H. to vacate the last order, held,, that although the case of M. v. H.’s Heirs was filed on 17th March, 1874, inasmuch as no reference was had thereto in the decree of 23d October, 1874, but it was made in pursuance of the petition and in renewal of the application pending, the whole proceeding was erroneous, the several orders should be reversed, the petition of M. dismissed, and he taxed with all the costs arising on his petition.</p> <p>2. Same. General principle.</p> <p>To authorize the appointment of a receiver there must be a suit pending, and ten days’ notice of the time and place of making the application must be given to the opposite party, unless it should be made to appear that an immediate appointment is necessary, in which case it may be made without notice; but there must be a case in court and an opposite party to warrant the appointment of a receiver.</p>

Hon. Thomas Walton, Chancellor. Doctor Bunch, as assignee of a note secured by a deed of trust, filed this bill in chancery against the administrators and widow and heir of Francis Vaughan, deceased, to foreclose the trust deed and sell the land embraced therein.

Hon. W. D. Bradford, Judge. This was an action of ejectment by the heirs of John S. McGehee, against M. W. Martin. The plaintiffs showed a regular chain of title from the United States, down to John S. McGehee, and proved they were his heirs. The defendant, as a witness in his own behalf, testified that he saw one May sign a deed conveying the land to him.

Hon. J. A. Green, Judge. C. A. Simpson, the defendant in error, was sued in Chickasaw County, before a justice of the peace. The defendant was a resident householder in Monroe County, but was on a visit in Chickasaw when the suit was brought and summons served upon him. The debt sued on was contracted in the district of the justice of the peace before whom suit was instituted.

Hon. W. B. Cunningham, Judge. The statement of this case appears fully in the opinion of the court. 1. In its incipiency no one has a superior right to an office than his neighbor. The will of the elective power determines who shall occupy it; no one has title to it; title rests with the elective power, and must be granted by it before any one can claim it. After the grant, the grantee has the vested right to occupy it for the term to the exclusion of every one.

Hon. J. A. Orr, Judge. On the twenty-second day of January, 1866, W. F. Walker, one of the plaintiffs in error, became administrator of the estate of John W. Taylor, deceased, and gave bond in the usual form, signed by himself and the other plaintiffs in error.

Hon. W. B. Cunningham, Judge. B. C. McKee executed to Isidor Gross, as trustee for Loeb & Co., a deed of trust to secure the payment of a note for §214 for an old debt, and §100 for advances to be made in supplies during the year 1874. On the twenty-sixth day of November, 1874, Gross, as such trustee, instituted an action of replevin against McKee, to obtain possession of the property embraced in the deed of trust.

Hon. George F. Brown, Judge. The defendant in error sued the plaintiff in error in an action of assumpsit for money paid out and services rendered for the plaintiff in error. The defendant below pleaded the general issue, Statute of Limitations and payment.

