Volume 54 — Mississippi Reports

<p>Error to the Circuit Court of Hinds County.</p> <p>Hon. George F. Browe, Judge.</p> <p>This action of assumpsit was brought by W. A. Pollock against Thomas E. Helm and John H. Odeneal, partners in banking, under their firm name of the Capitol State Bank, for failure to accept and pay the following bill of exchange: —</p> <p>“ $150. GeebNville, Miss., Oct. 17,1871.</p> <p>“ Pay to the order of W. A. Pollock, one hundred and fifty dollars, value received, and charge the same to account of</p> <p>“ Willie G. Wills.</p> <p>“ To N. G. Nye, care of Capitol State Bank,</p> <p>“Jackson, Miss.”</p> <p>The declaration alleged that, by the name of Thomas E. Helm, President, the defendants wrote to Willie G. Wills a letter of credit (which is set out in full in the opinion of the court), and that the plaintiff, relying upon said letter and the representations made therein, cashed the aforesaid bill.</p> <p>The defendants pleaded the general issue, with a notice that they would offer evidence to prove that the letter was not given or intended as a letter of credit, or as authority to Mrs. Wills to draw drafts on Nye, or as a guaranty or agreement to pay any such bill or draft; but that, Mrs. Wills having requested the bank to inquire of Nye what sum had been deposited with him by one M. W. Richardson for her, they, having received the information in a telegram from Yazoo City, wrote the letter to convey to her that information, as a matter of favor; and as she resided near Jackson, and desired to draw the money out of the Capitol State Bank, they wrote the letter further to inform her that they would pay her such part of the fund in the hands of Nye as she might wish to receive at Jackson, upon her giving them drafts for the same, drawn at Jackson on Nye at Yazoo City, and allowing the usual exchange.</p> <p>The remaining facts appear in the opinion of the court. From a judgment for the defendants the plaintiff prosecutes this writ of error.</p> <p>1. The letter to Mrs. Wills, signed “ Thomas E. Helm, President,” is, on its face, in legal contemplation, a letter of credit. Story on Bills, § 462 ; Pillans v. Van Mierop, 3 Burr. 1663 ; 2 Cowper, 571; 4 East, 393 ; 4 Camp. 393 ; 1 B. & P. 101; 3 B. & P. 149; 1 Vent. 318 ; 2 Raym. 302; Bussell v. Wig-gin, 2 Story C. C. 213; Baring v. Lyman, 1 Story C. C. 396; Townsley v. Sumrall, 2 Pet. 170 ; Ooolidge v. Pay son, 2 Wheat. 66; Boyce v. Edwards, 4 Pet. Ill; 2 Parsons on Contracts, § 2; 8 Cushing, 156; 2 Story on Contracts, § 885 ; 17 Mass. 575 ; 3 Pick. 83 ; 8 Johns. 58 ; 13 Johns. 497 ; 11 Mass. 152; 45 N. Y. 332; 21 N. Y. 412 ; De Colyar on Guaranties, 22; Mason v. Hunt, 1 Doug. 297 ; Walton v. Shelley, 1 T. R. 296; Brahe v. Henly, Walker (Miss.), 541.</p> <p>2. Parol evidence was not admissible to impeach the original validity of the security. 1 Greenl. on Evid. § 385; Bayley on Bills, c. 12, pp. 499, 500 ; Chitty on Bills, c. 3, pp. 78, 79. The fact that Helm was mistaken in his estimate of the amount which Mrs. Wills had in the hands of Nye does not help the matter. De Colyar on Guaranties, 9.</p> <p>3. The draft is sufficiently connected with the letter, by the circumstances of the case, as Pollock’s possession of it, and its address.</p> <p>1. The letter of information, addressed to Mrs. Wills herself, not authorizing any thing to be done, and disclosing no intent on the writer’s part to make a contract, is not a letter of credit. It lacks every essential element. 3 N. Y. 214; 5 Hill, 642; 10 Ohio, 493.</p> <p>2. Where, as in this case, the face of the letter leaves the intent doubtful, it is always competent to show it by parol evidence of the surrounding circumstances. Stebbins v. Niles, 25 Miss. 267; Doe v. Bernard, 7 S. & M. 323 ; Dixon v. Oook, 47 Miss. 225 ; Lowry v. Adams, 22 Yt. 165.</p> <p>3. A new trial should not be granted, even if it was error to admit the parol testimony, because there was no proof that the draft was drawn on the letter. That is essential to recovery against the guarantor.</p> <p>4. The learned counsel then reviewed the positions taken and authorities cited by opposing counsel, contending that the positions were not tenable and the authorities not in point.</p>

Hon. E. G-. Peytok, Jr., Chancellor. The executors of Buie had in their hands a note of T. Smith, E. Smith, and I. East, payable to their testator, which came to their hands as executors. In a final settlement made by them, as executors, with the Probate Court, they charged themselves with the full sum due by said note as so much money in their hands.

Hon. George F. BrowN, Judge. This was an action of ejectment, commenced in the name of Samuel D. Kelly, against Elias A. McRaven and Margaret D. McRaven, his wife. The defendants pleaded not guilty.

Circuit Court of Pike County. Hon. James M. Smiley, Judge. This was an action of ejectment brought against Hatch Hiller by Thursa A. Lamkin. Held: under the act of 1822, that execution might legally issue, though no sale could take place without bond, the codes of 1857 and 1871 made such sales “ utterly void,” and put the provision in the form of a prohibition to sell or to issue execution.

Eerob, to tbe Circuit Court of Holmes County. Hon. W. B. CUNNINGHAM, Judge. On March 10, 1873, this writ of attachment, sued out by J. J. Baker & Brother against J. H. Carter, was levied by J. J. Baker, one of the plaintiffs specially deputized by the sheriff, on certain lands, as the property of the defendant, and was by the sheriff personally served on James Morris and W. A. Drennan as garnishees. Process against the defendant was returned, “ J. H. Carter is dead.

Hon. Orlando Davis, Judge. 1. The suit on the injunction bond was not prematurely brought. Held: that the sureties in the replevin bond were discharged, their contract being in joint behalf of husband and wife. Where, on bond being given on certiorari from Justice to Circuit Court, the plaintiff then amends by substituting another plaintiff, the sureties are released. Phillips v. Wells, 2 Sneed, 154.

Hon. T. R. GowAN, Chancellor. This bill in chancery, filed by Walter B. Webb, administrator of Thomas Allen, against A. J. Carter and Bentonville Taylor, to subject certain land acquired by A. J. Carter from one Marcus E. Carter, and conveyed by the former to Benton-ville Taylor, to two judgments, recovered against Marcus E. Carter in his lifetime, in tlie Circuit Court of Covington County, alleged that the judgments were regularly enrolled on April 2, 1867, and remain…

Hon. A. B. Fly, Chancellor. James Snodgrass, in March, 1876, filed this bill of inter-pleader against A. L. Butler and Orlando Davis, alleging that early in 1875 he rented from Butler a certain tract of land, which was improved and unoccupied, and went into possession ; that Butler represented his title to be good ; that the complainant was induced to believe it a valid title, but does not now so regard it; that one B. D. Nabors acquired title to the land in 1857, in…

<p>Appeal from the Chancery Court of Noxubee County.</p> <p>Hon. JOHN J. Dennis, Chancellor.</p> <p>1. The bill is multifarious. It seeks to set aside the sale of the land, made by the sheriff, for inadequacy of price, to ascertain the interest of the defendants, and their co-defendant, L. W. Smith, and to establish a resulting trust to the complainants in the land. Story Eq. PI. §§ 271, 278, 286, 540.</p> <p>2. What right have the complainants to set aside the sheriff’s sale ? They were not parties to the sale of L. W. Smith’s interest in the lands, and are in no wise interested therein. L. W. Smith alone had the right to complain of the sale for inadequacy of price. For the purpose of establishing the resulting trust, the setting aside of the sale of the land has no bearing. They should not be joined in the same bill.</p> <p>8. L. W. Smith, having a life-estate (his right of curtesy in the land, Code 1871, § 1787), and De Witt C. Taylor acquiring said estate at the sale, it cannot be divested, and the resulting trust cannot be set up by the complainants, until the death of L. W. Smith.</p> <p>1. There are not two distinct and separate matters contained in the bill. It is necessary to set aside the sheriff’s sale, in order to establish the rights of the complainants, and vest in them the fee. If true that the sale conveyed their father’s life-estate, it conveyed no more; and yet the sheriff’s deed on record gives the purchaser such an apparent title to the fee-simple, that he can destroy the complainants’ rights by conveying to an innocent purchaser. The court could not vest the legal title to the remainder in the complainants, until that deed was set aside.</p> <p>2. A bill is multifarious only when the different grounds of suit are wholly distinct, and each is sufficient to sustain a bill; but when they are not wholly distinct, but form parts of one continued transaction, all essential to a proper understanding of the case, the bill is not multifarious. Kennebec Railroad v. Portland Railroad, 54 Maine, 173. A bill is not multifarious for stating more than one ground in support of the complainant’s claim. 2 Jones Eq. (N. C.) 198. If the grounds of a bill in equity be not entirely distinct and wholly unconnected ; if they arise out of one and the same transaction, or series of transactions forming one course of dealing and all tending to one end; and, if one connected story can be told of the whole, — then the objection of multifariousness cannot apply. Bedsole v. Monroe, 5 Ired. Eq. 313. See also Ayres v. Wright, 8 Ired. Eq. 229; Booth v. Stamper, 10 Ga. 109; Butler v. Spann, 27 Miss. 234; Miller v. Helm, 2 S. & M. 687, 695; Mitford Eq. PL 182; Story Eq. PI. §§ 271, 271 a, 272-279 a, 284-287 ; Wilson v. Castro, 31 Cal. 420 ; People v. Morrill, 26 Cal. 336. A bill is not multifarious for joining two causes of complaint growing out of the same transaction, when all the defendants are interested in the same claim of right, and similar relief is sought against each. Bowers v. Keesecher, 9 Iowa, 422; Wells v. Bridgeport Hydraulic Co., 30 Conn. 316.</p> <p>This bill contains a plain, connected statement of facts, essential to a proper understanding of the case by the court. If it has prayed for any improper remedy or relief, which the court would not be authorized to grant, it would not make the bill multifarious. It is homogeneous. There is but one subject-matter in it; viz., the right of the complainants, as heirs-at-law of their mother, to the lands mentioned in the bill.</p>

Hon. Thomas Y. Beery, Chancellor. If a failure to deny any of the facts averred in the bill, but simply calling for proof thereof, is sufficient under the statute (Code 1871, § 1024) to put the complainant to proof of such allegations, then the decree dismissing the bill is correct, as there was no proof of the matters for which, under such answer, proof was required.

