Volume 55 — Mississippi Reports

Hon. A. G. Mayers, Judge, specially presiding, by exchange with Hon. S. S. Calhoon. brought an action of ejectment against William Chambers for the possession of a certain tract of land. Held: by the court below, or conclusive as to preliminary acts, as we-contend — the statute is constitutional.

Hon. William Coti-iran, Judge. The defendants in error instituted an action of unlawful de- ■ tainer, to recover of the plaintiffs in error the possession of a certain tract of land. On the trial in the Circuit Court the plaintiffs below introduced in evidence a deed from the state, •executed by the auditor on April 12, 1877, purporting to convey to them the title to the land in controversy.

Hon. Charles Clark, Chancellor. This is an appeal from the order of ■ the Chancery Court -overruling a demurrer to the bill of complaint. Held: and may use them to enforce contribution from his co-tenants. 1 Washb. on Eeal Prop. 213; 2 ib. 166, 186, 187, 200; Story’s Eq., secs. 477, 483; 51 Mss. 72. 2. The assessment of real estate can be changed only by application to the Board of Supervisors.

Hon. J. C. Gkay, Chancellor. The appellants filed their bill in chancery, in which they claim to be the owners of certain lands therein described; they allege that the appellee holds a deed from the auditor of public-accounts, attempting to convey some lands described as “ BaL fractl. section 11, township 5, range 12, 522 acres,” and “ FrT N. i section 14, township 5, range 12, 240 acres, situated! in Tunica County, containing 760 acres,” and that the appellee-, claims that…

Hon. A. B. Fly, Chancellor. Plaintiff in error filed his bill against defendants in error to' confirm a tax title, under a sale made in May, 1860, for taxes due in 1859. It is not n’ecessary to notice the pleadings further, as-the decree was made on the tax deed, which recited that ‘ ‘ I,. A. J. Donalson; sheriff and tax-collector,” sold the land for taxes assessed “to the reputed owner thei’eof,” for the year 1859.

Hon. S. S. Cali-ioon, Judge, specially presiding, by exchange with Hon. A. G. Mayers. This action was brought in the name of the state, to the use-of the Board of Supervisors of Rankin County, against Martha. Shelton, administratrix of the estate of Henry E. Shelton,, deceased, formerly sheriff and tax-collector of that county, ancl his sureties on his bond as tax-collector.

Hon. J. A. Green, Judge. F. M. James was elected sheriff of Chickasaw County, for the term commencing January 1, 1872, and executed,his bond as sheriff, which was duly approved, before entering-upon the duties of his office'. On September 10, 1872, he executed a bond as tax-collector.

<p>Error to the Circuit Court of Carroll County.</p> <p>Hon. William Cothran, Judge.</p> <p>The case is stated in the opinion of the court.</p> <p>1. The wife cannot, as against a judgment-creditor, appropriate the fruits of her husband’s labor simply because her mules were used-in making the crop, and she furnished supplies; to the laborers till June 1st. There was no consideration for his giving her the fruits of -his labor. If regarded as. a voluntary gift, it was void as against his creditors, he .being-insolvent ; and if it were the. fact that he was supported by his wife, that would form no consideration. The law will not permit a person to live at the expense' of his creditors. 1 Bishop’s Mar. Worn., sec. 759; 15 Yt. 252, 257.. The correct rule of construction as to the rights of married women is that the statutes shall not be construed-to permit husband and wife to contract with each other, so as to establish against, either a claim or demand in favor of the other for hire, labor, or services performed. Acts 1876, p.,26.1.</p> <p>2. A debtor cannot deprive himself of the ability to pay his debts by voluntarily and gratuitously giving away the fruits of his labor, and that of his children, to a third person — even to his wife. The arrangement for such a purpose is a fraud upon the rights of judgment-creditors.</p> <p>3. Cotton is not included in the provisions of section 1779 -of the Code of 1871, which defines the sole property of married women. It cannot be considered the “rents, issues, profits, or income of her property. These statutes in reference to the rights of married women, being in derogation oi ■the common law, are to be construed strictly. But even if it be admitted that the’ defendant in error has any interest in, or -claim upon, the cotton in controversy, her remedy is in equity, and not by replevin-at law. Holton v. Binns, 40 Miss. 491.</p> <p>1. It is contended that the cotton in controversy is not the separate property of the defendant in error. I ask, Why?, The wife’s mules and her money, with what labor she hired, produced the crop, in a great degree. The husband assisted •somewhat; but he was also supported. Were his services worth more than his labor? and, if so, how much more?</p> <p>2. It was claimed on the trial — and, I suppose, will be ■claimed here — that Booth’s creditors are entitled to the net -earnings of his sons, on the ground that the child’s earnings belong to his father. Does our law create a lien in favor of the creditor on the children of the debtor, so as to entitle the former to whatever the child earns? If so, will not the creditor have the right to hire out the child and compel him to work, if the father fails to make him remunerative?</p>

<p>Error to the Circuit Court of Monroe County.</p> <p>Hon. J. A. Green, Judge.</p> <p>A statement of the case will be found in the. opinion of the-court.</p> <p>The verdict in this case is against justice, equity, and reason, in the face of clear, unequivocal, unopposed evidence, is-supported by nothing, and was an unquestionable surprise to the defendant in error. “ If the verdict be against the weight. • of evidence, especially if the justice and equity of the case is not with the verdict, it will be set aside.” Gra. & Wat. on New Tr. 367, 368. Where the jury find greatly against the preponderance of evidence, the courts will reverse the judgment and grant a new trial. Sims v. McIntyre, 8 Smed. & M. 324. The principles governing the courts in granting new trials on the facts have been reviewed by this court in Dulaney v. Rankin, Ml Miss. 391-393, and in Heron v. Bondurant, 45 Miss. 683.</p> <p>Did the defendant in error have any authority, under the ■ statute, to rent a farm and engage in farming, and bind her separate estate for supplies therefor ? That she said she would ■ pay the debt amounts to nothing. Being a married woman, she could not even bind herself by her promissory note. The question is, How was the debt contracted? For what purpose? What was the consideration ? Was it for something for which .she could bind her separate property? Section 1780 of the Code of 1871 provides that “all contracts, etc., for supplies for the plantation of the wife may be enforced, and satisfaction had out of her separate property.” Here it will be observed that the law contemplates that the wife shall have a plantation. She can make no valid contract except such as is . authorized-by statute. 44 Miss. 430.</p>

. Hon. S. S. Caliioon, Judge. The defendants in error recovered a judgment against the plaintiff in error for $100, on account of services as solicitors in defending her real estate in a suit in… Held: in furtherance of the policy which shields the wife, that these enabling statutes, in derogation of the common law, as to the contracts which she can make, must be strictly construed.

Hon. Thomas Y. Berry, Chancellor. The bill in this case was filed by the appellees, Mary M. Morrison and George Anna Morrison, through her next friend, against George F. Kinstra and his wife, Martha J. Kinstra, to* enforce the specific performance of a contract of the latter to purchase a certain tract of land, or for a cancellation of the contract, and to have an account taken of the rents, etc. The defendants demurred to the bill, and, the demurrer being overruled, they…

Hon. J. M. Arnold, Judge. M. A. Metts & Co., the defendants in error, were contractors to carry the United States mail from Louisville to Artesia, in this state. J. C. Foster, the plaintiff .in error, had $200 in money stolen from the mail on this route, by the carrier employed by the defendants in error to -carry the mail. .Foster insisted .that the defendants in error were responsible for the safe carrying of his money, and should make good to him the loss.

<p>Homestead. Sale subject to, under code of 1857. Rights of purchaser.</p> <p>M., a widow, being tbe head of a family, and owning an extensive tract of land, died in 1860, leaving several minor children. In 1867 her estate was declared insolvent, and her land sold, under a decree of the Probate Court, “subject to the homestead exemption for the benefit of the family.” The exemption was not set apart. In 1877, B., the purchaser of an interest in the land through said sale, filed his bill for a partition of the land, alleging that the youngest child of M. had become of age, and the homestead exemption had ceased, and that he and his co-tenant were owners of an unincumbered fee in the whole of the land. The children of M. resisted the bill, claiming that in the sale of the land the homestead was excluded, and that B. acquired no interest in it by his purchase. Held, that all of the land was sold, and the purchasers became owners in fee of the whole, subject to the rights of the children of M. to possess and occupy the homestead until the youngest became of age, as provided in the Code of 1857, after which the exemption ceased, and the purchasers became entitled to the enjoyment of the whole of the land.</p>

Hon. S. S. Galhoon, Judge. Francis M. Rembert obtained a judgment for $8,330, on a. promissory note given by the plaintiff in error for the purchase-money of a certain tract of land. The land was levied upon and advertised for sale, under an execution on this judgment.

Hon. Charles Clark, Chancellor. On September 4, 1873, A. G. Sinclair and A. M. Sinclair, •composing the firm of A. G. Sinclair & Co., executed a deed in trust upon a house and lot tó Caldwell McGrath, as trustee for Pristiclge, Graham & Co., to secure advances in money to be made by the latter to A. G. Sinclair & Co. Sinclair & Co. having made default in the payment of the debt secured by the deed in trust, the trustee advertised the house and lot for sale, to satisfy the…

Hon. J. M. Smiley, Judge. The case is stated in the opinion of the court. 1. The receipt read in evidence, of itself, imported no promise, either express or implied, and, unsupported by other evidence, was insufficient to establish the. plaintiff’s cause of .-action. Such being the character of the instrument, it was not assignable by indorsement in blank, and the plaintiff, resting his title thereon, was not authorized to. maintain the suit. 2.

