Volume 56 — Mississippi Reports

Aureal from the Chancery Court of Hinds County. Hon. E. Gr. PeytoN, Chancellor. Lucy E. Wright and her husband, Hamilton Wright, filed their bill iu chancery against Sarah J. Walton and her husband, Charles A. Walton, for the purpose of subjecting certain lands belonging to Sarah J. Walton to the payment of a debt alleged to be due to Lucy E. Wright.

Hon. S. S. Calhoon, Judge. Gr. W. Summers’ died in 1864, and in 1872 his estate was declared insolvent, and the administrator was directed by an order of the Chancery Court to sell the lands belonging to the estate, for the purpose of paying the debts of the decedent. In pursuance of the order of the court, the administrator sold the lands on the 21st of December, 1872, and R. S. Drone became the purchaser thereof.

Hon. Lafayette Haughton, Chancellor. In December, 1872, Andrew J. Evans was appointed guardian of several minor children of James A. Evans, deceased.

Appear from the Chancery Court of Monroe County. Hon. Lahayette Haugi-iton, Chancellor.

Hon. William Cothran, Judge. On the 5th of April, 1875, the Board of Supervisors of Attala County made an order authorizing S. D. Teague to erect gates across the public road running through his plantation.

Hon. Lafayette Hatjghton, Chancellor. The appellant, who was administrator of the estate of Andrew Perrie, deceased, having exhausted the personal assets of the estate in payment of debts, and there still remaining some debts due by the intestate to John B. Sale and others, filed a bill for the purpose of subjecting the intestate’s realty to the payment of the remaining debts.

Hon. E. Gr. Peyton, Chancellor. The case is stated in the opinion of the court. 1. Removal to Hinds County, and voting there, is an abandonment of the homestead in Copiah, and negatives an intention speedily to return, required by sect. 2144, Code 1871, to preserve the homestead. 2 Pars, on Con. 579, and foot note (2); Hairston v. Hairston, 27 Miss. 704; Alston v. Newcomer, 41 Miss. 192. ' 2. The domicile of the wife follows that of the husband.

Hon. E. Gr. Peyton, Chancellor. The appellant was incorporated by the Legislature on the 13th of April, 1871, with the name of “ The Mississippi Mills,” and for the purpose of manufacturing cotton and woollen fabrics, and all kinds of machinery. The incorporators at once organized, and the corporation proceeded to operate in accordance with the provisions of its charter.

Hon. U. M. Young, Judge. The case is stated in the opinion of the court. The taxes were voluntarily paid by the defendants in error, and cannot be recovered back. May v. Cincinnati, 1 Ohio St. 268 ; Qahaba v. Burnett, 34 Ala. 400. And, the payment being voluntary, it is immaterial that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. Cooley on Tax. 566 ; 12 Wall. 209 ; 48 Me. 440; 15 Mo. 563; 29 Md. 415; 58 Ill. 403; 31 Pa.

Hon. E. Gr. Peyton, Chancellor. Caroline E- Lewis filed her bill in chancery against J. R.. Clymer, J. C. Cameron, Laura Cameron, the wife of J. C. Cameron, Joseph J. Nicholson, Sr., and Joseph J. Nicholson, Jr. • Cameron and his wife were the only defendants served with process at the first term after the filing of the bill. They filed a demurrer to the bill, which was overruled, and they appealed to this court.

Hon. IT. M. Young, Judge. The case is stated in the opinion of the court. 1. Miller had no authority, by virtue of his employment as an attorney to collect the claim against Lowenhaupt, to represent Levy, Simon &Co., in the injunction suit. His authority as their attorney ceased when he had obtained judgment against the garnishees, Bodenheim & Co. Dennis et al. v. McLaurin, 2 G-a. 606 ; Whart. on Ag. 425 ; ib. 375. 2.

<p>Appeal from the Probate Court of Yazoo County.</p> <p>Hon. R..B. Mayes, Judge.</p> <p>In August, 1867, the Probate Court of Yazoo County rendered a decree declaring the estate of James R. Burrus, deceased, insolvent, and authorizing the executor to sell the lands of the decedent to pay his debts. From that decree the heirs of Burrus took an appeal, in October, 1877. The other facts necessary to be stated will be found in the opinion of the court.</p> <p>1. The sheriff’s return shows that the summons was not properly served on the appellants. There is no law for executing process by simply reading it. The return should show that a true copy was delivered. York v. Crawford, 42 Miss. 508; HanJcinv. Dulaney, 43 Miss. 197. If a defendant cannot be found, the sheriff must so declare in his return. Hammond v. Olive, 44 Miss. 543 ; Mullen v. Sparks, 43 Miss. 120; Pordv. Coleman, 41 Miss. 651.</p> <p>2. The Code of 1857 required process to be served on an infant personally. Rev. Code 1857, p. 489; Ingersoll v. Ingersoll, 42 Miss. 162.</p> <p>3. A decree, of the Probate Court on process returned “Executed” is not valid. Miller v. Palmer, 55 Miss. 323.</p> <p>1. Under the Code of 1857, the service of process in proceedings in the Probate Court was governed by the provisions contained in the chapter on “ Probate Court.” The statutes prescribing the mode of service of the process of Circuit Courts had no application to the process of Probate Courts.</p> <p>2. The Code of 1857, which provided a system of Probate Court law complete in every particular, nowhere directed service on an infant. That law required, in proceedings where an infant was concerned, that his general guardian should be served with process, if he had one; but if he had no guardian, or bis guardian was adversely interested, or failed to appear, then that the court should appoint a guardian ad litem to represent the infant. But in no case was it necessary to serve the infant with process. That would .have been merely an idle ceremony. See Winston v. McLendon, 43 Miss. 254; Smith v. Wells, 43 Miss. 293. The conclusion reached in McAllister v. Moye, 30 Miss. 258, was not correct.</p>

Hon. S. S. Calhoojst, Judge. This action was brought in behalf of the State against J. C. Martin aud others, as joint and several obligors on a bond alleged to have been executed by Martin as tax-collector of Copiah County, with the other defendants as sureties, conditioned for the faithful collection, and payment into the proper treasuries, of the State and county taxes. The declaration described the instrument sued on as the writing obligatory of all the defendants.

John Smith, special judge, presiding in place of Hon. S. S. Calhoon, judge of the Ninth Circuit Court District, who was disqualified by interest, denying a peremptory writ of mandamus against the Board of Supervisors of Madison County, to compel them to levy a tax to pay the bonds held by E. E. Cutler, the petitioner, on the state of case set out in the opinion of the court. 1. The Board of Supervisors had the right to make the interest payable semi-annually.

Motion to affii’m the judgment below for want of a valid bill of exceptions, and counter-motion to file a bill. As a rule, a bill of exceptions signed after the term is void. In order to make such bill good, it must appear of record that it was signed in the vacation succeeding the term at which the exceptions were taken, and in pursuance of an order of court entered, or the consent of the parties given during the term.

<p>1. Estate of Decedent. Sale of land. Widow and second husband purchasers. Rights of heirs.</p> <p>~W. died, leaving a will by which he appointed his wife executrix, directed that his estate be kepttogether, and gave her the control and management of his plantation until his son became of age, if she remained a widow; but if she married, then her part of the estate was to be separated from the children’s part. The widow renounced the will, married, and had her dower in the lands of her deceased husband set apart to her. She was removed from her office of executrix, and an administrator de bonis non of the estate was appointed. The administrator obtained an order of the court authorizing him to sell the lands of the estate to pay the debts of the decedent. The lands were sold, and the widow of the deceased, who had become the wife of B., bought the reversipn in the land set apart to her as her dower, and B. bought the other lands. The widow took possession-of the lands after the death of W., and she, with her husband, B., was still in possession at the time of the sale. At that time E. L. W. was the only heir, to the land. Held, that there was nothing'in the relationship of Mrs. B. to B. L. W., as his mother, or of B. as his step-father, or in their relationship to the land, which precluded either of them from purchasing at such sale.</p> <p>2. Same. Widow’s rights in land. When heir entitled to rents from her.</p> <p>Under the Code of 1857, a widow was entitled to the use of her deceased husband’s plantation, free of rent, till her dower was assigned, but if she retained possession of the whole after her dower was set apart, she became liable to the heir for the rent of all the land not embraced in her dower; and the facts that the lands were afterwards sold to pay the debts of the decedent, and the estate was declared insolvent, would not deprive the heir of his right to the rents accruing after the allotment of dower, and before the order of court making the land assets of the estate and directing it to be sold to pay the debts.</p>

Hon. J. C. Gray, Chancellor. In November, 1874, Edward L. Wood filed a petition in the Chancery Court for the purpose of having a will probated, which was alleged to be the last will and testament of his grandfather, Edward Wood, deceased.

Hon. It. W. Williamson, Chancellor. M. L. Harman gave a deed of trust to C. Y. Gwin as trustee, to secure an alleged indebtedness to J. W. White. The Southern Express Company recovered a judgment against Harman, and had an execution levied on a part of the property-embraced in the deed of trust. Harman, the debtor, Gwin, the trustee, and White, the cestui que trust, obtained an injunction against the sale of the property.

Hon. E. Gr. Peyton, Chancellor. In April, 1876, C. & P. Beer were indebted to August Bernheim &Co. in the sum of $565.65. Subsequently, Josephine Beer became the wife of C. Beer, and he, with his own means, or that of his firm, purchased a town lot, and caused the title thereto to be conveyed to her.

<p>ERROR to the Circuit Court of Lawrence County.</p> <p>Hon. A G. Mayers, Judge.</p> <p>The case is stated in the opinion of the court.</p> <p>The finding is a good verdict of manslaughter, and the words, “in the second degree,” are mere surplusage. The jury, by their verdict, acquitted the defendant of the charge of murder, but found him guilty of manslaughter, as they had the right to do under the indictment. Under the issue, no question as to the degree of manslaughter was iuvolved, for the law recognizes no degrees of that offence. If a jury find facts not submitted to them, and also find the issue presented, such extra-judicial finding will be rejected as surplusage, and judgment rendered on that part of the verdict in which the issue is found. Utile per inutile non vitiatur. See Bacon v. Gal-lender, 6 Mass. 304; Hawks v. Grafton, 2 Burr. 700 ; 3 Co. Lit. 539 ; Grover v. Turner, 28 Md. 605 ; Hob. 127 — 129 ; Pettis v. Bingham, 10 N. H. 519 ; Tuley v. Mauzey, 4 B. Mon. 7 ; Armstrong v. The People, 37 Ill. 462 ; ■Simmons v. Barden, 9 Ga. 543; Huntington v. Bipley, 1 Root, 320; Windham v. Williams, 27 Miss. 317 ; The State, e% rel. Webster, v. Knight, 46 Mo. 83 ; 20 Cal. 435 ; Tucker & Stiles v. Gochran, 47 N. H. 54: Gooper v. United States, 1 Morris (Iowa), 261; Patterson v. United States, 2 Wheat. 225; Dunlap v. Hayden, 29 Ind. 304; Amidon v. Gaff, 24 Ind. 129 ; Bichmond v. Talmadge, 16 Johns. 307 ; The State v. Williams, 8 Iowa, 536 ; Dyer v. The Commonwealth, 23 Pick. 402 ; Hex v. Williams, 2 Camp. 646 ; The Commonwealth v. Fisehblatt, 4 Mete. 354 ; Dozier v. Inman, 30 Mo. 216 ; Kouns v. Lawall, 2 Bibb, 236; Wells v. Garland, 2 Ya. Cas. 473; jRanney v. Bader, 48 Mo. 540.</p>

J. B. Chrism an, Judge of the Tenth Circuit Court District, on habeas corpus. The case is stated in the opinion of the court. I. Our statute only bars' a second writ of habeas corpus where the “ same matter ” is relied upon for relief as that which was adjudicated on the first writ. Code 1871, sect. 1413. This provision is only declaratory of what was always the law. 5 Binn. 304.

