Volume 57 — Mississippi Reports

<p>Error to tbe Circuit Court of Lincoln County.</p> <p>Hon. J. B. ChrismaN, Judge.</p> <p>This was an action on the sheriff’s bond, for his default for the taxes of 1872, against J. P. Matthews, R. W. Millsaps, and Jas. A. Hosldns, his sureties. The declaration alleged that John D. Moore, now a non-resident, was elected sheriff of Lincoln County, and on Dec. 80, 1871, executed the bond, jointly with Millsaps, Hoskins, M. Lowenthall, and J. W. Burnett, each of the last two placing opposite his name $2,000; that this bond, which was conditioned for the faithful performance of “all the duties of the office of sheriff” during the two succeeding years, was accepted and approved ; that after-wards, on Sept. 2, 1872, on the application of Lowenthall and Burnett to be released from the bond, tbe sheriff appeared before the board of supervisors and tendered J. P. Matthews who justified for the sum of $4,000, as surety in place of the applicants; that thereupon the clerk, in the presence of Matthews and the board, drew a red line through the names of the petitioning sureties, and Matthews signed and sealed the bond, and that the board by its order discharged Burnett and Lowenthall and accepted Matthews.</p> <p>A demurrer by Matthews, on the ground that he did not, either by signing the bond or by the action of the board of supervisors, become liable as eo-obligor, was overruled, and the defendants filed pleas. Millsaps and Hoskins pleaded, (1) that Moore gave two bonds as tax collector for the same term as his sheriff’s bond, with different sureties, which were before the alleged default received and approved by the proper authorities, and that they signed the bond sued on with the intent to cover his acts as sheriff, and not as tax collector; (2), (3), and (4), that the board released the sureties on the bond in suit, prior to the collection of any of the taxes, by its action in substituting Matthews for Lowenthall and Burnett, and (6) that Moore was not sheriff of Lincoln County for the term named in the declaration, because he never qualified as such by executing the required bond. Demurrers by the plaintiff to these pleas were overruled, and replications were filed putting them in issue. Matthews’s pleas, demurrers to which were overruled, were the same, with the addition that the bond was without consideration as to him, and that Moore never collected the taxes as alleged; and issue was joined on them.</p> <p>On the trial, the plaintiff produced the bond sued on, and the county treasurer’s certificate, showing that $3,570.91 of the county taxes for the fiscal year 1872 remained due and unpaid from Moore, the sheriff and tax collector. To the reading of each paper the defendants objected; their objections were overruled, the papers were read, and the plaintiff rested. The defendants then introduced the two tax collector’s bonds, and the proceedings of the board of supervisors touching those bonds and the sheriff’s bond, testified that Millsaps signed the sheriff’s bond under the common understanding that it did ,not cover Moore’s duties as tax collector, and with evidence to sliow that the county treasurer’s certificate was not made from the corrected roll delivered to the sheriff, but was taken from an incomplete roll, and based on an adjustment made shortly before the trial, and contained inaccuracies, rested, and moved to exclude all the plaintiff’s evidence; which motion was sustained. The verdict and judgment were for the defendants.- A motion for new trial was overruled, and the plaintiff brought up the case.</p> <p>1. The sureties on a sheriff’s bond, given when no special bond as tax collector was required, are liable for a default in paying over county taxes collected. Byrne v-. State, 50 Miss. 688; Taylor v. State, 51 Miss. 79; French v. State, 52 Miss. 759. The condition of the bond sued on is broad enough to cover the collection of taxes as a function of the office of sheriff. Code 1871, § 309. If the sureties are so liable, the fact that the sheriff executed and the board of supervisors accepted a bond not required by law cannot release them.</p> <p>2. Millsaps and Hoskins were not released by the action of the board. If their action was valid, Burnett and Lowenthall were released, and Millsaps and Hoskins still held; if void, the bond remains as it originally was. The doctrine that the release of one surety releases all does not apply in this State to sureties on official bonds. Hoskins and Millsaps have not been released in the manner pointed out by the statute, Code 1871, § 316, and therefore have not been released at all. If either defendant was liable, the court erred in excluding the evidence. Nor was this affected by the defendants’ evidence. The court could not say that their witnesses were credible.</p> <p>1. The sureties on a sheriff’s bond are not liable for his defalcation as tax collector. Although it was held in French v. State, 52 Miss. 759, that a sheriff is ex officio tax collector, yet a separate office is attached. Byrne V-. State, 50 Miss. 688. A bond given by the sheriff as tax collector, in the absence of any statute requiring it, will be upheld. Harris v. State, 55 Miss. 50. Even if this bond bad contained the condition to perform all duties incident to the office of sheriff, which it does not, still the suit could not be maintained for default in the special duties of tax collector. State v. Mayes, 54 Miss. 417; Code 1871, § 309. The remedy in this case, under the decisions cited, was plainly on the tax collector’s bond, and there cannot be a remedy on both bonds.</p> <p>2. No sheriff’s bond existed after Moore was required by the order of the board to give a new bond and failed to comply, except by substituting Matthews for the sureties who had applied to be released. The order required by Code 1871, § 316, was made, and the erasure of two names and substitution of another not being a compliance, the statutory result was that the office became vacant. Moore was thereafter only an officer de facto, and the only bond was that of Matthews. At all events, the release of Burnett and Lowen-thall operated as a release of their co-sureties, who had no notice of the proceeding. Oneale v. Long, 4 Cranch, 60; Spealce v. United States, 9 Cranch, 28; 1 Parsons on Contracts, 27. The risk cannot be thus increased without the surety’s consent. Lipscomb v. Postell, 38 Miss. 476.</p> <p>1. The sureties were, by force of the statute, relieved from further liability, when the board of supervisors, under Code 1871, § 316, required a new bond. It was not their duty to see that the board took such bond; nor were they responsible for the means used to protect the public. The relief given by the statute does not depend on the validity of the new bond. The sureties on the old bond remain liable for all defaults up to the time of the action of the board, but not beyond. Whatever may be said of the legislative power to pass a law by which one or more of the sureties on official bonds are discharged, leaving the others bound, the legislature has not made such an unreasonable law. The law does not contemplate additional sureties. Lewenthall v. State, 51 Miss. 645; State v. Hull, 53 Miss. 626. In California, under a statute like ours, the court held that a discharge of one surety operates to discharge all, and distinguished those statutes which give authority to demand additional or cumulative security from those which authorize the sureties to obtain a discharge. People v. Buster, 11 Cal. 215.</p> <p>2. It is neither alleged nor proved that the other sureties assented to the discharge of the two. Matthews never contemplated becoming sole surety, but signed, thinking the others were bound; and if the board failed to take the proper steps to bind them, he is not bound. On the contrary, if we assume that Burnett and Lowenthall were not released, then there was no substitution of Matthews for them. It is not pretended that additional security was aimed at. If there was no release, there was no consideration for Matthews’s signing. The case of Matthews is within the principle that a signing by one, on the consideration that others are to be bound with him, is void unless they are bound.</p> <p>3. But if the court should hold that Matthews was grafted upon the old bond, there is the further defence that the suit should have been on the tax collector’s bond. French v. >State, 52 Miss. 767; Harris v. State, 55 Miss. 50. Parties signing the sheriff’s bond must be understood to intend becoming liable on the bond, by reason of Code 1871, § 219, only. The legislative omission to require a tax-collector’s bond cannot justify the court in giving the sheriff’s bond a scope clearly not contemplated. The amount fixed by § 219 shows that the legislature never designed that bond to cover taxes. The section contemplates a sheriff’s bond eo nomine, and so the sureties understood.</p>

Hon. A. G. Mayers, Judge, having been of counsel, C. C. Miller acted as judge pro hae vice.

Thomas T. Belly, Chancellor of the Tenth District of Mississippi. 1. If an escaped convict can maintain a writ of habeas corpus against the lessee of the penitentiary who has lost him, this proceeding should be sustained, otherwise not. Much righteous indignation seems to have been expended by the Chancellor, who fined everybody, and held every one in contempt. Flowers was doubtless all the while blooming in Texas.

Hon. James M. Arnold, Judge.. The defendant in error sued H. W. Hardy on two bills of exchange, drawn by the latter in the following terms: — “Louisville, Miss., July 17, 1874. “ Dear Sie, — On the 1st day of December next, please pay to J. S. Pilcher or bearer, the sum of four hundred dollars, and charge the same to my account. “ (Signed) PI. W. Hardy. “ To Wm. S. Bolling.” Across the face of each was written, “Accepted, Wm.

<p>1. Bill oe Exchange. Failure to indorse. Suit in payee’s name.</p> <p>A purchaser for value, without indorsement, of a hill of exchange, payable to order, can sue thereon in the name of the payee.</p> <p>2. Same. Accommodation acceptor’s liability. .</p> <p>The acceptor in such case is liable, although his acceptance was merely for the accommodation of the drawer.</p> <p>3. Same. Release of acceptor. Forbearance. Extrinsic evidence.</p> <p>But he can prove that, being a surety, he is released by a contract of forbearance to the drawer, made by the purchaser with knowledge of the fact.</p>

Hon. J. S. Hamm, Judge. A. C. Edwards, who bad leased land, for the year 1876, to C. W. Jones for three bales of cotton, having received only two bales, made certain statements, in consequence of which Jones sued him for slander. The material allegations of the declaration appear in the opinion of the court.

Hon. J. A. Greek, Judge. This action was brought by the plaintiff in error, before a magistrate, against H. C. Medford and certain persons who resided out of the county. On the trial on appeal in the Circuit Court, the plaintiff introduced the ejectment record mentioned in the opinion, from which it appeared that the defendant, Medford, had prolonged the ejectment suit two years, by his plea therein of not guilty.