Hon. Upton M. Young, Judge. On December 17, 1874, G. E. Ring, the defendant in error, on a demand of $987, sued out, from a justice of the peace, a writ of attacbment against A. Barnett, the plaintiff in error, returnable to the Circuit Court of Warren County.

Hon. J. M. Smiley, Judge. This was an attachment suit by the defendant in error against the plaintiffs in error, before a justice of the peace. A plea in abatement by the defendants below was sustained, and. a judgment rendered in their favor for $25 as damages. Oh the next day after the rendition of the judgment on the plea in abatement, the justice of the peace gave judgment for the-plaintiff for $96.55, the amount of the debt claimed of the ■defendants.

Hon. J. M. Smiley, Judge. This was a suit in attachment, by the defendants in error-against John R. Wood, the plaintiff in error, who was a nonresident of the state. There was no personal service of process on the defendant, and no appearance entered by him in the case. But a judgment by default was rendered against, him, on proof of publication of notice. 1. The most exact compliance with the statute providing ■constructive notice is required.

Hon. S. S. Calhoon, Judge. The case is stated in the opinion of the court. 1. The power exercised by the aldermen in passing the ordinance complained of was unlawful, and not within the scope of their authority under the Charter of the town; and, therefore, the corporation was in nowise responsible for such ordinance. The aldermen alone, as private citizens, are amenable to any ■one injured by their unauthorized act.

<p>Error to the Circuit Court of Noxubee County.</p> <p>Hon. J. M. Arnold, Judge.</p> <p>The corporation of the town of Macon levied a privilege tax upon various trades and professions, and amongst others, a tax upon merchants selling spirituous liquors in quantities of ■one gallon and more. The plaintiff in error, Jacob Holberg, who was a merchant selling spirituous liquors in quantities of •one gallon and more, refused to pay the tax, and for such refusal was fined by the mayor of the town. He asked for an ¡appeal, from the judgment imposing the fine upon him, to the •Circuit Court; which the mayor denied him, on the ground that no appeal could be taken from his court; but he agreed ■with Holberg that the case might go to the Circuit Court as upon certiorari. In the Circuit Court the case was dismissed :for want of jurisdiction in that court.</p> <p>1. The writ of certiorari is a common-law remedy, independent of our statutes, and is in all cases a proper remedy for having the judgments of inferior tribunals revised and corrected. 3 Bouv. Inst. 557-559. Where no mode of appeal is given, it is the remedy. Qouch, ex parte, 14 Art. 499 ; The State v. Stewart, 5 Strobh. 29 ; The People v. Wilkinson, 13 111. 660; Anon. v-. Haywood, 1 Tayl. 302; Street v. Clark, 1 Taylor, 15.</p> <p>2. The corporate authorities of a town of this state have no power to discriminate between those who, by the general law of the state, are required to pay a privilege tax. And when the Legislature has designated the classes to be taxed, a discrimination between these classes by a town becomes obnoxious to the constitutional limitation that ‘ ‘ taxation shall be equal and uniform throughout the state.” 2 Dill, on Mun. Corp., sec. 622; Gilman v.City of Sheboygan, 2 Black, 515-517 ; Mayor and Aldermen of Mobile v. Dargan, 45 Ala. 320. The taxing power of the town is to be strictly construed. Cooley on Tax. 209, 387; 1 Dill, on Mun. Corp., secs.-55, 251, 256, 263, 336, 620.</p> <p>The Constitution of this state does not confer any appellate power upon Circuit Courts. If appellate jurisdiction is not vested in the Circuit Courts by express statute, they are without such jurisdiction. And there is nothing in the laws of the state, or in the Charter of the town of Macon, that vests any appellate jurisdiction in the Circuit Court in this case. If, therefore, no appeal will lie from the Mayor’s Court to the Circuit Court, it is certain that this case being brought by certiorari does not give the latter court jurisdiction to revise the decision of the former. .Nothing was waived by the agreement of the parties, except the petition and fiat for the certiorari. The case was properly dismissed for want of jurisdiction in the Circuit Court.</p>

• Error to the Circuit Court of Lowndes County. • Hon. J. S. Hamm, Judge, specially presiding, by exchange with Hon. J. M. Arnold. Held: according to the Constitution and laws of the state governing elections, and that more than three-fourths of the qualified electors residing in the city voted in favor of the subscription and the issuance of the bonds and coupons,” which the demurrer admits.

Hon. J. M. Smiley, Judge. The plaintiff in error brought an action against the defendant in error, on a bond for the payment of money. The defendant, pleaded (1) the general issue, (2) payment, and (3) the-statute of limitations. The plaintiff took issue on the first and second pleas, and replied to the third. The. defendant, demurred to the replication, and the demurrer was sustained,, with leave to the plaintiff to file an amended replication.

Hon. S. S. Calhoon, Judge. The plaintiffs in error brought their action, on September 16, 1876, against the defendant in error, for rents due on certain premises.

<p>1. Limitation op Actions. Lex loci. Lex fori. The right. The remedy.</p> <p>A statute of limitations of the loei contractus cannot be pleaded in bar in a foreign jurisdiction, where both parties were resident in the loci contractus during the whole statutory time, so as to make the bar complete there, unless such statute go to the extinction of the right itself, and not to the remedy only.</p> <p>2. Same. Common-law rule.</p> <p>The rule of the common law is that the limitation of actions depends on the law of the -forum, and not on the law of the state or country where the contract was made.</p> <p>3. Same. Remedy of contracts.</p> <p>A statutory bar of one state cannot be pleaded in another, where the bar only affects the remedy of the conta'act sued on.</p> <p>4. Same. Right of action.</p> <p>If the right of action on a contract has been extinguished by a statute of limitations in another state, where the parties reside, the courts of this state will give effect to that statute in any suit brought in this state on such contract.</p> <p>5. Pleadings. Demurrer.</p> <p>A demurrer admits all matters of fact well pleaded, but does not admit conclusions of law stated by the pleader.</p> <p>6. Conpidential COMMUNICATIONS. Attorney and client.</p> <p>A statement made to an attorney, in the presence and at the instance of his client, by a third party, is not a confidential communication.</p> <p>7. Practice. Withdrawal of general issue.</p> <p>A withdrawal of the general issue after all the testimony in the case has been heard is a waiver of all right to predicate error on the admission of testimony under that issue.</p> <p>8. Same. Opening and conclusion of argument.</p> <p>The party holding the affirmative of an issue, and upon whom is the burden of proof, has the right to open and conclude the argument to the jury. And the status of the parties cannot be changed by the withdrawal by either party of any pleading in the ease. But a judgment will not be reversed because such, right has been denied, unless the denial thereof has produced a wrong or injustice.</p> <p>9. Same. Argument to jury. Statement of facts not proven.</p> <p>Counsel should not be permitted, in arguments to the jury, to state or comment, on facts not proven. The judge should, suo sponte, interpose and correct any such irregularity, and if he does this in a case, a new trial will not be granted because of such statements and comments made by the counsel of the: prevailing party.</p>

Hon. J. M. Arnold, Judge, specially presiding, by exchange with Hon. J. S. Hamm. The ease is stated in the opinion of the court. . The only power possessed.by the Boards of Supervisors, in January, 1871, to employ special counsel, was that conferred by article 35, page 420, of the Code of 1857. This provision had reference to cases in court and ¿o legal proceedings.

Hon. A. Gi. Mayers, Judge. This action was brought by the plaintiff in error against the-•defendant in error, to recover the amount of a claim which the Board of Supervisors of Lawrence County had refused to .allow. On the trial the plaintiff’s attorney proposed to prove by two witnesses, H. C. Conn and B. Or.

Hon. E. P. Harman, Chancellor. In 1861, Harvey Miller died, leaving a considerable real and personal estate, and Edward P. Johnson qualified, in the Probate Court, as executor of his last will and testament. On July 26, 1869, the executor filed a petition in the Probate ■Court, to have the estate of the testator declared insolvent, and to have the lands sold to pay the debts.