Lafayette Haugh-ton, Chancellor of the First Judicial District, on habeas corpus. The case is stated in the opinion of the court. 1. An unconditional pardon, like the one in the case at bar, absolves the convict from all the consequences of guilt, except that it cannot divest private rights which have vested. 1 Bishop’s Cr. Law, 762; 1 Arch. Cr. Law, 378; Thomas v. Sorrell, Yaugh. 330, 333; Hall v. Vaughan, 5 Co. 49 a. 2.

Hon. W. G. Phelps, Chancellor; On the 13th of June, 1844, in a suit in chancery by Brown, Brothers & Co., Charles A. Lacoste was .appointed receiver of the assets-of the'Bank of Mississippi. In a few days thereafter, Lacoste gave bond for the faithful discharge of his duties as -receiver, took possession of the property of the bank,- and entered upon the discharge of his duties as directed in the order of court appointing him.

<p>1. Tenant nr Common. Purchase of common property at tax-sale. Effect.</p> <p>Where one of several tenants in common of an estate in remainder purchases the common property at a tax-sale, he cannot set up his title thus acquired against the common title, but his tax-title enures to the common benefit of himself and his co-tenants; though, in such a case, the common property is subject to the charge of the purchaser at the tax-sale for the money expended in such purchase, and this is so, notwithstanding the sale may have occurred in the lifetime of the tenant of the particular estate.</p> <p>2. Same. Paying taxes on common property. Charge on the estate therefor.</p> <p>Although it is the duty of the tenant of a particular estate to pay the taxes on the larid during his term, yet where, not having the means, he fails to do it, and on'e of the remainder-men pays the taxes to prevent the sale of the property; the latter has the right to contribution from his co-tenants to reimburse him for the money thus paid out, and the common property is charged with the payment thereof. And the fact that such remainder-man resided with the tenant of the particular estate, if by the permission of, and in the right of, the latter, would not impose any obligation upon the former to pay the taxes, nor deprive him of the right of contribution from his co-tenants.</p> <p>3. Same. Contribution for payment of taxes. Defence to bill for partition. ' Practice.</p> <p>M. H. and others filed a bill for the partition of an estate in common. H. H., one of the tenants in common, answered, setting up a paramount title in herself, acquired at a tax-sale, and claiming, also, that even if the tax-title was not valid, still she should be reimbursed by contribution from-her co-tenants for the amount paid out by her for taxes on the land, and that the same should be a charge upon the common property. It was objected by the complainants that these matters could not be presented by H. H. in an answer, but must be set up in a cross-bill. Held, that the objection is not good.</p> <p>4. Same. Protecting the common property. Charging the estate.</p> <p>Tenants in common sustain to each other a relation of trust, because of their . common interest, and while one cannot act, for his individual interest, in hostility to the common interest, yet, if he does what is necessary to the protection of the common interest, he is entitled to charge the common property with the cost of the benefit; but one of the tenants in common of an estate in expectancy is not permitted, by this principle, to discharge a burden on the common property in the possession of the tenant of the particular estate, except where it is necessary to prevent the destruction of the expectancy.</p>

Hon. S. S. Calhoon, Judge. In November, 1876, Zenora* F. Mahone and her husband, W. C. D. Mahone, commenced an action of attachment against the American Life Insurance Company, of the city of Philadelphia, to recover the sum of $5,000 on a policy of insurance issued upon the life of Leonidas Dillard for the benefit of Mrs. Mahone. The defendant pleaded in abatement. A jury was waived, and the issue was tried by the court and found for the plaintiffs.

J. A. Gteeen, Judge of the First Circuit Court District, awarding a peremptory writ of mandamus on J. R. Jamison, county superintendent of education, commanding him to issue a pay-certificate to J. A. Senter for teaching a public school after his certificate of qualification had been revoked.

Hon. S. S. Calhoon, Judge. This was an action of ejectment by C. Yale, Jr., against C. E. Hooker. On the trial, the plaintiff, after introducing in evidence a conveyance from Z. Hooker, made in 1845, and successive conveyances, vesting the legal title in C. B. Champ-lin, putin evidence the transcript of a chancery record, which showed a bill by C. Yale, Jr., against J. W. Champlin and C. B. Champlin, alleging thatC.

Hon. T. Y. BeRey, Chancellor. A. J. Harrell obtained a decree against W. Hopson and Mary J. Hopson, which directed that unless they should, within thirty days, pay a certain amount of money to the complainant, “or his counsel of record,” certain lands should 'be sold to satisfy the vendor’s lien. J. Applewhite was the complainant’s counsel of record. One payment was made to Harrell and one to Applewhite, in pursuance of the decree.

Hon. A. B. Fly, Chancellor. The case is stated in the opinion of the court. 1. It is not necessary, in the “ ordinary probate of a will,” or the probate in common form, under our statutes, that the attesting witnesses should depose to the sanity of the testator. The presumption of sanity dispenses with proof thereof. 2 Greenl. on Ev., sect. 689 ; Payne v. Banlcs, 32 Miss. 292; 1 Jar. on Wills, 72; Redf. on Wills, 30, 40, 42, 15, note 21.

Hon. E. G-. Peyton, Chancellor. Robert A. Clark died in 1867, having made a last will and testament, as follows : — “The last will and testament of Robert A. Clark, a citizen of Hinds County, and State of Mississippi: I hereby appoint my wife, Bettie L. Clark, my sole executrix, without bond or accountability to any one, to have, use, and employ all my property, real and personal, for her own, and the use of our children, and [to] dispose of the same in such manner as she…

Hon. A. Gi. Mayers, Judge.. The case is stated in the opinion of the court. 1. The result of a Sunday contract is, that the law leaves the parties where it finds them, giving to neither a right to enforce the contract, or to recover back either the money paid or property received. Hoover v. Pierce, 26 Miss. 627 ; Kuntz v. Price, 40 Miss. 341. 2. The attempt to prove that McMurry was drunk was a failure. 1. There is no evidence to support the theory that Mc-Murry was drunk. 2.

Hon. J. W. C. Watson, Judge. This was an action of replevin by H. J. Finley against Thomas. A. Hunt, sheriff of Tippah County. Y. N. Finley testified as a witness for the plaintiff below.

Hon. E. G. Peyton, Chancellor. On the 20th of August, 1873, John C. Carraway as principal, and L. W. Carraway as surety, executed their promissory note, payable to W. H. Childs, at ninety days after date, no rate of interest being expressed. On the 20th of November, 1873, $700 were paid on the note. On the 2d of June, 1874, Childs commenced an action against the makers of the note for the balance due thereon.

Hon. S. S. CalhooN, Judge. In April, 1877, Daniel W. McRae brought an action of ejectment against Emanuel Hunter, to recover the possession of a certain tract of land. Hunter was in possession as the tenant of M. Faler and A. Mangold, who, upon their motion, were permitted to defend the action as landlords. A judgment was rendered for the plaintiff, and the defendants sued out a writ of error. The other facts of the case are stated in the opinion of the court. 1.

MotioN to correct the decree of this court, on an appeal from .the Chancery. Court of Washington County. The decree of the court below recognized the claims of P. H. Thompson and others against certain lands, and directed that the same be sold, and the proceeds thereof applied to the payment of such claims. ■ Thomas S. Redd, who. was in possession of the property, and claiming an interest therein, took an appeal from the decree of sale, and gave a supersedeas bond.

Hon. A. B. Fly, Chancellor. The only question presented by the record in this case is, whether the property of a husband dying without children, or descendants of children, after the Code of 1871 took effect, but prior to the statute of April 15, 1876, upon this subject, should go wholly to-the widow, to the exclusion of the brothers and sisters of the decedent, or whether she should only take one half, and they the other half, of the estate.

Hon. J. M. Arnold, Judge. The case is stated in the opinion of the court. 1. There is such a thing as lulling a person under an uncontrollable impulse, with a deliberate design to effect his death. This paroxysmal insanity is recognized by our courts. The Commonwealth v. Rogers, 7 Mete. 500. A person may know that the act is wrong when he does it, and yet not be a criminal in the eyes of the law, owing to such lesion of the will, or to an insane delusion.

Hon. S. S. Calhoon, Judge. The case is stated in the opinion of the court. The offence was not properly charged. Code 1871, sect. 2708. Being a statutory offence, it should have been charged in the language of the statute. Anthony's Case, 13 Smed. & M. 263; Ike’s Oase, 1 Cushm. 525; Scott’s Oase,.2 G-eo. 473; Williams’s Oase, 42 Miss. 328. 'The words “ out of a spirit of revenge, or wanton cruelty,” were necessary to a substantial description of the offence.

Laeayette Haughton, Chancellor of the Eirst Judicial District, on habeas corpus. The case is stated in the opinion of the court. . The court cannot hold a prisoner who, during all the time he has been condemned, has been in custodia legis, and punish him now with confinement for a year in the penitentiary, for no fault of his, and for no crime committed since the expiration of his sentence.

Hon. A. G-. Mayers, Judge. The plaintiff in error was indicted and convicted for embezzling county funds during his incumbency of the office of treasurer of Lawrence County. He based his defence upon the ground that he was not a legal officer, but a mere usurper, because he did not qualify by taking the oath of office prescribed by law. He had been duly elected, and had assumed the powers and duties of the office. Fortenberry was not an officer de jure. Const.

Hon. Samuel Powell, Judge. The case is stated in the opinion of the court. 1. The court erred in modifying the instructions. Evans v. The State, 44 Miss. 473; 37 Miss. 349; Hor. & Thomp. Cases on Self-defence, 96, 256, 516, 814. 2. The court erred in ruling out the testimony of Henry Harris. There is no well-grounded reason why evidence of the bruise on the head, should not have gone to the jury as a circumstance in the case. 1.