Hon. J. A. Green, Judge. The court below by instructing the jury that the son’s bond, if given for his deceased father’s debts, was without consideration caused the erroneous verdict. Powell v. Jones, 12 S. & M. 506; Calhoun v. Calhoun, 37 Miss. 668.

<p>Error to the Circuit Court of Grenada County.</p> <p>Hon. Sam. Powel, Judge.</p> <p>The Statute of Limitations of one year having been held to apply to an action brought May 16, 1877, against an administrator appointed Feb. 26, 1876, for an assault and battery by his intestate on Oct. 19,1875, the plaintiff brought up the case.</p> <p>cited Code 1871, §§ 2152, 2162; Johnson v. Pyles, 11 S. & M. 189; Byrd v. Byrd, 28 Miss. 144; Ablott v. McJElroy, 10 S. & M. 100; McQoy v. Nichols, 4 How. 31; Lamhin v. Nye, 43 Miss. 241; Wilson v. Sibley, 54 Miss. 656 ; Hutch. Code, 831; Jennings v. Love, 24 Miss. 249.</p> <p>argued the case orally.</p> <p>cited Code 1871, §§ 1184, 2162, 2170; Jennings v. Love, 24 Miss. 249; Claytonv. Merrett, 52 Miss. 353; Wilson v. Sibley, 54 Miss. 656.</p> <p>made an oral argument.</p>

Upton M. Young, Judge of tbe Eleventh District of Mississippi, refusing to admit tbe relator to bail. filed a brief, and argued tbe case orally. Under the Constitution of Mississippi, bail in capital cases is a matter of right where the proof is not evident or the presumption great; and the court has the power, in its discretion, to admit to bail in all cases. Bx parte Wray, 30 Miss. 673. The court can bail even in cases where the jury on the same evidence should convict.

Hon. E. G. Peyton, Chancellor. The appellant demurred unsuccessfully to the petition of the appellee, filed in the court in which the former was appointed guardian, to subject the ward’s estate to liability for counsel fees earned by the latter by the recovery thereof for the infant, before the appointment of a guardian. The infant could not of course contract for the services of a lawyer, and having no guardian no express cóntract was made with the appellee.

<p>1. Married Woman. Deed of trust. Ejectment by beneficiary.</p> <p>If the trustee in a deed of trust by a married woman to secure her husband’s debt has sold the land to the beneficiary, the latter can maintain ejectment.</p> <p>2. Same. Mortgage for husband’s debt. Rights of mortgagee.</p> <p>The beneficiary, when in possession, is entitled only to the income until payment of the debt, or the death of the woman.</p> <p>3. Same. Mortgagee in possession. Account. Redemption.</p> <p>The married woman can maintain a hill to redeem, or for an account against such beneficiary in possession.</p>

<p>Appeal from the Circuit Court of Lincoln County.</p> <p>Hon. J. B. ChrismaN, Judge, did not sit in this case, but Hon. A. G. Maters presided by interchange.</p> <p>The appellee, her husband joining for conformity, sued the appellant in assumpsit for $276.77 on an open account sworn to under the statute consisting of $616.77 of debits extending from March to December, 1877, with credits thereon undated, amounting to $340, and not applied to any particular items of debit. The defendant pleaded the general issue with counter affidavit denying certain items, and a special plea that the plaintiff had not taken out a license under the privilege-tax law; and the plaintiff joined issue. The plaintiff’s counsel then served on the defendant a notice to produce .at the trial the bills of goods bought by the defendant with the credits thereon. The .defendant produced, and the plaintiff read in evidence, the account described in the opinion, for $329, of items of debit extending to Sept. 13,1877, balanced by credits similar to some on the account filed with the declaration, the last credit being dated Dec. 5, 1877, and the defendant stated that the plaintiff had delivered this account to him.</p> <p>On the plaintiff’s motion, the court excluded all the defendant’s testimony in reference to the plaintiff’s failure to pay the privilege tax, when it was due on May 1, 1877, or within thirty days thereafter; and refused to charge the jury for the defendant that, if the plaintiff was doing business as a merchant from March to December, 1877, she was liable to pay the privilege tax, and if she failed to pay it when due, or within thirty days thereafter, and to obtain a license to follow the business of a merchant, she could not recover for such goods as were sold after the time said privilege tax was due.</p> <p>On a general verdict for $235, there was a judgment for the plaintiff. A motion for a new trial, made by the defendant for error in excluding the testimony and refusing his instruction, was overruled.</p> <p>Sect. 5, Acts 1875, p. 10, is clearly constitutional, and the action of the court was in violation of it. The clause which prohibits the maintenance of a suit is a part of the penalty imposed on a crime. It is as much the law of the State as the statute rendering void gambling contracts.</p> <p>1. It was the policy of the statute, Acts 1875, pp. 3, 10, that a merchant who had not first paid his tax could not malte a binding contract, and the act did not infringe the provision of the Federal Constitution prohibiting States from passing laws impairing the obligation of contracts. Cooley on Const. Lim. 284. The debt was contracted after the law was enacted. The legislature had power to impose the tax, Stewart v. Potts, 49 Miss. 749; and also power to regulate the penalty. In an analogous case, it has been decided that no action can be maintained on a contract the consideration of which is prohibited. Beans v. McLendon, 30 Miss. 343. A contract which violates the revenue laws of the country in which it is made is void. 2 Parsons on Contracts, 753; Johnson v. Hudson, 11 East, 180; Cope v. Rowlands, 2 M. & W. 149 ; Smith v. Mawhood, 14 M. & W. 452; Meux v. Humphries, 3 C. & P. 79 ; Holman v. Johnson, 1 Cowp. 341; Armstrong v. Toler, 11 Wheat. 258; Cambioso v. Maffett, 2 Wash. C. C. 98; Hannay v. Hve, 3 Cranch, 242 ; Lightfoot v. Tenant, 1 B. & P. 551; Langton v. Hughes, 1 M. & S. 593; Ritchie v. Smith, 6 C. B. 462; Hodgson v. Temple, 5 Taunt. 181; Gatlin v. Bell, 4 Camp. 183. The circuit judge held that the repeal of the act of 1875 by the act of March 5, 1878 (Acts 1878, pp. 12, 23) deprived the defendant of that defence; but, if the debt was illegal, neither the defendant nor the legislature could impart to it validity. Harris v. McKissack, 34 Miss. 464; Porterfield v. Butler, 47 Miss. 165. If the act of 1875 was, so far as it related to merchants, repealed by the act of 1878 (Acts, 1878, pp. 12, 14), it could not affect this case, because under both the acts the privilege tax “ on each store stock under two thousand dollars,” is five dollars. The statute of 1878 is necessarily an amendment to the act of 1875. They are in pari materia, belong to one system, and are to be construed together. Scott v. Searles, 5 S. & M. 25 ; Grand Gulf Bank v. Archer, 8 S. & M. 151. Repeal by implication is not favored in law. McAfee v. Southern Railroad Go., 36 Miss. 669 ; Richard v. Patterson, 30 Miss. 583; Southern Railroad Go. v. Jackson, 38 Miss. 334; Commercial Bank v. Chambers, 8 S. & M. 9; Planters' Bank v. State, 6 S. & M. 628. Such repeal, when allowed, extends only so far as tbe statutes are manifestly repugnant, White y. Johnson, 28 Miss. 68, which these statutes are not.</p> <p>2. But, notwithstanding the error of the lower court on the question of the privilege tax, the opposing counsel insist that the judgment should be affirmed, because the part of the account prior to the date of the license has been paid. This is not proved, for the plaintiff failed to establish the identity of the account which appears paid, with the first part of the account sued on, or to show the circumstances attending its delivery and retention. Again, it has been held that, where one of the debts is legal and the other illegal, a payment must be applied to the legal debt, Wright v. Laing, 3 B. & C. 165; and that payments on an illegal debt can be recovered back. Worcester v. Baton, 11 Mass. 368, 876 ; Bond v. Hays, 12 Mass. 34; Boardman v. Hoe, 13 Mass. 104; White v. Franklin Banlc, 22 Pick. 181; Peek v. Burr, 10 N. Y. 294. Hence the payments, if applied to the account sued on, satisfy it in full. Further, the record does not show on which point the verdict is founded, and, to warrant an affirmance in such case, it must appear that there was no error in either. Hills v. Hliot, 12 Mass. 26. The jury may not have passed upon the latter issue.</p> <p>1. The fifth section of the privilege-tax law of 1878 (Acts 1878, p. 23) repeals all other acts regulating taxes on privileges, including, of course, the act of 1875. It is true that the act of 1878 imposed a penalty similar to that of 1875, but that is prospective, and this was after the account sued on was contracted. The repealed statute contained the penalty relied on by the defendant below in his special plea. By the following cases, the effect of such repeal is illustrated: Teague v. State, 39 Miss. 516 ; Yeaton v. United States, 5 Cranch, 281; Musgrove v. Vicksburg Railroad Oo., 50 Miss. 677; French v. State, 53 Miss. 651.</p> <p>2. But even if the statute was not repealed, and the court was wrong in excluding the testimony, still the verdict was right and the judgment should be affirmed. The evidence does not show that the plaintiff was in default at the time when the debt sued for was contracted. The verdict is for the balance due, which embraces only those items which were sold after the privilege tax was paid. The instruction asked for the defendant below announced the startling proposition that if a merchant fails to pay a privilege tax at the time it is due, or within thirty days thereafter, he cannot subsequently comply with the law, but must permanently remain in the position of a violator thereof.</p> <p>3. The constitutionality of these laws is not discussed, because the case of the appellee seems sufficient without it. But the question is not waived or conceded.</p>

Hon. T. B. Graham, Chancellor. The appellant filed this bill against the appellees to confirm his tax title; and their demurrer was sustained on the ground that he sold the land as tax collector and purchased at the sale. No statute of this State prohibits a tax collector from bidding at his own sale, nor does his so purchasing contravene public policy. If he sold the land for too little, or exacted too much from the tax payer, such fraud may be proved.