<p>Appeal from.tbe Chancery Court of Lincoln County.</p> <p>Hon. Thomas Y. Berry, Chancellor.</p> <p>Jesse Warren, the appellee, as guardian, obtained an order of the Chancery Court, on February 1, 1872, authorizing and directing him to sell certain lands belonging to his wards. He sold the land on April 6,1872, to Joshua Williamson, now deceased, but who was then the husband of the appellant M. A. Williamson, and the father of the other appellants. Only ¡a part of the purchase-money was paid at the time of the sale, and the purchaser having failed to pay the balance when due, Warren, as guardian, filed his bill on November 29, 1876, to subject the land to the payment of the balance of the purchase-money, under the statutory lien. The appellants, as-defendants below, filed an answer and cross-bill. The complainant demurred to the cross-bill, and the demurrer was sustained and the cross-bill dismissed. And on final hearing-the court ordered the land to be sold to pay the balance of the-purchase-money due on the guardian’s sale. The points-assigned for error appear in the opinion of the court.</p> <p>1. The fact that the sale of the land was not made at the-door of the court-house of the county is alone sufficient to-render the sale void. Section 1038 of the Code of 1871 pror vides that ‘ ‘ sales of land ordered by a decree of any court of chancery shall be made on a credit of six months from the-day of sale, unless otherwise ordered by the court, and at-such place and on such notice as may be directed in the decree p and if no direction shall be given, then at such place and on such notice as is required in case of sales under executions at law.” No place for the sale was named in the decree ; and it should, therefore, have been made at the court-house, as required in execution sales. The law is imperative. As the cross-bill shows, the sale in this case was made at the railroad depot. It was, therefore, invalid, and conveyed no title, as-was held in the case of Warren, Guardian, v. Reddy, Opinion Book F, 78, which has been followed in Johnson v. Jones, 51 Miss. 867. See, also, Knox v. Bridges, 45 Miss. 247.</p> <p>2. The petition for the sale of the land was not sworn to. The statute requires that it shall be verified by oath. Code-1871, sec. 1221.</p> <p>3. No day was appointed by the court for hearing the petition of the guardian for the sale of the land. This was necessary. Code 1871, sec. 1221.</p> <p>1. The case of Knox v. Bridges, 45 Miss. 247, to the effect, that execution sales must be made at the court-house of the-county, has no application to judicial sales. It is claimed that', this question was settled in Warren v. Reddy, Opinion Book F, 78, but this court has held that that case was upon a wrong application of principles, and it is in part, at least, overruled. Johnson v. Jones, 51 Miss. 860. The truth is that a wrong-application of principles pervades the whole case of Warren v. Reddy, supra, and I- respectfully ask the court to reconsider the case. The case of Johnson v. Jones, 51 Miss. 860,, is not authority in this case, because the question for solution, here was not before the court there." »</p> <p>Section 1038 of the Code of 1871 has reference alone to-chancery sales proper, and has no application in probate proceedings. Section 1221 of the Code of 1871 prescribes what shall be contained in a decree authorizing a guardian’s sale of' land, and it does not require the place of sale to be stated, and section 1222 requires the report to show the place where-the sale was made. The two sections together leave it to the-guardian to select the place of sale — his action, of course, being subject to approval or disapproval by the court. Probate law is not administered according to the chancery practice, but according to the formulas laid down in the statutes, for probate business. Wells v. Smith, 44 Miss. 297 ; Saxon v. Ames, 47 Miss. 565.</p> <p>2. The failure of the court to appoint a day for the hearing-of the petition was at most a mere irregularity, and cannot amount to more than mere error. For this reason the decree-cannot be collaterally attacked. The court had jurisdiction of the subject-matter and of the persons, and its decree is; final and conclusive till reversed.</p>

Hon. S. S. Calhoon, Judge, specially presiding, by exchange with Hon. J. S. Hamm. • Gary, Hudson & Co. brought an action against G. Jacobson on a check or draft given by him to one Carter, and by the-latter transferred to the plaintiffs in error. It was given in payment for goods sold and delivered by Carter to the defendant, and which were in the possession of the latter when the-action was instituted, and so remained.

Hon. J. M. Arnold, Judge. This was an action of replevin by the plaintiff in error -against the defendants in error, to recover the possession of 130 bushels of corn. The plaintiff was a constable, and claimed that he had levied on the corn under an execution in favor of Beckett & Little against Monroe Staggs, and had -sold the same, but that, before delivery to the buyer, the ■corn had been taken out. of his possession.

Hon. J. M. Smiley, Judge. This was an action of replevin by the defendant in error against the plaintiff in error. The defendant below filed two pleas one, “ not guilty,” and the other, a special plea. The plaintiff then made a motion for a judgment, on the ground that the defendant had pleaded two pleas which could not be joined in law. The motion was sustained, and judgment rendered for the plaintiff.

Hon. W. B. Cunningham, Judge. On October 21, 1865, W. M. Fowler sued out an attachment against George A. Ross, upon the ground that he was “anon-resident of the state of Mississippi.” The writ was levied on lands of the defendant, and one Brittain L. Prichard, as executor, was summoned as garnishee. Fowler having died, E. J. Bowers, the plaintiff in error, became administrator of his estate, and continued the suit.

Hon. Samuel Powell, Judge, specially presiding’, by ex-change with Hon. J. W. C. Watson. Held: if there were errors in law • committed by the court, a third new trial might be granted. Garnettv. Kirkman, 4 Geo. 389 ; Raysv. McGlary, 4 Cushm. 404; 7 Cushm. 143-156. These errors, however, can be brought to the attention of the court only by special bill of exceptions.

Hon. J. M. Arnold, Judge. This action was brought in a justice’s court, upon a promissory note. Judgment was rendered for the plaintiff, andan appeal was taken to the Circuit Court. There were no written pleadings in the case, but in the trial the plaintiff stated his case, and the defendants their defense, orally.

Hon. J. M. Arnold, Judge. Joseph Holster brought an action against Charles Kramer, before a justice of the peace, and on August 27, 1872, a judgment was rendered for the defendant. On September 3, 1872, Holster appealed to the Circuit Court; and in December, 1872, that court rendered a judgment against Kramer for $104.30. On April 13, 1876, an execution was issued on the judgment.

Hon. J. A. Green, Judge. A judgment, was rendered in favor of the defendants in error against the plaintiffs in error, by a justice of the peace, upon a scire facias to revive a former judgment, because no execution had been issued thereon within a year and a day from its rendition. From this judgment of revival an appeal was taken to the Circuit Court, where the judgment of the lower court was affirmed. Thereupon a writ of error was sued out from this court. 1.

<p>Error to the Circuit Court of Choctaw County.</p> <p>Hon. William Cothran, Judge.</p> <p>A statement of the case appears in the opinion of the courts</p> <p>1. It was error in the Circuit Court to proceed to judgment, because the action was instituted in the partnership name off the plaintiffs. Parties cannot sue or be sued in their partnership name. Blackwell v. JReicl & Go., 41 Miss. 102.</p> <p>When the action is brought in the Circuit Court, the objection may be raised by the defendant on demurrer to the plaintiff’s declaration. But in a justice’s court the plaintiff’s claim is made by “lodging with the justice the evidence of" debt,” and having a summons issued. The pleadings on the part of the defendant, except when he has a claim or demand against the plaintiff, are oral, and he can plead payment, statute of limitations, or any other matter orally, and make any defense of law or fact without written pleadings.. Therefore the failure of the plaintiffs in error to file a written. •demurrer does not prevent this court from reversing the judgment. A defendant in a justice’s court, or in the Circuit Court •on appeal, is not required to make his demurrer matter of ■.record, and is not affected by section 622 of the Code of 1871.</p> <p>2. The judgment is irregular and voidable because it does not describe the parties plaintiff with sufficient certainty. Rhea v. Rawlings, 3 Cranch C. Ct. 256. In that case a judgment in favor of “Rawlings & Son” was held to be bad. .See, also, Barney v. The Corporation, 1 Cranch C. Ct. 248 ; Ordinary v. McClure, 1 Bailey, 7; Stowers v. Milledge, 1 Towa, 150; Barrett v. Gornigan, 16 Iowa, 47; Church v. Crossman, 41 Iowa, 373; Tornbeckbee Bank v. Strong’s Rxecutors, 1 Stew. & P. 187.</p> <p>A judgment cannot be pleaded as a bar to a second recovery unless there be an identity of parties. Freem. on Judge, sec. 252. There can be no estoppel by judgment unless both parties can be bound thereby. Its operation must be mutual. .Ib., sec. 159. If the defendants below had recovered judgment on their off-set against “Kittrell & Purnell,” the latter would not have been bound thereby, and the plaintiffs below •cannot be benefited by any judgment which would not have ‘bound them if it had gone against them.</p> <p>For these errors the judgment should be reversed.</p>

Hon. Thomas Y. Beeey, Chancellor. Ill the year 1865 Joseph Dunbar conveyed to his wife, Celeste Dunbar, and his children, Willis, Joseph O., Kate, and Sallie F. Dunbar, a certain tract of land known… Held: on a bill brought to relieve against fraud of defendants who would avoid plaintiff’s title by an elder settlement, but never gave notice of their title,to the purchaser, that the defendants were estopped.

Hon. J. N. Campbell, Chancellor. The casé is stated in the opinion of the court. The appellant is not bound by the sale to Bryant, unless by his conduct he is estopped from setting up his title to the land.

Appeal, and Cross-appeal, from the Chancery Court of Monroe County. Hon. L. Houghton, Chancellor. The appellees, who are residuary legatees under the will of ¡Stephen S. Ewing, deceased, exhibited their bill of complaint .against W. W. Troup and Thomas Ewing, the executors, Susan Troup, a. daughter of the testator and present wife of AY.

Hon. E. G. Peyton, Chancellor. The bill in this case was filed by the appellees to' enforce-the vendor’s lien on a tract of land sold by their father, Silas-Pittman, in 1857, for the payment of a note for $1,000, which represented the balance of the purchase-money unpaid. Silas-Pittman died in 1859, and the administratrix of his estate failed to collect the note, and allowed it to become barred, as-to her, by the statute of limitations.