Hon. J. B. Chrisman, Judge. The case is stated in the opinion of the court. 1. The record does not show that the indictment against the plaintiff in error was returned into court as required by sect. 2794 of the Code of 1871.. 2. The motion to amend the record of the verdict was improperly granted. The rule, even in civil cases, is that a record cannot be amended after the term when the entry is made, except upon evidence afforded by the record itself.

Hon. J. A. Green, Judge. The plaintiff in error was convicted of murder. He made a motion for a new trial, which,was overruled. A supplemental statement of the case will be found in the opinion of the court. The absence of the prisoner, in custody of the sheriff, while his motion for a new trial was being heard and determined, must cause a reversal. Cooley’s Const. Lim. 185 ; 13 Gratt. 763 ; Bishop’s Cr. Proc. 925 ; Btubbe v. The State, 49 Miss. 716. 1.

Hon. J. M. Arnold, Judge. The plaintiff in error was convicted of murder, and he sued out a writ of error, and assigned as the grounds of error the points indicated in the opinion of the court. 1. The motion of defendant to quash the special venire facias returned by the sheriff in this cause should have been sustained by the court below.

Hon. J. A. Green, Judge. The case is stated in the opinion of the court. 1. The court erred in admitting the testimony of the prisoner, given under oath on the trial of his accomplice. 2. The rule that a verdict, light on all the testimony, shall not be disturbed for the admission of incompetent evidence, has no application to this case, (1) because it is a capital case, and (2) because the bill of exceptions does not set out all the evidence. 1.

Hon. J. B. Chrisman, Judge. Mrs. Montgomery sued Mrs. Magruder, who was a married woman, upon a contract of lease, and recovered a judgment against her for the rent of a plantation. An execution was issued upon the judgment, and levied by the sheriff, C. E. Buck, upon certain personal property belonging to Mrs. Magruder. Thereupon Mrs. Magruder, with whom her husband joined for conformity, brought this action of replevin to recover from the sheriff the property seized by him.

Hon. T. Y. Berry, Chancellor. The case is sufficiently stated in the opinion of the court. Chaffe & Co. were purchasers for value, and without notice of Mrs. Alexander’s rights against O’Hara, if she had any, and the law protects them as innocent purchasers. Newell v. Grider, 50 Miss. 539 ; Love v. Taylor, 26 Miss. 567 ; Per-Joins v. Swank, 43 Miss. 349 ; Hinds v. Pugh, 48 Miss. 275 ; Schumpert v. Hillard, 55 Miss. 348.

<p>Error to the Circuit Court of Claiborne County.</p> <p>Hon. J. B. ChrismaN, Judge.</p> <p>The nature of the action is stated in the opinion, of the court. On the trial, the court below gave the following instruction for the plaintiff: —</p> <p>“ 4. If the jury believe from the evidence that Bettie Gray refused to sign the deed of trust when it was presented to her, and before its execution, then she will not be bound by it.”</p> <p>The court refused to give an instruction asked for the defendant, as follows : =—</p> <p>“ If the jury believe from the evidence that the plaintiff’s ■claim to the cotton is fraudulent, and that she stood by and saw her husband mortgage the mule to procure supplies, and did not disclose any claim to the mule, then they must, find for the defendant for said cotton and said mule, no matter who really owned the mule, or who nominally rented the land, and no matter whether the plaintiff signed said deed or not.”</p> <p>The effect of the evidence is stated in the opinion of the court. The verdict and judgment were in favor of the plaintiff. The defendant sued out a writ of error, and assigned as grounds therefor the giving of the fourth instruction for the plaintiff, and the refusal of that asked for the defendant.</p> <p>1. The defendant in error is estopped lew her conduct to claim the property in controversy. Ferguson v- Bobo, 54 Miss. 121; Upham v. Gibson, 53 Miss. 34.</p> <p>2. The evidence entitled the plaintiff in error to the instruction asked for him in the court below.</p> <p>1. The doctrine of estoppel cannot be applied against the defendant in error, as she neither joined in the deed of trust nor acknowledged it, as required by statute. Code 1871, sect. 1778. .</p> <p>2. There was no evidence to warrant the giving of the instruction asked for by the plaintiff in error.</p>

Hon. J. C. Gray, Chancellor. Fanny J. Semmes and James M. Semmes, brother and sister, were the joint owners of a plantation in Lowndes County. Fanny married A. G. Coleman, and he became the guardian of James, who was a minor.

Hon. Ralph North, Chancellor. The appellees, who were merchants, filed their bill to subject the separate property of Sallie T. Ogden to the payment of debts alleged to be for supplies for her family and her plantation. The defendants, Mrs. Ogden and her husband, demurred to the bill, but the demurrer was overruled. The ground of demurrer is indicated in the opinion of the court. The defendants then answered.

Hon. S. S. Cali-ioon, Judge. The case is stated in the opinion of the court. The testimony shows that the supplies were furnished and used on the wife’s plantation. The husband is the wife’s agent, appointed by the statute, by which alone his powers and authority to bind the wife are to be measured.

<p>Appropriation op Payments. Husband and wife.</p> <p>Where a husband and wife mortgage her estate to secure her own debt, and also a debt of the husband’s, and remain in possession as tenants of the mortgagee, paying a stipulated rent, the payments, in the absence of an application by the mortgagors, will be by law applied first to the husband’s debt, although it binds only the income, while the wife’s debt binds the corpus of the estate.</p>

Hon. L. Brame, Chancellor. J. A. Hill, who was seized and possessed of an undivided one-fourth interest in an estate of inheritance, died, leaving a widow and three minor children. The widow, after having become Mrs. Gregory, filed a bill, with her husband, for the partition of the land. The defendants demurred to the bill, and, the demurrer being sustained, they appealed. Mrs. Gregory’s claim for dower does not entitle her to the partition prayed for.

Hon. J. C. Gray, Chancellor. The case is sufficiently stated in the opinion of the court. 1. The appellee, Mrs. Jones, was not entitled, under our statutes, to a partition of the lot described in her bill; and, upon the case presented by the pleadings, the Chancery Court had no jurisdiction except to dismiss the proceeding.

Hon. J. W. C. Watson, Judge. The case stands on demurrer to the declaration, which contains the six counts mentioned in the opinion of the court. 1. If any one of the six counts of the declaration presents a good cause of action, the judgment sustaining the demurrer must be reversed. Newell v. Newell, 5 Greo. 385 ; Guión v. Doherty, 43 Miss. 538. 2. A suit at law can be maintained against a lunatic under guardianship.

<p>1. Trust and Trustee. Improvements. Wrongful retention of possession.</p> <p>A trustee of land, wrongfully retaining possession thereof and using it, in opposition to the direction of the trust instrument td sell, is not entitled to an allowance for his expenditures in making improvements on the land; but he should not be charged an increased rent, caused by such improvements.</p> <p>2. Same. Chancery. Legatee. Measure of relief.</p> <p>A trustee who is the assignee of legacies charged on the trust fund may retain enough of the fund to pay them; nor should the chancery court, at the suit of a single legatee, render a decree against the trustee for the whole fund, but only for enough to pay the suitor.</p> <p>3. Abpeal. Reversal of decree. Effect thereof.</p> <p>A decree adverse to the complainant, reversed in toto on his appeal, does not estop the respondent, who did not appeal, from showing, on the return of the case to the lower court, that the rate of interest allowed by the first decree on the complainant’s claim was too high. Caston v. Gaston, 54 Miss. 512, distinguished.</p> <p>4. Chancery Practice. Administering trust estate.</p> <p>A trustee who is assignee of all the legacies but one charged on the trust fund should, on a bill by that one legatee to collect his legacy, be regarded as paid to the extent of the trust estate which he has appropriated; and the court, after directing a sale of the visible estate, should provide for the payment of all the legacies in full, or pro rata if the vjsihle estate and that used hjr the trustee is not enough to pay them in full.</p> <p>5. Like-Estate. Produets thereof. Who takes.</p> <p>The profits of a life-estate, on the death of the life-tenant, go to his representatives ; nor is the result changed by a provision in the will creating the life-estate that the “ increase ” of the property shall be kept together and finally sold, it being the clear intention that the life-tenant was to enjoy the profits of the life-estate.</p>

Hon. U. M. Young, Chancellor, specially presiding, Hon. T. Y. Berry being disqualified. The case is sufficiently stated in the opinion of the court'. 1. A court of chancery has no jurisdiction to enforce a judgment-lien, and to appropriate either property or a fund to the satisfaction of the judgment. The judgment-lien is a creature of the statute, and must be enforced in the manner provided by sects. 830 and 837 of the Code of 1871. Brown Beatty, 5 Geo. 227. 2.

Hou. W. T. Martin, Special Judge, by agreement of the parties, Hon. Ralph North being disqualified. The case comes to this court upon a writ of error to a judgment dismissing a scire facias sued out by the plaintiff in error to revive an original judgment. The other facts of the case are stated in the opinion of the court. 1.

Hon. A. G. Mayers, Judge, specially presiding, by exchange with Hon. J. B. Chrisman. John H. Thompson & Co., merchants, sued T. E. Matthews upon an open account, containing a charge of fifteen per cent on the balance claimed to be due as commissions for advances, and also a charge for interest on the sum of the principal debt and commissions.