Hon. A. G. Maters, Judge, did not preside in this case; but S. H. Terral acted as judge pro hao vice. John D. Freeman and Harvey Ware, the plaintiffs in error, brought ejectment June 11,1875, claiming by a deed executed after her husband’s death, by Mrs. Caroline Meadows, the original owner of the land.

Hon. S. S. Calhook, Judge. In this ejectment by Thomas J. Futch for two hundred and forty acres of land and mesne profits, the defendant pleaded “not guilty,” with a claim for improvements on eighty acres of the land. The question of title was submitted to the court, which found for the plaintiff. The counter-claims for mesne profits and improvements were submitted to a jury, which assessed the former at five hundred, and the latter at five hundred and thirty dollars.

<p>1. Deceit. False recommendation. Scienter.</p> <p>An action for deceit in writing a false statement concerning another, whereby the latter obtained credit, cannot be maintained unless the defendant made the misrepresentation knowingly.</p> <p>2. PieadiNG. Argumentativeness. Acts 1878, p. 190.</p> <p>Under our system, argumentativeness in a pleading is no ground of demurrer.</p>

E. G. Peyton, chancellor of the Ninth District of Mississippi, dismissing a writ of habeas corpus, and remanding the relator to custody. The Constitution of Mississippi, art. 1, § 11, provides that there shall be no imprisonment for debt. The costs of a criminal prosecution are a debt within the provision, and are not part of the penalty. State v. Kenny, 1 Bailey (S. C.), 375; State v. Sauvaine, 14 Ind. 21; Thompson v. State, 16 Ind. 516.

Eeeoe to the Circuit Court of Madison County. Hon. S. S. Calhoon, Judge. The evidence showed that the mortgagor owned, whetí the deed was made, the number named therein of each description of animals, and no others of the same kind. The execution of the mortgage was an assertion of ownership, and the presumption from giving it is that the property embraced belonged to the grantor.

Hon. S. S. Calhoon, Judge. 1. The demurrer to the eighth plea, which was general performance of covenants, should have been overruled.

<p>1. Specific Performance. Easement and servitude. Hardship.</p> <p>A grant, on valuable consideration., of the right perpetually to lay off new landings, as the river hank caves, to the exclusion of all others, on the water front of a large plantation, near a growing town, is not so unfair that equity will refuse to decree its specific performance.</p> <p>2. Same. Ambiguity. Right of election.</p> <p>The stipulation is sufficiently definite if it provides that the covenantor shall permit the covenantee, when the landing caves, to fix another, not to exceed four acres, at any point on the river front of the plantation, where the public interest may demand.,</p> <p>3. Same. Vendees of covenantor. Chancery jurisdiction.</p> <p>The covenantee can maintain a bill in chancery to enforce the contract against vendees, with notice, of parts of such plantation, who have collected rents from a new wharf, and laid off other ground for landing purposes.</p>

Hon. Upton M. Young-, Judge. made an oral argument and filed a brief. Lanier’s purpose in firing was to frighten Slaughter, not to kill him. The want of intent disproves the criminal character of the act. Accidental appearances of an assault afford no more than ground for a civil suit for damages. 2 Bish. Crim. Law, §§ 23, 32.

Hon. James M. ARNOLD, Judge. 1. This action was to recover what had been paid Jarnagin 6 Rives for the claims, for the full amount whereof judgments had been obtained long after the payment. Time is material in the purchase of claims against a third person. When the principal refused to ratify bis agent’s acts, and sued on the claims, Pierce was entitled to recover back his money.

Hon. Geobge Wood, Chancellor. Late at night, Mary Y. Broach, when she was very ill, but of sound mind, told her daughter that she wanted her son to have the articles in his room, and her husband the remainder of her property. The daughter requested the nurse to remember what her mother had said. Mrs. Broach neither mentioned a will, nor called on any one to notice her wish. She died at nine o’clock next morning.

Hon. L. Brame, Chancellor. Thomas M. Sargent sold land to the appellant, a married woman, executed to her a bond for title, and took from her a note for the purchase-money. He subsequently indorsed the note for value to the appellee, who, after its maturity, filed this bill against the appellant, with her husband and Sargent, asking that she be required to elect to perform or rescind her contract. Her demurrer to the bill was overruled.

Hon. S. S. CalhooN, Judge. The defendant in error, to recover a balance found due, Jan. 14, 1878, on final settlement of an estate, filed a declaration on the administration bond, alleged to be signed by Joseph E. Davis as principal, and T. D. Paddleford and S. S. Heard as sureties, and also filed, therewith, a bond signed by these persons, conditioned in the form prescribed by Code 1871, § 1118, except that it failed to state which of the “ above bound ” obligors was…

Hon. E. G. PeytoN, Chancellor. The bill states that the account was for plantation supplies ; but Hart testifies that it was for both family and plantation supplies, without distinguishing' them. This is a failure of proof. The grounds of liability are different in the two cases. Gruion v. Doherty, 43 Miss. 538 ; Cooh v. Ligón, 54 Miss. 368 ; Grrubbs v. Collins, 54 Miss. 485.

Hon, E. G. PeytoN, Chancellor. The appellant, who conveyed land to W. H. H. Green, for which the land in controversy, then the estate of Mrs. Green, was to be taken in part payment, prior to a conveyance to him, sold it to the appellee, and, to save expense, had Green and his wife make a deed directly to her, reserving no lien and reciting that the consideration had been paid.

Hon. T. B. Gbaham, Chancellor. The garnishment, followed by the judgment and levy, and the sale, which satisfied the judgment, was a payment of the notes, and, these facts, being admitted by setting down the case for hearing on bill and answer (Code 1871, §§ 1025,1081), constituted a complete defence to the present proceeding, and the decree of foreclosure was erroneous.

Hon. S. S. Calhooe, Judge. H. W. Kinard and a negro woman, with whom he had lived since the year 1868, were, in January, 1879, indicted and convicted of unlawful cohabitation. After sentence, the woman submitted to a short imprisonment, but Kinard brought up the case. I. In order to violate Code 1871, § 2486, the parties, without being married, must live together, in the open assumption of the forms and rights of matrimony.

Hon. A. G. Mayers, Judge. 1. By the provisions of the statute under which this suit is brought, the affidavit of the person praying the writ of seizure is the foundation of the proceeding. Without the magistrate’s signature, there can be no affidavit, and he cannot be permitted to affix his name after the writ has accomplished its purpose. Oral evidence is inadmissible to give effect to an instrument, which is defective in a particular essential to its validity. 1 Greenl.

Hon. B. F. Trimble, Judge. Ejectment by the plaintiff in error, who claimed under the tax title described in the opinion of the court. Held: and it is presumable that due notice, if any was required under § 1687, was given. Williams v. OammacJc, 27 Miss. 209. The tax deed is prima facie evidence of the legality of the assessment and proceedings. Code 1871, §§ 1697, 1700; Virden v. Bowers, 55 Miss. 1. The acts of the supervisors at an illegal meeting are void.

Hon. Upton M. Young, Judge. A. verbal acknowledgment of the correctness of an existing account is sufficient to make an account stated, but, to deprive the debtor of the benefit of the Statute of Limitations, the acknowledgment must be written. In England the doctrine was first announced shortly after the passage of Lord Tenterden’s Act, which is the original of all the American statutes on new promises, including Code 1871, § 2165, and it is still followed in that country.

Hon. E. G. Peyton, Chancellor. The appellee filed his bill in the court below for a partnership account of the firm of Barton & Parker, of which he was the surviving partner, making defendants the administratrix and heirs of Barton, who answered. An order of reference to a commissioner was made to state the account. He took depositions, and made out and reported the account, claiming two hundred dollars therefor.

Hon. L. Brame, Chancellor. The final decree of the Chancery Court confirmed the restatement of the plaintiff in error’s final account, as reported by the clerk, to whom, on exceptions, it was referred as master, and directed distribution of the balance found due the estate, among the defendants in error, as distributees. argued, in an elaborate brief, the propriety of the items of the administrator’s account, the exceptions thereto, and the errors of fact committed by the…

Hon. J. B. Chrisman, Judge, did not sit in this case, but Hon. Ralph North presided by interchange.