Hon. E. G. Peyton, Chancellor. The case is stated in the opinion of the court, 1. Prentiss Buie and Blue and wife are not proper parties to-this proceeding, because not within the terms of section 976 of the Code of 1871. This bill, if against executors and the sureties on their bonds only, would be within said statutes, and maintainable, if brought in the proper county, under the decision in Duncan v. BanJc of Mississippi, 52 Miss. 740.

Hon. George Wood, Chancellor. The case is stated in the opinion of the court. 1. It was error in the Chancery Court to retain the cross-bill after the appellant had dismissed the original bill. A complainant may dismiss his own bill as a matter of course. 1 Dan. Ch. Pr. 795. The dismissal of the original bill carries with it the cross-bill. Belcher v. Wilkerson, 54 Miss. 667 ; Jacks et al. v. Brideioell, 51 Miss. 881; Thomass'on v. Neely, 50 Miss. 310.

<p>Appeal from the Chancery Court of Washington County.</p> <p>Hon. E. Stafford, Chancellor.</p> <p>The case is stated in the opinion of the court.</p> <p>1. The order appointing the receiver directed him to “ take possession of the stock and business ” of the partnership. He was not directed to continue or carry on the business of the firm. The proceedings against him were, therefore, improper. He was not liable to account for speculative profits which he might have made, but did not in fact make.</p> <p>2. The partnership was practically dissolved by the appointment of the receiver. A decree of dissolution should have been rendered, and an account ordered to be taken between the partners on well-recognized principles, so that something like justice should be done.</p> <p>1. In a very short time after the receiver took possession of the saloon and its contents, the court made an order for restitution thereof, which the receiver persistently disobeyed. He voluntarily proceeded, however, to carry on the business with the property and its proceeds under his charge, and under the firm’s revenue license, for the period of six months, as fully proven and not denied. He should, therefore, be held to account for the actual profits made, as any trustee or other fiduciary would be compelled to do, who makes a profit from his trust fund. Story’s Eq. Jur. 1277 a.</p> <p>■ 2. The court below, by two citations and one or two attachments against the receiver, at several successive terms of court, sought to compel him to report, and discover the profits he had made, which from first to last he refused to do. The apqiellee was, therefore, permitted to prove the profits he made by the only practicable means, viz., by showing what a prudent man could and would have made in the business on the capital in the receiver’s possession, for the time he so used it. This was done, and the commissioner’s report duly made and confirmed, and ought to be sustained, as there is no complaint of the fairness of the result upon the evidence.</p>

Hon. A. E. Reynolds, Chancellor. The appellant, on July 20, 1870, filed his bill in chancery for a perpetual injunction against a judgment for $1,510.95, recovered against him by default, on March 11, 1861. The judgment was founded on a note given by Miller for lands purchased by him at a sale made by the appellee as administrator of the estate of John L. Walker, deceased. The sale was made in 1860, under an order of the Probate Court.

Hon. J. W. C. Watson, Judge. George B. Myers, the circuit clerk of Marshall County, made a motion in the Circuit Court of said county, at the April term, for the allowance of an account presented by him for services which he, as clerk, had rendered in state cases at the October term, 1876, and the April term, 1877, of said court, wherein the state failed in the prosecution, and wherein the defendants, upon conviction, were unable to pay the costs.

Hon. L. Brame, Chancellor. The case is stated in the opinion of the court. 1. A fatal defect in the mortgage is that it is made to the “ firm of Pinson, Dillard & Co.” “A grant to L. B. & Co. vests the title in L. B. alone. Winter v. Stock, 29 Cal. 411; Gossett v. Kent, 19 Ark. 607 ; Arthur v. Weston, 22 Mo. 370 ; Jackson v. Sisson, 2 Johns.

<p>Appeal from the Chancery Court of Pike County.</p> <p>Hon. E. G. Peyton, Chancellor.</p> <p>The case is stated in the opinion of the court.</p> <p>1. The parol evidence of E. S. Newman cannot avail him to contradict the consideration recited in the deed, nor to set up a different contract than that recited in the deed. Hughes v. Daniel, Walk. 488; Young v. Jocoway, 9 Smed. '& M. 212 ; Bradly v. Garter, 4 Cushm. 282; Bilis v. Kelly, 4 Geo. 685 ; Herndon v. Herndon, 41 Miss. 584 ; Kerr v. Kuykendall, 44 Miss. 137. Although Newman states in his answer that the recital in the deed, as to the consideration thereof, was made by mistake of the draftsman, yet he does not seek to reform the deed. The rule in such a case is that the deed must have its legal effect as written, and is the exclusive evidence between the parties. Eskridge v. Eskridge, 51 Miss. 522. The grantee in the deed, and all persons holding under him, are bound by its recitals. Robbins v. McMillan, 26 Miss. 438.</p> <p>2. An implied trust arises nut of the deed in this case, of which J. M. Newman is the grantor, R. S. Newman the trustee, M. E. S. Lee the beneficiary, and the laud described in the deed is the fund. Lewin on Tr. 140, note 1. J. M. Newman, having a debt due him from R. S. Newman, on a legal consideration, by this deed assigned it to Lee. This in equity amounts to an assignment of the debt to Lee, and it will be enforced in equity. A trust is thus created in favor of Lee, as the equitable assignee of the fund, and constitutes an equitable lien upon it. 2 Story’s Eq. Jur., secs. 973, 1044; Perry on Tr., sec. 585 ; Lucas v. Lockhart, 10 Smed. & M. 466 ; Norman v. Burnet, 3 Cushm. 183.</p> <p>3. The words on the face of the deed from J. M. Newman to R. S. Newman carry a plain and unequivocal meaning, which gives a lien on the trust conveyed for the security of the purchase-money to be paid to Lee. In legal effect the deed has the same import as though it reserved a lien in the face of the deed, which it does for the security of the purchase-money, and R. S. Newman had given his promissory note to J, W. Newman for the amount stated, which the latter assigned and transferred to Lee. The deed, in expressing the amount assumed to be paid by R. S. Newman to Lee, refers only to the trust deed to identify the debt, the assumed payrnent of which by E. S. Newman constitutes the consideration of the conveyance, and is a “lien and incumbrance on the property, hereinafter conveyed.” J. W. Newman, as between himself and E. S. Newman, had a lien on the land for the unpaid purchase-money, but the express reservation of the Hen on the face of the deed created an equitable mortgage, which passed with the assignment of the purchase-money to Lee. Stratton v. Gold, 40 Miss. 778 ; Harvey v.- Kelly, 41 Miss. 490. This can be as readily enforced in equity as any other equitable mortgage.</p> <p>4. But without this express lien in the face of the deed, amounting to an equitable mortgage, if the facts disclose, as they clearly do in this case, that the land was conveyed by John M. Newman, as a means of applying the purchase-money, through the purchaser, to the payment of Lee’s debt, equity lays hold of the conscience of E. S. Newman and' creates a lien as against him and third persons who are either volunteers or have notice of such equity. Story’s Eq. Jur., sec. 1231; Thompson v. Wheatly, 6 Smed. & M. 499. The doctrine extends to a purchaser of property charged with the payment of a specific debt, and before he can hold such property exempt from the trust he must see that the purchase-money is applied to the payment of the specific debt. Story’s Eq. Jur., sec. 1127, and note 1; Murry v. Ballon, 1 Johns. Ch. 556. 'On this ground proceeds the doctrine of trusts in invitum and constructive' frauds. Where a party purchases trust property, knowing it to be such, violating the object of the trust, courts of equity force the trust upon the conscience of the guilty party, and compel him to perform it, and to hold the property subject to it, in the same manner as the trustee himself held it. 1 Story Eq. Jur., secs. 395-397.</p> <p>5. Garner & Tennison purchased property held by E. S. Newman under the deed from J. M. Newman, after the deed had been recorded, and before Lee’s debt had been paid. That deed recited the trust charged on the land, and they are chargeable with notice of the contents of the deed. • 1 Story’s Eq. Jur., sec. 400 ; Gordon v. Sizer, 10 Geo. 805 ; Martin v. Nash, 2 Geo. 324.</p> <p>The language of the deed is to be closely considered; for, unless the intention clearly appear to charge the estate con- ■ veyed to 11. S. Newman with a lien, the court will not presume that it existed. Lee held an old deed in trust on a comparatively small .part of the lots conveyed, and the grantor conveyed subject to this lien of Lee’s. Nothing more, was intended, as expressed in the deed. No ingenuity can distort or alter the manifest intention gathered from the writing. In cases of implied trusts, the intention to create the trust .must clearly appear; a strained construction will not do.</p> <p>• The deed in trust to Lee existed in May, 1868 ; the deed from J. M. Newman to R. S. Newman was made in October, 1869, over' a year afterwards. The record nowhere discloses that it was ever J. M. Newman’s intention to give other security than that given at first. There is nothing to show that Lee ever had any right to expect it, or that he did.expect it. Le.e’s own testimony goes no further than the assertion that J. M. Newman spoke of settling the debt by absolute conveyance of lots. The testimony of R. S. Newman shows that it was never intended or contemplated by the .parties to the deed, that a lien should exist on any other part.of the property than that already included in Lee’s déed in trust. In fact, he shows that all of the money was paid to J. M. Newman, except $600, which was afterwards paid to Lee by special agreement between the Newmans, father and son.</p> <p>The lot claimed by Garner & Tennison is not mentioned in. the deed in trust from J. M. Newman to Whitney, as trustee for Lee, and the ground upon which Lee predicates his claim to this lot is the following language in the deed from J. M. Newman to R. S. Newman, in reference to the consideration thereof: ‘ ‘ Two thousand nine hundred and seventy-five dollars and twenty-eight cents assumed to be paid to M. E. S. ■ Lee, in satisfaction of a deed in trust for the last-mentioned sum, which said deed is a lien and incumbrance on the property hereinafter conveyed.” This language of the grantor cannot be construed to mean any other lien than that which is created by the trust deed of J. M. Newman to Whitney, as trustee for Lee. And more especially should that construction be given to it when the rights of purchasers for value and in good faith are involved. Garner & Tennison, in their answer, deny that they had actual notice of the deed in trust from J. M. Newman to Whitney, as trustee for Lee, or of the deed from J. M. to E. S. Newman, and state that they had no notice except such as is implied from the registration of the deeds mentioned. There is no case which goes to the length of saying that the failure of the utmost circumspection shall have the same effect of postponing a party as if he were guilty of fraud or willful neglect, or had positive notice. And although a mistake of law upon the construction' of a deed or a contract will not alone discharge the purchaser from the legal effect of notice of such deed or contract,,yet there may be a case of such doubtful equity, under the circumstances, that it ought not be enforced against such purchaser. 1 Story’s Eq. Jur., ed. 1866, sec. 400, and cases there cited.</p>