<p>Error to tlie Circuit Court of Monroe County.</p> <p>Hon. J. A. Green, Judge.</p> <p>The defendant in error brought an action of ejectment, to recover of Thomas B. Caruthers and John R. Murphy the possession of a certain tract of land. R. Moore & Co., claiming to have purchased the land, on the 20th of January, 1877 from the individual owner thereof, were admitted to defend as landlords. The plaintiff offered in evidence two deeds from the auditor of public accounts, dated, respectively, the 21st of 'October, 1876, and the 4th of January, 1877 ; to which the defendants objected, on the ground that the respective acknowledgments did not state that the deed was delivered ‘ ‘ on the day and year therein mentioned.” The words quoted were omitted from both acknowledgments. The objection was overruled. The plaintiff introduced in evidence the list of lands sold to the State on the 1st of March, 1875, for the taxes of 1874 ; to which the defendants objected, on the ground that it did not correspond with the recitals in the plaintiff’s deeds from the State. The recital referred to was, that the land “was sold to the State on the 10th day of May, 1875,” the same language being used in both deeds. This objection was. also overruled. A judgment was rendered for the plaintiff, and the defendants sued out a writ of error. The other facts of the case appear in the opinion of the court.</p> <p>1. The deeds from the auditor of public accounts were not properly acknowledged, and the record thereof was not notice to Moore & Co., who were subsequent purchasers for a valuable consideration. Code 1871, sects. 2308, 2311 ; Toulmin v. Heidelberg, 3 Geo. 48 ; Bunch v. Shannon, 46 Miss. 525 ; Bobinson v. Nod, 49 Miss. 253; Wasson v. Bonner, 54 Miss. 351.</p> <p>2. The defendant in error is bound by the recitals in his deeds from the State, and is estopped to claim the title to the land under any other sale but that of May 10, 1875. Oarver v. Jackson, 4 Pet. 86; Herman on Estop., sect 229; Grane v. Morris, 6 Pet. 611; 1 Greenl. on Ev., sect. 22 ; Glamorgan v. Green, 32 Mo. 285; Kinsman v. Loomis, 11 Ohio, 475. The sale on the 10th of May, 1875, was void. Gamble v. Witty, 55 Miss. 26.</p> <p>3. The plaintiffs in error had two years in which to redeem the land after it was sold to the State. The act of November 1, 1873, was a special act, and only applicable to sales for the taxes of 1873. The title of an act may be resorted to in construing the act. Sedgw. on Stat. 50; Potter’s Dwar. on Stat. 502 ; United States v. Fisher, 2 Cranch, 386 ; Burgett v. Burgett, 2 Ham. 219. But if that act was a general act, it was repealed by the act of December 22, 1874.</p> <p>1. Under the act of December 22, 1874, Moore & Co. had the right to redeem the land at the time of their application. It revived and reenacted the ninth article of the Code of 1871, which gave two years for redemption after the sale of land for taxes. The act of November 1, 1873, applied in matters and terms only to sales for the taxes of that year. General words in a statute having a particular object are to be construed with reference to that object. Potter’s Dwar. on Stat. 188, 194, 218, 236 ; Hickman v. Buff, 55 Miss. 549 ; Bead v. Manning, 30 Miss. 308 ; Ingraham v. Speed, 30 Miss. 410. But, if the act of November 1, 1873, was intended to have a general application, it was repealed by the act of December 22, 1874. Under the act of the 17th of April, lands did not become delinquent for the taxes of 1874 until the 1st of January, 1875, and such,lauds were properly sold under the act of December, 1874.</p> <p>2. The sale of the land in controversy, on .the 1st of March, 1875, being under the act of December 22, 1874, and the act of January 26, 1875, the right of redemption within two years attached to the sale, as a condition which qualified the right of the purchaser. The owner’s title was not completely divested. Belcher v. Mhoon, 47 Miss. 613. Any law which cut off this reserved right of redemption before its expiration would have been unconstitutional. Therefore we assert that the right of redemption which attached to the sale of March 1, 1875, by the laws under which it was made, was unaffected by the Abatement Act approved on that day.</p> <p>3. But the sale of March 1, 1875, was void because the land was not sold in the smallest legal subdivisions. The half of a half of a quarter of a section, or forty acres, is the smallest legal subdivision recognized by law. U. S. Rev. Stat. 1874, p. 442 ; Vassar v. George, 47 Miss. 713.</p> <p>1. The acknowledgments are in substantial compliance with the statute. They show that the deeds were executed on the day of their date. Hall v. Thompson, 1 Smed. & M. 456 j Morsev. Clayton, 13 Smed. & M. 375.</p> <p>2. The plaintiffs in error cannot object that the defendant in error is estopped by the recitals in his deeds to prove a day of sale other than that recited, because they have not acted on such recitals, or been in auy manner affected by them. 1 Greenl. on Ev., sects. 26, 204; Herman on Estop., sects. 213, 216. But the recital is not such as will work an estoppel. Gamble v. Witty, 55 Miss. 33; 13 Wis. 347; Ph. on Ev. 472; Smith’s Ld. Cas. 443; Herman on Estop., sect. 230.</p> <p>3. The plaintiffs in error were only entitled to one year in which to redeem the land. Acts Extra Sess. 1873, p. 28, sect. 8. The title of a statute does not necessarily determine its scope. Potter’s Dwar. on Stat. 102, 103. The act of December 22, 1874, did not apply to the sale in this case, because it only had reference to future delinquencies, and lands became delinquent for the taxes of 1874 on December 1. Code 1871, sect. 1691; Acts 1872, p. 1, sect. 1; 52 Miss. 75. The act of December 22,1874, only refers to the mode of sale, and not to the time or manner of redemption; therefore it did not repeal the act of December 1, 1873, as to redemption. By the act of March 1, 1875, only twelve months were allowed for redemption. The right to redeem is simply an indulgence, upon no consideration, and revocable at will. Sedgw. on Stat. & Const. Law, 618, 633 ; 10 How. (U. S.) 416 ; 4 Seld.. 110: 4 Kern. 22; 9 B. Mon. 449.</p> <p>4. The Code does not require that lands sold for taxes should be sold in the smallest subdivisions, but only that they should be offered thus ; and if no one bids, the quantity is to be increased by adding another subdivision. But the smallest legal subdivision is one hundred and sixty acres, and not forty acres.</p> <p>filed a lengthy brief, arguing the same points as set forth in the brief of Messrs. Buchanan and Houston, and citing the following additional authorities : —</p> <p>1. On the point as to the acknowledgment: Garter v. Doe, 21 Ala. 73 ; Sanford v. BuTkley, 30 Conn. 344 ; Oioen v. Owen, 5 Humph. 352.</p> <p>2. As to recitals in the deeds: Duke of Cumberland v. Graves, 9 Barb. 606 ; Pegram v. Newman, 54 Miss. 613.</p> <p>3. As to the sale of land in subdivisions: Bell v. Gordon, 55 Miss. 49.</p> <p>4. As to the time allowed for redemption, and the construction of the statutes relating thereto : Potter’s Dwar. on Stat. 265 ; Gove v. Smith, 1 Black, 459 ; Wood v. United States, 16 Pet. 342; City of Hartford v. United States, 8 Cranch, 109 ; 9 Barb. 308 ; Wallace v. Bassett, 41 Barb. 92.</p>

Hon. Laeayette Haug-htoN, Chancellor. The case is stated in the opinion of the court. 1. The testimony shows that Wiley delivered his deed to Drane as an escrow, to be delivered to the Merritts upon the contingency of their paying the note for the purchase.-money, which note Drane also held for collection, with authority either to collect in person or through attorneys ; and that the money was paid and the deed delivered.

Hon. J. S. Hamm, Judge. In April, 1876, J. C. Ward executed a deed of trust on his crop to be grown that year, to B,. Wilson, as trustee, to secure a debt of $93 which he then owed B. J. Barrier, and $70 to be advanced in supplies to him during the year by Barrier. The parties resided in Neshoba County, the crop was to be produced there, and the deed of trust was executed and recorded in that county.

Hon. J. B. Chrisman, Judge. This case has been in this court once before, and is reported in 55 Miss. 94. Hunt & Vaughan were sued in assumpsit by G. W. Shackle-ford, upon a claim assigned to the latter by H. M. Peden. They pleaded payment, and sought to prove, as an offset, an indebtedness of Peden to them for the value of some cotton received and appropriated by him before they had notice of the assignment of the claim sued on to the plaintiff.

Hon. Samuel Powell, Judge. An attachment was sued out by one Houston, before a justice of the peace, for $145, and Milan was garnished.

Hon. Laeayettb Haughton, Chancellor. The case is stated in the opinion of the court. The chancellor should have retained the bill, making the ward a party, and granting full relief. The presumption is that the judgment against the plaintiff in error, as garnishee, is right. It is conclusive until reversed. Cotton v. Miller, 52 Miss. 8. The answer does not deny all the equity of the bill, and the motion to dissolve the injunction should not have been granted.

Laeayette Haughton, Chancellor of the First Judicial District, on habeas corpus. The case is stated in the opinion of the court. 1. The mother, as against a stranger, has the legal right to the custody of her minor child.

Laeayette Haughton, Chancellor of the First Judicial District, on habeas corpus. The case is stated in the opinion of the court. 1. The father has a right superior to that of the mother to the custody of their legitimate children. 2 Kent’s Comm. 20, 191, 193, 205 ; King v. Qreenhill, 4 Ad. & E. 624 ; Codee v. lian-num, 39 Miss. 423. 2. This father has done nothing, nor does any thing appear in the circumstances of the case, to destroy his superior right. 3.

<p>Error to the Circuit Court of Tallahatchie County.</p> <p>Hon. Samuel Powell, Judge.</p> <p>The case is stated in the opinion of the court.</p> <p>1. The defect in the writ of seizure, of want of personal summons, did not render it void; but the officer having, as commanded, seized the cotton and other products, could hold them thereunder. The appearance of the defendant cured the want of personal service. Phillips v. Hines, 4 Geo. 163 ; Richards v. Mooney, 10 Geo. 357 ; Lester v. Watkins, 41 Miss. 647 ; Fisher v. Battaile, 2 Geo. 471; Younger v. Rankin, 4 How. 27 ; Stevens v. Riche, 1 How. 523 ; Henderson v. Hamer, 5 How. 525 ; Barrow v. Burbridge, 41 Miss. 622; Lough-bridge v. Rowland, 52 Miss. 546 ; Spratley v. Kitchens (MS. opinion).</p> <p>2. After the sheriff had seized the products, replevin would not lie against him. The plaintiff in replevin should have become a party to the lien suit. Acts 1876, p. 113, sect. 10.</p> <p>1. The writ of seizure is fatally defective, void; and that the sheriff held the property thereunder was no answer to the writ of replevin. Acts 1876, p. 109.</p> <p>2. The fact that the plaintiff in replevin could be made a party to the writ of seizure suit, and therein assert his rights, does not preclude him from resorting to the writ of replevin. Geo. Dig. 656.</p> <p>3. Even if the papers offered to he read had been admitted, it would not have changed the result; for it does not appear that any evidence was offered to prove that a debt was really due the landlord.</p>

Hon. J. W. C. Watson, Judge. The case is fully stated in the opinion of Simrall, C. J. The plaintiff has the right to recover in this action the actual damage suffered by him on account of Westmoreland’s wrongful act in removing the cotton. The unlawfulness of the act complained of is often the test of the defendant’s liability. 24 Miss. 93 ; 2 Scam. 434 ; 3 Barb. 42 ; 22 Pa. St. 54 ; 9 Md. 108 ; 1 Hill, on Torts, 105, sect. 23; 16 Ind. 312.

Erkok to the Circuit Court of Alcorn County. Hon. J. A. Green, Judge. The case is sufficiently stated in the opinion of the court. 1. Taylor, the president of the savings institution, was incompetent to establish its claim by testifying as to transactions and conversations in reference thereto, which occurred during the lifetime of the intestate.

Hon. J. C. Geay, Chancellor. In December, 1859, William E. Stone purchased, at a sale under a decree in chancery, a half-section of land, on a credit of twelve months ; and, to secure the… Held: and seeking to prevent the execution of the judgment in ejectment.