<p>Appeal from the Chancery Court of Yazoo County.</p> <p>Hon. E. G. Peyton, Chancellor.</p> <p>1. The decree of 1866 for the sale of the land was void, because the writ could not be returnable on a day passed. The decree of insolvency in 1868 was also void for defective service of process. Code 1857, p. 429, art. 21; Hammond v. Olive, 44 Miss. 543; Foster v. Simmons, 40 Miss. 585; Brown v. Levee Commissioners, 50 Miss. 468; Jack v. Thompson, 41 Miss. 49; JHargus v. Bowen, 46 Miss. 72; Boot v. McFerrin, 37 Miss. 17; Ingersoll v. Ingersoll, 42 Miss. 155. Process from the Probate Court was required to be executed in the same manner as from the Circuit Court. Mundy v. Calvert, 40 Miss. 181; Martin v. Williams, 42 Miss. 210. Decrees of the Probate Court void as to part of the defendants are void as to all. Martin v. Williams, ubi supra. Notice to the infant is essential. The counsel contended that the decision in Burrus v. Burrus, 56 Miss. 92, was erroneous, and asked the court to reconsider and recall the ruling, and filed an elaborate argument on the point reviewing all the legislation and reported cases bearing thereon. As to process to minors they cited M’Allister v. Moye, 30 Miss. 258; Stanton v. Pollard, 24 Miss. 154; Georgia Lumber Co. v. Bis-sell, 9 Paige, 225; Beed v. Bice, 2 J. J. Marsh. 44; Carrington v. Brents, 1 McLean, 167; Combs v. Young, 4 Yerger, 218 ; Frwin v. Carson, 54 Miss. 282.</p> <p>2. The Chancellor had power to vacate the former decrees by his decree of 1877, because he was sitting to review the pending case, but his order in 1879 annulling that of 1877 was coram non judice, because the decree attempted to be annulled was a final decree, terminating the suit. The lands had never been sold,and no rights of third persons were involved under the decrees of 1866 and 1868, but much remained in fieri. The distinctions between a final and an interlocutory decree are drawn in the following cases: Cook v. Bay, 4 How. 485; Bankston v. Bankston, 27 Miss. 692; Goff v. Bobins, 33 Miss. 153; Harris v. Fisher, 5 S. & M. 74; Stubblefield v. McBaven, 5 S. & M. 130 ; Jones v. Goon, 5 S. & M. 751; Austin v. Lamar, 23 Miss. 189 ; Carmichael v. Browder, 3 How. 252. As to what is a final decree, see Stebbins v. Niles, 13 S. & M. 307; Cole v. Miller, 32 Miss. 89 ; Sagory v. Bayless, 13 S. & M. 153 ; Person v. Nevitt, 32 Miss. 180 ; Commercial Bank v. Lewis, 13 S. & M. 226; Pattison v. Josselyn, 43 Miss. 373.</p> <p>3. All remedy in execution of the insolvency decree, and that for sale of the land, if they were final, was barred before 1879 by the lapse of the statutory period, and the decree of that year was clearly erroneous. It could not vitalize a void decree or improve a voidable one. If intended as an original decree, it was void, because the debts were all barred before 1879. The appeal from the decree of 1879 has been taken in time. It is unnecessary, therefore, for this court to review the decrees of 1866 and 1868.</p> <p>1. Appeals from Probate Court decrees are allowed only within three years after the rendition thereof. Code 1857, p. 430, art. 28. The prescribed time is a limitation of the Supreme Court’s jurisdiction. Kramer v. Holster, 55 Miss. 243. Appeals which are not matters of constitutional right, but creatures of the statute, must be taken in the time and manner prescribed by the statute. Hardaioay v. Biles, 1S. & M. 657; Porter v. Grisham, 3 How. 75. This court cannot, therefore, set aside the decrees of 1866 and 1868 as to the adult heir.</p> <p>2. The decrees for the sale of the land and of insolvency cannot be set aside as to the minor, because no service was necessary, Burrus v. Burrus, 56 Miss. 92; nor as to the executor, because he procured the decrees on his sworn petitions. By the decree for the sale of the land, the interest of the heirs was divested, and it was useless to summon them in the insolvency proceedings. Neither decree is void; and, if either is erroneous, it is binding until reversed on appeal by a party affected by the error.</p> <p>3. By Code 1857, pp. 449, 450, arts. 101, 102, 103, suits against insolvent estates are prohibited. The creditors obtain judgments in the insolvency proceedings. Winn v. Barnett, 31 Miss. 653 ; Holman v. Fisher, 49 Miss. 472. None of the claims were barred at the date of the declaration of insolvency in 1868. The claims remain, therefore, in full force.</p> <p>1. This court, after appeal from the decree of insolvency and sale is barred by lapse of time, cannot, under pretext of reviewing an order to execute the decree, review the decree itself. The order of sale, which was made before the decree of insolvency, was adopted thereby. It could be made as well before as after the decree, and was only a step in the insolvency suit. Of the three parties to the insolvency decree, all are bound thereby. The executor procured it, the adult heir is barred of his appeal, and the infant was not entitled to notice. Burras v. Burrus, 56 Miss. 92.</p> <p>2. One thing is clear. Land is here charged with unpaid debts exceeding its value ; and the appellants’ plain object is to escape the debts while they hold the property. Certainly, this court has vigor enough to direct new proceedings or new citations if any error is found. It cannot be decided that it is impossible to rectify the proceedings and impossible to do justice. The court must find a way out of this Serbonian bog.</p>

Hon. B. F. Trimble, Judge. Sect. 17 of the act incorporating the board of levee commissioners, approved Nov. 27, 1865 (Acts 1865, p. 62) provides that, when any owner of lands shall object to the building of a levee thereon or claim compensation for damage he may sustain in consequence thereof, the president of the board of levee commissioners, or such owner, may apply by written petition to the clerk of the board of police of the county, who shall forthwith issue an order…

Hon. B. F. Trimble, Judge. In this suit against R. F. Shanks and the sureties on his official bond as town marshal and constable, the declaration alleged that an attachment for rent due, and to become due monthly, sued out, on April 12, 1876, by the defendant in error against the usee’s tenant, Adolph Heidingsfelder, who held under a lease for one year from Nov. 15, 1875, to Nov. 15, 1876, was placed in the hands of said constable, who levied on goods upon the . demised…

Hon. UptoN M. YouNG, Judge. filed a brief and made an oral argument. The question presented here was passed on in Gibbons v. Brittenum, 56 Miss. 232, which the lower court followed, and this case is brought up to obtain, if possible, a different announcement of the law. Subsequent legislation renders the rule inapplicable, except as to estates of persons who previously died.

<p>Bail. Habeas Corpus. Res adjuiicata. Code 1871, § 1413.</p> <p>Judgment admitting to bail on a writ of habeas corpus, is conclusive of the right to bail only on the facts existing at the time ; and on a state of case subsequently arising, as, for instance, the finding of an indictment for murder, the question can be reinvestigated, and, on additional evidence, bail may be refused.</p>

Hon. W. Cothran, Judge. 1. The purchaser is to be considered as contracting with the court by which the sale was made through its agent, the commissioner. Andrews v. Scotton, 2 Bland, 629, 642. A collateral attack is allowable only in case the sale is void. Anderson v. Roberts, 18 Johns. 515. This cannot be if it is valid as to some persons, but may be avoided at the election of others, or if it is capable of confirmation or ratification. Boyd v. Blanlcman, 29 Cal. 85.

Ebeoe to the Circuit Court of Monroe County. Hon. J. A. GbeeN, Judge. The law firm of Sale & Dowd contracted with the defendant in error, in consideration of two thousand dollars paid, to defend a suit against him until its termination in the Chancery Court. Pending the suit, Sale died, but Dowd conducted it to a successful conclusion. The latter’s executrix sued for additional compensation, alleging a new contract, which the defendant denied.

Hon. J. A. Green, Judge. The plaintiff in error; who sued in forma pauperis before a justice of the peace, made the usual affidavit for appeal from an adverse decision; but, as she gave no appeal bond, a motion by the defendant in error, in the Circuit Court, to dismiss the appeal, was sustained. All persons who are injured, have,’ by Const., art. I. § 30, a right to sue for redress, which the legislature cannot abridge.

Hon. L. Haughton, Chancellor. The appellants, who were retained to bring an action of ejectment, for a fee payable on success, filed this bill in chancery to enforce a lien on the land which had been recovered. The only error assigned is the final decree sustaining the appellees’ demurrer and dismissing the bill. The principle applicable to this case is well defined in Stewart v. Flowers, 44 Miss. 518.

Hon. J. A. Green, Judge. The defendant in error, as landlord, obtained a writ of seizure before a justice of the peace against his tenant, for fifty dollars rent due, and made J. H. Burrow and others defendants on the ground of their interest in the produce seized.

Hon. J. A. Green, Judge. The issues were the plaintiff’s right to recover, and the value of the cotton. McNairy v. Gathings, 52 Miss. 592. The verdict, “ We, the jury, find for the plaintiff,” responds to the first, but not to the second.

Hon. J. A. GreeN, Judge. As the defendant concealed the cause of action until 1876, the plea of the Statute of Limitations was no answer to the declaration, and was demurrable. Johnson v. White, 18 S. & M. 584; M’ Oombie v. Davies, 6 East, 538. The statute was stopped by the fraud, until the discovery thereof.