<p>Error to the Circuit Court of Hinds County.</p> <p>Hon. George F. Brown, Judge.</p> <p>Wesley Crisler sued Eliza J. McRaven in assumpsit, upon three counts. The first count was upon a promissory note, given for the purchase-money of a tract of land, sold by the plaintiff to the defendant, and recited that the land was known as the “ S. of sec. 12, and the W. of N. W. -J of sec. 12, all in T. 5, R. 1 W., and the W. £ of S. W. £ of sec. 7, T. 5, R. 1 E.” The second count was for the purchase-money of said land, and recited that the plaintiff sold to the defendant the tract of land above described, and the defendant received possession of the property, under the plaintiff, and has ever since held the same; that on the day of the sale of said land, by agreement of the parties, one Harris drew up a note for the purchase-money, but therein misdescribed the land, by omitting from the note the “ W. of S. W. of sec. 7, T. 5, R. 1 E.,” and by describing the other land as being in “ R. 1 E.,” instead of “ R. 1 W.; ” and that after said note had been signed by the defendant and delivered to the plaintiff, Harris detected the error in the note, and corrected it accordingly. The third count was for money loaned and advanced. The plaintiff in his declaration made tender of a deed conveying said lands to the defendant, to be delivered upon payment of the purchase-money, which deed was filed in court.</p> <p>The defendant filed six pleas, but it is only necessary to notice the first and sixth. The first plea was non est factum to the first count in the declaration. The sixth plea was to the first and second counts, as follows: “ The said defendant says actio non, because said supposed writings in said counts mentioned are one and the same; and said writing was altered at the request of the plaintiff, without her consent, in the" particulars mentioned in the second count; and the defendant avers that the original note was given by her in consideration that the plaintiff would sell and convey to her all the interest he acquired in the lands mentioned in said second count; yet the plaintiff did not, before the institution of this suit, execute or tender to her any such conveyance, as he was bound to do; and so the consideration of said note has hitherto failed.”</p> <p>The plaintiff demurred to the defendant’s sixth plea, because, —</p> <p>1. The alleged alteration without the defendant’s consent is no answer to either the first or second count.</p> <p>2. The not tendering deed before suit brought is no defence to either count, one being tendered with the declaration.</p> <p>The court sustained the demurrer, and allowed the defendant to answer over. The parties waived a jury, and tried the case before the court, who rendered judgment for the plaintiff.</p> <p>The defendant sued out a writ of error, and assigned several errors, only two of which were noticed by this court; to wit: —</p> <p>1. The Circuit Court erred in sustaining the demurrer to the defendant’s sixth plea.</p> <p>2. The finding and final judgment of said court is contrary to the law and evidence.</p> <p>During the pendency of the case in the Circuit Court, Wesley Crisler, the plaintiff, died, and the action was revived in the name of Catherine Crisler, administratrix of the estate of the deceased.</p> <p>1. “ Courts will construe covenants to be dependent, unless a contrary intention clearly appears. A party shall not be forced to pay out his money, unless he can get that for which he stipulated.” “It is not to be presumed that the vendee intended to pay his money without receiving the stipulated equivalent in a title to the land purchased.” Robinson v. Harbour, 42 Miss. 795, 801, 803. “ In contracts, where either party might be compelled to part with his money or his property without receiving the stipulated equivalent, the latest and best action of the courts has been to hold that the party seeking to enforce the contract must make his own part of the agreement precedent, and allege either a performance or a tender and refusal.” Wadlington v. Hill, 10 S. & M. 560, 562.</p> <p>2. The consideration, being recited in the note, became a material part of it, and the interlineation by the payee, so as to show another and different consideration, and making another note given for another tract of land, avoids the original note, and no recovery can be had. Benjamin v. McConnell, 4 Gilman, 545, 546; Enill v. Williams, 10 East, 431. “ In all cases the inquiry should be, not has the defendant been injured by the alteration, but might he have been injured?” So the rule is the same, “ if the mere identity of the note is obscured ” by the alteration. 2 Parsons on Notes and Bills, 551.</p> <p>1. The correction of the note was for Mrs. McRaven’s benefit, and gave her the four hundred and eighty acres of land which she contracted for. Without the correction by some person or a court she would have received but four hundred acres. There can be no pretence of fraud in the correction : it was an act of plain honesty to Mrs. McRaven. Where a mortgagor altered the mortgage after it was signed by his co-mortgagor, and without his knowledge, by inserting additional property at the request of the mortgagee, it was held that the mortgage was valid against the first signer for the property in the mortgage when he signed it, and against the second signer for the whole. 11 Iowa, 465. An indorser was held liable for the original amount of a note, though the maker, after its indorsement, altered it by increasing the amount. 39 Penn. St. 388. Where a note was indorsed, and the indorser altered it by inserting the name of a different payee on the face of the note, it was held that in the absence of fraud the note was evidence in a suit thereon. 15 Pick. 239.</p> <p>2. The promise of Mrs. McRaven was not a condition precedent. It was absolute, without condition, and for a consideration which has not failed, and cannot fail, for we tender a conveyance. If the parties have made no condition to the promise to pay, a court of law cannot make one. 42 Miss. 414; 1 Plow. (Miss.) 341; 3 How. (Miss.) 460; 23 Miss. 78 ; McMath v. Johnson, 41 Miss. 439; 42 Miss. 801. When covenants are independent, suit may be brought without averring performance, or a tender of performance. Robinson v. Harbour, 42 Miss. 795, 798; Gribson v. Newman, 1 How. (Miss.) 341; Leftwich v. Coleman, 3 How. (Miss.) 167; Rector v. Price, 3 How. (Miss.) 321.</p>