Hon. E. G. Peyton, Chancellor. The case is stated in the opinion of the court. Marx had actual and constructive notice that Martin held a deed in trust on all the live stock which Jackson might own during the year in which the roan horse was traded for the bay. Martin’s deed in trust was good as to personal property and stock which Jackson acquired during that year. Sellers v. Lester, 48 Miss. 513.

Motion to retax costs, on the ground that the appellees, to whom the costs had been taxed on reversal of the judgment, being the complainants below, and having sued in forma pauperis, should not be taxed with the costs.

Hon. R. S. Stith, Special Judge, by agreement. of the parties, Hon. J. W. C. Watson being disqualified.

<p>Vendor’s Lien. Sow enforced where purchase-money due in installments.</p> <p>Where the purchase-money of land is made payable in several installments» evidenced by promissory notes due at different times, the vendor, being the holder of the notes, may enforce his lien against the land when one or more of such notes have become due, for the payment thereof, without waiting till all of the notes have matured.</p>

Hon. R. S. Stiti-i, Special Judge, by agreement of parties, Hon. J. W. C. Watson having been of counsel for the plaintiff below. Held: in Garner v. Jones, 34 Miss. 505, that mesne profits and damages could be sued for and obtained in an action of ejectment. Since Garner v. Jones, supra, it has been the uniform tendency of this court to give more scope to the remedy afforded by ejectment. Nixon et al. v. Porter et al., 38 Miss. 401; Learned v. Gorbey, 43 Miss. 687.

Hon. A. Gf. Mayers, Judge. The plaintiff in error, James R. Fortenberry, was indicted for the murder of John N. Haddox. - The copy of the indictment furnished the accused charged James “ B.” Fortenberry with the murder of John N. Haddox; to which was attached the clerk’s'certificate stating that it was a correct copy of the indictment against James “ B.” Fortenberry for the murder of “Robt.”,N. Haddox.

Hon. S. S. Calhoon, Judge. Harry Smith, the plaintiff in error, was indicted in the Circuit Court of Hinds county, for the murder of Jourdan Cash. His case was called for trial at the August term, 1876.

Hon. J. A. Green, Judge. A statement of the case will be found in the opinion of the court. 1. Where manifest injustice has been done in refusing a continuance, the appellate court should interfere, and not permit a citizen to be deprived of his liberty without a fair trial. McDaniel v. The State, 8 Smed. & M. 414; 5 Humph. 568; 2 Ya. Cas. 849 ; 10 Leigh, 692; 4 Humph. 202.

Hon. J. M. Smiley, Judge. . The plaintiff in error was tried .upon an indictment charging that he, “ with force and arms, a certain house, commonly called a corn-crib, in which was then and there kept for use and safety corn and other valuable things of one T. T. Mead, there situate, feloniously and burglariously did break and enter, with intent then and there the goods and chattels of the said Mead, in said corn-crib then and there being, then and there feloniously and…

Hon. J. W. C. Watson, Judge. The case is stated in the opinion of the court. 1. A calm consideration of the testimony offered by the defense, and excluded, will, it is confidently believed, satisfy any one that Holly was fully justified in self-defense to do what he did. May one ever anticipate his enemy, and kill him? Yes, if necessary to protect himself under the circumstances. Long v. The State, 52 Miss. 26-38. 2.

Hon. J. M. Arnold, Judge. The plaintiff in error was indicted, in Clay County, for the larceny of a number of cattle of the aggregate value of $95. He was tried and convicted, and made a motion for a new trial, which was overruled, and this writ of error sued out. The facts proven are stated in the opinion of the court.

Hon. J. M. Arnold, Judge. The plaintiff in error was indicted for the larceny of a hog of the value of $12, the property of “Margaret Majors.” Upon the trial the evidence disclosed the fact that ‘ ‘ Clark Majors ” was the owner of the hog stolen, and the court ordered the indictment amended to correspond with the proof. The amendment • was accordingly made, and the accused excepted. 1. The statutes of amendment and jeofails do not apply to indictments. Bouv. L. Die. 2.

Hon. J. W. C. Watson, Judge. The plaintiff in error was indicted for the murder of William ■S. Chambers. Held: so far as our l’esearehes have extended.

Hon. A. G\ Mayers, Judge. Ennis Harrison, having been indicted for an' assault with intent to kill and murder, entered into a recognizance, with sureties for his appearance to answer the charge.. He forfeited his recognizance, and, after a judgment nisi and the issuance of a scire facias, a iinal judgment was rendered against him and his sureties. Thereupon S. M. Tucker, one of the sureT ties on the recognizance, sued out a writ of error.

Hon. J. M. Smiley, Judge. The plaintiff in error was tried upon an indictment for murder, and the jury returned a general verdict of guilty. Tbe third instruction given for the state was as follows : “ If the jury, from the evidence, should find the defendant guilty, and such should be their verdict, then they may, if they think proper, adjudge the penalty to be imprisonment for life in the penitentiary.

Hon. L. Brame, Chancellor. A statement of the case will be found in the opinion of the court. 1. Gallagher is not a bona-fide holder of the note without notice of the equities between the previous parties to the instrument; for he took it after maturity, and, being a dishonored note, he takes it subject to all the equities existing Between the prior parties, and with no better right than his immediate indorser had. 2.

Hon. Upton M. Young-, Judge. The case is stated in the opinion of the court. 1. The first question presented is whether the unsworn certificate by the notary public, of his proceedings on protest of the note, was properly received in evidence.

Hon. L. C. Balch, Special Judge, by agreement of parties, Hon. J. W. C. Watson being disqualified. In 1872 the defendant in error cut a ditch, by which, it is-alleged, the flow of the waters of a certain creek called Carr’s Creek was diverted from his own land and thrown upon an adjoining plantation, then belonging to the estate of Robert Lusk, deceased, but which the plaintiff in error bought in June, 1873.

Hon. S. S. Calhoon, Judge. W. Gr. Myers brought this action against the Planters’ Insurance Company, to recover upon a policy of insurance issued by that company, insuring certain property against loss or damage by fire. The property insured and destroyed by fire was a gin-house and machinery attached, cotton-press, grist-mill, and cotton and cotton-seed. The application for insurance was made on a printed form, furnished by the insurance company.