<p>Appeal from the Chancery Court of Panola County.</p> <p>Hon. J. B. Morgan, Chancellor.</p> <p>The appellee, Anna Boone, a minor, with her husband, filed this bill against her guardian, the appellant, to review and vacate the decree confirming his final settlement, for error apparent on the record, alleging that, having received ten thousand dollars from her father’s estate, the income of which was sufficient to support her, the guardian spent half the principal in two years without order of court, that, soon after her marriage, he made out an erroneous account and induced her, in reliance on his honesty as her brother-in-law, to answer that it was correct, that the account and answer were then filed, and the next day a decree was rendered approving the same and discharging the guardian, and that she has since discovered that there were grave errors and omissions in the settlement. The appellant’s demurrer was overruled.</p> <p>1. The bill of review cannot be maintained, because no error is shown on the face of the record, and there is no allegation of newly discovered facts or new matter which has arisen since the decree. The record to be reviewed consists of the guardian’s final account, the appellee’s answer, and the decree. Her v. Routh, 3 How. 276; Stark v. Mercer, 3 How. 377; Roy v. Roy, 25 Miss. 207 ; Handy v. Cobb, 44 Miss. 699; Buffington v. Harvey, 95 U. S. 99.</p> <p>2. The bill cannot be maintained under Code 1871, § 1265, because the final settlement was made after the ward’s marriage, and her husband was fully competent to make the settlement, although she was a minor: Code 1871, § 1218; Hutch. Code, p. 506, § 135; Rrisby v. Harrisson, 30 Miss. 452. The statute manumits the .minor wife, giving her and her husband power to make all settlements with guardians or other persons having her personal estate in their hands.</p> <p>3. If the bill is brought under Code 1871, § 1265 alone, it can not be filed until the infant becomes of age. While she can maintain a bill of review at any time, she cannot attack the decree, on the ground that it does not bind her because of her infancy, until she reaches such age that the court can make a binding decree. Otherwise she could attack the new decree for the same reason, and the court will not do a vain thing. The cases cited in Ewell’s Lead. Cas. 236, 237, 238, proceed on the idea that, as decrees giving time after majority to infants to show them unjust were based on a rule of court, and so might have omitted that clause, the court'can make the decree binding on application to reopen; and hence, those cases have no bearing on the present question, which arises under the statute.</p> <p>1. The final settlement described in the bill is in violation of the statute (Code 1871, § 1218) and erroneous. Kilcrease v. Shelby, 23 Miss. 161; Winston y.' McLendon, 48 Miss. 254 ; Swan v. Crray, 44 Miss. 393. It is impossible to maintain the proposition that, because the ward was married, the decree binds her'like an adult. Collins v. Spears, Walker, 310 ; Meek v. Perry, 36 Miss. 190. That only adds to minority the disability of coverture. Moss v. Davidson, 1 S. & M. 112; Neal v. Wellons, 12 S. & M. 649; Bowers v. Williams, 34 Miss. 324. 2 Dan. Ch. Prac. 1210. If the husband had joined the wife in her answer it would not alter this. When Frisby v. Harrisson, 30 Miss. 452, cited by opposing counsel, was decided, the husband owned the wife’s personalty, which the present statute secures to her. The court must protect the minor. Sullivan v. Blackwell, 28 Miss. 737. She was incompetent to admit the correctness of the account, and the decree based on her answer is erroneous.</p> <p>2. If, however, the statute regulating guardians’ final settlements had been literally followed, Mrs. Boone, because of her minority, could reopen the decree under Code 1871, § 1265. It is unnecessary for her to wait until she attains full age. The objection that the court will not reopen the decree because a second decree could be impeached in like manner, applies with equal force to the first decree. Ewell’s Lead. Cas. 236, 287, 238. The rule, however, is that the second decree binds the infant. Great injury may result to the minor if she must wait so long before suing, owing to insolvencies, the death of witnesses, and the other accidents of life.</p>

Hon. R. W. WilliamsoN, Chancellor. The decree of this court, on sustaining the decree which overruled the demurrer, allowed the defendant who appealed sixty days to answer; but the one who did not appeal was not before this court, and cannot take the benefit of a decree which, if it attempted to affect him, would be pro tanto void.

Hon. J. A. Green, Judge. This proceeding under the thirty-fourth chapter of the Code of 1871, “In relation to Obstructions to Watercourses, Mills, and Dams,” was begun before a justice of the peace, in accordance with Code 1871, § 1935, by a written complaint filed by the defendant in error. After the plaintiffs in error were summoned, householders were chosen, as provided by the statute, who examined and reported that the embankment should be cut.

Hon. J. W. C. WatsoN, Judge. Whether the minor resided out of the county in which the Probate Court that appointed the guardian was held was a fact to be determined by the jury, and the record should not have been excluded on that ground. But, even if the fact was established, the appointment was not void. The case of Herring v. Goodson, 43 Miss. 392, does not so decide.

Hon. L. Bkame, Chancellor. Randle Dean, an insolvent, executed, on April 2, 1875, a deed of trust on land to secure a debt due H. H. Harrington, who, on May 2, 1877, transferred the note and trust-deed to Toomer, Sykes & Billups, by whom they were subsequently assigned to T. R. Ivy.

Hon. J. C. Gray, Chancellor. Where the service is constructive, strict compliance with the statute is essential. Bustamente v. Bescher, 43 Miss. 172. Under Code 1871, §§ 701, 702, the name of the person with whom the copy of the writ is left must be stated, for any serious defect in the return of service renders the decree erroneous. Bacon y. Bevan, 44 Miss. 293; Hammond v. Olive, 44 Miss. 543; Hargus v. Bowen, 46 Miss. 72.

Hon. R. W. WilliamsoN, Chancellor. The only error assigned by the appellant is the action of the court below in overruling his demurrer which was to the whole of the appellees’ bill of complaint. This case involves a construction of Code 1871, § 975. That statute was not designed to draw into the Chancery Court contests as to legal titles. Carlisle v. Tindall, 49 Miss. 229. Ejectment suits are not of equitable cognizance. Huntington v. Allen, 44 Miss. 654.

Hon. A. B. Fly, Chancellor. The widow, where there are no children, is, under the Code of 1871, entitled to her dower of half the land of which her husband dies seised, without a will, and also to the homestead exemption. Sections 1956, 2135, give her the homestead, and under § 1281 she tabes half of the residue as dower. Gibbons v. Brittenum, 56 Miss. 282.

<p>Ekror to the Circuit Court of Lafayette County.</p> <p>Hon. J. W. C. WatsoN, Judge.</p> <p>It was erroneous to allow the wife to testify against her husband. Cook v. Grange, 18 Ohio, 526. She is incompetent both because husband and wife are one person in the eye of the law, and also because it would destroy the confidence essential to the marriage relation if they could be witnesses against each other. It cannot be supposed that the legislature designed by Code 1871, § 759, to change a rule which is based on such considerations. But it is evident, as well from a consideration of the old law as from the language of the statute, that the exception was inserted merely from over-caution, to prevent the possibility of drawing from the prior language used the meaning for which counsel for the State contends. Had the intent been to enable her to testify voluntarily, it was easy to express it. So important a change would never have been left to be gathered by implication.</p> <p>The prisoner’s wife had the right to testify, which she did voluntarily, after being informed bji the court that she was not compelled to give evidence. Code 1871, § 759, has only the effect of preventing the compulsion of husband or wife to testify against each other. The statutes so far change the common-law rule as to mate them competent witnesses in all cases. The exception in the section of the Code under consideration was to guard against the use of force. Unless they are competent witnesses against each other, the exception is meaningless. It must have been inserted with some object. The only conceivable one, is to restrict her competency to the light to testify voluntarily. Unity of the husband and wife, as recognized at common law, has no such place in our system of jurisprudence as to render them one person even in civil affairs, and in the matter of crime the rule was never rigidly adhered to. Public policy, which grows out of the customs and institutions of a people, must necessarily alter with the advancement of society. At this day, neither reason, policy, nor the letter of the law, sanctions the forcible exclusion of the wife as a witness.</p>

Hon. J. A. GreeN, Judge. To justify the sheriff in withholding money, received by him. under execution or attachment, .from the creditor whose lien, is the oldest, it must appear that there are parties contesting tbe creditor’s right seriously and diligently, and -by suitable proceedings before a proper tribunal.

Hon. J. W. C. Watsoe, Judge. A man who had killed another in Union County, and was fleeing from justice, was, on information derived through a telegraphic despatch and without a warrant, first arrested on the train when it stopped at West Point in Clay County by the appellant, who was marshal of the town, and ex officio constable for the county.

Hon. James M. ARNOLD, Judge. The appeal and agreement in this case are in acccordance with the proceedings which were held valid in Yalobusha Bounty v. Qarbry, 8 S. & M. 529. The power of the board of supervisors to bind the county as to the mode of trial on appeal by agreement is fully recognized in that case. The provision in Code 1871, § 1383, that the case “shall” be tried on the bill of exceptions is not mandatory, but directory only.

<p>Appeal from tbe Chancery Court of Yalobusha County.</p> <p>Hon. A. B. Fly, Chancellor.</p> <p>The plaintiffs in error would not have accepted the deed of trust or given time to Hughes unless he had agreed to ship the cotton. The stipulation to pay commissions whether the shipment was made or not, was valid. Lengsfield v. Richardson, -52 Miss. 443. It was for a consideration, and the time of payment was given. The occupation of the respective parties, their situation territorially, and the customs of the business, are in conformity with the contract. There is no complaint in the bill that the notes were given for too much, or illegally discounted. If the commissions were not secured in terms by the deed of trust, that instrument stipulated that the plaintiffs in error might apply payments to any unsecured debt, and they accordingly applied Hughes’s payments to the commissions which he owed, leaving the trust-deed unsatisfied. The application can be made now. There is no limit. The latter stipulation makes the trust-deed a security for any indebtedness which arises between the parties prior to a final settlement.</p> <p>It is proper, in computing the sum due under the trust-deed, to exclude the damages resulting from not shipping the cotton. Sucb sum was not secured by that instrument. If the stipulation as to commissions is legal, the plaintiffs in .error can sue for such damages as they can show that they have sustained, but cannot collect the damages by the summary sale enjoined in this suit. The stipulation allowing the plaintiffs in error to apply payments to unsecured debts cannot avail, because the payments were made before the cotton season opened; and long afterwards Hughes, in reply to their first demand for damages for his failure to ship, claimed that he should not be held for the commissions. Hughes never agreed that his property might be sold for his default in shipping. His answer is, In hcee fcedera non veni.</p>

Hon. J. A. Green, Judge. This petition, by James M. Green, U. McAllister, and Unity Hampton, addressed to the mayor and selectmen and filed in the Mayor’s Court of the city of Aberdeen, represents that the petitioners own and occupy residences, where they have lived for years, in a part of said city dedicated to residences, and in the principal streets ; that some years ago David Lake leased lots in their vicinity, and built an unsightly structure of inflammable wood,…

Hon. A. B. Fly, Chancellor. The appellant, who resided in Tennessee, and was there engaged in business, purchased at a sheriff’s sale, for his unmarried aunt and sisters, the homestead where the latter had resided from infancy. Their parents were dead, and their aunt lived with. them. To him, as their only brother, the sisters looked for protection and support, which he was accustomed to provide as under a moral obligation, and standing towards them in loco parentis.