Hon. George F. Brown, Judge. 1. The court had not power to order the amendment. At common law there was no power of amendment after adjournment of the term. 3 Bl. Com. 407. The only source of power is the statute. 3 S. & M. 248. The statute (Code 1857, p. 509, art. 186), being in derogation of the common law, must be construed to allow the amendment only during the succeeding vacation. It is not a power of amendment unlimited as to time.

Hon. George F. Brown, Judge. This was an action by J. Reese Cook against B. D. Whitney on four promissory notes made by Whitney to Cook, aggregating $4,620.35, alleged to be due and unpaid.

Hon. W. B. Cunningham, Judge. 1. The attachment was not taken out under § 1455, which makes provision for cases where the debt is not due, as in the case at bar; but it was taken out on one of the grounds given in § 1420 of the Code, relating to the ordinary case of debts matured. It appears from the account filed, the declaration and the affidavit for attachment, that the debt was due on 1st April, 1874. The writ was issued on 1st March, 1874.

Error, to the Circuit Court of Bolivar County. Hon. C. C. Shackleford, Judge. The deed of trust, being made to secure a hona fide debt, is not affected by any misrepresentations made by the beneficiary, to prevent another creditor from acquiring a prior lien by suing out and levying an attachment against the debtor. Hunt v. Knox, 34 Miss. 655 ; Mangum v. Finueane, 28 Miss. 354; 1 S. & M. 541; 13 S. & M. 22; 5 How. (Miss.) 165, 279; 6 How. (Miss.) 311 j 12 S. & M. 679.

Hon. W. D. Bradford, Judge. Where an injunction' is dissolved in whole or in part, no suit or action can be maintained on the bond until the final determination of the suit, else the same may be reinstated on final hearing, and we would have this anomaly, a good cause of action when suit brought, and no cause of action afterwards when the injunction has been reinstated. High on Injunctions, § 981.

Hon. George F. Brown, Judge. Tbe trial was by tbe circuit judge, in lieu of a jury. Tbe bill of exceptions taken by the plaintiff sets out all the evidence. Tbe judgment of the lower court, in the record, shows that tbe case was decided by tbe circuit judge solely on tbe preliminary question of the plaintiff’s right to sue, without reference to tbe merits.

Hon. J. Á. Orr, Judge. 1. The demurrer to Tittle’s second plea should have been overruled, The plea was good. Want of consideration is a very short plea. Matlock v. Livingston, 9 S. & M. 504 ; Taylor v. McNairy, 42 Miss. 276 ; ,Dean v. McKinstry, 2 S. & M. 213 ; Price v. Sinclair, 5 S. & M. 254. 2. The demurrer is a general one to the second, third, fourth, and fifth pleas of Tittle.