<p>Error to the Circuit Court of Nankin County.</p> <p>Hon. A. Gr. Maters, Judge.</p> <p>The plaintiff in error was convicted of obtaining goods under false pretenses, from Busick, Stevens & Co., merchants, of the town of Brandon, in Bautin County. On the trial, S. J. Mosely was presented for a juror, and, after being examined and pronounced competent by the court, he was accepted by the defendant. But after this the court reexamined him and' ordered him to stand asidé. B. H. McKinney, a merchant of the town of Morton, in Scott County, testified that the defendant had bought goods from him on August 8, 1876, and the itemized account of the defendant with the witness was introduced in evidence. The other facts in the case are stated in the opinion of the court.</p> <p>1. The juror Mosely was improperly ordered from the jury by the court. He had been examined fully by the court touching his competency, pronounced competent, and (the state having exhausted their peremptory challenges) was accepted as a juror by the defendant. He was finally made to stand aside, after much and rigid examination, not as to his competency, but as to whether he desired to claim the privilege granted him by the statute, of claiming his exemption. He had repeatedly stated to the court that, while his age would excuse him as a juror, he was willing to serve in that capacity, and not until the court had announced the astounding explanation of this statute, that “his desire to attend to his private business” amounted to claiming his exemption, was he made to claim his exemption from service. The defendant had accepted him as a juror, and was entitled to his services. While we understand and know it to be the duty of the court to see that a fair and impartial jury is impaneled, we are not prepared to believe that this court will uphold a resort to such extreme measures as this to deprive the defense of a juror previously declared competent by the court, and taken by the defendant. He had not formed or expressed an opinion, was no minister of the gospel, was under no such obligation as- would render him incompetent, was not in the courtroom when summoned, had not come to town expecting to serve as a juror,' and had heard nothing of the facts of the case. As a matter of right, the defendant was entitled to the services of this juror, and we believe this court will so hold.</p> <p>2. The itemized account of McKinney, of Scott County, certainly should not have gone to the jury as evidence, except' to show that the defendant was indebted elsewhere at the time of the purchase from Busick, Stevens & Co. An account-with McKinney, running through the entire year, is read as-evidence of the defendant’s intention to defraud Busick, Stevens & Co., and the court, in the fifth instruction for the state, instructs the jury that such purchases as the account shows to have been made were a “badge of fraud.” This was clearly erroneous.</p> <p>3. We call the especial attention of the court .to the instructions asked by the defendant and-refused by the court; they propound the law as declared by the law-writers, and should have been granted.</p> <p>The first instruction was eminently proper, as developed by the testimony of Busick — that he agreed or contracted with, the defendant to sell him goods during the year. The goods were purchased in pursuance of the agreement or contract.</p> <p>2 Ld. Cr. Cas. 165.</p> <p>The second instruction was undoubtedly proper. It is settled beyond dispute that the pretense must be the decisive cause of the transfer of the goods. The People v. Jacobs, 3 Law & Eq. Rep. 164 ; 2 Bishop’s Cr. Law, 437 ; 3 Law & Eq. Rep. 386 ; Roscoe’s Cr. Ev. 470, 472; 3 Hawks, 620; 4 Pick. 177 ; 11 Wend. 557.</p> <p>The fifth instruction was improperly refused. The prosecutor must use common or ordinary prudence. Where there is any degree of culpability, or complicity, on the part of prosecutor, he cannot sustain the prosecution. 2 Whart. Cr. Law, sec. 2132. Busick was a partner of McKinney, and had ample opportunity to ascertain whether the defendant was indebted to McKinney, and could have inquired as to the condition of the defendant’s crop.</p> <p>Defendant’s tenth instruction should have been given. _Bu■sick, in Ms testimony, stated that he would have sold the defendant goods, even if defendant had told him that he was indebted in a small amount elsewhere, provided he was not ■owing a merchant; thereby showing beyond a doubt that he ■did not rely on the only false pretense charged in the indictment, to wit, “ that he was not indebted, except $20 in Trenton,” etc.</p> <p>The eleventh instruction asked for defendant, and refused by the court, propounds the law correctly, and should have been given. Roscoe’s Cr. Ev. 472.</p> <p>The statute, as we take it, is intended to punish a criminal offense, and not to be used as an engine for the collection of debts, however just. To suffer it to be used for that purpose would necessarily lead to great injustice and oppression.</p> <p>The testimony of Busick shows that nothing ivas thought of this criminal prosecution until immediately after he had received a notice of defendant’s bankruptcy. We contend there is nothing in the testimony to show a criminal intention on the part of defendant at the time of purchasing the goods, or afterwards ; besides this, we think it clear that Busick did not rely upon'anything else in the sale of his goods, except that defendant would make sufficient cotton to pay him. To here use the language of a distinguished judge, “The term ‘ false pretense ’ is of great latitude, and may be made to ■embrace any and every false representation, made by a party fraudulently obtaining property from another, which a prosecutor Avill swear has induced him to part with his goods. Is this act to have a range so wide and sweeping as this, or is it to be limited in its operation ? Although in ethics every misrepresentation is morally wrong, yet if so severe a standard of conduct is to be introduced into our Criminal Code, it is plainly to be seen that breach of contract and crime will scarcely be divided by an appreciable line, and that criminal tribunals will be employed in punishing infamously acts which have heretofore been understood as creating only civil liabilities.”</p> <p>The motion for a new trial should have been granted.</p> <p>1. The proof makes out a clear case, according to the authorities. “ The rule may be broadly stated that any designed misrepresentation of the defendant’s means, by which he obtains goods of another, is within the statute.” Whart. Cr. Law, sec. 2085. “A misrepresentation as to defendant’s means is within the statute.” Ib., sec. 2086 et seq. “ Though there is a promise connected with the pretense of an existing fact, this promise does not take the case out of the statute.” 2-Bishop’s Cr. Law, sec. 424.</p> <p>“While each particular pretense in which conviction is sought must be negatived, it is not necessary to negative all the pretenses. Any one proved and negatived is sufficient to-convict.” Whart. Cr. Law, sec. 2111. “If there be, however, the false statement of an existing fact, the adding to this of false promises does not take the case out of the statute. And this holds, even though the prosecutor would not-have jdelded to the pretense without the promise.” Ib., sec. 2119.</p> <p>“ It is not necessary to a conviction that false pretenses should be the sole inducement by which the property m question is parted with ; if they have a controlling influence, it is enough, although other minor considerations operate upon the mind of the party. And this is true even though the prosecutor would not have surrendered the goods solely on the pretense alleged.” Ib., sec. 2121. “ It matters not that by-investigation the falsity of the pretenses might have been discovered ; it is sufficient if they were believed and relied on.” Ib., sec. 2128 et seq. Tested by these rules, we find the-case fully made out.</p> <p>The instructions granted declare the law as we have shown it to be ; those refused were not correct statements of the law.</p> <p>2. The continuance asked for was 'properly refused, as it is not shown that any effort had been made to have the witnesses present, by subpoena or otherwise.</p> <p>8. The court properly rejected the juror Mosely, as it is-perfectly manifest that he was not a fair and' impartial juror. If there is reasonable ground for believing that a juror will act under undue influence, it is sufficient ground for the court to set him aside. McGuire’s Case, 8 Geo. 369. And the court has a large discretion in this matter, and its action will not be reversed by this court, except for violation of law or a grossly injudicious exercise of discretion.</p>

Hon. William Cothran, Judge. Elijah A. Mixon, the plaintiff in error, was convicted of the murder of a woman named Joan Hapson. The assignments of error, and the facts necessary to be known, are sufficiently stated in the opinion of the court. 1. The court erred in giving the third instruction for the state. 2.

Hon. William Cothran, Judge. The case is stated in the opinion of the court. The record presents a case of an indictment for unlawfully retailing spirituous liquors to one man, and a conviction, under that indictment, for retailing to another. The accused is indicted for one offense, and convicted of another. There-was no “ misdescription ” of the person to whom the liquors were charged to have been sold.

Hon. S. S. Calhoon, Judge. The plaintiff in error was indicted for murder. The indorsements on the indictment were not made by the clerk of the court nor a deputy, but by a person acting under the directions and in the presence of the clerk. A special venire was issued, but only six of those named in the writ were summoned, and only a few of them appeared at the trial.

Hon. Upton M. Young, Judge. John F. Gavigan, the plaintiff in error, was convicted of the murder of A. E. Murphy, and the penalty fixed by the jury at imprisonment in the penitentiary for life. He made a motion for a new trial, which being overruled, he sued out a writ of error.

Hon. L. Brame, Chancellor. Joab Liddell died leaving a widow, who was his second wife, and one child by his first wife. At the time of his death he was the owner of a horse, some household furnitui’e, and some debts due himself. The widow retained the property ■during her life-time, and after her death her administrators took possession of it.

J. W. Downs, Special Judge, by agreement of the parties, Hon. S. S. Calhoon being disqualified. A. Baldwin & Co. having recovered before E. C. Postell, a justice of the peace of Madison County, a judgment by default against John Hawthorne, an execution was issued thereon, and levied by R. J. Ross, sheriff of Madison County, on a horse.

Hon. Thos. T. Berry, Chancellor. Simon Lehman and E. E. Smiley were doing business in, the name of Lehman & Smiley, agents, and in that character gave their promissory note to Meyer, Weis & Co. The note-not being paid at maturity, the payees brought an action thereon in the Circuit Court, and recovered judgment against Lehman & Smiley, agents, and as individuals. Upon this-judgment an execution was issued, and returned nulla bona.