Hon. L. Haughton, Chancellor. Bryant Adams was engaged to be married to the appellee; but the marriage was prevented by his relatives,… Held: for all purposes in law, as married, and their children, whether born before or after the ratification of this Constitution, shall be legitimate, and the legislature may, by law, punish adultery and concubinage.” No agreement was made by Bryant and Susan to accept the constitutional provision as establishing any new relation between…

<p>Error to the Circuit Court of Chickasaw County.</p> <p>Hon. J. A. GreeN, Judge.</p> <p>In this action of trespass on tbe case by the plaintiff in error against the defendant in error, for malicious prosecution, there was testimony that the latter prosecuted the former before a justice of the peace for larceny, and that the accused was arrested on the warrant, examined and discharged. The affidavit and warrant, and the record containing the judgment of the justice were produced, by which it appeared that the charge in the affidavit was that W. L. Mask killed the affiant’s hog and carried it home. On motion of the defendant in error, the affidavit was excluded from evidence.</p> <p>The legal insufficiency of the affidavit, which has performed its office, by causing the plaintiff’s arrest and trial on a charge of an infamous crime, cannot be invoked for the protection of the prosecutor, who has brought as much opprobrium upon his victim as if the paper had been technically correct. Trespass on the case can be maintained if the prosecution was malicious, although it was irregular, or in a court without jurisdiction. 1 Chi tty PI. 183,184. So, where the warrant does not describe the offence charged, or where the affidavit misdescribes it, or where the warrant is not sealed. 2 Greenl. Evid. § 449; 1 Hilliard on Torts, p. 427, § 14; Forrest v. Collier, 20 Ala. 175 ; Collins v. Love, 7 Blackf. 416 ; Pedro v. Barrett, 1 Ld. Raym. 81; Pippet v. Hearn, 5 B. & Aid. 634; Chambers v. Robinson, 2 Strange, 691; Wicks v. Fentham, 4 T. R. 247; Long' v. Rogers, 17 Ala. 540; Ewing v. Sanford, 19 Ala. 605 ; Kline v. Shuler, 8 Ired. 484; Stancliff v. Palmeter, 18 Ind. 321; Smith v. Leaver, 4 Jones, 513. Arrest and imprisonment are hot an incident, but the gravamen of the charge. Groslin v. Wilcock, 2 Wils. 302; Smith v. Cattel, 2 Wils. 376; Elsee v. Smith, 1 Dowl. & Ryl. 97 ; s. c. 2 Chit. 304; Morris v. Scott, 21 Wend. 281; Stone v. Stevens, 12 Conn. 219; Hays v. Young-love, 7 B. Mon. 545.</p> <p>Had the affidavit sufficiently charged the offence, ease would have been the proper remedy; 1 Chitty PI. 152,153 ; 3 Black. Com. 127; and it is likewise proper, although the affidavit is defective. 2 Wheaton’s Selwyn, 1078, 1079; 2 Greenl. Evid. § 452; 1 Chitty PI. 184; 1 Hilliard on Torts, 427; Hilliard on Remedies for Torts, 239. Malice and falsehood constitute the gravamen of the charge, and case will therefore lie. Morris v. Scott, 21 Wend. 281; 1 Chitty PI. 184; Long v. Rogers, 17 Ala. 540; 1 Hilliard on Torts, 427. Under our system of pleading, however, there is no distinction between case and trespass, so that the suit could have been brought in either form.</p> <p>The affidavit was excluded, not because it failed to describe the offence with technical accuracy, but because it charged no crime. The warrant and subsequent pi’oeeedings are in such case void. Steel v. Williams, 18 Ind. 161; Maher v. Ashmead, 30 Penn. 344; Baird v. Householder, 32 Penn. 168; Morgan v. Hughes, 2 T. R. 225; Braveboy v. Oockfield, 2 McMullan, 270; Ivy v. Barnhartt, 10 Mo. 151; Bixby v. Brundige, 2 Gray, 129; Marshall v. Betner, 17 Ala. 832. The charge must be of a crime, not a mere trespass. Frierson v. Hewitt, 2 Hill (S. C.), 499. In this case there was no criminal prosecution. Leigh v. Webb, 3 Esp. 165. The remedy in cases of this character is an action for slander, if the charge is of a scandalous nature, or trespass vi et armis if there was an arrest. Turpin v. Remy, 3 Blackf. 210; Bodwell v. Osgood, 3 Pick. 379 ; Allen v. Greenlee, 2 Dev. 379.</p>

Hon. Sam. Powel, Judge. The clerk, under the facts of this case, could not be appointed special commissioner to complete the sale, and while he may be individually… Held: for it was no part of his official duty to administer on the estate. This case is anomalous. No administrator existed when the clerk was ordered to perform the duties of one, and he did so without giving any bond. The case is governed by the probate practice, not by that of the equity side of the court.

Hon. J. A. Green, Judge. The appellee, who is the vendee of the appellant’s vendee (each deed containing a general covenant to warrant the title to heirs and assigns), sued the appellant in assumpsit for money paid to buy a paramount title, under which a judgment had been recovered in ejectment for possession of the land.

Hon. Sam. Powel, Judge. The description is sufficient to allow proof aliunde that the three bales of cotton sued for, and no more, were raised by the grantor during the year 1877 on the Burleson or Barter plantation in Tunica County. It makes a prima fade case,'and was admissible in evidence. Kelly v. Reid, ante, 89. At most, the ambiguity was latent and explainable. The deed of trust presents a patent ambiguity, and was properly excluded from the evidence.

Hon. J. S. Hamm, Judge. The instruction requested should have been given. The receipt, which was for so much money for timber purchased, speaks for itself. It was not for a part, but for all the timber sold and delivered at the time. The presumption upon the face of the receipt is that it was for a payment in full. The instruction assumed that the receipt on its face was in full for all demands, which is not the case, and it was, therefore, properly refused.

Hon. J. A. GrebN, Judge. 1. Tbe proper construction of tbe statute is, that, if the sheriff fails to have the execution in court on the clay it is returnable, the forfeiture is fixed on him and his sureties. One day after the return-day is too late. Steen v. Briggs, 3 S. & M. 326. Is not five months before the return-day too early ?

Hon. Sam. Pcwel, Judge. If the jurors were competent, the accused had a right to them on the panel, and their rejection by the court was error. Boles v. State, 13 S. & M. 398. The statute requiring jurors to be householders is inconsistent with that provision of the State Constitution of 1869 (Const., art. 1, § 13) which prohibits a property qualification. At common law only freeholders were competent jurymen. Byrd y. State, 1 Plow. 163.

Hon. J. W. C. Watson, Judge. The plaintiff in error, an administrator de bonis non, moved to quash a scire facias, issued Sept. 21, 1874, to revive a judgment in favor of the defendants in error, rendered Sept. 4. 1866, against his predecessor, upon the ground that the writ was not issued within seven years after the rendition of the judgment, and on the overruling of his motion pleaded the seven years’ Statute of Limitations.

Hon. R. W. WilliamsON, Chancellor. The personal estate being insufficient to pay the debts, land must be sold, under Code 1871, § 1148 ; and the bill by the administrator to vest the title in himself, relieve it of clouds, and so prepare for the sale that the best price may be obtained, is proper and within, the recognized jurisdiction of the Chancery Court. Bowers v. Williams, 34 Miss. 324.

Erbob to the Circuit Court of Pike County. Hon. J. M. Smiley, Judge. The prima fade case, made by the introduction of the tax title from the State to the plaintiff in error, rests on the presumption that all the proceedings resulting in that deed were legal. The assessment, when regularly made, constituted a lien on the land for the taxes thereof, which could be removed only by payment. The sale was an enforcement of the lien, and invested a complete title in the purchaser.

Hon. Thomas Y. Berry, Chancellor. The appellee, on December 14,1878, filed this bill in chancerj^ against the appellant and her husband to enforce the payment of a note, due Nov. 1, 1869, which she gave for the purchase-money of the land sought to be subjected, and secured by a deed of trust thereon. The appellant’s demurrer, setting up the Statute of Limitations of six years, was overruled.

Hon. Sam. Power, Judge. The instruction asked should have been given. The evidence being insufficient to prove the offence charged, it was competent for the court so to instruct the jury. Perry v. Clarke, 5 How. 495; Frizell v. White, 27 Miss. 198; Garnett v. Kirlc-man, 38 Miss. 389. Where the pistol is charged to have been loaded with a bullet, that fact must be proved or the defendant acquitted. Vaughan v. State, 3 S. & M. 553; Hughes’s Case, 5 Car. & P. 126; 1 Arch. Crim.

Hon. J. S. Hamm, Judge. The error assigned is the action of the court below in setting aside the third successive verdict for the plaintiff in error, and granting to the defendant in error a third new trial. The plaintiff in error excepted, brought up the case, and asks this court to reverse the order granting the third new trial, and to order the court below to enter judgment nunc pro tunc on the last verdict.

Hon. Sam. Powel, Judge. The maker of a promissory note, by virtue of Code 1871, § 2228, can plead any set-off “ made, had, or possessed against the same previous to notice of assignment.” To hold that the assignor’s note cannot be so pleaded, because not due when notice was given, is to add terms to the statute. If due when pleaded, the set-off is valid.