Hon. C. CulleNS, Chancellor. 1. A vendor is not bound to go out of one State in the Union to another State, in pursuit of his vendee, to make tender of a deed and demand the purchase-money of him, before he can file his bill for specific performance of a mutual and dependent contract for the sale and purchase of land. Lewis v. Hawkins, 28 Wall. 119,127; Co. Litt. 210 ; Smith v. Smith, 26 Wend. 405 ; Howard v. Miner, 20 Maine, 325; 9 Bac. Abr. 320; 5 Yin.

<p>1. Chancery. Jurisdiction. Creditor's till to sell land of non-resident decedent.</p> <p>A bill in chancery by the creditors of a decedent, who died a citizen and resident of Tennessee, in which State administration has been granted, will not lie to subject his land in Mississippi, although there is no personal property and his estate is insolvent.</p> <p>2. Estates of Decedents. Charge in favor of creditors.</p> <p>The meaning of § 1134, Code 1871, is that, while the land descends directly to the heir, it goes incumbered with the “ charge ” in favor of creditors, so that the heir can make no disposition of it by sale or mortgage, which would defeat their rights; and, though the administrator has no title or interest in it, yet, on the insolvency of the personal estate, he may assert his dormant right to the real estate and appropriate it as assets.</p> <p>3. Conflict of Laws. Ancillary administration.</p> <p>Each State deals with the property of a decedent within its jurisdiction, so far as creditors are concerned, according to its pleasure. In the absence of positive local law to the contrary, personal property, situated in a jurisdiction foreign to the domicile of the decedent, will be disposed of through an ancillary administration; and, after the demands of creditors have been satisfied, the surplus may be remitted for distribution to the administrator in chief, or the foreign court may make distribution to those who, by the law of the domicile, are entitled. Whether the one course or the other shall be adopted depends on discretion and the circumstances of the case.</p> <p>4. Same. Sect. 1950, Code 1871.</p> <p>The effect of § 1950, Code 1871, is to abolish ancillary administrations in this State altogether, and to make the administration granted on the estate of a non-resident decedent entirely independent of that of the domicile. Whatever surplus remains after creditors have been satisfied must be distributed to the next of kin, as prescribed by our laws, although different persons from those who take in the jurisdiction of the domicile. Carroll v. McPike, 53 Miss. 569.</p> <p>5. Estates of Decedents. Land of non-resident, assets for administration.</p> <p>Where a non-resident, owning lands here, dies, and there are no goods or choses in action in this State, neither at common law nor by Code 1857, art. 61, p. 438, art. 68, p. 440, could administration be granted, nor by § 1088, Code 1871, can the grant now be made to the next of kin or a creditor. But §§ 1091, 1092, Code 1871, by implication authorize the issuance of letters in such case to the next of kin or other fit person; and if no application is made in six months from the death of the intestate, the county administrator shall take charge.</p> <p>6. Chancery. Demurrer to hill. Affirmations of law.</p> <p>While a demurrer admits the material allegations of fact in the bill, deductions or affirmations of law, although alleged, are not statements of fact, and are not admitted. Where the bill states that a non-resident died the owner of a section of land in this State, but without personal property, the allegation'that “there are no assets in this State” subject to administration is an erroneous conclusion of law, and a demurrer to the bill does no't admit it to be true.</p> <p>7. Same. Jurisdiction. Creditor's bill to sell land of non-resident decedent.</p> <p>The foundation of the whole body of jurisdiction in chancery is that the complaining suitor has a right, but is without full, adequate and complete remedy in any other court. By our statutes the creditor has a right, in the absence of personalty, to be paid out of the land, in this State, of one who died residing in Tennessee. If the law was, as under Code 1857, that no administration could, in such case, be had here, chancery would have jurisdiction of a bill by the creditor to subject the land; but, by §§ 1091, 1092, Code 1871, administration can be had in this State, and, therefore, chancery has not jurisdiction of such a bill.</p>

Hon. John E. McNair, Chancellor. 1. The bill alleges a legal title in the complainant, but does not show him to have been the real owner within the meaning of the law, so as to entitle him to maintain a bill to remove clouds. It does not allege that the complainant is in possession. His remedy, if any, on the case made by the bill, is at law. Huntington v. Allen, 44 Miss. 654. 2.

Hon. E. H. Osgood, Chancellor. George Grafton filed this bill on July 16,1874, against John Grafton, William Sojourner, John Fleming, surviving partner of Fleming & Baldwin, and Sarah Richards, to subject certain land therein described to the payment of a judgment rendered on Oct. 13, 1866, against John Grafton. John Fleming and Mrs. Richards pleaded the Statute of Limitations of seven years, and claimed to be innocent purchasers for valuable consideration without notice.

Hon. Edwin Hill, Chancellor. Joanna McNamara filed her bill in chancery against John A. Klein, Benjamin McNamara, her husband, and Bettie B. Willis, to cancel, as clouds on the title to a house and lot belonging to her, a deed from herself and husband to Mrs. Willis, and a quitclaim deed from Mrs. Willis to Klein, on the ground that the deeds constituted a mortgage for advances, which had been repaid.

Hon. Edwen Hill, Chancellor. This is an appeal from a decree overruling a demurrer by the trustees in junior mortgages on the Yiclrsburg and Meridian Railroad, to a bill by a first mortgage bondholder, to foreclose the first mortgage by sale. The allegations of the bill and the grounds of demurrer are set out in the opinion of the court. 1.

<p>1. Fraudulent Conveyance. Bill to set aside. Allegations.</p> <p>A bill in chancery is not good as an attempt to set aside a fraudulent conveyance procured by a debtor to be made to his daughter, if it neither alleges that there is a judgment against the father, nor that the debt due at the time the conveyance was made is still due, and fails to pray for such relief.</p> <p>2. Same. Equitable assets. Remedy of creditor.</p> <p>A conveyance to a third person at the instance of the debtor, who pays the purchase-money, vests no title in the debtor which can be sold on execution. It must be attacked in equity after recovery of a judgment. Carlisle v. Tindall, 49 Miss. 229, cited.</p> <p>3. Same. Effect of conveyance by debtor to creditor.</p> <p>If, in such case, the debtor should voluntarily make to the judgment creditor a conveyance of the land, a court of equity would perhaps compel the fraudulent holder of the legal title to make a conveyance also. It is much more doubtful whether a creditor at large, who has received such a conveyance from the debtor in payment of a debt which has not been reduced to judgment, can maintain such a bill.</p> <p>4. Infant’s Liability at Law. Contracts and torts.</p> <p>The liability of infants in courts of law on contracts and for torts discussed, the principles announced and authorities cited.</p> <p>5. Same. General rule.</p> <p>An infant’s contracts, except for necessaries with which his guardian has not supplied him, impose on him no liability not voidable at his election ; aliter, as to his trespasses and frauds.</p> <p>6. Same. Rule established by weight of American authority.</p> <p>In actions at law based upon a contract, it is no answer to a plea of infancy that the infant, at the time of entering into the contract, fraudulently represented himself to be of full age, and thereby deceived the other party; nor can any action brought by the other party, which is based upon the contract, be supported or helped by an averment of such representation, or of any other frauds or deceits. But infants are liable for frauds and torts to the same extent as adults; and, j where actions ex delicto are brought to make them answerable therefor, they cannot escape the consequences of their acts by reason of the fact that the tort or fraud was connected with a contract, unless it constituted the consideration of it. *</p> <p>7. Same. Age of infant.</p> <p>In all cases the infant must have arrived at such years of discretion that fraud may fairly be imputed to him.</p> <p>8. Same. Receipt to executor by infant legatee.</p> <p>A receipt in full, given by an infant legatee to the executor of Ms father’s will, does not preclude him from showing that more was due. Overton v. Banister, 3 Hare, 503. But in cases where the infant has arrived at years of discretion, and his minority was unknown to the executor, he must account for what he has received. Quinn v. Moss, 12 S. & M. 365, so far as it holds the contrary, disapproved.</p> <p>9. Same. Suit for property sold.</p> <p>An infant, suing for the recovery of property, real or personal, sold by him, must account for the price received.</p> <p>10. Infants in Equity. Estoppel.</p> <p>Whenever an infant, who has arrived at years of discretion, by direct participation, or by silence when he was called upon to speak, has entrapped a party, ignorant of his title or of his minority, into purchasing his property from another, he will be estopped in a court of chancery from setting up such title.</p> <p>11. Same. Casein judgment.</p> <p>A female infant, nineteen years of age, knowing her rights, conveyed land to her father, for the purpose of enabling him to borrow money by giving a mortgage thereon to one who was ignorant of her minority. The money was loaned; and, subsequently, the lender being still ignorant of her minority, the father conveyed the land to pay the debt. The infant, arriving at full age, brought ejectment. Held, that a court of equity would restrain her from asserting her legal title and thus perpetrating a fraud.</p> <p>12. Supeeme Court. Practice on reversal.</p> <p>On reversing a decree for the defendant in a chancery suit, it being suggested that the pleadings do not so raise the question on which it is reversed as to advise the defendant that the complainants rested their case upon said question, and that, therefore, no proof was taken thereon, the case is remanded, with leave to both sides to amend their pleadings and take further testimony.</p>

Hon. H. R. Ware, Chancellor. argued the case orally. filed an elaborate brief making the following points : — 1. The proceedings and decree of the United States court in the case of Hall et al. v. Mahone et al. estopped the Chancery Court of Hinds County from the exercise of any jurisdiction in this cause, against the administrator and heirs of Abram McPike and the lands purchased by the latter under the proceedings and decree here referred, to, even if Joseph G-.

Hon. William Breck:, Chancellor, did not sit in this case; but Counsellor Campbell, by agreement, acted as chancellor pro hac vice. argued the case orally, and filed an elaborate brief, making the following points: — I. That Strickland, upon the pleadings and evidence, cannot be held to be a Iona fide purchaser is clear, from the following reasons: — 1.

Hon. E. Stappokd, Chancellor. The case was first argued before the court composed of Simrall, C. J., and Peyton and Tarbell, JJ. 1. The misrepresentation or warranty, to be actionable, must precede the sale, or be concurrent therewith; if made subsequent to the conclusion of the contract of sale, without some new matter of consideration between the parties, it cannot support an action. Nogin v. Plym-pton, 11 Pick. 97 ; Bloss v. Eittridge, 5 Vt. 28.