<p>Ekrob to the Circuit Court of Marshall County.</p> <p>Hon. O. Davis, Judge.</p> <p>William Rhodes, intestate of the plaintiff in error, and Hardy, the defendant in error, referred to J. W. C. Watson and W. S. Featherston, as arbitrators, certain matters of difference between them, with power to choose an umpire, should they disagree. The article of submission is without date. The following award was made : —</p> <p>“The undersigned, J. W. C. Watson and W. S. Featherston, to whom was submitted all matters of controversy between William Rhodes and Barnett Hardy, growing out of matters connected with the purchase of cotton by the latter from the former, and money dealings connected with the same, with power to appoint an umpire, after becoming satisfied that they could not agree, did select H. W. Walter as umpire, with the consent of both parties, and did this day, in connection with said umpire, hear the parties and their witnesses, under oath, and, after full examination, did, with said umpire, award as follows, viz., That said Rhodes do pay to said Hardy the sum of four hundred and sixteen dollars and twenty-three cents in gold. Given under our hands and seals this 12th of September, 1866.</p> <p>“Jno. W. C. Watson. [Seal.]</p> <p>“ W. S. Featherston. [Seal.]</p> <p>“ H. W. Walter. [Seal.] ”</p> <p>At the time the award was made, and written under it, and signed by the arbitrators and umpire, was the following: —</p> <p>“ Addenda. — The foregoing award is made on the following facts: Cotton was sold by Hardy to Rhodes, in the early part of the year 1863, in Marshall City, Miss., knowing that Rhodes was buying the same to carry the same to and sell in Memphis, then in possession of the enemy. If we become satisfied that, in law, Hardy cannot recover under such a contract, this award is to be changed, and an award given that neither party is entitled to any recovery from the other. . . . “Jno. W. C. Watson. [Seal.]</p> <p>“ W. S. Featherston. [Seal.]</p> <p>“ H. W. Walter. [Seal.] ”</p> <p>Both parties were notified on the 12th of September, 1866, or soon after, of the award; but the same was not delivered to or required by either.</p> <p>The award was mislaid, but, several years afterward, and after Rhodes’s death, was found, when the following was written on it, without date : —</p> <p>“We are satisfied, upon an examination of the decisions made since the war, that Mr. Hardy could recover on the original contract, and we affirm the original award, made on the twelfth day of September, 1866.</p> <p>“ W. S. Featherston.</p> <p>“ Jno. W. C. Watson.”</p> <p>Hardy brought suit on this award, and obtained judgpient in the court below. In February, 1876, this judgment was affirmed by the Supreme Court. Petition was filed for reargument, which was granted.</p> <p>The addenda to the award is part of it, and destroys it as to finality. Taylor v. Sayre, 4 Zab. (N. J.) 647; 29 Ga. 495; Whitcher v. WMteher, 49 N. H. 176; 14 Johns. 368 ; Kent v. Bstob, 2 East, 25; 1 Bac. Abr. 232, 364; Morse on Arb. 384, 385, 388 ; 1 Bac. Abr. 331.</p> <p>The arbitrators had the power to adjourn any question of law or fact, with or without the consent of parties, so that they acted within the time allowed by the articles of submission for the performance of the award, but not beyond. Morse on Arb. 147, 261; Caldwell on Arb. 128, 129 ; 26 Me. 251; 1 Conn. 498 ; 3 Hill, 464; 10 Yerger, 441; Hall v. Hall, 3 Conn. 308; 1 Bac. Abr. 330; The People v. Townsend, 5 How. Pr. (N. Y.) 315.</p> <p>The affirmation of the original award, after the time when the arbitration was to be performed, and after Rhodes’s death, is a nullity. Morse on Arb. 229; Jenkins v. Meagher, 46 Miss. 84.</p> <p>We must gather the intention of the makers of an instrument from the whole of it, and so construe it as to give effect to the intent thus ascertained. Morse on Arb. 448-450 ; Vdnnerson' v. Culbertson, 10 S. & M. 150; Tucker v. Stiles, 39 Miss. 196; Berry v. Perry, 3 Bulst. 62 ; Sherry v. Richardson, Popham, 15, 16.</p> <p>The arbitrators certainly intended that their award should not be final until they settled the adjourned question of law.</p> <p>An award, final as to all matters submitted, will not be vitiated because it also decides questions not submitted, if the latter is wholly independent of that which is in pursuance of the submission. Morse on Arb. 392 ; Cald. on Arb. 276, and note.</p> <p>But this award is not in excess, but fails to decide the legal question which was submitted, and is therefore void. Tucker v. Gordon, 7 How. (Miss.) 306 ; Selby v. Russell, 12 Mod. 139; James v. Thurston, 1 Clifford C. C. 367; Edwards v. Stephens, 1 Allen, 315 ; Varney v. Brewster, 14 N. H. 49 ; Simmons v. Swain, 1 Taunt, 554; Hide v. Petit, 1 Cas. in Ch. 185 ; Wright-son v. Bywater, 3 M. & W. 199 ; Bradford v. Bryan, Willis, 264, 270; Berks v. Trippett, 1 Saund. 32; Bowes v. Pernie, 4 M. & Cr. 150; Grove v. Crane, Palmer, 145; Thinne v. Rigby, Cro. Jac. 314.</p> <p>There was no such delivery of this award as the law requires.</p> <p>The award is in itself perfect, and the arbitrators had no power, after it was signed and sealed, by the “ addenda,” or otherwise, to reserve the power to change it. Their power was exhausted on the award, and the “addenda” is a nullity. Caldwell on Arb. 179, 180; Brickhouse v. Hunter, 4 Hen. & Munf. 363; Fitzgerald v. Fitzgerald, Hardin, 227 ; Boynes v. Morris, 1 Wall. 97 ; Morse on Arb. 226-228; Coxy. Jagger, 2 Cow. 652; Russell on Arb. 135; Kidd on Awards, 118, 119. As well might a trustee for sale of land, after the sale, attempt in his deed to reserve the right to make another sale. Delegated power once exhausted is forever gone.</p> <p>Suppose, however, for argument, that the “addenda” is held as part of the award, we then invoke the aid of the rule, that where there is a contradiction in the wording of an award, so that one part is irreconcilable with another, the first part shall stand and the last be rejected. Cox v. Jagger, ubi supra.</p> <p>The parties were informed of the award about the time it was made," and neither party requested or called for it or a copy. This was sufficient publication. Morse on Arb. 282, 287-289 ; Kidd on Awards, 118, 119 ; Houghton v. Burroughs 18 N. H. 499.</p> <p>Counsel reviewed the cases cited from 14 Johns. 368, 49 N. H. 176, and 29 Ga. 495, and insisted that in these cases no power was attempted to be reserved to the arbitrators; but the indorsement on the margin or at the bottom of the award showed the award itself not to be perfect, but left the action of the parties in its performance uncertain, and did not speak as a finality on the point.</p>