Hon. J. A. Green, Judge. After this case had been at issue for a year, and twice postponed at the company’s instance, a third motion for a continuance was made on the ground of the absence of three witnesses who were stated to be material, but who had not been mentioned in the former applications.

Hon. George Wood, Chancellor. The appellee, a company incorporated by a law of Texas, filed this bill against the appellant and persons unknown, for the sale of lands and division of the proceeds among those interested, on the allegation that it was impossible to make partition of the property without impairing its value, stating that the post-office of the appellant and the names of the other persons owning interests in the lands were unknown to the complainant.

<p>1. Circuit Cleric. Execution for costs. Notice to debtor. Oppression.</p> <p>A circuit clerk, who is, like other officers, a public trustee, cannot use the powers and opportunities of his position for purposes of oppression or speculation; and his right to issue process for his costs must be exercised with the utmost good faith, after notice to the debtor, if his residence can be found by reasonable diligence.</p> <p>2. Same. Chancery jurisdiction. Constructive trust. Fraud.</p> <p>Such a clerk, who, after a judgment-debtor has paid his costs and promised to pay the others’, procures, to strengthen a void tax-title, another officer’s claim, and, without notice to the debtor, whose residence and ample personal estate he knows, issues execution, will be held, in equity, the debtor’s trustee of the land on which he has it levied, and buys, through an agent, at a sacrifice.</p> <p>3. Same. Chancery pleading. Multifariousness. Full relief. Epidemic.</p> <p>The judgment-debtor can recover in his hill touching the land, additional costs paid under protest and occasioned by the first execution, and the clerk issuing another for a balance of costs not realized at the sale, and endeavoring thereunder to sell other land in a town quarantined against yellow-fever when the debtor is a refugee from the State. Ezelle v. Parker, 41 Miss. 520, distinguished.</p>

Hon. J. S. Hamm, Judge. Any maker of a negotiable obligation for the payment of money is responsible to innocent holders for value, if by his negligence a third party raises it to a greater amount so skilfully as to excite no suspicion in the mind of a prudent person, and if there is nothing on the face of the paper or in the character of the person selling to put a purchaser on his guard.

Hon. J. M. Smiley, Judge. Under Hutch. Code, p. 854, art. 10, which is like Code 1871, § 602, it was decided in Mellen v. Boarman, 13 S. & M. 100, that the intestate’s debt was not a good set-off against a debt contracted with his administrator. Similar statutes, in other States, are construed in the same way: Fry v. Fvans, 8 Wend. 530; Fills v. Tollman, 21 Wend. 674; Merritt y. Seaman, 6 Barb. 330 ; Crews v. Williams, 2 Bibb, 262 ; Day huff v. Day-huff, 27 Ind. 158.

Hon. J. B. ChrismaN, Judge. 1. Decell should have been allowed to show by the plaintiff that the latter had not paid his privilege-tax at the time the goods were sold. Acts 1875, p. 10 ; Acts 1878, p. 12; Anding v. Levy, ante, 51. It is no answer to say that the merchant could not be made to criminate himself, for a prosecution was barred at the trial. This objection is an afterthought.

<p>1. Ckiminai. Procedure. Punishment. County contractor.</p> <p>The contractor is entitled to the custody of a convict sentenced to a fine and costs and imprisonment in the county jail, by virtue of the statute to reduce judiciary expenses (Acts 1878, p. 164), the fourth section whereof fixes the date when the prisoner’s labor begins to be applied to the fine and costs.</p> <p>2. Same. Expenses of keeping prisoner. Costs of habeas corpus.</p> <p>The sheriff who keeps the prisoner in jail after the contractor demands him, and not the county or the prisoner, is chargeable with the jail fees, as well as the costs of a writ of habeas corpus sued out by the contractor to obtain custody.</p> <p>3. Same. Duty of contractor. Prisoner’s right to discharge.</p> <p>Imprisonment until the fine and costs are paid is intended for a security only, and when they are satisfied the contractor should discharge the - prisoner, provided the term for which he was sentenced by the court to imprisonment, as a part of the punishment, has expired.</p>

Hon. Ralph North, Chancellor. 1. The case turns upon the power of the Chancery Court to order a partition between co-tenants in any other mode than the one prescribed by the statute. As the statute, which is the governing law, particularly points out the method, no other can be valid. The question involves the scope and construction of Code 1871, ch. 26, and the amendatory act of Feb. 25, 1875 (Acts 1875, p. 119).

Ebbob to the Circuit Court of Adams County. Hon. Ralph Nobth, Judge. As it was incumbent on the accused to explain the character of his possession, no better evidence could have been given than his acts and language at the time. It is not contended that the declarations are competent so much on the ground of res gestes as that they disprove the criminal intent.

Eeeoe to the Circuit Court of Lincoln County. Hon. J. B. CheismaN, Judge. The law applicable to this case, on the subject of notice, while uncertain in other States, is clearly settled by our own court. A line of demarcation between contracts of guaranty where notice is required and those where it is not is, in this State, distinctly drawn, and based on the reason for notice as applicable to the contract in each case.

J. A. Greek, Judge of the First District of Mississippi, dismissing a writ of habeas corpus and remanding the relator to custody. 1. The writ of habeas corpus may be employed in all cases of illegal confinement. Code 1871, § 1396; Donnell v. State, 48 Miss. 661. If the judgment were simply voidable, the remedy would be by writ of error to reverse it; but if void, the writ of habeas corpus can be properly employed.

Ebbok to the Circuit Court of Franklin County. Hon. J. B. CHRiSMAN, Judge. Sarah E. Jones, her husband joining for conformity, brought this action of unlawful entry and detainer to recover possession of SEJ, section 21, of a certain township, as her dower, from which, after its allotment to her, she had been forcibly ejected by Joseph H. Gill.

Hon. J. B. ChrismaN, Judge. The plaintiff in error should have recovered all the cotton in this action of replevin, because the proceedings under the writs of seizure were so defective as to be void. No writ can be issued by one justice of the peace returnable before another. Code 1871, § 1307, provides that the justice before whom the complaint is made shall determine the cause. The statute must be followed.

Hon. Thomas Y. Berry, Chancellor. The complainants are not bona fide holders of the notes; but, by virtue of Code 1871, § 2228, the want of consideration can be pleaded against them. The mortgage is an executory contract ; and even if the complainants had replied fraud, the rule In pari delicto potior est conditio defendentis would render the reply insufficient in law.