<p>1. Breach op Condition Subsequent. Grantor’s remedy.</p> <p>Ordinarily the remedy for a grantor to regain his estate for breach of condition subsequent is entry or ejectment, not a hill in chancery. But the mere fact that the forfeiture is insisted on will not deprive equity of power to relieve where the remedy at law is not full and complete.</p> <p>2. Same. Bill to remove cloud on title.</p> <p>Where the grantee in a deed containing a condition subsequent has failed to comply with the terms of the grant, or has abandoned the estate, and the grantor is in possession, the latter may maintain a bill in equity to cancel the deed as a cloud on his title; and on this bill may try the question whether there has been an abandonment or forfeiture of the grant.</p> <p>3. Estoppel by Conduct. Freehold estate.</p> <p>Although a party cannot divest himself of a freehold estate by parol, yet he may without writing so conduct himself with reference to it that he will be estopped afterwards to assert a claim thereto; and this doctrine of estoppel is applied without reference to the provisions of ■ the Statute of Frauds.</p> <p>4. Case in Judgment. Waiver by grantor of breach of condition subsequent. Estoppel on railroad company to deny authority of its officers.</p> <p>R. conveyed to a railroad company twenty-two acres of land, upon condition subsequent that the company should locate its tract and depots as specified in the deed. Afterwards it was agreed by parol between R. and the president and chief engineer of the company that the track and depots should he located differently, that the company should reconvey to R. the twenty-two acres, and that R. should convey to the company six acres, a part of the twenty-two. The six acres were marked off in a map made by the company, as its property, and the track and depots located thereon according to the last agreement. R. afterwards applied to the president of the company for a reconveyance. lie declined to make it until it was ascertained how much of the twenty-two acres anothpr connecting railroad company might need for depot purposes, stating that then all not so needed would be reconveyed. He told R., however, to go ahead and make sales of town lots, parts of the property, and the company would convey to his vendees. Upon the president’s death, R. brought this agreement to the notice of his successor, who recognized it, and promised that it should be carried out. R. laid off town lots on the sixteen acres, and sold many, which were afterwards improved. The company’s officers were aware of these sales, and saw the improvements being made. In a subsequent controversy between R. and the company, the latter asserted its right to the whole twenty-two acres, denying the authority of its president and chief engineer to make the agreement to reconvey, and insisting that it was void, because not in writing. Held, that the company was estopped to deny the authority of its officers, and that R. was entitled to all the land, except the six acres. Held, also, that R., by the agreement aforesaid, had waived, as to the six acres, his right to a forfeiture for non-compliance by the company with the condition in the deed.</p> <p>5. Same. Excuse for non-compliance with agreement. Substantial compliance.</p> <p>In the second agreement above mentioned, made in 1860, no time was fixed within which the depots were to be built; and, it appearing that the company’s resources were much crippled by the war, and at its close the road-bed was in bad condition, the failure to build the depots up to the filing of this bill in 1867 did not forfeit its right to the six acres. The discharge of passengers by this and the connecting companies on the spot where the passenger depot was agreed to be built gave R., who had put a hotel there, the substantial benefit of the agreement. But, notwithstanding the circumstances affording an excuse so far for non-compliance, the court dismissed the bill, without prejudice as to the six acres.</p> <p>6. Chancery. Relitf where less proved than claimed.</p> <p>Relief will be decreed in equity to the extent called for by the evidence, although greater relief is claimed in the hill. Hence, where the bill alleges that the defendant has abandoned his claim to twenty-two acres conveyed to him by the complainant on condition subsequent, the latter may be relieved as to sixteen acres, if the proof is that the abandonment was to that extent only.</p>

Error, to the Circuit Court of Hinds County. Hon. George F. Brown-, Judge. 1. The interrogatories and Mizelle’s statements elicited by them were incompetent. The object was to show by Wilson’s pretended admission that he held under Long, and not in his own right. To show this, Mizelle was proving his own case against Wilson’s executor, by detailing a pretended conversation with Wilson in his lifetime. Jaeks v. Bridewell, 51 Miss. 881. 2.

Hon. C. C. Shackleford, Judge. The lessee will not be allowed to dispute his lessor’s title. But where the question is, whether a lease has been made, there is as to that question no relation of trust or confidence between the parties which will prevent the lessee from asserting his rights. M'JElwee v. Martin, 2 Hill (S. C.), 496 ; Sumner v. Murphy, 2 Hill (S. C.), 488; Simmons v. Parsons, 2 Hill (S. C.), 492.

Hon. A. B. Fly, Chancellor. 1. A general legacy is never charged upon land, unless the intention so to charge it “is expressly declared, or fairly and plainly to be inferred from the terms of the will.” Imp-ton v. Lupton, 2 Johns. Ch. 614, 623; Tracy v. Tracy, 15 Barb. 503. There is no such language as “ after payment of debts and legacies,” or any equivalent expressions. No deficiency of personalty was contemplated.

<p>Error to the Circuit Court of Benton County.</p> <p>W. D. Bradford, Judge.</p> <p>1. Express power is given to boards of supervisors to erect court-houses, by the Code of 1871, § 1368. The clerk shall keep a complete and correct record of their proceedings. Id. § 1361. The action of the board can only be evidenced by an entry on its minutes, in term time. An express contract by it can be proved in no other way. Grump v. Board of Supervisors of Golfax County, 52 Miss. 107; Code of 1871, §§ 1388, 1389, 1391, 1394, 1395.</p> <p>2. The extra work was not authorized, either verbally or in writing; nor can a contract for it be implied, because it is expressly prohibited. See Code, ubi supra ; Board of Commissioners v. Boyle, 9 Tnd. 296 ; Warwick v. Butterworth, 17 Ind. 129 ; County of St. Louis v. Cleland, 4 Mo. 84 ; People v. Supervisors of Albany, 28 How. Pr. (N. Y.) 22; Alton v. Mulledy, 21111. 76; San Antonia v. Could, 34 Texas, 76; People v. Supervisors of Pulton County, 14 Barb. 56. A corporation cannot make a contract not authorized by its charter. Bacon v. Mississippi Insurance Co., 31 Miss. 116; Abby v. Billups, 35 Miss. 618. The same rule applies to a municipal corporation. Leonard v. Canton, 35 Miss. 189.</p> <p>3. The board could have ratified the contract for extra work, and made the ratification a matter of record; but they did not do so, and are not bound to pay for it. Peoria County v. Roach, 65 Ill. 77. Establish such a rule as is contended for by the defendants in error, outside of the law, and it has no bounds. Under such a rule, a court-house might be embellished with a rotunda and a dome, and any thing else that fancy, cupidity or greed might suggest.</p> <p>4. It seems that the contract price had been paid before .the claim for extra work was presented. What, then, could the board do other than they did, — accept the building they had paid for, and reject, or protest against, the claim for extra work ? Can this be a ratification ? On the contrary, if the contractors surrendered the building upon this protest, are they not precluded from setting up any further claim?</p> <p>filed an elaborate brief, making substantially the same points; referring to tlie same sections of the code, and citing also County of Yalobusha v. Carbry, 3 S. & M. 529.</p> <p>1. Appeal or writ of error is not allowed by statute, and is not a common-law remedy.' Code 1871, §§ 1383, 1384; Bis-mulces v. Stokes, 41 Miss. 431, 484; Servís v. Beatty, 32 Miss. 52, 82-87 ; 1 Kent Com. 348. The Code of 1857 made a judgment of the Circuit Court final in such cases. This is dropped from the Code of 1871 as surplusage, because that judgment is essentially final, unless the statute provides to the contrary. Dismulces v. StoTces, ubi supra. The opinion of Mr. Justice Tarbell in Taylor v. Marion County, 51 Miss. 731, is not supported by authority, and the point does not appear to have been raised by counsel.</p> <p>2. The board had authority to make the contract in the first instance. Code 1871, § 1368. Having this authority, they could change or modify its terms. Carroll v. Board of Police of Tishomingo Co., 28 Miss. 49. And so if their agent did it, and they, with full knowledge of the facts, received the work, they are bound. 2 Dillon on Municipal Corporations, §§ 749, 750; Story on Agency, § 239; Green’s Brice’s Ultra Vires, 613, note ; Methodist Church v. Vicksburg, 50 Miss. 601. Corporations, like individuals, must do right. Green’s Brice’s Ultra Vires, 609.</p> <p>The board had undoubted authority to make the contract. Code 1871, § 1368. Nabors was agent, because paid by them. 50 Miss. 601. But, if wrong in this, the board ratified his acts by receiving the court-house, and are thereby bound. Planters’ Bank v. Sharp, 4 S. & M. 75, 83 ; 5 Hill (N. Y.), 137 ; Angelí & Ames on Corporations, 174. It is admitted that the board of supervisors is a quasi corporation, and that it is not held to as strict an accountability as a municipal corporation. But this is for protection, not for aggression. The obligation to do justice rests alike on all persons, natural and artificial, and quasi corporations are not exempt from it. 1 Dillon on Municipal Corporations, § 384. Corporations may be bound by implied contracts. 1 Dillon on Municipal Corporations, § 383. If the price be reasonable, and the work beneficial, strong evidence is not required. 1 Dillon on Municipal Corporations, §§ 386, 479. If work be done under belief of authority, and the corporation accept, or even knowingly avail itself of it, it is bound. 1 Dillon on Municipal Corporations, § 480 ; citing Abbott v. Sermon, 7 Greenl. 118 ; Sayden v. Madison, 7 Greenl. 76; Story on Agency, 239; Green’s Brice’s Ultra Vires, 609, 613, note.</p> <p>cited, in an elaborate brief, Alleghany City v. McQlurken,-14 Penn. St. 81; Meeeh v. Buffalo, 29 N. Y. 211; Hayden v. Madison, 7 Greenl. 78 ; Wadleigh v. Sutton, 6 N. H. 16, 17 ; Wilson v. School District, 32 N. H. 129 ; Kimball v. School District, 28 Vt. 8 ; Argenti v. San Francisco, 9 Cal. 265 ; Methodist Church v. Vicksburg, 50 Miss. 601, 605, 606; Mayor v. Bay, 19 Wall. 484; Abbott v. Sermon, 7 Greenl. 118; Code 1871, § 1388.</p>

Euuou to the Circuit Court of Union County. Hon. J. W. C. WatsoN, Judge. The following charges were given for the plaintiff: — “ 1.

Hon. A. G. Mayers, Judge. On the 23d day of September, 1876, John A. Klein filed a petition in the office of the clerk of the Circuit Court of Smith County, alleging in substance as follows: — 1. That he is the holder and owner of a certain warrant upon the county treasurer of Smith County, in the words and figures following: — No. 864.] State op Mississippi. [$500. SMITH COUNTY.

Ekeok to the Circuit Court of Claiborne County. Hon. Ubi ah Millsaps, Judge. Pearson & Son, on Aug. 24, 1874, brought this suit, under c. 19 Code 1871 (“ An Act in relation to unlawful and forcible entry and unlawful detainer ”), against the defendants, for the recovery of two acres of land near Grand Gulf, Claiborne County, Mississippi. The case was tried before the special court of three justices, provided by art. 4 of said act.