Hon. P. P. Bailey, Chancellor. This ease is sufficiently stated in the opinion of the court. filed a brief too elaborate for publication, and they do not wish it abridged. Sanity is a natural condition of man. The presumption of such condition is strong, and should not be overthrown, except by clear and satisfactory proof.

Pión. B. B. Boone, Judge. On 29th November, 1875, J. P. Brennan sued out a writ of replevin, commanding the sheriff to seize the following lot of machinery, to wit: Two engines, lathes, and counter-shafting, one iron planer and counter-shafting, one wood-lathe and counter-shafting, one line of shafting with pullej's and coupling, four lengths of shafting, one pair of boiler-shears, one boilerplate punch, one foundry-crane, two ladles, and all the other machinery contained in…

Hon. A. B. Fly, Chancellor. Under the act of 1865 (Laws 1865, p. 138, § 3) the widow took a life estate, during widowhood, in the entire tract of one hundred and sixty acres, as against the collateral heirs of her deceased husband. Sheet Acts 1865, p. 137; Sheet Acts, October Session, 1852, p. 66 ; 27 Miss. 92; 31 Miss. 567; 33 Miss. 39; 38 Miss. 200 ; 39 Miss. 467 ; 41 Miss. 659; 42 Miss. 420 ; 43 Miss. 535 ; 45 Miss. 275, 421; 46 Miss. 71; 9 Bush (Ky.), 72. 1.