<p>Error to tbe Circuit Court of Warren County.</p> <p>Hon. U. M. YouNG, Judge.</p> <p>David Eice and Allen A. Biusley, under their firm name of Eice & Co., brought this suit, before a justice of the peace, against James McCutchen, surviving partner of the late firm of McCutchen & Co., on their alleged acceptance of the following instrument: —</p> <p>“ Messrs. McCutchen & Co.: —</p> <p>“ You will please place the sum of eighty-two ($82) dollars out of the proceeds of six bales cotton, shipped through you this day, to the credit of Messrs. Rice & Co., Vicksburg, and oblige,</p> <p>“ Yours truly,</p> <p>“Deo. 24, 1873. F. W. Johns.”</p> <p>On the trial in the Circuit Court, to which the defendant appealed, the jury were instructed, for the plaintiffs, that if Johns delivered to McCutchen & Co. the cotton, to be by them shipped and sold, and on the same day gave the order sued on to the plaintiffs, who presented it to McCutchen & Co., when James McCutchen, for his firm, agreed to pay the same when the cotton should be sold, provided it brought enough to pay their advances and the order, they should find for the plaintiffs if the cotton sold for enough to. pay the advances as well as the order, although, before the cotton was sold, the plaintiffs took the order out of McCutchen & Co.’s hands, saying they would make their money by law, and although there was at the time in McCutchen & Co.’s hands a subsequent draft drawn on the same proceeds in favor of J. & T. Green, which was afterwards paid. The court refused to charge, for the defendant, that unless McCutchen accepted the order unconditionally, he is not liable ; that, being drawn for part of a particular fund, it was not an assignment thereof, and the defendant was not bound to accept it absolutely. The court also refused to give for the defendant the following instruction : —</p> <p>“8. In order to entitle the plaintiffs to recover on this claim as a collection left in their hands (McCutchen & Co.’s), they must find that it was through default of McCutchen & Co. that it was not collected ; and if the jury believe, from the evidence in this case, that Rice & Co. took the claim out of McCutchen & Co.’s hands before they could have collected the same, they must find for the defendant.”</p> <p>The verdict was for the plaintiffs ; and from the order overruling the motion for a new trial the defendant brings up the case.</p> <p>1. An order drawn for part of a fund does not operate as an assignment, or give a lien as against the drawee, unless he consents to the appropriation by an acceptance of the order. First National Banlc v. Whitman, 94 U. S. 643 ; Mandeville v. Welsh, 5 Whart. '277 ; Burnett v. Crandall, 4 Cent. L. J. 230 (1877); Merrill v. Palmer, 6 Cush. 284; Cowperthwait v. Sheffield, 1 Sandf. 416 ; Dan. Neg. Inst. 19, 20. Such acceptance, to be valid, must be in writing. Code 1871, sect. 2230.</p> <p>2. The plaintiff Binsley should not have been permitted to testify, because his testimony was designed to establish a claim in his own behalf against William McCutchen’s estate, by proving a conversation with the dead partner. Faler v. Jordan, 44 Miss. 291; Hanno v. Aroy, 77 Pa. St. 29 ; Karns v. Tanner, 16 P. F. Smith, 297 ; Stanhridge v. Catanach, 83 Pa. St. 371; Moore v. Harlan, 37 Ga. 624; McGehee v. Jones, 41 Ga. 123; Spencer v. Trafford, 42 Md. 17.</p> <p>3. The evidence failed to make out an acceptance by Mc-Cutcken. He did not contract to pay the draft, conditionally or otherwise. Jennev. Ward, 1 Barn. & Aid. 314; 1 Pars, on Notes & Bills, 285 ; 1 Dan. Neg. Inst., sect. 504; Reese v. Warwick, 1 Barn. & Aid. 426 ; Byles on Bills, 142 ; Clark v. Cock, 4 East, 57.</p> <p>1. The verdict being right on the evidence, this court will not reverse for erroneous charges. There is no difference between an agreement by the drawee to pay out of the money when collected, and to collect the draft out of the money when paid to him.</p> <p>, 2. The instructions are correct. Sect. 2230 of the Code of 1871 does not change the common law as to acceptances. An acceptance may be verbal, or even implied from the parties’ acts, and it may be conditional. The eighth charge asked for the defendant, which was based on the theory that McCutchen took the draft for collection, was inapplicable to the facts.</p> <p>3. The money itself belonging to the drawer, he could assign it, and the suit could be maintained without any acceptance. Allen v. Williams, 12 Pick. 297 ; Bank v. Gordon, 15 Gray, 362 ; Munn v. Bush, 25 Ill. 25; Insurance Co. v. Steifel, 28 Ill. 168 ; Robertson v. Austin, 26 Iowa, 315 ; Lester v. Given, 8 Bush, 357.</p> <p>4. The testimony of Eice was admissible, relating solely to a conversation by him with the survivor, James McCutchen. Haler v. Jordan, 44 Miss. 283. Binsley’s testimony was also competent. If not, James McCutchen having admitted the same facts proved by Binsley, the admission of his testimony was immaterial.</p>

Hon. T. Y. Berry, Chancellor. C. H. Barrot died intestate, on the 9th of September, 1878, in Claiborne County. He left no widow surviving him, but left a daughter,’ Angie, aged sixteen years, and other younger children. At that time the yellow fever was prevailing as an epidemic in Port Gibson, the town in which the chancery clerk’s office was situated, and the clerk had closed his office and fled from the town.

Hon. H. W. Walter, Special Judge, presiding by agreement of parties, Hon. J. W. C. Watson being disqualified. Parham and Tomlinson brought this action on a promissory' note payable to them as executors of the last will and testament of J. M. Lewis, deceased, against the administrator of the estate of F. T. Leake, deceased.

Hon. Samuel Powell, Judge. A statement of the case appears in the opinion of the court. 1. The executions should have been excluded, upon the motion of the plaintiff in error. Moore v. MoOlief, 16 Ohio St. 50. Sect. 225, Code of 1871, expressly limits such actions to cases where such executions are legally issued. This must have been intended to cover cases of voidable and irregular executions. In two of the cases the judgments on which the executions were issued were void.

<p>1. Motion against Sherih?. Failure to return executions. Venue.</p> <p>Motions against sheriffs for failure to return executions to them directed, under the Code of 1871, sect. 227, are determinable in the court to which the process is returnable, and not in the county of the defaulting officer’s residence.</p> <p>2. Same. Defence. Insolvency of execution-debtor.</p> <p>The absence of actual damage to the plaintiff in execution, because of the insolvency of the execution-debtor, or the like, is no defence against a motion, under the Code of 1871, sect. 227, against the sheriff, for failure to return the execution. Dailey v. The State, ante, p. 475, distinguished. ,</p> <p>3. Sheriff's Bond. Code 1871, sect. 309, construed.</p> <p>The meaning of sect. 309, of the Code of 1871, is that an informal bond shall be valid and binding, — not as a common-law bond, but as a statutory bond, — and entitle parties protected by it to invoke all the remedies pointed out by the law-giver.</p> <p>4. Motion against Sheriff. When 'plaintiff must prove judgment.</p> <p>Where a plaintiff in execution, on a motion under sect. 227 of the Code of 1871, against a sheriff of another county for failure to return an execution, counts on his alleged judgment for the amount thereof, and not on the execution, and the sheriff takes issue on the allegation of the judgment’s existence, the plaintiff must introduce the judgment in evidence to make out his case.</p> <p>5. Same. G-eneral rule.</p> <p>Semble, that, generally, he who moves under the Code of 1871, sect. 227, against a sheriff, should be required to produce the judgment on which the execution issued. Campbell, J., doubted.</p>

Hon. T. Y. Berry, Chancellor. Clara E. Thompson and her husband filed their bill in chancery against Ann B. Norwood and her husband, to foreclose a mortgage given by the defendants on certain described lands, default having been made in the payment of the debt secured. The complainants had already obtained possession of the land by an action of unlawful detainer. The defendants demurred to the bill for want of equity. The demurrer was sustained and the bill dismissed.

Hon. L. BRAME, Chancellor. The case is sufficiently stated in the opinion of the court. 1. The bill is not multifarious. The suit against the administrator is entire, incapable of separation, and the sureties in both bonds have connected themselves with him so as to make them proper parties. 1 Dan.

Hon. E. Stafford, Chancellor. J. B. Brander, as administrator of the estate of Jacob Phinizy, deceased, filed a petition to have the estate declared insolvent, and for a sale of the lands thereof. Citations were issued to Jacob P. Billups and his brothers and sisters, minor heirs and distributees of the decedent, and also to their father, and were served accordingly. None of them appeared, and the court appointed a guardian ad litem for the minors, and he answered for them.

Hon. George Wood, Chancellor. A. G. Vinson, as superintendent of public education of the county of Kemper, filed a bill to enforce a deed of trust on certain lands, given by W. J. McDonald to secure his promissory note to the complainant’s predecessor in office.

Hon. L. BraME, Chancellor. The case is stated in the opinion of the court. The appellant was entitled to .the allowance sought by his' motion. Code 1857, pp. 143, 144; Acts 1870, p. 55; Acts. 1875 (Gen. Sess.), p. 142 ; Acts 1875 (Spec. Sess.), p. 25. The Code of 1857 did not allow any extra compensation to chancery clerks. The only allowance authorized to such clerks by subsequent statutes was for services to the boards-of supervisors. Code 1871, sect. 1361; Acts 1875 (Spec.

Hon. A. B. Fly, Chancellor. In 1862, J. M. Bass pui’chased of Nathaniel Bagan a small tract of land, paying part of the purchase-money in cash and giving his two promissory notes for the balance. Bass became a bankrupt, and in August, 1868, Eagan filed a bill against him and his assignee in bankruptcy, to enforce the vendor's lien for the purchase-money remaining unpaid. In September, 1879, Eagan obtained a, decree for the sale of the land, but the sale was enjoined by Bass.

Hon. S. S. Calhoon, Judge. Catherine Corbet, the widow of Peter Corbet, deceased, attempted to convey by deed to Henry E. Miller the fee-simple of a certain lot in the town of Yazoo City. Miller took possession of the lot, and erected valuable improvements thereon. Richard Ingram and others, the heirs of Peter Corbet, instituted an action of ejectment to recover the possession of the lot, and rents therefor.

• Hon. J. A. Q\Reen> Judge. The case is stated in the opinion of the court. The failure to pay a premium when due avoids a policy of insurance. Howell v. Knickerbocker Ins. Go., 1 Big. on Ins. 578; Robert v. Nexo Hngland Ins. Go., 1 Big. on Ins. 634; Want v. Blunt et al., 12 East, 183 ; Phoenix Ins. Go. v. Sheridan, 2 Big. on Ins. 583 ; Robert v. New England Ins. Go., 2 Big. on Ins. 141; Howard v. Continental Ins. Go., 4 Big. on Ins. 8 ; Williams v. Washington hs.