<p>Error to the Circuit Court of Hinds County.</p> <p>Hon. George F. BrowN, Judge.</p> <p>The following instructions asked by the defendant were refused: —</p> <p>“ 3. If the jury believe from the evidence that a contract was made as alleged by the declaration, and that by the terms of said contract the articles mentioned in the bill of particulars, under the head of ‘ cost of pipe, shafting and pulley wheels,’ valued, at $450, were to be and remain under said contract the property of said plaintiffs ; and that, when said contract was abandoned, said property was uninjured, and that the only deterioration in its value was that it would not sell for as much as it cost, owing to the market here not being good, — then under the declaration they are not entitled to recover any thing on account of said deterioration in value so produced.”</p> <p>“ 5. The court instructs the jury, if they believe from the evidence that the belting, shafting and pipes were to be the property of the plaintiffs, Echols & Green, if the contract had been carried out, then, on a failure of the contract, they had no right to abandon those things, with a view of holding the railroad company liable therefor ; but it was their duty to use due diligence and find the best market for these articles, and to sell them to the best advantage possible, and, if they failed to do so, the plaintiffs cannot throw the loss upon the defendants ; and, in the absence of such proof to show they used such diligence, the jury are warranted in excluding the cost of said articles from their verdict.”</p> <p>The defendant excepted to the refusal of the instructions, and from a verdict and judgment for the plaintiffs brings the ease to this court.</p> <p>1. Echols, the plaintiff, evidently possessed no sufficient knowledge to enable him to testify to the cost of the pipe, shafting and pulley wheels. A verdict cannot be based on the plaintiff’s estimate. A witness is never allowed to depose to value, unless he states the facts on which he bases his estimate. But here the question was as to cost, not a matter of estimate or judgment, but of recollection. This memorandum was made post litem motam. It was made more than two years after the purchase of the goods, not as a statement of his recollection, and with the view of perpetuating the evidence, but simply as an estimate and basis of a claim for damages. This is wholly condemned by the authorities. 1 Greenl. Evid. § 438 and cases there cited ; Spring Garden Insurance Oo. v. Evans, 15 Md. 54; Smith v. Lane, 12 S. & R. 80; Glover v. Hunnewell, 6 Pick. 222.</p> <p>2. The third charge for the defendant should have been given. The declaration claims damages for cost of material, including pipe, shafting and pulley wheels, distinctly and unequivocally, upon the ground that, being made or bought for the station, they were of no use for any other purpose, and were consequently of no value. The proof as to these articles is the reverse of this. They were valuable for other purposes: they were as good as ever; and the only loss was, that they were not in as good a market. The third charge is that, if this was so, the plaintiffs could not recover under the declaration. The variance was material and important.</p> <p>3. The fifth charge should also have been given. It asserts the doctrine, as to the plaintiffs’ own property, uninjured in a physical point of view, that they could not abandon it on the termination of the contract, but were bound to use due care in disposing of it, so as to prevent loss. There is no rule of law clearer than this. I)ix v. Brown, 41 Miss. 131; Hunt v. Grane, 33 Miss. 669; Armfield v. Nash, 31 Miss. 361.</p> <p>1. One of the plaintiffs proved the account of damages sued for, except the item of $350, in reference to which item the evidence was excluded. There is no direct or satisfactory proof adverse to this. By reference to the bill of particulars, it will be seen that the verdict is not excessive under the rulings of the court, but merely for the items proved, with legal interest to the date of trial.</p> <p>2. The defendant’s third instruction was properly refused, because it asserts in effect that, although ünder the contract sued on the plaintiffs may have bought machinery to carry out the contract, and although the defendant, after inducing such purchase, may have abandoned the contract without cause, and left the machinery on the hands of the plaintiffs, still the plaintiffs have no right to recover any sum on account of such expenditure.</p> <p>8. The fifth instruction is but a repetition of the third, and was, therefore, properly refused.</p> <p>The objection to Echols’s testimony went to its sufficiency, not its competency.</p>

Hon. W. B. Peyton, Chancellor. í> On Dec. 17, 1873, John W. Robinson filed his bill against George W. Brooks, alleging that, in December, 1866, he sold to Brooks certain described lands for $6,000; that $2,000 was paid in cash, and that the defendant gave his note for $4,000, with ten per cent interest per annum from date; and praying for an account to ascertain the balance due, and foreclosure of the vendor’s lien by sale of the land.

Hon. J. S. Yerg-eb, Chancellor. This bill in chancery, to foreclose a mortgage, filed by Anderson Carson, administrator of the mortgagee, against certain adult defendants, and Bettie Erwin, a minor, heirs-at-law of the mortgagor, did not state whether the infant defendant had a father, mother or guardian.

, Hon. O. Dayis, Judge. This was a proceeding by writ of seizure, under tWact of April 5, 1872, entitled “An Act to secure the parent of wages for labor and liabilities for supplies ” (Acts 1872^^131), instituted before a justice of the peace by John John H. McAfee, comprising the firm of Kerr against William Moore, the land-owner.

Erkob. to the Circuit Court of Hinds County. Hon. George F. Brown, Judge. E. M. Wells and D. S. Wells, the devisees of the lands in controversy under the will of Polly Wells, on Sept. 1, 1875, brought this action of ejectment against J. B. Hall, to which he pleaded not guilty, and the Statute of Limitations. There was a verdict and judgment for the plaintiffs. The bill of exceptions discloses that, in 1855, Polly Wells died, leaving the will, which was duly probated.

Hon. G. C. Chandler, Judge. This action, in the name of Robert Nunes and Ralph'Nunes, partners under the style of the Nunes Brothers, against Thomas Morgan, begun by an attachment sued out on Feb. 14, 1876, by Edwin C. Lysle, agent and attorney in fact of the plaintiffs, on affidavit by said Lysle that the defendant was a non-resident of this State, was based on the following instrument : — “Nunes Bkos. “Lower Church Street, “ KINGSTON, JAMAICA. “ Messrs.

Hon. W. B. CUNNINGHAM, Judge. 1. The bond for title was irrelevant, and could shed no light on the issue. The deed warranted the title to Jones, and could not support the action by Presly. 2. The eviction of the heirs of Jones could not avail Presly. 3. Presly had been paid. He had his judgment satisfied by the sheriff’s sale and his purchase of the land. He could not make the estate of Huntington twice liable for the same damages.

Hon. A. G. Mayers, Judge. This was an attachment suit against M. M. Fortinberry, late treasurer of Lawrence County, for the sum of $3,062.75, for which he was alleged to be a defaulter. The board of supervisors of the county employed J. B. Chrisman, an attorney-at-law, to institute the suit, who commenced it by attachment, making the afSdavit of the non-residence of For-tinberry and his indebtedness to the county.

Hon. E. Stafford, Chancellor. 1. Mrs. Poole had not a lien on the land for the unpaid purchase-money as against Thomas H. Allen, who was a purchaser for value without notice.

This is a motion to dismiss an appeal from the Chancery Court of Hinds County, on the ground of want of jurisdiction, the appeal bond being not conditioned in the language of the statute. cited and commented on Code 1871, §§ 410, 411, 1252, 1254 ; Hardaway v. Biles, 1 S. & M. 657; Porter v. Q-risham, 3 How. (Miss.) 75. cited and commented on Code 1871, §§ 410, 411, 1252, 1254; Qonger v. Robinson, 4 S. & M. 210, 228; Coleman v. Rowe, 4 S. & M. 747.

Hon. R. W. WilliamsoN, Chancellor. After the transcript of the record of this case from the court below was filed in the Supreme Court, a motion was made to dismiss the cause, upon the ground that the appeal bond was defective. 1. The decrees sought to be enforced, which were mere personal decrees for so much money, were not liens per se, nor did they become such by subsequent enrolment. Code 1871, §§ 830, 1263; Acts 1876, p. 193. 2.

Hon. W. Cothran, Judge. This was a claimant’s issue to try the right of property in certain cotton, levied on under an execution emanating from a judgment in favor of D. C. Wasson, administrator, against M. A. Hines. T. O. Connor, the claimant, was trustee in a deed of trust, prior in date to the levy of the execution. The judgment had not been recorded.

<p>Appeal from the Chancery Court of Rankin County.</p> <p>Hon. T. B. Graham, Chancellor.</p> <p>The property, having been purchased with the means of the .wife, is held by the husband as trustee for her use, and is not subject to his general creditors. 4 Kent Com. 835; 2 Story Eq. Jur. § 1201; MeOarroll v. Alexander, 48 Miss. 128; Runnels v. Jackson, 1 How. (Miss.) 358 ; Gapers v. MeOaa, 41 Miss. 479; Butterfield v. Stanton, 44 Miss. 15; Burks v. hoggins, 39 Miss. 462; Gibson v. Foote, 40 Miss. 791; Gee v. Gee, 32 Miss. 190.</p> <p>cited Ground and Rudiments of Law and Equity, 75; 1 Story Eq. Jur. § 64 ; 10 Wall. 89; 10 S. & M. 486 ; 44 Miss. 16; Story Eq. PI. § 40 et seq.; Atwood v. Meredith, 37 Miss. 635; Simmons v. North, 3 S. & M. 67 ; Money v. Dorsey, 7 S. & M. 15 ; Walton v. Hargroves, 42 Miss. 18; Foute v. Fairman, 48 Miss. 536, 549.</p> <p>cited Me Carroll v. Alexander, 48 Miss. 128 ; Gee v. Gee, 32 Miss. 190; 13 S. & M. 53 ; Forsyth v. Clark, 3 Wend. 637; Heacoek v. Coatesworth, Clarke Ch. (N. Y.) 84.</p>

Hon. B. G. PeytoN, Chancellor. Harriet M. Porter and her children filed this bill in chancery to enjoin the sale of certain land levied on under an execution upon a judgment recovered by Mrs. E. Caspar against George C. Porter, the complainant’s husband.