<p>Error to the Circuit Court of Hinds County.</p> <p>Hon. S. S. Calhoon, Judge.</p> <p>Lucretia Travis, the plaintiff in error, was the widow of B. T. E. Mabry, in 1862, and, being indebted to B. H. Brumby, .gave her note for the amount of the debt. In 1863 she married her present husband, W. W. Travis. Mrs. Travis, having been sued on her note to Brumby, appeared in open court on November 5, 1866, waived the issuance and service of a summons, and with the consent of her husband, who ivas also a defendant, confessed a judgment in favor of the plaintiff for the amount of the note sued on, with interest, to be levied of her goods, chattels, lands, and tenements. The lands of Mrs. Travis were levied on under this judgment, and sold on December 13, 1866. In March, 1877, the plaintiff in error brought this action to recover in ejectment the lands sold under said judgment. The defendants in error claimed title through the purchaser at that sale. It was agreed between the parties that the right of the plaintiff to recover in ■ejectment was dependent upon the validity of the judgment under which the sale was made.</p> <p>1. A feme covert at common law could, in general, dp no act to bind herself. She could make no contract, and might avail herself of her coverture to defeat a contract, even though •she have been guilty of fraud. Keen v. Qoleman, 39 Penn. 299. Her disability — greater than that of an infant — resulted from the matrimonial relation. Martin v. Darlby, 6 Wend. 9, 13. She could not state an accountA)f a debt contracted before marriage, and her promise after marriage to pay such debt would bq absolutely void. Morris v. 'Norfolk, 1 Taun. 212. The High Court of Errors and Appeals said that a married woman has no power whatever to bind herself by contract, and that her separate property could only be reached in equity. Davis v. Foy, 7 Smed. & M. 64. Hence the chancery courts took the jurisdiction to entertain suits against _femes covert, in order to subject their separate estate to the payment of a class of debts ; the proceeding was in rem, to -enforce a guicm’-lieu.</p> <p>The statute goes no further than to enact that the separate property of married women shall be liable for debts contracted before marriage. It does not give to the courts of law capacity to entertain a suit for the recovery of such debts against married women. There was no use for that. The property was bound, notwithstanding the marriage, and the equity courts were open for relief. Code 1859, art. 25, p. 336. It is true, the succeeding section declares that she may be sued, jointly with her husband, on all contracts or other matter for which her individual property is liable, but it would hardly include a case in which the attempt ivas made to reach her property for .an ante-nuptial debt. There the remedy ivas in equity. 46 Miss. 630.</p> <p>2. The declaration in this case alleges that, while sole, Mrs. Travis executed the two promissory notes copied into it, but does not allege that she owned any lands or property at the time of suit brought. That this averment was indispensable lias been repeatedly decided. Pollen v. James, 45 Miss. 132 ; Whitworth v. Carter, 43 Miss. 61; Hardin, v. Phelcm, 41 Miss. 112 ; Choppin v. Harmon, 46 Miss. 306 ; Bank v. Williams, 46 Miss. 627. As said in Carey v. Dixon, 51 Miss. ■595, “If the court awards judgment against a married woman in a, case not authorized by law, such judgment will be .a nullity, and must be treated as. such.” See Griffin v. Hagan, 52 Miss. 80.</p> <p>3. The mere fact that the debt was contracted during widowhood does not alter the principles announced in the cases cited. At common law this debt, upon the marriage, became the debt ■of the husband, and the wife could not be sued for it. The non-liability of the husband, under our statute, is made to depend upon the fact of the wife’s holding separate property. The wife’s liability is not a personal liability ; if she had sepaxate property when she married, and retains it when suit is brought, that property may be subjected to the payment of the debt, by proper proceeding in chancery. She cannot be sued at law while the coverture continues. Beard v. Webb, 2 Bos, & Pul. 93 ; Marshal v. Mutter, 8 Term Rep. 545. In this case there is a personal judgment by confession in open court, and if valid at all, the creditor may follow the married woman all the days of her life, taking, not only the property which she may have held at the time of her marriage, but any which she may have acquired since.</p> <p>4. The confession of judgment is a contract not at all allowed by statute, nor warranted by the common law. Caldwell v, Walters, 18 Pa. St. 79 ; Brittain v. Wilder, 6 Hill, 242 ; Wathins v. Abrahams, 24 N. Y. 72; Stevens v. Dabany, Minor, 379 ; Patton v. Stewart, 19 Ind. 233 ; Sellars v. Kelly f 45 Miss. 323 ; Handy v. Cobb, 44 Miss. 700 : Canby v. Hendricks, 8 Blackf. 189 ; Worlc v. Doyle, 3 Ind. 436.</p> <p>If the judgment against Mrs. Travis, under which the lands-in controversy were sold, was valid, the judgment in this case must be affirmed. We submit that the judgment was valid against Mrs. Travis and against the lands, as it was rendered upon a debt contracted by her dum sola, and was confessed bjr her in open court, with the assent of her husband, also given in open court. This question does not appear ever to have been decided by this court, or the late High Court of Errors and Appeals of this state, although the cases are numerous in which judgments rendered against married women under our statutes have been affirmed as valid ; and we submit that-the decision of this question should be governed by tne rules-established by our statutes, rather than by the common-law rules.</p> <p>Article 25, page 336, of the Code of 1857, among other things, provides that the separate property of any married woman “shall be liable for debts contracted by her before marriage; and the husband shall not be liable for debts contracted by the wife before marriage,” etc. ; and article 258, on page 523 of the same Code, provides that “ any person indebted to another in any sum of money within the jurisdiction of the Circuit Courts of this state, on any promise, agreement, or covenant, may sign an office-confession of judgment in the clerk’s office,” etc.; and article 259, on same page of this Code, provides that at the next term the court shall render judgment thereon, which “ shall be as binding and obligatory as judgments rendered in any other form.” Article 185, page 509 of the same Code, provides that a judgment on confession shall be equal to a release of errors; and article 9, page 563, provides that “ no writ of error shall be granted on a judgment by confession.”</p> <p>These are the only provisions of our statutes which we consider necessary to be considered in the adjudication of this case, as the debts upon which this judgment was confessed were contracted on October 13, 1862, and the judgmeut was confessed on November 1, 1866. We think the language, “Any person indebted to another,” etc., used in article 258, on page 523 of the Code of 1857, is sufficiently broad and comprehensive to embrace a married woman, when confessing a judgment with the assent of her husband.</p> <p>Surely a judgment rendered in the solemn form as the one under consideration should be regarded as valid as would be a judgment by default against a married woman — as a judgment by default, ex necessitate rei, must be regarded as in the nature of a judgment by confession. As our statutes authorize suits at common law against a married woman and her husband, and there is no power in the court to compel her to plead to such suits, it must follow that a valid judgment by default, etc., can be entered against; or, otherwise, the creditor could not enforce a just demand against her so long as she should refuse to plead to his suit. Again, a married woman, jointly with her husband, may submit to arbitration a matter which may result in depriving her of her real estate. - Memphis & Charleston JR. R. Co. v. Scruggs, 50 Miss. 284; 2 Bishop’s Mar. Worn., sec. 381.</p> <p>‘ ‘ Judicial proceedings conducted and entered of record in due form bind the parties to them, whether those parties are capable of binding themselves out of court or not. * * * ‘Married women,’ said Baffin, J., sitting in the North Carolina court, ‘ are bound by judgments at law as much as other persons, with the single exception of judgments allowed by the fraud of the husband in combination with another.’ ” 2 Bishop’s Mar. Worn., sec. 386.</p> <p>In Cannon et al. v. Grantham, 45 Miss. 88, the court say that, as to ante-nuptial debts, the wife’s liability continues during the coverture to the extent that she was liable at the time of her marriage; and whilst no judgment can be rendered against him on such debts, the husband ought to be joined in a suit against the wife on such debt, for conformity, etc.</p>

Upton M. Young, Judge. The defendant below, who is' also the defendant in error, filed a demurrer to the plaintiffs’ declaration, which ivas sustained, and to the judgment thereon the plaintiffs sued out a writ of error. The nature of the action is stated in the opinion of the court. Does the law requiring bond in an injunction suit create a liability which may be enforced in an action on the case, or is the remedy limited to the bond?

' Hon. William Coti-iran, Judge. The case is stated in the opinion of the court. Any person entitled to the immediate possession of property wrongfully detained from him can bring an action of' replevin for its recovery against an officer or a private individual. Moselyv. Anderson, 40 Miss. 49; Freyellv. Whitef 5 Cushm. 201; Lloyd v. Goodwin, 12 Smed. & M. 229 ; Yarborough v. Harper, 3 Cushm. 112; Hopkins v. Drake, 44 Miss. 619; Code 1871, sec. 1528.

Hon. J. S. Hamm, Judge. The case is stated in the opinion of the court. Did the plaintiff adopt the proper remedy ? I maintain that it was his only remedy. The action is brought under section 1582 of the Code of 1871. That statute is very comprehensive.

Hon. George F. Brown, Judge. The defendant in error sued out before a justice of the peace two writs of replevin, for different cattle, described… Held: in Frosch v. Bchlumpt, 2 Texas, 422, that a writ not under seal is void, and exacts no obedience; and that if a party appears and takes exceptions to the writ, it will be quashed ; or, if he does not appear, and judgment goes by default against him, he may assign it as error and obtain a reversal in the Supreme Court. . 2.

Hon. J. M. Smiley, Judge. Hudson, the plaintiff in error, recovered a judgment before a justice of the peace against O’Hara, and the latter carried the case to the. Circuit Court, by certiorari proceedings. The Circuit Court reversed the judgment and granted a trial de novo, which resulted in a verdict for the plaintiff, and the court rendered judgment against the defendant, O’Hara, and M. Nalty, the surety on his bond for certiorari.

Hon. A. G-. Mayers, Judge. The case is stated in the opinion of the court. 1. At the time the money was borrowed and the note upon which this suit is based was executed, Mrs. Stokes ivas a married woman, and the judgment is against her separate estate. The note was given for money borrowed by her husband. The proof shows that the money was used by the husband for his own individual purposes, and not for the benefit of his wife’s separate estate.