Hon. C. CulLens, Chancellor. It is conceded that the authorities and brief for the appellee might be applicable, if he had any case in court, but he has none. 1. The answer is not sworn to. Story Eq. PI. § 874. 2. The answer sets up an affirmative defence which must be proved. 1. The answer must be verified by affidavit. Griffin v. State Bank, 17 Ala. 258; Rainey v. Rainey, 35 Ala. 282; Fulton Bank v. New York Ganal Co., 1 Paige, 211; 4 Paige, 211. 2.

Hon. Orlando Dayis, Judge. The objection that suit should have been brought by the district attorney ought to have been made by plea in abatement. But it is not in any shape a valid objection. See § 1385, Code 1871. Art. 35, p. 420, Code 1857, is in the same words, except that in the Code 1871 are added the words: “ and in all matters in relation to the State or county taxes.” See also § 1384, Code 1871; Coche v. Board of Police, 38 Miss. 340.

Hon. O. Davis, Judge. This is an action against the principal and surety on the guardian bond of Mrs. Baird, on which Hull was the surety.

Hon. Orlando Davis, Judge. The action was against W. F. Smith and Robert Prophit, as joint makers of a sealed note. The suit was dismissed as to Smith on suggestion of his bankruptcy. Prophit pleaded that he was surety, and delay in payment had been given, for a valuable consideration, to the principal debtor, without his consent.

Hon. James M. Smiley, Judge. 1. It was error to enter the judgment by default against French and the others, sureties on the tax-collector’s bond, because the summons had not been returned properly executed as to French. Smith v. Bradley, 6 S. & M. 485; Campbell v. Hays, 41 Miss. 561. 2.

Hon. James M. Arnold, Judge. The rule of the Circuit Court, under which the objection to the peremptory challenge of the juror was sustained, is as follows': — “When a' full panel is presented to either plaintiff or defendant, the party to whom such panel is presented must make all his peremptory challenges to the panel as it is presented, and is not allowed, after other jurymen are called to fill the places of those challenged, to make peremptory challenges to the members…

Hon. J. W. C. Watson, Judge. ■ The opinion of the court states the facts fully, excepting as follows, viz.: — 1. The charter of the plaintiff in error did not require a payment of one per cent at the time of subscribing, but the contract of subscription did. 2. Subscriptions were made early in 1873, and the calls on the whole of it were made soon after, payable in instalments.

Hon. J. W. C. Watson, Judge. An action was brought in the name of the State for the use of W. C. McAlexander against H. C. Cloud, and his sureties, upon his official bond given as constable.