<p>Error to the Circuit Court of Hinds County.</p> <p>'Hon. S. S. Calhoon, Judge.</p> <p>cited the following authorities: Stephens on Pleading, 91, note; Russell v. Men of Devon, 2 T. R. 667; Code 1871, § 1384; Constitution, art. 6, § 20 ; art. 12, § 16 ; Code 1871, §§ 1363, 2362, 2374; Grant on Corporations, 501; Mayor, ¿f*e. of Lyme Regis v. Henley, 2 Cl. & Fin. 331; La Salle Go. v. Simmons, 5 Gilman (Ill.), 520 ; Broivn v. Jefferson Go., 16 Iowa, 341; Soper v. Henry Go., 26 Iowa, 264; Sutton v. Board of Police, 41 Miss.-237 ; Pilce Go. v. Hosford, 11 Ill. 176; Adams v. Logan Go., 11 Ill. 336; 4 Ohio, 513 ; 10 Ohio, 159 ; 2 Denio, 433 ; 2 Dillon on Municipal Corporations, § 762, note 2.</p> <p>cited County Commissioners v. DucJcett, 20 Md. 468; Wilson v. Jefferson Go., 13 Iowa, 181; Brie City v. Schwingle, 22 Penn. St. 384; Grant on Corporations, 283, 284, 501; Thayer v. Boston, 19 Pick. 511; Stetson v. Baxon, 19 Pick. 147, and English cases therein cited; Mayor, Sf e. of Lyme Regis v. Henley, 2 Cl. & Fin. 331; Mayor, ¿>c. of Hew York v. Puree, 3 Hill (N. Y.), 618; Whipple v. Walpole, 10 N. H. 130 ; Commissioners v. Butt, 2 Ohio, 348; Richardson v. Spencer, 6 Ohio, 13; Goodloe v. Cincinnati, 4 Ohio, 513; Rhodes v. Cleveland, 10 Ohio, 159; 20 Md. 468 ; Commissioners v. Mighels, 7 Ohio St. 112; Paine v. Commissioners, Wright (Ohio), 417 ; and commented upon the cases relied on by opposing counsel from 11 Mich. 88; 3 Harrison, 108, and 41 Miss. 239.</p> <p>cited Supervisors of Lawrence Co. v. Brookhaven, 51 Miss. 68 ; Larkin v. Saginaw Co., 11 Mich. 88; Commissioners v. Mighels, 7 Ohio St. 112; Commonwealth v. Brice, 22 Penn. St. 211; Bstep v. Keokuk Co., 18 Iowa, 199 ; Bray v. Wallingford, 20 Conn. 416, 419 ; Crowell v. Sonoma Co., 26 Cal. 813; Hedges v. Madison Co., 1 Gilman (Ill.), 667; Reardon v. At. Louis Co., 36 Mo. 665 ; Kinsey v. Jones, 8 Jones Law (N. C.), 186 ; Freeholders v. Strader, 3 Harrison, 108; Treadwell v. Commissioners, 11 Ohio St. 190; While v. Charleston, 2 Hill (S. C.), 571; Ward v. County of Hartford, 12 Conn. 404; Wheatly v. Mercer, 9 Bush, 704; Fowle v. Alexandria, 3 Pet. 409; 9 Mass. 250; 2 Nott & M’Cord, 537; Sutton v. Board of Police, 41 Miss. 239 ; Dillon on Municipal Corporations, § 785.</p>

Hon. S. S. CalhooN, Judge. 1. The motion to instruct as in case of nonsuit should have been sustained. The case was not made out by the proof. Viser v. Scruggs, 49 Miss. 709 ; Olopton y. Matheny, 48 Miss. 293 ; Ghoppin y. ITarmon, 46 Miss. 304. 2. The judgment is erroneous in awarding a general execution against the married woman. Bank y. Williams, 46 Miss. 627 ; Gary y. Dixon, 51 Miss. 600. 3.

<p>1. Supplies poit Plantation op Wipe. When separate estate hound therefor, under § 1780 Code 1871.</p> <p>A wile’s separate estate is bound by tbe purchase of supplies for her plantation, whether bought by herself, or by her husband with or without her consent.</p> <p>2. Same. What will discharge wife's separate estate.</p> <p>From such liability nothing will discharge the wife’s estate save an express contract that it shall be released, or something equivalent thereto. Neither acceptance of the husband’s note, nor recovery of judgment thereon, will have that effect.</p> <p>3. Same. Liability of husband.</p> <p>The husband, in purchasing supplies for his wife’s plantation, acts as her agent appointed by the statute, and can only be held to a personal liability by such acts of assumption as would bind an ordinary agent when acting for his principal.</p> <p>4. Same. Meaning of “plantation supplies.'’’</p> <p>What description of articles are embraced within the term “plantation supplies ” was considered and explained in Herman v. Perkins, 52 Miss. 813.</p> <p>5. Same. Suit on contract. Husband joined for conformity.</p> <p>In suits on such contracts the husband must be joined with his wife for conformity, but no judgment should be rendered against him.</p> <p>6. Family Supplies. Necessaries and the Like. Liability of husband where wife liable, under § 1780 Code 1871.</p> <p>As to family supplies and the other classes of contracts enumerated in § 1780 Code 1871, if on the facts the law imposes a liability on the estate of the wife, the husband can only be held upon an express contract on his part.</p> <p>7. Same. How wife may become bound.</p> <p>On such contracts the wife may be bound either by her own acts, or by those of her husband to which she has consented. But she will • not be bound, even where she has herself made the contract, unless it was the understanding, express or implied, that it was based on her credit.</p> <p>8. Same. How wife's consent given.</p> <p>In such cases the wife may contract, or give assent to the contracts of her husband, as if she were unmarried, and her consent may be implied.</p> <p>9. Same. Presumption as to liability.</p> <p>Where the husband has property or income of his own, the prima facie presumption in such cases is that credit was given to him; but where he has no property or income, and is engaged solely in managing his wife’s affairs, a presumption may arise that the credit was to her.</p> <p>10. Evidence. Objection to. When made.</p> <p>Objections to testimony, not made in the court below, except in the motion for a new trial, will not be noticed by the Supreme Court.</p> <p>11. Supreme Court. Practice. Judgment reversed in part.</p> <p>Where the declaration asserts a joint liability against husband and wife, and the proof shows a liability by the wife alone, if the court below renders a joint judgment against them, the act of March 24, 1876 (Acts 1876, pp. 35, 36), authorizes the Supreme Court to affirm as to the wife, and reverse as to the husband. The act embraces any joint contract, whether of copartners or other persons.</p>

Hon. Upton M. Young, Judge. made an oral argument, and filed a brief by himself and George F. Brown, commenting on Wall v. State, 51 Miss. 396. argued the ease orally, and filed a brief by himself, and one by R. V. Booth, also discussing Wall's Case.

Hon. Upton M. Young, Chancellor. 1. J. B. Wathen held the land in right of his ward, Mary Glass. As administrator of the mortgagor and mortgagee, he had no right to it. On Bain’s death, the mortgage debt not being due, the legal title under our statute, Code 1857, p. 308, art. 12, descended to Mary Bain, his heir. The presumption is inevitable that J. B. Wathen received the rents as guardian.

Eeuob to the Circuit Court of Warren County. Hon. UptoN M. Young, Judge. 1. The injury proceeded not from the defect complained of, the want of a railing on the sidewalk at the precipitous descent, but from a gutter, which was not dangerous but useful and essential. 2. If Patrick was duly sober, his inexcusable negligence was the chief cause of the accident; and, under such circumstances, the city is not liable.

This proceeding was a mandamus before the Hon. S. S. Calhoon in vacation, on the petition of James T. Fant, elected and commissioned, in 1875, district attorney for the tenth judicial district of Mississippi, to compel W. H. Gibbs, auditor of public accounts, to issue a warrant on the State treasurer for $100 for a month's salary, which the auditor had refused to issue on demand because the petitioner had not been assigned.

Hon. S. S. CamtooN, Judge. 1. Cited Code 1871, e. 89, and §§ 269, 1884, 2013, contending that the suit was properly brought in the name of the State, for the use of the board of supervisors of the… Held: if at all, for the loss of the fund in this case, under his general bond, not on his special bond prescribed by c. 39 Code 1871.

Hon. Charles Clark, Chancellor. cited Allen v. Montgomery, ■ 48 Miss. 107; 43 Miss. 189; 30 Miss. 177; and Adams Eq. 220, note l, contending that the demand was a purely legal one, that there was no lien or trust, and that the court had not jurisdiction. 1. The agreement by Alexander that the balance due Brown & Berry should be paid out of the revenues and income of the building operates as an equitable lien on those revenues and income. 2 Story Eq.

Hon. E. G. Peyton, Chancellor. A. M. Harlow filed this bill against the St. Louis Mutual Life Insurance Company or the Columbia Life Insurance Company, a body corporate of the State of Missouri, and W. L. Hemingway, treasurer of the State of Mississippi, alleging that, on Aug. 14, 1868, he insured his life and took out a policy in the St. Louis Mutual Life Insurance Company, whereby said company, in consideration of an animal premium of $188.20, — paid on or before August…

Hon. James M. ARNOLD, Judge. This was replevin, by J. W. Saunders and others against C. R. Jordan, for a county warrant, which was seized; and, the defendant declining, the plaintiffs’gave bond and took the warrant.

<p>Error to the Circuit Court of Yazoo County.</p> <p>Hon. S. S. CalhooN, Judge.</p> <p>The uncommunicated threats were admissible in evidence. Keener v. State, 18 Ga. 194; Holler v. State, 87 Ind. 57 ; Cornelius v. Commonwealth, 15 B. Mon. 539; Campbell v. People, 16 Ill. 18; Stewart v. State, 19 Ohio, 802; Dulces v. State, 11 Ind. 557; Pfomer v. People, 4 Park. Or. 558.</p> <p>The threats were inadmissible. Dyson v. State, 26 Miss. 362; Wesley v. State, 37 Miss. 349; Hvans v. State, 44 Miss. 762; Harris v. State, 47 Miss. 318; Hippy v. State, 2 Head, 217 ; State v. Scott, 4 Ired. 409.</p>

Hon. L. Bkame, Chancellor. Mrs. Bevill owned four-fifths, and Eiland one-fifth, of an urban hotel, which B. P. Howell desired to purchase; but they declining to sell to him, he induced one Franks to buy for him. Franks obtained the hotel for $11,000, of which he paid $5,000 cash, and for the remainder gave his two notes, due Jan. 1, 1874, one to Mrs. Bevill, for $4,800, and the other for $1,200, to Eiland.

Hon. Laeayette Hatjghton, Chancellor. T. Gr. Cansler filed this bill against E. D. Sallis, Thomas Mann and L. Hampton, alleging that, in December, 1873, the complainant sold to Sallis a tract of land, the purchase-money for which was paid in part, and for the balance Sallis gave his note. The complainant executed a deed to Sallis, and to secure the unpaid part of the purchase-money Sallis conveyed the land to Cayce, trustee.

Hon. Geoeg-e F. Browh, Judge. contended, in an elaborate brief, tbat Irving’s abandonment was purely voluntary and matter of choice, tbat there was no eviction nor ouster, and nothing equivalent to either. At the time of the abandonment no adverse claim was asserted. There was no compulsion in law or fact. The State asserted no claim to the land. The first adverse claims asserted were the entries made after the abandonment.

Hon. E. Stafford, Chancellor. On April 17, 1869, M. O. H. Norton & Co. filed this bill against A. J. Phelps and his wife Mary B. Phelps, formerly Vick, to subject a plantation in their possession to an account for supplies and money advanced to Henry W. Vick and Jonathan Pearce, trustee, for the plantation, Henry W. Vick, and Mary B. Vick, the cestui que trust. The trustee Pearce was not made a part}*- to the suit until 1870.

Hon. A. B. Fly, Chancellor. This suit was to subject land, a bond for title to which had been given by Harrall to Kitchins, to the .payment of notes for the purchase-money, executed by Kitchins to Harrall, and by him indorsed to Pryor Scally and William Pollard.

Hon. J. A. G-rbeN, Judge. From tbe agreed transcript it appears tbat an execution on a judgment of a justice of the peace, rendered March 24,1875, in favor of B. M. Terrell & Co., for tbe use of B. M. Terrell, against Barbour Quarles, was, on April 9, 1875, levied on a mule, which the sheriff valued at $100.