Hon. J. A. Green, Judge. The case is stated in the opinion of the court. 1. The State Board of Education had power to sue for the license-taxes collected and paid into the city treasury. Code 1871, sects. 1996-1998. See sects. 161, 2462-2472. See sect. 1342. 2.

Hon. J. A. Greer, Judge. The case is stated in the opinion of the court. 1. The payment was voluntary, and the money cannot be recovered back. 2 Dill, on Mun. Corp. 857, sect. 751; 34 Ala. 400 ; Leonard v. Ganton, 35 Miss. 189 ; Tuttle v. Everett, 51 Miss. 27 ; 9 Allen, 393. 2. By the charter, the town had the power to levy the tax, which was not repealed by the Code of 1871. Acts 1870, p. 395 ; Code 1871, sects. 2457, 2458. 1.

Hon. Laeayette Haughton, Chancellor. The defendants in error, the Nibletts and their wives, filed this bill to enjoin the sale of a quarter-section of land under a trust-deed thereon in favor of the plaintiff in error, on the ground that the land had for a long time been occupied by them as their homestead exemption, and the wives had not joined in the trust-deed.

<p>Appeal from the Chancery Court of Leflore County.</p> <p>Hon. R. W. Williamson, Chancellor.</p> <p>The case is stated in the opinion of the court.</p> <p>1. The rule which incapacitates a fiduciary to purchase the estate with which a professional or other agency connects him is founded in the principle that, to insure complete and unswerving fidelity, he must never antagonize the client, or principal, or beneficiary, by creating an interest which shall oppose his duty. In purchasing the property with which he is connected professionally, the attorney is not to be the judge of whether his client’s interest will oppose his own, because he then becomes the judge in his own case. The position of the lawyer is likened to that of the judge deciding his own case. The object of the rule referred to is, not to defeat fraud, so much as to take away by disqualification the temptation to commit fraud, in order to secure an impersonal and unbiased fidelity in an all-powerful profession, which has become essential to the business of modern society. When Outlaw bought the property in controversy, he became thenceforth hostile to Johnson’s judgment, which he was in duty bound to enforce by every legal means. Stockton v. Ford, 1.1 How. (U. S.) 232 ; Galbraith v. Dicier, 8 Watts, 81; Hackenburg v. Car-lisle, 5 Watts & S. 348 ; 25 Pa. St. 354.</p> <p>. 2. Where an agent does an unauthorized act, there is no legal obligation on the principal to ratify or adopt it; and where there is no legal obligation or duty to do an act, there can be no negligence in the omission to perform it. Combs v. Scott, 12 Allen, 493; Hardeman v. Ford, 12 Ga. 205 ; Dodge v. McDonnell, 14 Wis. 553. To make a ratification binding, the principal must have known that the act of the agent was invalid, and would not be binding on him without his ratification. Pittsburg & Steubenville R. Go. v. Gazzam, 32 Pa. St. 348 ; Garvin v. Loiory, 7 Pa. St. 24.</p> <p>filed a lengthy brief on the facts of the case, and, as to the legal incapacity of the appellee to purchase the property in controversy, cited the following additional authorities: Merritt v. Lambert, 10 Paige, 359 ; 10 Am. Rep. 50 ; Lewin on Tr. 226 ; Howell v. Baker, 4 Johns. Ch. 118; Foreman v. Kent, 3 Dana, 617; Scisen-ing v. Black, 5 Watts, 303; Lefevre v. Laraway, 22 Barb. 176 ; White v. Trotter, 14 Smed. & M. 30; Story’s Eq. Jur. 332 ; 1 Saunders on Tr. 430 ; Adams’s Eq. 184, 412.</p> <p>1. Outlaw’s purchase of the land was made in good faith. It was impossible for him to mate the money on Johnson’s judgment out of the land purchased. But, supposing that Outlaw did not purchase in good faith as to Johnson, still the latter cannot maintain his bill, because he fully recognized Outlaw’s purchase of the land and his title thereto. If a fraud is committed upon a party, and he submits to it after a knowledge of it, he cannot afterwards complain. The letters written by Johnson show clearly that he recognized Outlaw’s right to the land. “Fraud must be resisted at the proper time, and before the proper tribunal; for it is the policy of the law that litigation should not be protracted,” etc. Porter dj Go. v. Kilpatrick, 24 Miss. 414.</p> <p>2. Has Johnson come into equity with the showing that he is willing to do equity? He has not offered to pay Outlaw for taxes paid on the land, nor for improvements on the land, nor for the amount paid by him for the land at the sheriff’s sale. Johnson knew of these expenditures by Outlaw. Only a constructive fraud is charged in the bill, and under such a charge Johnson should have at least offered to repay Outlaw all the money he had expended. Eliza White, Admrx., v. /Silas F. Trotter et al., 14 Smed. & M. 30 ; Howell, Assignee, v. Baker & Clark, 4 Johns. Ch. 117.</p> <p>3. It is evident that Johnson and Wilbourn entered into an agreement for the purpose of defrauding Outlaw out of his property, with the improvements thereon, as well as the money paid out by him in respect thereto. He who comes into equity must come with clean hands. Walker v. Brun-gard, 13 Smed. & M. 723. The proof shows that Johnson and Wilbourn agreed that the latter should sue Outlaw for the land, and, if successful, that Johnson should have the land. It follows, therefore, that Johnson is bound by the result in that case, and cannot recover in this suit, no matter how good a case he may have. Lipscomb v. Bostell, 9 Geo. 496.</p> <p>also filed an elaborate brief on the facts of the case, and, as to the appellant’s negligence in making his claim, cited the following additional authorities : Follansbe v. KiTbreth, 17 Ill. 528 ; Scott v. Free-land, 7 Smed. & M. 409 ; Jones v. Smith, 4 Geo. 215.</p>

Hon. J. M. Arnold, Judge. Soule, Thomas & Wentworth brought an action of replevin against Flaniken & Gerdine, for the recovery of a lot of law-books. Under sect. 656 of the Code of 1871, Shotwell & Fitts were substituted in place of Flaniken & Gerdine, and on the 16th of February, 1874, they gave a bond, with W. W. Robinson as their surety, for the forthcoming of the property, to abide the judgment of the court.

Hon. J. W. C. Watson, Judge. On December 7, 1876, W. C. Shackleford sold to Mary C. Dellahite an engine, boiler, saw, and gearing, for $725, of which $500 was paid cash, and for the balance the following note given: — “$225.

Erroe to the Circuit Court of Monroe County. Hon. J. A. Green, Judge. The notes on -which Julia A. Hall based this suit were originally made and signed by L. Haughton alone; but, some months after the notes were overdue, James Haughton, against whose representative the suit is brought, signed the notes by subscribing his name immediately under that of the original maker.

<p>1. United States Land-Laws. Lh'eaty of Dancing Rabbit Greek. Location of float. Evidence.</p> <p>Under the treaty of Dancing Rabbit Creek, the location of a “float” by a reservee or his assignee confers title. But a plaintiff in ejectment Telying upon such title must show the actual location of the float upon the land claimed, by one having the right, under the treaty, to make the location. The primary evidence of these facts, if they exist, is contained in the records of the land-office; and they cannot be proven by recitals in deeds, unless the defendant be in privity with the title sought to be established. A patent from the United States is evidence of such title, but is not essential in establishing the same.</p> <p>2. Witness. Competency. Estate of deceased person. Act of 1878.</p> <p>Under the act of March' 1, 1878, amendatory of sect. 758 of the Code of 1871, ■where a claimant of land has assigned his title after the death of the party in possession, he cannot testify to a permissive holding under him by such possessor, in an action of ejectment by his assignee against the heir of the deceased possessor.</p> <p>3. Deed. Recitals. Evidence. Heirs.</p> <p>The recital in a deed that the grantors are heirs of the party who made the bond for title, in pursuance whereof the deed was executed, is not evidence of such relation, and a plaintiff in ejectment claiming title through such deed must prove aliunde that the grantors therein are the heirs of the obligor in the bond for title.</p>

Hon. Samuel Powell, Judge. The case is stated in the opinion of the court. The removal to a new location, the absence of Polk from the store in the new business, his protest against using his name, and actual notice to all the customers of the firm, was notice sufficient. But the lower court took the case from the jury, whose province it was to decide whether the notice was sufficient, by the instructions that nothing short of publication in a newspaper would do.

Hon. S. S. Calhoon, Judge. To a declaration containing a single count of indebitatus assumpsit, for goods sold and delivered, the defendant pleaded non assumpsit; and the proof was, that he held the goods under a contract to sell them for the plaintiffs, with whom he was to account for the invoice prices of such as he sold, and return the others to the plaintiffs.

Hon. Laeayette Haughton, Chancellor. The appellant filed an original bill in chancery against the widow and heirs of S. M. Francis, the heirs of Kerr Boyce, and the administrator and heirs of Farish Carter, alleging that one Drane, as agent for Boyce & Carter, land-owners, on June 29, 1860, sold to S. M. Francis a quarter-section of land, making a bond for title in the name of Boyce & Carter, and receiving the purchase-price partly in cash and the balance in S. M. Francis’s…

Hon. William Cothran, Judge. The plaintiff in error, who was the trustee in a deed of trust, brought au action of replevin against the grantors therein, for the recovery of a lot of lint cotton, the possession of which he 'claimed to be entitled to by the terms of the deed of trust. The action was commenced before a justice of the peace, in district No. 1 of the county, that being the district in which the deed of trust was executed.

Hon. J. C. Gray, Chancellor. In 1859, George G. Harvey was appointed guardian of the person and estate of Martha J. Bradford, a minor. In 1863, in pursuance of an order of the Probate Court, obtained upon his petition therefor, the guardian invested his ward’s money in bonds of the Confederate States.

<p>Supreme Court. Practice. Motion to dismiss. Objection to appeal-bond.</p> <p>On a motion to dismiss an appeal to this court for want of the necessary appeal-bond, on the ground that the name of one of the two sureties required b}' law purports to be signed by an agent, and the record contains no evidence of any authority for such signature, the court will only look at the face of the bond, and if that be regular, it will be conclusively presumed that the agent was duly authorized to subscribe the suretj^’s name.</p>

Hon. E. Gr. Peytoe, Chancellor. Virden filed his bill in chancery against Bowers, for the purpose of having him charged as a trustee of the legal title to a certain tract of land, and to require the conveyance thereof to the complainant, upon the ground that the defendant was the attorney and legal adviser of the complainant, and purchased the land in violation of his professional obligations and duties.

. Hon. E. G. Peyton, Chancellor. The case is stated in the opinion of the court. 1. The proof shows that Cameron was Nicholson’s attorney, and in that capacity made the investigation by which he discovered that the land was held by the State for taxes,, and was subject to purchase.