<p>1. Deed. Void if to dead person.</p> <p>Where in the premises of a deed A. is stated to be party of the first part, and M. party of the second part, the grant and the habendum being to M. and his heirs, if M. is not in esse at the time of the execution of the deed it is void.</p> <p>2. Ejectment. Outstanding title. Common source.</p> <p>In ejectment, where both parties deraign title from a common source, the defendant cannot set up an outstanding title with which he has no connection, but if he has obtained the outstanding title he 'may set it up.</p> <p>3. Same. Common source. Equitable title.</p> <p>Where the parties in ejectment deraign title from a common source, either party may show whether in the common source the title was legal or equitable.</p> <p>4. Administrator. Probate sale. Equitable estate of decedent.</p> <p>An administrator may sell at probate sale the real property of his decedent, though the title of the decedent be equitable, and the administrator’s deed operates as an assignment to the vendee of such title as the decedent had in his lifetime.</p> <p>5. Probate Sale. Purchaser. One year's limitation against heir. Con-</p> <p>struction of § 2173, Code.</p> <p>A purchaser at probate sale prior to 1871, who has been in possession of the land for more than a year after 1st October, 1871, before suit, can successfully plead the bar provided by § 2173, Code 1871, to an action of ejectment by the heir to recover the land.</p> <p>6. Same. Code 1871, § 2173, covers all defects in sale.</p> <p>The statute was meant to cure all defects in the probate sale, no matter from what cause, whether before or after decree, unless the heir brought his action within the prescribed time.</p> <p>7. Same. Applies to hill in chancery.</p> <p>The one year’s limitation provided by Code 1871, § 2173, would apply to a bill in chancery by the heir, where the ancestor had but an equitable title.</p> <p>8. Same. Purchase must he in good faith and money paid.</p> <p>If the sale was not in good faith, or the purchase-money has not been paid, the action is not governed by § 2173, but by the general Statute of Limitations.</p> <p>9. Same. Meaning of “ good faith.”</p> <p>The words “ good faith ” in § 2173, Code 1871, are used in their common and popular acceptance, and not in their technical sense. They are used here as the antithesis of mala fides, as they are used in the statute allowing compensation in ejectment for permanent improvements, explained in Cole v. Johnson, ante, 94.</p> <p>10. Same. Adverse possession necessary.</p> <p>Unless there has been a disseisor in possession of the laud, claiming under the probate sale, for the time prescribed in § 2173, Code, the ejectment by the heir is not barred.</p> <p>11. Same. Other essentials.</p> <p>To bring a case arising on a probate sale, made prior to the Code of 1871, within the bar prescribed by § 2173, parties who claim title by devolution as heirs, must bring an action to recover property on the ground of the invalidity of the sale.</p>

Hon. Thomas Y. Berry, Chancellor. John Rutland filed this bill in chancery against L. A. W. Brister, to foreclose a vendor’s lien. Brister demurred; and, on the demurrer being overruled, answered, denying the lien. The testimony disclosed the following facts : Rutland owned the land in controversy. One Buckley had a judgment against Rutland. The land was sold upon execution issued on Buckley’s judgment, and Buckley became the purchaser for $146.

Hon. Uriah Millsaps, Judge. This was an action of replevin, by John and Charles Magee, against the sheriff of Marion County, who had levied an attachment, sued out, at the instance of a creditor of one Elisha Magee, on the property then in possession of the plaintiffs. On the trial, the court instructed for the plaintiffs, — “ 4.

Hon. Thomas Y. Berry, Chancellor. M. M. Whitney, surviving partner of the mercantile firm of Cotten & Whitney, filed this bill, showing that his partner, W. A. Cotten, died 14th June, 1874, leaving a widow and children, who are made defendants; that, since the death of Cot-ten, the complainant has settled, as surviving partner, much of the indebtedness of said firm, and can settle it all, by giving his individual obligations, except a debt due to Alcus Scherk & Autey, which…