Hon. Geokge Wood, Chancellor. The only question is whether- there is any equity in the bill. The defendant files a demurrer, and assigns as the first special cause that there is no equity in the complainant’s bill; the other special causes assigned have reference to the exhibits filed with the bill, which are no part thereof. As to the first cause, it is only necessary to examine the allegations of the bill, which show a clear case for the relief sought..

Hon. A. G. Mayers, Judge. The affidavit by one of the attorneys for the plaintiffs, filed in support of the motion for a new trial, stated that since the trial the counsel for the plaintiffs, who live in Memphis, Tennessee, had discovered from one Edwards, the payee of the note, who indorsed it to the plaintiffs,.and from other sources, that the note sued on. was given to release some of Mrs. Susan Collins’s property from attachment; that the affiant lives in Attala County,…

Hon. J. A. Green, Judge. Sect. 2489 Code 1871 provides as follows: “ If any clerk of any court, or public officer, or any other person, shall wittingly make any false entry, or erase any word or letter, or change any record belonging to any court or public office, whether in his keeping or not, he shall, on conviction thereof, be imprisoned in the penitentiary, for a term not exceeding ten years, and be liable to the action of the party aggrieved for all damages occasioned…

Error. to tbe Circuit Court of Monroe County. Hon. B. B. BOONE, Judge. contended that the decision must be for the plaintiff in attachment or sheriff, and against the plaintiff in replevin on the plea in abatement. Code 1871, c. 16, and § 1631; Maxey v. White, 53 Miss. 80. 1.

<p>JURISDICTION. Principal of amount in controversy. Damages.</p> <p>A justice of the peace has jurisdiction, and so has the Circuit Court on appeal, of replevin for a horse not exceeding $150 in value, whatever are the damages assessed for wrongful taking and detention.</p>

Hon. Thomas Y. Berry, Chancellor. Casey Mallery filed this bill against the board of mayor and aldermen, successors of the board of school directors, of the city of Natchez, to enforce an express lien for $2,000, balance of purchase-money, reserved in the deed by which he conveyed a piece of land to the directors for a school site.

Ekbob to the Circuit Court of Alcorn County. Hon. B. B. BoONE, Judge. This was trespass on the case by Chastine against the railroad company. The declaration contained two counts, in both of which it was alleged that the plaintiff purchased and paid for a ticket at Corinth, Mississippi, to be transported to Memphis, Tennessee, on the defendant’s cars, and that he got on the train at Corinth.

<p>Error to the Circuit Court of Clay County.</p> <p>Hon. J. S. Hamm, Judge, presiding by interchange with Hon. James M. Arnold.</p> <p>The want of a mandate is fatal to the jurisdiction of the Circuit Court. Code 1871, § 418 ; Me Comb v. Mlett, 8 S. & M. 505; Shirley v. Conway, 44 Miss. 434; Doe v. McDonald, 27 Miss. 610; Bank y. Martin, 9 S. & M. 613 ; Gfwin v. Mo Carroll, 1 S. & M. 351; Claughton v. Black, 24 Miss. 185; Root v. McBerrin, 37 Miss. 17.</p> <p>The point that there was no mandate comes too late.</p>

Hon. Thomas Y. Berry, Chancellor. Catherine McGehee, executrix and sole legatee of John H. McGehee, filed this bill against the heirs of W. A. Cotten, to foreclose a vendor’s lien on land purchased with notice by their father from Jennie Boyd, the vendee of the complainant’s testator.

This is a demurrer to a plea in bar of an appeal from the Chancery Court of Amite County. The present appellee, A. S. Caston, had appealed from the final decree in the case of M. G-. Caston et al. v. A. S. Caston, and the decree had been affirmed. Subsequently the complainants in that suit took the present appeal, and to it A. S. Caston filed the plea recited in the opinion of the court. The decision on the former appeal cannot conclude this one.

Hon. George F. Brown, Judge. Joseph B. Wolfe & Co. sued out an attachment against J. W. Bissell on the 15th day of February, 1875, at Vicksburg, returnable to the Circuit Court of Warren County, and on the same day had it levied on the cotton in controversy. Bissell pleaded in abatement of the attachment, and afterwards, by leave of court, withdrew his pleas, and the plaintiffs took judgment by default.

Hon. E. G. Peytont, Chancellor. This bill, by Thomas Simmons against Nancy J. Shivers and her husband, alleges that, under an agreement whereby he was to convey her a tract of his land for $1,000, and she to convey him a tract of hers for the same sum, on Dec. 16, 1867, he executed to her a conveyance of his, and she, with her husband, legally acknowledged and delivered to him a deed to hers, intending it to pass title; but that ip October, 1876, Mrs. Shivers in the mean…

Hon. S. S. CalhooN, Judge. Under the act of 1878 the landlord has an interest in the crop to the extent of his rent, as between himself and the tenant. The transfer of the rent contract to Nelson, if intended as a pledge of this interest in the cotton, was yoid, because there was neither delivery nor registration of the trust. It is not a security for debt, but an undivided interest in property, and requires a partition proceeding to get the shares separated.

Appeal and ckoss-appeal from the Chancery Court of Monroe County. Hon. L. IÍATTGHTON, Chancellor.

Eekok to the Circuit Court of Jefferson County. Hon. Uriah Millsaps, Judge. This writ of replevin, by M. Eiseman against Army Sims, was issued from the Circuit Court, and levied by the sheriff on three bales of cotton, which the officer failed to value, but which Sims retained, giving bond in the penalty of $300, with W. L. Stephen as surety. The declaration did not state the value of the property, but claimed $250 damages for the taking and detention thereof.

Hon. Thomas Y. Berry, Chancellor. This was a petition, under Code 1871, §§ 1070, 1071, 1264, by non-resident defendants, against whom a decree had been rendered, on a bill by a guardian, under § 1223 Code 1871, to sell the interest of his ward in land, on publication only, to be permitted to plead, answer or demur to the bill, and for a rehearing.

<p>1. Tax Title. Bill to confirm. Defences under Act 1880. Failure of sheriff to demand taxes.</p> <p>Under § 7 Act Feb. 10, I860 (Acts 1859-60, p. 216), which provides that no tax sale of lands thereafter made shall be impeached or questioned in any manner or for any cause, saving fraud or mistake in the assessment or sale of the lands, or upon proof that the tax for which the same were sold had been paid prior to such sale, it cannot avail, as a defence to a bill to confirm a tax title, that the defendant was living on the land at and before the day of sale and at the time fixed by law for the collection of the taxes, and that no demand was made on him therefor, nor any written notice left on the premises.</p> <p>2. Same. Act Feb. 10, 1860. Constitutional.</p> <p>The act of Feb. 10, 1860 (Acts 1859-60, p. 213), entitled “An Act to provide for the better security of titles to lands held and claimed under tax sale and tax titles,” is constitutional, as held in Griffin v. Dogan, 48 Miss. 11.</p>

Hon. L. HaughtoN, Chancellor. This bill, by James M. Green, U. McAllister and Unity Hampton, alleges that the complainants own and occupy residences, where they have… Held: 2 Sim. 133; Harvard College v. Stearns, 15 Gray, 1; Lansing v. Smith, 8 Cow. 151; Butler v. Kent, 19 Johns. 226 ; Hartshorn v. South Reading, 3 Allen, 501; Hole v. Barlow, 4 Scott, 334; s. c. 93 Eng. C. L. 333 ; Harrison v. Brooks, 20 Ga. 537 ; Crowder v. Tinkler, 19 Yes. 617; Rhodes v. Dunbar, 57 Penn.

Hon. Thomas Y. Berry, Chancellor. contended that the writing put upon the mortgage by Ellis and Mary Boyt was a sufficient promise to take the note out of the operation of the Statute of Limitations; citing Lamar v. Mauro, 10 Gill & Johns. 50; Hale v. Hale, 4 Humph. 183; Thompson v. French, 10 Yerg. 452; Rodrigue v. Fronty, 2 Brer. (S. C.) 31; Haddock v. (Jolly, 18 Yt. 485; Chitty on Contracts (11th ed.), 1246.

Thomas Y. Berry, Chancellor of the tenth district, at the court-house in Jefferson County, dissolving an injunction.

Eeros, to the Circuit Court of Warren County. Hon. UptoN M. YouNG, Judge. This was ejectment by the heirs-at-law of Sarah B. Hatch, who in 1843 married Richard Griffith, and a few months thereafter died without issue born alive. She was at the time of her marriage, and for some time before, the owner and in possession of the property in controversy.

Hon. E. G. Peyton, Chancellor. The complainant’s testator, being indebted to the State in the sum of $13,000, and being sued for the debt, gave in full settlement thereof his bill of exchange on J. & T. Green, bankers, which was duly accepted by the drawees, payable in State warrants.

Hon. S. S. Calhoon, Judge. It is a complete defence that the plaintiff did not make demand within thirty days. Express Oo. v. Caldwell, 21 Wall. 264; United States Express Oo. v. Harris, 51 Ind. 127; Weir v. Express Oo., 5 Phila. 855; Grace v. Adams, 100 Mass. 505. There is no pretence in pleading or evidence that the condition was fraudulently imposed on the plaintiff. The verdict was right upon the facts, and the damages not excessive.

Hon. UptoN M. YoüNG, Judge. This was assumpsit by the surviving partners of Blakemore Brothers & Co., merchants in New Orleans, against Maurice Meyer, of the late firm of Meyer & Kahn, of Vicksburg, on Meyer & Kahn’s letter of Jan. 22,1873, promising to indemnify Blakemore Brothers & Co. if they would become sureties on the replevin bond' of one Gallagher in an attachment suit.

<p>1. Tax. Assessment. City.</p> <p>The authorities of a city, whose charter authorizes the county assessment roll to he taken for property valuation, must fix the rate of city taxation to enable its collection, but need make no assessment.</p> <p>2. Same. Injunction against sale. Collector’s bond.</p> <p>A bill to enjoin a sale of real estate for taxes, on the ground that the collector has given a defective bond, cannot be maintained (if at all) after the defect has been cured by the parties interested.</p> <p>3. Brookhaven. Sale day of delinquent tax lands.</p> <p>The act of April 9, 1873, amending the charter of the city of Brook-haven, changes the time for selling property delinquent for taxes from first Monday in August to first Monday in May.</p> <p>4. Change of Municipal Boundaries. Effect on tax lien.</p> <p>The power of city authorities to sell land delinquent for taxes, which was within the city when the taxes, by law a lien thereon, fell due, but which, .by amendment of the city charter changing its boundaries, is before sale day outside the new boundaries, is lost, if no provision is made by law as to the lands cut ofi ; but the owner is not released from the taxes, and his property remaining within the city can be sold for the entire tax.</p>

Hon. Upton M. Young, Judge. To assumpsit by the Woodburn Sarven Wheel Company, on an account which its secretary, in an affidavit thereto, swore was correct and due from Tichenor, he pleaded the general issue, with an affidavit “ that the account filed with the plaintiff’s declaration is not correct.” On the trial the defendant was not allowed to introduce any evidence under the pleadings; be excepted, and from a judgment for tbe plaintiff brings up the case.