Hon. J. S. Hamm, Judge. Sturges brought this action of ejectment against King for the recovery of forty acres of land, to which he claimed title by virtue of a deed from the sheriff, based upon a sale under an execution and judgment against King. The defendant pleaded not guilty. The verdict and judgment were for the plaintiff. The other material facts of the case are stated in the opinion of the court.

Eeeoe to the Circuit Court of Holmes County. Hon. William Cothran, Judge. James A. Cooper died in 1856, leaving a last will and testament, which contained, amongst others, the following items: “2.

Hon. S. S. CalhooN, Judge. This is an action by attachment, commenced in 1873, upon an open account dated in 1861. The writ was served upon garnishees, and levied upon property of the defendant. The defendant pleaded, amongst other jileas, the Statute of Limitations.

<p>1. Limitation or Actions. Debtor not allowed to plead the statute. Chancery.</p> <p>Where a debtor verbally agrees to convey to his creditor a certain tract of land in payment of the debt, and in pursuance of the agreement delivers possession of the land to the creditor, but, although often applied to by the creditor for a deed, delays giving one until the debt is barred by the Statute of Limitations, a court of equity will not permit him to claim the land and also to plead the bar of the statute against the debt.</p> <p>2. Chancery. Specific performance. Enforcement of trust-deed. Relief, — specific, general.</p> <p>Where a bill is filed by a creditor holding a deed of trust on a tract of land, of which he is in possession by a verbal agreement of the debtor to convey the same to him in satisfaction of the debt secured by the deed of trust, and also an unsecured debt, and the prayer is for the enforcement of the contract to convey the land, or, if that cannot be done, for a sale of the land and the application of the proceeds to the payment of both debts, no relief can be administered in either of the forms in which it is specifically asked; but, under the prayer for general relief, the court will charge the land with the debt secured by the deed of trust, and, in a proper case for equitable interposition, will render a personal judgment against the defendant for the unsecured debt.</p> <p>3. Same. Jurisdiction. Statute of Limitations. Personal judgment.</p> <p>Where a creditor, relying upon an invalid payment of his debt, which both parties treated as satisfaction thereof, allowed the debt to be barred by the Statute of Limitations, and then has recourse to a court of equity to prevent the debtor’s committing a fraud upon him by pleading the bar of the statute against his debt, the court has the power to administer full relief by giving a personal judgment against the defendant.</p> <p>4. Land. Contract to convey. Void description.</p> <p>An agreement to convey a tract of land described as “ my land, the entire tract, 728 acres,” cannot be enforced in equity, because of the patent ambiguity in such description.</p>

Hon. S. S. Calhoon, Judge. A. P. Shepherd, being the holder of a warrant issued on the 11th of October, 1875, by the Board of Supervisors of Yazoo County, filed a petition in May, 1878, for a mandamus to compel the county treasurer to pay the same.

Motion to quash the execution for costs issued herein against the appellee, so far as the same is to be levied de bonis propriis, and to correct the judgment, if necessary, in awarding execution de bonis propriis. cited sects. 1183 and 1190 of the Code of 1871.

Hon. S. S. Calhoon, Judge. This action was brought, on November 17, 1877, in the name of B. T. & C. A. Ligón, for the use of C. A. Ligón, but a plea having been filed that the plaintiffs had no title, it was amended, by leave of court, on January 16, 1879, into the name of C. A. Ligón alone ; and to the amended declaration the defendant pleaded that the plaintiff had no title. The evidence on the question of title is set out in the opinion of the court.

Hon. S. S. Calhoon, Judge. This action of assumpsit was brought by P. P. Bailey against the State, upon a claim of $5,500 as a balance due on his salary as a chancellor. A demurrer was filed for the defendant, which was sustained, and the plaintiff sued out a writ of error.

Hon. J. M. Arnold, Judge. The Alabama Gold Life Insurance Company bring up this case from a judgment in the Circuit Court, on appeal from the judgment- of a justice of the peace, for the defendant, in a suit on the following note : — “$73.87 gold.

Hon. S. S. Calhoon, Judge. This action was brought for the use of W. P. Towler, against E. J. Bowers (administrator of the estate of W. M. Towler), J. R. Powell, and C. C. Shackleford, upon the bond of W. M. Towler as guardian of the usee, Powell and Shackle-ford being the sureties.

Hon. George Wood, Chancellor. The bill in this case was filed by the appellant for the purpose of having a written contract between himself and the appellees reformed, and to obtain a decree against the appel-lees on the contract as reformed. The defendants pleaded a judgment at law as res adjudicata of the matters involved in the bill. The court sustained the plea and dismissed the bill. A suppletory statement of the case will be found in the opinion of the court.

<p>Appeal from the Chancery Court of Warren County.</p> <p>Hon. U. M. Young-, Chancellor.</p> <p>The case is stated in the opinion of the court.</p> <p>The constitutional provision under consideration was originally adopted in 1852, and was readopted with the Constitution of 1869 ; and in the years immediately following such adoption and readoption, the Legislature, in many instances, exercised the power of granting ferry licenses unquestioned. See Acts 1852, pp. 46, 53, 58, 112, 179, 192, 264, 294, 333, 365, 449 ; Acts. 1870, pp. 328, 561; Acts. 1871, pp. 50, 491, 493, 499. The legislation of other years is full of similar statutes. Where there is any room to doubt as to the proper construction of a constitutional provision, the court must adopt the construction which has been generally accepted as correct, and especially so where such construction occurred contemporaneously with the adoption of the provision. Cooley’s Const. Lim. 67 ; Ogden v. Saunders, 12 Wheat. 290; United States v. Hal-stead, 10 Wheat. 63. The right of the State to establish ferries rests upon that eminent domain which is an attribute of its sovereignty. 3 Paige, 45 ; 5 Seld. 100; 1 Redf. on Rys. 63. The only limitations upon the light is, that private property must only be taken for public purposes, and that due compensation must be made therefor. State Const., art. 1, sect. 10.</p> <p>The act of the Legislature granting to the appellant the privilege of keeping the ferry is unconstitutional and void. The power to establish ferries, and license persons to keep them, is vested by the Constitution exclusively in the boards of supervisors. State Const., art. 6, sect. 20. Where there is a plain case of an infraction of the Constitution, whether by a general law or a local or private act, the courts will so declare. Campbell v. Union Banlc, 6 How. 625 : Bunnells v. The State, Walk. 156 ; Thompson v. Grand Gulf B. <& Banhing Co., 3 How. 240.</p> <p>The Constitution confers upon boards of supervisors the power to locate and establish ferries, to appoint persons to keep and own them, to fix the rates of toll, etc. Tegarden v. McBean, 4 Geo. 283. The jurisdiction conferred is “ full,” — that is, ample, complete, and perfect. 52 Miss. 740. The Legislature, by reason of its general legislative jurisdiction, may constitutionally pass such laws, with respect to roads, ferries, and bridges, as are general and supervisory in their nature; but the boards of supervisors have the exclusive power to enact such rules and regulations as are special and active in their nature, or in execution of the general laws upon these subjects. That the jurisdiction conferred by the Constitution upon boards of supervisors is exclusive, has been settled by many decisions'in analogous cases. 50 Miss. 584; 51 Miss. 100; 53 Miss. 534; 52 Miss. 740; 3 Cow. 713; 11 Pet. 158 ; 7 How. (U. S.) 393 ; 9 Wheat. 1; 12 Wheat. 412.</p>

Error and cross-error to the Circuit Court of Warren County. Hon. T. A. Marshall, Special Judge, presiding by agreement of pax-ties, Hon. U. M. Young being disqualified.

Hon. L. Brame, Chancellor. Turner sued McAdory in an action of assumpsit, in Neshoba County. At the appearance term, McAdory’s attorney obtained leave of the court to plead within ninety days. The pleas were not filed within the time allowed, but were filed on the first day of the next term of the court. Upon motion of the plaintiff, by his attorney, the pleas were stricken from the file.

Hon. William CothraN, Judge. Z. Zollicoffer, being the owner of a tract of land, in 1873 sold a part thereof to Samuel Yick, wholly on a credit. The contract of sale was parol, no writing being given by either party. Zollicoffer died in 1874. Yick failed to make any payment on his contract, and, in 1875, J. P. Mills, acting for Zollicoffer’s heirs, bargained the entire tract to Joseph E. Ayres and William McMillan, by parol.

Hon. S. S. CalhooN, Judge. This is an action of unlawful detainer, brought by J. E. Powell against J. E. Clymer, before a justice of the peace, for the recovery of a certain tract of land. The case was appealed to the Circuit Court, and to the judgment there rendered the defendant sued out a writ of error. The other facts involved in the decision of the case are sufficiently stated in the opinion of the court.

Hon. J. S. Hamm, Judge. The case is stated in the' opinion of the court. The only manner in which a junior judgment-creditor can get a priority over a senior judgment-creditor, is by giving the notice prescribed in sect. 830 of the Code of 1871. No such notice was given in this case. The change in the firm-name of the parties made no difference as to the lien.

Hon. William Cothran, Judge. S. M. Brown brought an action against Nathan Ashford, before a justice of the peace, to obtain the possession of a certain tract of land.

IT. M. YotjNG-, Chancellor of the Eleventh District, dissolving an injunction. The case is stated in the opinion of the court. 1. An injunction should be continued to the hearing, when its dissolution before that time will work irreparable injury by rendering the relief sought unavailing. Hill, on Inj., p. 103, sect. 35, p. 108, sect. 39, p. 110, sect. 41; McOorkle v. Brun, 76 N. C. 407; Owen v. Brien, 2 Tenn.

Hon. U. M. YouNG, Chancellor. The case is stated in the opinion of the court. 1. This proceeding is by a creditor’s’ bill, to subject the unpaid subscriptions of three stockholders of a corporation to the payment of the judgments of its creditors generally; and as such it is fatally defective in not joining all of the solvent resident stockholders as parties defendant.

Hon. S. S. CalhooN, Judge. Taylor had a contract to build an addition to the Lunatic Asylum. McLaughlin, who was a plasterer, applied for the contract to do the plastering, and Taylor agreed to give him the job, but required him to execute a bond, with security, for the faithful performance of the work.' The bond was prepared with McLaughlin’s name in the body thereof, as principal. McLaughlin, accompanied by Taylor, applied to Odeneal to become the surety on the bond.

Hon. T. C. CatchiNGS, Special Judge, by agreement of the parties ; Hon. U. M. Young being disqualified. The case is stated in the opinion of the court. filed a brief, but it cannot be found by the clerk of the court; and although notified of its loss, and requested to furnish the reporter a statement of the points made and authorities cited by them, they have failed to do so. 1. The bill of lading, or contract of affreightment, in this case, is not in the record.

Hon. S. S. Calhoon, Judge. The nature of the action and the effect of the evidence are sufficiently stated in the opinion of the court. Two instructions given for the plaintiffs below, and excepted to by the defendant, who is the plaintiff in error here, were as follows : — “ 1.