Hon. S. S. Calhoon, Judge. The plaintiff in error, as county administrator, became administrator of the estate of W. H. Simmons, deceased. The •estate was declared insolvent, and, by a decree of the court, the lands were ordered to be sold, and a part of them was sold by the administrator to N. N. Wilson, the defendant in error, who gave his promissory notes for a part of the purchase-money.

Hon. J. M. Smiley, Judge. This action was brought against the sureties of John D. Moore, on his bond as tax-collector of Lincoln County, for a failure to pay over county taxes collected by him.

Error-to the Circuit Court of Madison County. Hon. S. S. Calhoon, Judge. This was an action of unlawful detainer, commenced on January 4, 1877, before three justices of the peace, by the defendants in error, to recover possession of a certain tract of laiqd to which they held a deed from the state, executed by the auditor of public accounts on December 26, 1876. The justices gave judgment for the defendant, and the plaintiffs took an appeal to the Circuit Court.

Hon. S. S. Calhoon, Judge. The case is stated in the opinion of the court. 1. A firm is in law distinct from the members who compose it, and a transfer of firm property to pay the individual debts-of a member of the firm is a voluntary conveyance, without any valuable consideration, and is void as to the existing partnership creditors. Stegall v. Coney & Rice, 49 Miss. 761; Williams v. Cage, 49 Miss. 777 ; Bump’s Fr. Conv. 227, 381. 2.

Hon. William Cothran, Judge. The case is stated in the opinion of the court. 1. Admitting that J. H. Mullen had not qualified as guardian at the time the suit was instituted, the letters show that before the term of court to which the summons was returnable he had qualified. And it was the duty of the defendants to have taken advantage of Mullen’s not being guardian, at the institution of the suit, by plea in abatement, or by application to the court at the appearance term.

<p>Error to the Circuit Court of Yazoo County.</p> <p>Hon. S. S. Calhoon, Judge.</p> <p>This action was commenced by W. A. Hanlan, the defendant in error, in 1870, before a justice of the peace, and on January 9, 1871, he obtained judgment. Barkley, the defendant below, appealed to the Circuit Court, but the case was not tried till the November court of 1877, and the defendant and his witnesses were absent. The court refused to have attachments issued for the absent witnesses. The jury returned a verdict for the plaintiff. The defendant moved for anew trial, and, on the hearing of the motion, read in support thereof his affidavit to the effect that on the trial before the justice of the peace he offered to prove that the plaintiff had written him a letter showing the indebtedness of Walker to the plaintiff to be $80, and that subsequently he wrote the letter to Hanlan, agreeing to pay him that amount; that the justice rejected this testimony because the defendant could not produce the plaintiff’s letter, he being unable to find it at that time ; that soon after the trial he found the letter and showed it to-the plaintiff (who had sworn on the trial that he never wrote such letter), and he said he had forgotten that he had written it; and affiant said to him, “ Now, you go and pay the costs of that case, and-dismiss it,” to which the plaintiff nodded assent; and that, although his attorneys say they have written him about his case, he has never received a letter from them till after the trial in the Circuit Court, and he had believed that the case was dismissed. The motion was overruled, and the defendant sued out a writ of error.</p> <p>1. The instrument sued on was a mere guaranty, if anything, and was utterly without consideration to the guarantor. A guaranty of a debt already contracted is not binding unless based on some sufficient consideration besides the mere giving of the original credit to the principal debtor. Barkley’s engagement was a nudum pactum. Walker being a free man, it was not necessary for him to obtain the consent of Hanlan for him to change his employer, even if he did owe Hanlan. And it is only on this ground that it can be claimed that Hanlan suffered any loss or inconvenience on account of Barkle}’s taking Walker with him to the Day-break plantation. Hanlan did not pretend to show that he ever could have made the money out of Walker, if he had not relied on this supposed guaranty.</p> <p>2. The defendant’s affidavit in support of his motion for a new trial shows why he was not present at the trial. He supposed that the case had been long since dismissed. He had received an intimation from Hanlan that the case would be dismissed, and, although his attorneys had written to him on the subject, he had received none of their letters. These facts were before the court when the motion for a new trial was heal’d, and should, along with the other grounds of the motion, have induced the court to grant the motion.</p> <p>1. It is not error to refuse instructions not applicable to the evidence. JSTewman v. Foster, 3 How. 383 ; Loving v: Willis, 4 How. 383. Instructions must be applicable to the evidence, and to the questions raised by it; and if not, they should be refused, though they may be correct as abstract propositions of law. O’ Kelly v. Hendricks, 2 Smed. & M. 388; Wright v. Clark, 5 Ga. 116 ; Fairley v. Fairley, 9 Ga. 280. Hypothetical instructions having no proof to support them should not be given. IHx v. Brown, 41 Miss. 131; Garnett v. Kirk-wood, 4 Ga. 389 ; Glark v. Bdioards, 44 Miss. 778.</p> <p>2. The affidavit of the plaintiff in error fora new trial is entitled to no weight, first, because it is wholly ex parte, without any opportunity to cross-examine or take rebutting proof; second, because the record shows that he was guilty of gross negligence, having appealed his case from the Justice’s Court on January 9, 1871, and the trial not coming on till November term of court, 1877 ; third, because it is improbable upon its face.</p>

Hon. Upton M. Young, Judge. The case is sufficiently stated in the opinion of the court. 1. The court erred in admitting as evidence the order of the Board of Supervisors of Warren County, of July 10, 1875. Section 2334 of Code of 1871 declares that all roads laid out and opened, or hereafter laid out and opened, according to this chapter, shall be deemed public roads or highways.

Hon. E. G. Peyton, Chancellor. In 1872 N. G. Nye sold and conveyed a tract of land to W. A. Stricklin. The latter paid a part of the purchase-money in cash, and gave his note for the balance. Nye reserved a lien in the deed to secure the unpaid purchase-money. In 1872 Stricklin sold the land to J. A. Purvis. The note was not paid at maturity, and in 1873 Nye brought suit thereon and recovered a judgment against Stricklin.

Hon. U. M. Young, Chancellor. The case is fully stated in the opinion, of the court.

<p>1, Sales. What must he done by the seller. ,</p> <p>The rule in regard to sales, that everything which the seller has to do must he done before a sale becomes absolute, should be understood as meaning that everything must be performed which, by the contract, is required as a condition precedent to the sale. The seller may engage to do something in respect of the property, before it passes to the buyer, which the parties do not'mean to be essential, and which need not be done in order to render the sale absolute.</p> <p>H. Same. Compliance with statute of frauds not sufficient.</p> <p>A contract of sale may fulfill the requirements of the statute of frauds, and yet not be sufficiently perfect to transfer property in a thing from one person to another.</p> <p>3. Same. Executory contract. Case in judgment.</p> <p>On November 27, 1875, Sparkman “ bought of Lewis five bales of cotton, weighing 480 pounds each, at 11 cents per pound,” as evidenced by a memorandum in writing, signed by the latter. At that time L. had no cotton baled, or even ginned, but had enough to malee five bales picked out and in a house on his place. It was agreed that L. should haul the seed-cotton to M.’s gin, and, after it was ginned and packed, should haul the bales to Canton. After L. had hauled a portion of the cotton to the gin, and had three bales packed, Smith sued out an attachment against him, and caused it to be levied on the three bales at the gin, and the seed-cotton which had not been moved from L.’s house. Sparkman filed a claimant’s affidavit in the suit, and an issue was formed between him and Smith. The verdict was for the claimant. IS'eld, that the contract between Lewis and Sparkman was executory, and the property in the cotton had not passed to Sparkman when the attachment was levied.</p>

Hon. Upton M. Young, Judge. The plaintiff in error brought an action against the Planters’ Cotton-Press, Storage, and Transfer Association and John A. Klein and W. A. Fairchild, upon a bond reciting the following conditions: “The condition of the above is such that, whereas, in a case pending in the Chancery Court of Warren County, wherein said Planters’ Cotton-Press, Storage, and Transfer Association was complainant, and Milton Coates, cotton-weigher of the city of…

Hon. E. G-. Peyton, Chancellor. The facts appear in the opinion of the court. Two questions are presented by the record for adjudication : 1. Is the complainant, Thomson, a creditor whose debt was existing at the time of the conveyance. 2. Were the conveyances fraudulent?

Hon. Edwin Hill, Chancellor. On June 15, 1874, the appellant, Jefferson Davis, filed his bill against J. H. D. Bowmar and J. D. Smith, as executors of the last will and testament of Joseph E. Davis, deceased, and Joseph D. Mitchell, Mary E. Hamer, William D. Hamer, Margaret Davis, Jefferson Davis, Jr., William Davis, and Varina Davis, devisees and legatees, and B. T. Montgomery, W. T. Montgomery, and Isaiah Montgomery, purchasers of the land which is the subject of the suit.

Hon. E. G. Peyton, Chancellor. Mrs. H. J. Shirley, administratrix of William W. Dunton,. deceased, filed this- petition in the Hinds Chancery Court, in-the matter of the estate of William W. Dunton, alleging that the personal and real estate were insufficient to pay the debts ;: setting out the claims against the estate and the property, real and personal,- of which William W. Duntoii died the owner;: and praying that the estate be declared insolvent and a decree-made for…