Hon. E. G. PBYTON, Chancellor. A statute was passed Dec. 2, 1858, entitled “ An Act to aid in repairing and perfecting the levee of the Mississippi River in the counties of De Soto, Tunica, Coahoma, Bolivar, Washington and Issaquena ” (Acts 1858, p. 38), by which a general scheme for protecting the alluvial lands of this State was organized, the local levee boards existing under prior laws in the counties of the district were suspended, and a general levee board created,…

Error, to the Circuit Court of Warren County. Hon. George F. Brown, Judge. This was ejectment by Minerva F. Newman and another, heirs-at-law of Eugene Newman, to recover lots 83, 34, 47 and 48, in square 14 in Vick’s enlargement of Vicksburg, in possession of which their ancestor died in 1852.

Hon. UptoN M. YouNG, Chancellor. The charter of the city of Yicksburg, approved April 7, 1876, by the second article of its twenty-eighth section, empowers the board of mayor and aldermen, by ordinance adopted at any regular or special meeting, “To levy and collect for corporation purposes a privilege tax upon the business, trade or employment of all auctioneers, grocers, merchants, brokers, bankers, cotton factors and cotton sellers, retailers, taverns, hotels,…

These were motions to submit applications for reargument, which had been filed in the case of Gotten v. McG-ehee, ante, 510, on June 11, 1877, and in the case of Wolfe v. Crawford, ante, 514, on Oct. 10, 1877. On June 4, 1877, the last day of the April Term, 1877, an order was made giving seven days within which petitions for reargument could be filed, in cases decided on that day.

MOTION to vacate the judgment rendered at the last term in the case of Oooh v. Ligón, ante, 368, on the ground that, by clerical misprision, judgment was entered against the principal and sureties on the writ-of-error bond.

Hon. Sam. Power, Judge. In October, 1872, a judgment in favor of J. L. Fletcher against Ed. Dale was recovered and enrolled. Dale, in 1876, became the owner of two horses, one of which he traded to W. Z. Johnson ; and, in the fall of 1876, execution under said judgment was levied on that horse. A claimant’s issue was decided in favor of Fletcher, and Johnson brings up the case. 1.

<p>Appeal from the Chancery Court of Coahoma County.</p> <p>Hon. Charles Clark, Chancellor.</p> <p>John Franklin files this bill to enjoin the sale of his residence, advertised under an execution emanating from a judgment against him in favor of Hill, Fontain & Co., a firm composed of Napoleon Hill, N. Fontain and others, on the ground that, as the premises have been occupied by him as his homestead for twenty-five years, during which time his wife and one of her children have died, and the remaining child has become of age, and as his informally adopted daughter, with her husband, is now residing with him thereon, the property, which is not worth over $1,000, is exempt from execution. From a decree overruling their demurrer to the bill the defendants appeal.</p> <p>The debtor is a householder, but has no family within the meaning of the statute. Code 1871, § 2135. No obligation is on him to support the young man and his wife. Whalen v. Oadman, 11 Iowa, 228 ; Lathop v. Soldiers’ Loan Association, 45 Ga. 483; Calhoun v. McLendon, 42 Ga. 405. The homestead right is not an estate, as erroneously held in Massachusetts and New Hampshire, but a mere privilege attached by law to an estate which the debtor already has. When the privilege ceases there is no forfeiture, but a mere return of the debtor’s old estate to its normal condition. Whittoorth v. Lyons, 39 Miss. 467 ; Partee v. Stewart, 50 Miss. 717, 721. A marriage by the debtor after levy of the execution will secure the homestead, because he should have the means of supporting his family. Trotter v. Lobbs, 38 Miss. 198. The rule is, that all a man has is liable for his debts. The exemption law makes an exception. PevalJe v. Kraemer, 8 Cal. 72; Green v. Maries, 25 Ill. 221. Had the legislature intended to secure the exemption to those who once had a family, it was easy to have added to the statute, after the words “ having a family,” the very important clause, “ or, having had one, has lost it.”</p> <p>The policy of the exemption law is wise and humane, its object to preserve family unity as indispensable to society and the protection of the State against pauperism. The law should be liberally construed and extended to all cases within its spirit and equity. Smyth on Homestead and Exemptions, § 11; Wash, on Eeal Prop. 326; Partee v. Stewart,- 50 Miss. 721. John Franklin had a family within the meaning of the.'statute. Wilson v. Cochran, 31 Texas, 677; Taylor v. Boulware, 17' Texas, 74. In Barney v. Leeds, 51 N. H. 268, the debtor continued to occupy the home after his wife’s death, and the homestead was allowed him. The decisions in Iowa and other States, whose statutes give the exemption to “ the head of a family,” do not apply under our Code, § 2135, which gives it to a householder “ having a family.” This court has given a married woman living with her husband the exemption. Partee v. Stewart, ubi supra. A childless husband does not lose the exemption by the death of his wife. Silloway v. Broivn, 12 Allen, 30; nor a widower by the death of his children. In Boyle v. Coburn, 6 Allen, 73, the reason given is, that “ others may be adopted as members of his household, and his homestead retain its existence.”</p>

Hon. W. CothrAN, Judge. B. H. Montgomery, tenant of J. W. Cooper, raised on the demised premises in 1870 nine bales of cotton, which he left there, in Cooper’s possession; but, being indebted to J. J. Baker & Bro., on account, he gaye them a bill of sale or order for the cotton, with the understanding that they were to pay the rent.

Hon. L. Brame, Chancellor. A stock of goods kept for sale by C. C. Eiland, in a store leased by him from Edward H. Cogburn, was, at suit of the latter, distrained for rent, and at once advertised for sale. An attachment subsequently sued out by J. Pollock & Co., creditors of Eiland, was levied on the stock before the sale day.

Ebbob to the Circuit Court of Rankin County. Hon. W. M. HANCOCK, Judge. The attorney could make the affidavit, Waller v. Shannon, 53 Miss. 500; and the omission of the words “ for delay ” could not defeat the appeal, since the language used is a substantial compliance with the statute. Code 1871, § 1332; White v. Shumate, 50 Miss. 130. 1. One cannot make affidavit, by attorney; vicarious swearing is not allowable.

Hon. J. A. Green, Judge. Malinda Ernst brought this suit before a justice of the peace, to recover the proceeds of two bales of cotton, against one Buchanan, who, on the return day of the writ, filed affidavit, under Code 1871, § 656, disclaiming any interest in the money, and suggesting that Alex. Moore claimed it. On Buchanan depositing the money in bank, subject to the order of court, the suit was dismissed as to him ; and Alex.

Hon. James M. ARNOLD, Judge. This was an action in the name of the State for the use of Maggie Boykin, by her next friend, B. L. Cromwell, against Abram Klaus and William French, sureties on the bond of E. D. Boykin, her guardian, to recover $1,390 found due from Boykin to his ward on a settlement made after his death, by his administrator, with the Chancery Court.

Hon. L. Haughton, Chancellor. M. C. Cummings files this bill against R. A. Steele, who, since 1870, has owned and occupied a certain tract of land, W. L. Clayton', the beneficiary in a deed of trust, which Steele had executed thereon in March, 1875, and Phillips, the trustee therein, alleging that the complainant, accepting a proposition made by Steele in 1872 to borrow a sum of money from him, and secure it by a deed of trust on the land owned and occupied by Steele, loaned…

Hon. Upton M. Young, Chancellor. Alexander Brunini, the duly qualified administrator of Frank Pera, having, on decree for the sale of the real estate, given bond, with J. Sanguinetti and L. M. Lowenberg as sureties, for the proper application of the proceeds, Maria Speranza Pera, Maria Chelini, and Frediano Chelini her husband, as heirs of Frank Pera, petitioned the Chancery Court of Warren County for a final settlement of Brunini’s accounts, and obtained a decree for…

<p>Appeal from the Chancery Court of Hinds County.</p> <p>Hon. E. G. Peyton, Chancellor.</p> <p>This is a bill in chancery by B. T. Ligón and the heirs of Oliver Barrett, against the heirs and devisees of Mary J. Cook and her husband Evan Cook, as an individual and as executor of her will, to subject certain land conveyed by Evan Cook to his wife, on April 13, 1866, in fraud of existing creditors. The complainants’ claim was originally an account for merchandise contracted by Evan Cook with George Fearn & Co., in 1860, which, on Dec. 14, 1867, was, at the instance of Fearn & Co., changed into Evan Cook’s sealed note for $557.47. Afterwards, Fearn & Co. went through bankruptcy, and were discharged. Having surrendered this bill single, they then bought it from the assignee, F. S. Hunt, who indorsed it in blank. Fearn & Co. then assigned the bill single to the heirs of Oliver Barrett in payment of a debt which they owed said heirs, delivering it to O. P. Wright, trustee for the heirs. B. T. Ligón, who, on marrying one of the Barrett heirs, took Wright’s place as trustee, sued on the bill single in his own name, May 80, 1874, recovered judgment against Evan Cook for $1,000, Jan. 20, 1876, and himself then went into bankruptcy. Then, after nulla'Iona returns under the judgment, this bill was filed. The . defendants’ demurrer, upon the grounds that the administrator of Oliver Barrett and the as-signee in bankruptcy of B. T. Ligón should have been parties, and that the Barrett heirs were not such creditors as could complain of the fraudulent conveyance, was overruled, and they appealed.</p> <p>made an oral argument.</p> <p>Only creditors existing at the date of the convejmnce can attack it for fraud. 31 Miss. 658 ; 34 Miss. 708 ; 42 Miss. 749; 46 Miss. 346 ; 49 Miss. 518 ; 50 Miss. 381; Prestidge v. Cooper, ante, 74. The complainants were not existing creditors within § 1778 Code 1871. The purchasers of the bill single, who took it after the conveyance to Mrs. Cook was on record, are subsequent, not prior, creditors. They parted with no consideration on the faith of the land, but took the bill for an old debt, with notice that Cook was not owner of the plantation. The account was extinguished and paid by the bill single. Bump on Fraudulent Conveyances, 490. The bill became a new debt, and the holder of it a subsequent creditor. Morsell v. Baden, 22 Md. 391. Especially is this true when the bill single has been transferred, and is being enforced by a third party. Wren v. Hoffman, 41 Miss. 620; 2 Bailey (S. C.), 574; 8 Johns. 389; 8 Bac. Abr. 99, Debt, c. The proviso of the statute, Code 1871, § 1778, is, that such deeds shall be void as to creditors who were such at the time the deed was made, not as to existing debts.</p> <p>argued the case orally, and filed a brief making the following points : —</p> <p>1. The heirs of Oliver Barrett had no title to the bill single. The administrator, who alone could sue, was a necessary party.</p> <p>2. The judgment on which the suit was founded being in the individual name of B. T. Ligón, his assignee in bankruptcy was a necessary party. Story Eq. PI. § 349 and note. The State court has power to administer the bankrupt’s estate only where there is a specific lien; and then only so far as the lien is concerned. Winters v. Claitor, ante, 341.</p> <p>3. The Barrett heirs not being the judgment creditors, nor the representatives nor assignees of the judgment creditor, no lien exists in their favor, Code 1871, § 830 ; and they are without an estate in the land, of such nature as would enable them to maintain this bill. Fleming v. Grafton, ante, 79; 14 Eng. Ch. 415.</p> <p>4. The parties complainant were not creditors existing at the time of the conveyance. By the execution of the bill single the former debt was extinguished. 2 Bailey (S. C.), 360; 3 Bac. Abr. Debt, c; 3 Exch. 631; 70 Eng. C. L. 560; Freeman on Judgments, § 215; Morsell v. Baden, 22 Md. 396 ; Mgleberger v. Libler, 1 Hill (S. C.) Ch. 116. The assignment of the bill was payment of the account for which it was given. Wren v. Hoffman, 41 Miss. 616; 2 Bush (Ky.), 74; 27 Ala. 258; 3 How. (U. S.) 510 ; Story on Promissory Notes, § 405.</p> <p>argued the case orally.</p> <p>1. The administrator of Oliver Barrett was not a necessary party. The heirs bought the bill single with a debt due from George Fearn & Co. to them.</p> <p>2. Nor was the assignee in bankruptcy of Ligón a necessary party. Property held by the bankrupt in trust does not pass to the assignee. U. S. Rev. Stats. § 5053 ; 53 Miss. 130.</p> <p>3. The execution of a bill single, the consideration of which is a debt due by account, does not extinguish the debt without an agreement to that effect. Gansler v. Sallis, ante, 446; 53 Miss. 248 ; Howell v. Bush, ante, 437; 43 Miss. 553 ; 41 Miss. 727 ; 1 Hill Ch. 304 ; 3 Watts & Serg. 277; 27 Mo. 272 ; 25 Iowa, 348 ; 11 Grattan, 567 ; 6 Ala. 508 ; Bump on Fraudulent Conveyances, 327 ; 7 How. (U. S.) 228; 27 Ala. 258 ; 25 Wend. 658; Price v. Moulton, 70 Eng. C. L. 560.</p> <p>4. The assignee of a debt can attack a fraudulent conveyance made by the debtor previous to the assignment. Code 1871, § 2893; Code 1857, p. 358; 52 Maine, 348; 41 Miss. 728; 30 Mo. 266; 25 Wend. 658; 32 Barb. 296; 15 Barb. 31; 15 Johns. 251.</p> <p>5. These complainants have such a lien as enables them to attack for fraud the conveyance by Cook to his wife. 1 Perry on Trusts, §§ 17, 328 ; 2 Perry on Trusts, § 520; Hill on Trustees, 316; 12 Ill. 172; aa'Mifls. 665; 10 Pick. 168; 34 Penn. St. 226; Freeman on Judgments, 173, 176 ; 16 Mass. 72 ; 21 Mo. 230.</p>