Hon. E. G-. Peyton, Chancellor. The case is sufficiently stated in the opinion of the court. 1. The wall belonged to Cooper or his vendee, Kells, until one-half the cost of erecting the same should be paid. Cooper had license, by parol agreement, to erect one-half the wall on Miazza’s side of the division-line. Our statute dispenses with the necessity of written evidence of such agreement.

Hon. T. Otis Baker, Special Judge, by agreement of the parties, Hon. Ralph North having been of counsel in the case. Bettie A. Vaughan and her husband brought an action of unlawful detainer, before a justice of the peace, against W. H. Swayzie and others, to obtain the possession of a certain tract of land. The case was carried by appeal to the Circuit Court.

Hon. L. Brame, Chancellor. On the 4th of December, 1877, the appellees filed a bill in chancer’y for the purpose of enforcing their alleged right to redeem a certain tract of land sold on the second day of January, 1877, for the taxes of 1876, and purchased at such sale by the appellees. In their bill, the complainants made a tender of a sum of money sufficient to redeem the laud, and paid the money into court. The defendant answered.

Hon. U. M. Young, Chancellor. The case is sufficiently stated in the opinion of the court. The question here presented is, whether the Chancery Court can reform the assessment of property so as to make it represent what the parties intended it should, and then subject the property assessed to the payment of the taxes for the non-payment of which it was sold, where the assessment was given in by the owner.

<p>Appeal from the Chancery Court of Hinds County.</p> <p>Hon. E. G. Peyton, Chancellor.</p> <p>A statement of the case will be found in the opinion of the court.</p> <p>1. That the control of infants and their property constituted one of the original subjects of equity jurisdiction, has been fully recognized in this State. Bacon v. Gray, 23 Miss. 140. See also 2 Story’s Eq. Jur., sects. 1334, 1357. Under sect. 1220 of the Code of 1871, the Chancery Court is authorized to order the sale of such portion of a ward’s land, upon the application of the guardian, as may be necessary to the maintenance and education of the ward, or as may be advantageous to his interests. There can be no good reason why such court should not extend the like protection to the rights and interests of infants who have no legal guardian or trustee. A court of equity is not restricted, in the exercise of its protective jurisdiction for infants, to applications by guardians or trustees. Bull v. Bagenhard, 55 Miss. 605.</p> <p>2. It is not a sufficient ground of demurrer that the complainants will be entitled to redeem the land after they arrive at the age of majority, when it is admitted by the demurrer that they will be wholly without the means to make the redemption, and that in the meantime they will be without any means of support.</p> <p>3. A person, as the next friend of an infant, may sue for the benefit of the latter, as could a guardian or trustee, and without the previous permission of the court. Code 1871, sect. 669 ; Klaus v. The Slate, 54 Miss. 654; Bull v. Bagenhard, 55 Miss. 602.</p> <p>1. The provisions of the Code of 1871 in relation to the public revenue, when construed together, give a limited time to “redeem” lands sold for taxes, and after the period allowed has elapsed, make the title of the purchaser absolute if no redemption has been made. It is evident that the words “ redeem ” and “redemption ” are not used in their technical sense, but in their popular one, and that the law only intends to give the owner the right to repurchase the land; for if there was a technical right of redemption, the deed could never be an absolute one.</p> <p>2. The complainants have no technical right of redemption, but only a right to repurchase. They have no right to come into a court of equity and have a part of the land sold for the purpose of paying off the taxes on the whole. The land is not under a technical mortgage, but is held upon a conditional sale, with all the incidents thereof. The law having given the complainants, as minors, tlxe right of repurchasing the land until they, respectively, become twenty-two years of age, it is vested and absolute. But it is proposed, by a proceeding other than that provided by law, to raise a fund to pay the taxes on the lands of complainants, and, in doing so, to divest them of their right to repurchase, which the law has given them until they are twenty-two years of age.</p>

Hon. L. Brame, Chancellor. The case is sufficiently stated in the opinion of the court. 1. The appellant’s remedy is in equity.

Appeals from the Chancery Court of Adams County. Hon. Ralph North, Chancellor. Pending an appeal from a decree directing the sale of land under a mortgage, the sale was made, reported, and confirmed, notwithstanding numerous exceptions thereto ; and from that order of confirmation Mrs. Ogden, the mortgageor, appealed, and the two records were submitted in the Supreme Court at the same time. 1.

Hon. E. Gr. PeytoN, Chancellor. Zias D. Davis, trustee in a deed of trust executed by Samuel Jackson upon certain described animals, and “ all other live stock that he may own during the year,” with power to take and sell the property and pay a debt owed by Jackson to B. F. Martin, filed this bill against Jackson and Moses Marx, alleging that the latter had possession of two animals, one of which, a mule, was included in the original deed, and the other, a strawberry-roan…

<p>1. Deed oe Trust. Power of sale. Jurisdiction of chancery.</p> <p>The fact that a deed of trust or mortgage contains a power of sale, and contemplates a foreclosure without the aid of a court, does not preclude a resort to the Chancery Court for the purpose of foreclosure.</p> <p>2. Statute oe Limitations. Art. 28, Code of 1857. Right of action or of entry prior thereto.</p> <p>Under the proviso to art. 28 of “An act for the limitation of actions,” contained in the Code of 1857, which provided, “that this act may he pleaded in any case where a bar has accrued under the provisions thereof,” the period of limitation prescribed by that act, in cases where the right of action or of entry accrued before the act took effect, should be dated from the time the act took effect, and not from the time when the right of action or of entry accrued.</p> <p>3. Same. Prior to Code of 1857. Deed of trust.</p> <p>Under the statute of limitations in force prior to the adoption of the Code of 1857, the beneficiary in a deed of trust was entitled to ten years after condition broken, for the enforcement of the trust, that being the period which barred a right of entry into lands.</p> <p>4. Chancert. Foreclosure of trust-deed. Practice. Proper party.</p> <p>In a suit in chancery for the enforcement of a deed of trust, the trustee should be made a party, but this court will not reverse a decree because of the failure to make the trustee a party, where no objection was made on that account in the court below. The execution of the trust by a decree of the court supersedes the trustee, and presents a ground for restraining him if he should ever assert his legal title.</p>

Hon. E. Gr. PeytoN, Chancellor. In August, 1873, Hugh Clark and wife executed a deed of trust to Mangum, as trustee, for the benefit of Harrison & McLaren.

Hon. William Cothran, Judge. The case is stated in the opinion of the court. If the husband will not join the wife in a suit for the enforcement of her rights or the recovery of her property, she may sue alone. Code 187-1,- sect. 1783. And the court below erred in refusing to allow the plaintiff to prove that her husband refused to join her in this suit, and in dismissing the action.

Hon. J. B. Chrisman, Judge. The plaintiff in error, on the 10th of February,.1879, tiled a petition for a mandamus to compel the superintendent of education of Pike County to issue pay-certificates to two of the petitioner’s children for their pro rata shares of the common-school fund of the county.

Hon. J. A. Green, Judge. ' A petition for a writ of mandamus, to compel the board of registrars of Alcorn County to register the plaintiff in error as a voter, was denied on the ground that he had been convicted of the embezzlement of United States funds while acting as postmaster, and sentenced, by the Eederal Court for the Northern District of Mississippi, to imprisonment for two years in the penitentiary, although he had been pardoned by the president of the United States…

Hon. S. S. Calhoon, Judge. The case is sufficiently stated in the opinion of the court.

Hon. J. W. C. Watson, Judge. The case is stated in the opinion of the court. 1. The decree in chancery confirming the tax-title adjudicates the whole matter, and entitles the plaintiff to recover the land. Sect. 1753, Code 1871, confers on the Chancery Court concurrent, if not exclusive, jurisdiction over questions concerning the validity of tax-titles, and the remedy is coextensive with the action of ejectment, so far as the essentials of title are concerned. 2.

Hon. R. W. Williamson, Chancellor. The case is stated in the opinion of the court. The administrator of the vendee is a necessary party, because the demand is a debt of the estate for which the personal assets are primarily liable. Mullins v. Sparhs, 43 Miss. 129 ; Reedy v. Armstead, 2 Geo. 354; Story’s Eq. PL, sect. 177; Reed v. Gregory, 46 Miss. 740.

<p>1. Vendor's Lieu. Release. Rescission of land sale.</p> <p>If, on rescinding a land sale, the vendee writes an informal quitclaim on the unrecorded original conveyance, he has a vendor’s lien to secure a note given by the original vendor as part of the consideration for the reconveyance.</p> <p>2. Deed. Consideration. Parol evidence to prove.</p> <p>Parol evidence is admissible, in such case, to show that the note was part of the consideration for the release, although the latter recites as the reason for making it, “the proper owner not having complied with the within deed.”</p>

Hon. U. M. Young, Judge. The plaintiff in error was tried upon an indictment charging him with the larceny of various articles, aggregating in value $30. The jury returned a verdict in the following language : “ We, the jury, find the prisoner guilty to the amount of thirteen dollars.” The defendant moved in arrest of judgment. His motion was overruled, and he sued out a writ of error. 1.

Hon. J. A. Green, Judge. The case is fully stated in the opinion of the court. 1. The court erred in excluding- the license. If the other defendants were clerks, and not partners, there was no other way, where all were on trial, to rebut the presumption of partnership raised by the Stgte. 2. An indictment for selling liquor, under the act of 1873, is not sustained by proof of giving it away, unless the giving was to evade the law.

Hon. A. G. Mayers, Judge. The plaintiff in error was convicted of arson, in the burning-of a certain saw and grist mill. He sued out a writ of error, and assigned, amongst other causes of error, the giving of the third instruction for the State. That instruction is substantially stated in the opinion of the court, and is decisive of the case here. The other points of error are not considered by this court.

<p>Criminal Lavr. Instruction. Witness. Evidence.</p> <p>It is error to charge the jury, in a felony case, that if they believe the prisoner’s chief witness swore falsely, from dislike to the injured party, they may disregard his testimony, where there is no evidence of such dislike.</p>

Hon. S. S. Calhoon, Judge. The nature of the case and the effect of the evidence are stated in the opinion of the court.

Hon. J. W. Shields, Special Chancellor, by agreement of the parties, Hon. Charles Clark, then chancellor, being disqualified. The bill in this cause was filed for the purpose of subjecting a tract of land, constituting a valuable plantation near the Mississippi River, to the payment of a balance of the purchase-money thereof, alleged to be $40,000.

Hon. U. M. Young, Judge. This is an action for libel brought by John D. Kline against the publishers of the Vicksburg Herald, a newspaper published in the city of Vicksburg. The plaintiff claimed damages to the amount of $25,000. The jury rendered a verdict in his favor for $500, and to the judgment thereon the defendants sued out a writ of error.