<p>Appeal from the Chancery Court of Hancock County.</p> <p>Hon. G. S. McMillan, Chancellor.</p> <p>On the 29th March, 1871, the complainants sold certain lands to the appellee, for |7,500, one-third cash, and the balance in one and two years. For this balance the vendee gave his two notes, drawn to his order, and indorsed. The appellants filed their bill to enforce this lien upon the property sold, alleging that the first of the notes had been paid off and discharged, and that the last, of which they made profert as holders and owners, remained wholly unpaid. This bill was not verified by affidavit.</p> <p>The appellee answered, on the 10th August, 1875, admitting that the last note was not paid, and denying “most positively” that the first note had been paid; alleging, on the contrary, that the first note remained due and unpaid ; that the property set out in the bill was bound for its payment under the lien reserved in the deed; that said note, prior to its maturity, was sold by one of the appellants, who was the bona fide holder thereof, to one W. L. Cushing, then and now a resident of New Orleans, La., who paid value for it; and that John Hall, one of the appellants, indorsed and delivered said note to said Cushing. The answer was sworn to.</p> <p>This being the state of the pleadings, and no proof being taken, on the sixteenth day of February, 1876, an order of reference was entered and a final decree passed, enforcing the lien for the amount reported to be due.</p> <p>At the same term of court, on motion of the appellee, this decree was set aside, and the cause remanded to rules, to enable the complainants to make Cushing a party to the proceeding. This they declined to do, and their bill was accordingly dismissed.</p> <p>The action of the court below was based on this error, that the statement in the answer that Cushing was the assignee of the first note was a matter responsive to the allegation pf the bill that the first note had been paid, and that it required proof on the complainants’ part to disprove the allegation, or their bill should be dismissed. JDease v. Moody, 81 Miss. 617 ; Jones v. But, 2 Gill, 106; Batre v. Auze, 5 Ala. 173.</p> <p>Cushing was a necessary party, he having one of the notes secured by the lien retained in the deed. Story Eq. Plead. § 193 et seq., and note. The alleged payment of the note was absolutely denied. The court said, This party must be made defendant, or called into the case, and in the exercise of our discretion we remand the cause for the 'necessary amendment. The complainants say, We will not make the amendment; and the court say, We will and do dismiss your bill. The answer disclosed a proper party to the proceeding who was not represented, and the discretion of the court was properly exercised.</p> <p>The bill showed that the first note was, a lien. If paid, the bill was properly framed ; otherwise it was not. But the fact of payment had to be proved before the complainants were entitled to a decree, because denied by the answer. The respondent, in answer to the allegation of payment, said that the note had not been paid, but indorsed, to Cushing. This was a fact in the case, and it was impossible to proceed until the statement was disproved or the bill amended.</p>

Hon. Thomas Y. Berry, Chancellor. On the sixteenth day of February, 1872, Bentonville Taylor sold and.conveyed to J. B. Deason certain lots of land by a deed which recited that the consideration was “the sum of $700, to be paid to the party of the first part (Taylor), on or before the first day of July, 1872, by the party of the second part” (Deason).

Hon. Uriah Millsaps, Judge. This is an action of assumpsit by F. F. Case, receiver of the Crescent City Bank of New Orleans, La., against Benjamin K. Hawkins, on a draft for |2,700, dated New Orleans, March 16, 1861, drawn on S. H. Aby by said Hawkins, payable to the order of the drawer, and by him indorsed in blank, and accepted by Aby.

Hon. Uriah Millsaps, Judge. On 12th April, 1875, M. J. Howard, George T. Howard, and John G. Taylor, partners, by their firm name and style of M. J. Howard & Co., filed their declaration in assumpsit against J. B. Jones, on a promissory note, dated Gallatin, March 20, 1874, due Oct. 1, 1874, payable to M. J. Howard & Co., for 13,257.63, with ten per cent interest from date, signed, J. B. Jones.

Hon. S. S. Calhoon, Judge. The case rests on one question, whether the default stated and admitted is a bar to the plaintiff’s action ? We submit to the court that the State, and its instrumentality, the county, having allowed the plaintiff elected by the people to occupy the office for his full term, and perform all its laborious and expensive duties, under a commission issued to him, are estopped now to deny the title of the incumbent, on this question of remuneration.

Hon. L. Haughton, Chancellor. In November, 1837, Austin Willis married Arrilla Dyche, the daughter of Isaac R. Dyche, of Monroe County, Mississippi. At her marriage, Mr. Dyche presented his daughter with some slaves, who were controlled and managed by her husband, and he received the productions of their labor.

Hon. Green C. Chandler, Judge. A. E. Foxworth, administrator, filed his declaration on the 23d September, 1869, against Edward E. E. Magee, Elisha Magee, and Mary Magee, on their joint note. The next day he obtained a writ of attachment, in aid of his suit, which was levied on six mules, one gray horse, and other property.

Hon. Green C. Chandler, Judge. On 28th June, 1869, A. E. Foxworth, administrator of Elizabeth Foxworth, sued out scire facias to revive in his name a judgment in favor of his intestate, against Elisha Magee and Harris Pope. On 24th September, 1869, he sued out a writ of attachment in aid of the scire facias, which was levied on seven mules, eight horses and mares, and other property, valued separately.