Hon. E. G. Peyton, Chancellor. William W. Sibley, who became of age Dec. 12, 1861, and Henry C. Sibley, who became of age Dec. 14, 1866, filed this bill in chancery on Dec. 17, 1873, as equitable owners, against Eobert Wilson, to collect the following note: — “ $520.] Apbil 1,1861. “ One day after date I promise to pay J. Y. Sibley, guardian of the minors Sibley, $520, value received, with eight per cent interest from date. “ E. WlLSON.” The guardian’s accounts show that the…

Hon. B. F. Trimble, Judge. A prosecution against Jacob Alexander, in the name of the Town Council of Greenville, before a justice of the peace of Washington County, based on an affidavit by the town marshal charging the violation of a town ordinance by erecting a wooden building within the fire limits without license, resulted in his conviction, from which he appealed to the Circuit Court, where, on trial by jury, he was again 'convicted; and from a judgment imposing a fine…

Hon. J. A. Green, Judge. Jesse Hunt filed his declaration in trespass on the case against the Southern Express Company, Aug. 15,1877, for the loss of a bee-hive model and a model of a corn-planter and fertilizer distributor, alleged to be together Avorth $500.

Hon. James M. ARNOLD, Judge, did not sit in this case, but Pión. J. S. Hamm presided by interchange.

Hon. James M. Smiley, Judge. 1. Both the original contract with Murphy and the contract for extra work were void, because in violation of the act of Feb. 13, 1871 (Acts 1871, p. 101). The mere allowance of the claim and issuance of the warrant did not estop the plaintiff in error from making that defence. Nash v. St. Paul, 8 Minn. 181; s. c. 11 Minn. 174; People v. Flagg, 17 N. Y. 589; Brady v. New York, 20 N. Y. 312; Hague v. Philadelphia, 48 Penn. St. 528. 2.

Ekror to the Circuit Court of Yazoo County. Hon. S. S. Calhoon, Judge. Calvin Watson sued James Rose before a justice of the peace on an account for $75, sworn to as provided by Code 1871, § 782. Rose filed no counter affidavit; but there was a jury demanded by both parties, a trial, and verdict for Watson.

Hon. Upton M. Young, Judge. On the trial 'of this action of ejectment, Cogburn, the plaintiff,'to show title in himself, offered the assessment roll of lands in Warren County for 1874, the list of lands in Vicksburg sold to the State in 1875, as delinquent for the taxes of 1874, a deed from the State to one McGinfcy, and another from McGinty to himself, in all of which the description was, “ part of lot 285, sq. 59, Vicksburg proper,” together with testimony that the lot…

Hon. J. C. Gray, Chancellor. F. S. Belcher filed his bill, under Code 1871, § 1758, to confirm a tax title to certain land against J. J. Mhoon and “ all persons having or claiming any legal or equitable interest therein.” On his affidavit that there might be some unknown persons interested in the land, publication was ordered; and, on proof of the publication having been made, a final decree was rendered on Oct. 6, 1874, confirming the tax title.

Hon. J. C. Ghat, Chancellor. This was a bill of review filed Aug. 1, 1876, in the Chancery Court of Tallahatchie County, to review a decree rendered by the equity side of the Circuit Court of said county, on May 25, 1867. The defendants demurred, and the error here assigned is the action of the Chancellor in sustaining the demurrer and dismissing the bill. 1.

Ebkob to the Circuit Court of Clay County. Hon. James M. Arnold, Judge.

Hon. James M. Arnold, Judge. In the Lowndes County Court, W. H. Harvey recovered judgment, Oct. 15, 1869, for $119.22, against one Brown.

Hon. James S. Hamm, Judge. 1. The defendant, Wilson Hairston, was guilty of unlawfully exhibiting a deadly weapon; the other defendants were guilty of nothing. To fix on Wilson Hairston the offence of an assault witb intent to commit murder, it must have been shown that a loaded pistol was pointed by him within shooting distance. Vaughan’s Case, 3 S. & M. 553.

Hon. L. Haughton, Chancellor. The judgment of the Mobile and Ohio Kailroad Company was barred. Its revivor against the administrator could not affect the heirs, who may set up the bar in answer to this petition. 60 Miss. 634. The account of J. B. Sale was barred before suit thereon; and the judgment against the administrator does not preclude the heir from pleading the bar. 53 Miss. 296.

Hon. O. H. Whitfield, Chancellor. Mrs. Crawford, the appellant, was one of the residuary legatees under the will of her father, Aaron Redus, deceased, wherein her husband, Milton Crawford, William Redus and J. W. Baker were named as executors. Crawford refusing to act, letters testamentary were issued to Redus and Baker.

Hon. B. F..Trimble, Judge. 1. By inadvertence, questions are sometimes not asked a witness, which would bring out answers that would make the case plain. Amotion for instruction, as in case of non-suit, enables the adverse party to correct such mistakes. A demurrer to evidence does not, and frequently results in wrong, unless rigidly restrained. Bao. Abr. tit. Pleas and Pleadings, Demurrer to Ev. 7.

1-Ion. J. W. C. Watson, Judge. 1. The amendment of the bill of particulars, making a new suit whereby the sureties’ liability was increased, was not admissible after appeal. 16 M. & W. 778; 3 McLean, 289; 3 Duer (N. Y.), 691; 17 Wend. 20 ; 9 Pet. 541; 5 Ark. 197 ; 6 Ohio, 305 j 50 Miss. 498. Code 1871, §§ 621,1305,1333,1334. 2. It is essential that the plaintiff should be the owner of the land, in order to sue for the statutory penalty for cutting trees thereon.

Hon. J. A. GreeN, Judge. 1. The sheriff was not liable, if he proved that the property was exempt or not liable to execution, although he took no bond of indemnity. Taylor v. Wimer, 30 Mo. 129 ; Bell v. Commonwealth, 1 J. J. Marsh. 553. 2. The failure to prove the value of the property is fatal. The amount of the recovery to which the plaintiff is entitled in a case like this, is the value of the property and interest. 3.

Hon. W. COTHRAN, Judge. argued the case orally, and filed a brief making the following points: — Extrinsic evidence is admissible to explain the phrase, “ after my advances are paid.” The words are ambiguous, leaving unexplained the kind of advances, the time rvhen advanced and the person to whom. The ambiguity is not patent, but is susceptible of explanation. Parol evidence may be introduced to. explain an ambiguous acceptance.

Hon. L. Hatjghtok, Chancellor. 1. The first error assigned is, that the court erred in refusing Taylor’s application to remand the cause to rules. A Chancery Court should remand a cause to rules when it is necessary to ascertain the true merits of the controversy. A cause may be remanded in some cases after a final decree. Beard v. Green, 51 Miss. 856. No case can be presented appealing more strongly to the discretion of a court than the present one.

Hon. L. HaughtoN, Chancellor. On Feb. 1, 1837, Miss Amelia Yasser was married, in Giles County, Tennessee, to E. C. Madry. Both were poor. They lived on a rented place in Tennessee until 1842, when they removed to Mississippi, where Mr. Madry became the manager of a plantation, at a small salary.

Hon. J. M. Smiley, Judge. Jane E. Harrington made an affidavit before the clerk of the Circuit Court in replevin for the recovery of a buggy, stated in said affidavit to be of the value of $165, as detained by D. W. Fenn, the defendant.

Hon. James M. Arnold, Judge. The defendant’s second special plea was, “ that heretofore, prior to April 19, 1875, this defendant was regularly indicted for the identical offence charged in this indictment, and the indictment returned into court according to law ; that he was arrested under a capias issuing in said case, and gave bond for his appearance in said case; but that indictment was lost or destroyed by fire on or about April 19, 1875, and the present indictment was…

Hon. J. C. Gray, Chancellor. 1. This litigation began ten years ago, and has descended from father to sou. In 1868 the land was sold, and Meacham turned out, without any money paid him in lieu of the homestead, as required by law. Code 1857, pp. 529, 530. Meacham waived hone of his homestead rights.