<p>Error to the Circuit Court of Noxubee County.</p> <p>Hon. James M. ArNold, Judge.</p> <p>The charter incorporating the town of Macon provides that the board of mayor and aldermen shall have power, Avithin the town, by ordinance, to assess, levy, and collect taxes ; to make regulations to secure the general health of the town; to prevent, abate, and remove nuisances at the expense of owners or occupants upon whose grounds they may exist; to establish, widen, grade, pave, or otherwise improve streets, and to clean them and keep them in repair; to provide for the prevention and extinguishment of fires; to require every male inhabitant of the town to work ten days in each year on the streets of pay five dollars in lieu of such work; to remove all obstructions from the sideAvalks; and to provide for the construction and repair of the same.</p> <p>1. The question is as to the poAver of the corporate authorities of the town of Macon, under the charter, to pass and enforce the ordinance to compel lot-holders to repair the sidewalks in front of their property. The legislature may constitutionally confer upon a municipal corporation the power to grade, pave, or improve streets by local assessment upon the persons or property benefited, or at the expense of the abutting lots. 2 Dillon Mun. Corp. §§ 481, 596; Willard v. Presbury, 14 Wall. 676; United States v. New Orleans, 98 U. S. 381; Daily v. Swope, 47 Miss. 367. Municipal powers are such as are conferred in express words by the charter or implied from those granted or incident thereto. 1 Dillon Mun. Corp. § 55. The municipality may exercise all powers which are reasonably proper to give effect to the authority bestoAved bjr its charter. New London v. Brainard, 22 Conn. 552. Unless restricted, it may select means adapted to the end, and is not confined to a single mode of operation. Bridgeport v. Housatonic Railroad Co., 15 Conn. 475; Mobile v. Yuille, 3 Ala. 137.</p> <p>2. The charter of the town of Macon authorized the board of mayor and aldermen to provide for building and repairing sideAvalks and remove obstructions therefrom, but did not prescribe the mode of constructing and refitting, nor the nature of the repairs to be made. The power, therefore, carried with it authority to employ the ordinary means used by such corporation for its exercise. United States v. New Orleans, 98 U. S. 381; 1 Dillon Mun. Corp. § 58. Authority to make pavements implies the duty of determining the necessity therefor, and power to restore them includes the right to decide when they need repairing.</p> <p>3. If the ordinance under consideration is within the powers contained in the charter, it is not essential that it should be a valid local assessment, but it can be sustained as a police regulation. The town is authorized to establish fire limits, and the requirement of brick pavements is not so onerous as the prohibition, within such precincts, of wooden buildings, which was sustained in Alexander v. Town Council, 54 Miss. 659. It is also empowered to prevent and remove nuisances. A lot-owner can be required, under the police power, to remove obstructions from the sidewalk in front of his lot. G-oddard, Petitioner, 16 Pick. 504. An inflammable pavement is as much a nuisance in a crowded town as one covered with snow, or out of repair. In the case of Mayor v. Ma-berry, 6 Humph. 368, as in the case at bar, the sidewalk was by ordinance declared a nuisance, and on the owner’s refusal to repair it, the municipal authorities proceeded to do so at his expense. The ordinance is clearly, on a fair construction, within the charter powers of the municipality.</p> <p>1. The legislature had no right to order Patty to repair the sidewalk in front of his property, and could not delegate a power which it did not itself possess. The authority cannot be referred to the general police power of the State. Some, cases, following Goddard, Petitioner, 16 Pick. 504, distinguish between streets and sidewalks, affirming a power' as to the latter which they deny as to the former, on the ground that keeping the pavement free from obstructions imposes only a light burden on each property-holder, who from his situation is able to perform the duty with the promptness which the benefit of the community requires. But Goddard was commanded to remove snow, not to pave the footway. Even that power has been denied, and on the better reason. Gridley v. Bloomington, 68 Ill. 47. The city, not the adjacent property-holder, owns the sidewalk. On what principle can the subject be required to do little and not much; or to shovel snow when he cannot be compelled to hod brick? Who is to decide how much time, money, and labor the citizen can be constrained to expend ? It is no answer to say that the sidewalk is the limit, for who can tell how wide it shall be or how expensively finished ? Oppression has no limit, if the citizen can be coerced to remove obstructions from a foot of public land, or spend a cent for its improvement. The doctrine, if once admitted, can be used to rear pyramids. The legislature may make the street a taxing district, and assess the expense of the improvements upon the contiguous property in proportion to frontage, but power to provide that each lot shall pay the whole cost of the construction upon which it abuts cannot be exercised by a constitutional government. Cooley Const. Lim. 501, 508. The authority claimed cannot be referred to the power to make local assessments. The State cannot direct a topical tax for local improvements without the express consent of a majority of those to be benefited. The converse proposition would destroy the citizen’s right of property, and make him the mere agent of the government in its management. The impost must be made upon some rule of apportionment, and have reference to the benefit conferred and the value of -the property assessed. Const., art. 12, § 20. This section was not contained in the Constitution under which Smith v. Aberdeen, 25 Miss. 458, was decided. It was, therefore, beyond the legislative power to authorize the ordinance.</p> <p>2. Under the charter, however, the town had no such power, even if the legislature could constitutionally confer it. The municipality has only such powers as are clearly given by the charter or indispensable to its existence, or to the exercise of authority expressly granted. Reasonable doubts are resolved against the grant. Cooley Const. Lim. 192; 1 Dillon Mun. Corp. § 55. The power of taxation is not to be extended by construction; and authority to make improvements does not carry with it the right to tax the adjacent property for the expenses. 2 Dillon Mun. Corp. §§ 605, 606; Willard v. Pres-bury, 14 Wall. 676.</p> <p>1. No authority is conferred on the mayor and aldermen in the charter of Macon to require lot-owners to pave the streets in front of their lots. A municipal corporation can exercise such powers only as are expressly or impliedly granted by its charter, and even those are to be strictly construed. 1 Dillon Mun.' Corp. § 55, note; Leonard v. Canton, 35 Miss. 189; Cooley on Taxation, 209, 418, 420; Cooley Const. Lim. 194,195 ; Sharp v. Speir, 4 Hill, 76 ; Lowell v. French, 6 Cush. 223. The streets and sidewalks must be kept in order by means of the general tax which the charter gives authority to levy and collect. Cooley on Taxation, 418, 420 ; 2 Dillon Mun. Corp. § 607; Mobile v. Largan, 45 Ala. 310.</p> <p>2. The order to the defendant in error to repair the sidewalk was signed by persons styling themselves “ street committee,” and did not proceed from the mayor and aldermen, who alone could, in any event, have authority to make it, under the town charter. Who is to determine the existence of the nuisance ? How and on what notice shall it be abated, and from whom must the notice come ? The mayor and aldermen cannot delegate, even if they possess, such powers. Dillon Mun. Corp. §§ 60, 308, 312, 642,- 643; Cooley Const. Lim. 204, 353, 364; Furhman v. Huntsville, 54 Ala. 263.</p>

Hon. Thomas Y. Berry, Chancellor. 1. Under the rule established by numerous decisions of this court, no liability attaches to the appellant’s separate estate for the money which her husband used in his business. The income is not chargeable because the complainant has failed to allege or prove that the note was signed by the husband, or that the trust-deed was executed to secure his debt.

Ere,on to the Circuit Court of Pike County. Hon. J. B. Chbismant, Judge. This suit was upon the promissory .note of the plaintiff in error to the defendant in error, on which judgment was rendered in favor of the latter. The consideration of the note was a running account including family supplies and various items of vinous and spirituous liquors, in less quantities than one gallon, sold on credit to the former by the latter, who was licensed to sell such liquors at retail.

Hon. J. B. ChrishaN, Judge. The indictment in this case, which, as stated on its face, was found by the grand jurors of Lincoln County, Mississippi, impanelled in the Circuit Court of said county, charged the plaintiff in error, in the manner prescribed by Code 1871, § 2667, with perjury, committed on the trial of the case of The State v. Samuel Williams at a former term of the Circuit Court of said county, in a matter material to the issue which was then being tried by a…

<p>1. Contested Elections. County office. Injunction. Contempt.</p> <p>An order of the Chancery Court imprisoning- a contestant for obtaining a verdict in violation of its injunction of the prosecution of an election case for a county office is void, and he may be discharged on habeas corpus.</p> <p>2. Same. Chancery jurisdiction. Exclusive remedy by statute.</p> <p>Under our system a court of equity has no jurisdiction, under any circumstances, to enjoin the prosecution, before a justice of the peace, of such a case of contested election. The means provided by the statute (Acts 1878, p. 173) are exclusive of all others.</p> <p>3. Same. Statutory tribunal. Writ of prohibition.</p> <p>If the tribunal for such contest is properly organized, no court can interrupt its proceedings within its statutory powers, and the sole remedy for a fatal defect or want of jurisdiction is the common law writ of prohibition, issuing out of a superior law court.</p> <p>4. Same. Injunction. County office.</p> <p>The facts that the justice of the peace is a political friend of the contestant and that the constable is his brother are no grounds for enjoining the contest; but that would afford no excuse for violating the injunction, if, under any possible state of case, its issuance were within the power of the court.</p> <p>5. Same. State officers. Chancery jurisdiction.</p> <p>An injunction from the Chancery Court to restrain a contest of the ' election for governor and State officers, under Code 1871, § 391, or for legislators, under Code 1871, §§ 388, 389, would be coram non judice, and could he disobeyed with impunity.</p> <p>6. Contempt. Jurisdiction. Punishment.</p> <p>One who violates an order of a court which has jurisdiction of the person and subject-matter is liable to punishment, from which no other tribunal can relieve him.</p> <p>7. Same. Character of want of jurisdiction.</p> <p>Want of jurisdiction, which renders the order void, is not such as is evolved from a development of the case, but such as is manifest ah initio, as, for instance, failure or inability to give the parties legal notice, or incapacity, in any aspect, to consider the subject-matter.</p> <p>8. Injunction. Actions at law. Writ of prohibition.</p> <p>There are classes of cases, such as criminal prosecutions, actions of mandamus, and writs of prohibition, in which the general jurisdiction of the Chancery Court, to enjoin actions at law, does not exist, and, if attempted to be exercised by the court, its orders are void.</p>

Hon. W. G-. Phelps, Chancellor. 1. Mrs. Williams’s interest in the land and its use, her powers over both, and her contracts and liabilities with reference thereto are not controlled by the Mississippi statutes relating to married women and their property, but by the will and the rules of law and equity applicable to her rights and powers thereunder. 2 Story Eq. Jur. § 1380.

Hon. A. B. Fly, Chancellor. The appellees, who are minors, by their guardian, filed this bill, against the appellant and another, to review a chancery proceeding, and vacate the decree and sale thereunder of land which they inherited, upon the allegation that the defendants, confederating to defraud them, filed a bill setting up a pretended lien upon the land, and, without proper proceedings, obtained the decree under which the appellant purchased.

Hon. L. Haughton, Chancellor. 1. The mother’s money was not used at the time of the purchase, but afterwards, to complete it, and no trust results. Bowman v. O'Reilly, 31 Miss. 261; Gee v. Gee, 32 Miss. 190. The same rule prevails although there was only a contract for the purchase of the land. Conner v. Lewis, 16 Maine, 268.

<p>Error to the Circuit Court of Monroe County.</p> <p>Hon. J. A. GreeN, Judge.</p> <p>The declarations about eating the bread and drinking the coffee were incompetent, and their admission led to the verdict. In that coffee the chemist found the arsenic, and the statement made during the wife’s sickness, that she drank it an hour before, indicated that as the cause of her death. “ On fire inside ” was a symptom of arsenical poisoning. The declarations of the deceased as to the symptoms and effects of the malady from which she was suffering may be admissible, but the statement as to what she had eaten is not within the rule, but is hearsay. Fondren v. Búrfee, 89 Miss. 324; Gran-gers' Ins. Co. v. Broivn, ante, 308; 1 Wharton Evid. § 268.</p> <p>The statements of the deceased were properly admitted. In the language of the court, in Fondren v. Burfee, 39 Miss. 324, they were made to one who was acting for her good and interested in her welfare. He stood in the relation which called for truth and confidence on her part. When the nature of a person’s sickness is in question, his declarations to his physician or other attendant, during such sickness, may be received. 1 Wharton Evid. § 268.</p>

Hon. Thomas Y. Berry, Chancellor. The conveyance to H. H. Furr, and the assignment of his notes for the purchase-money of a half interest in the land, and his contract to convey the other half, were accepted by King for J. H. Thompson & Co., as a security for a valid debt. King and the other members of that firm were not aware that the Bloom debt existed, or that Brewer was in debt to any one. Until some ground for divorce exists, alimony is impossible.

Hon. Thomas Y. Berry, Chancellor. By setting the case for hearing, on bill and answers, without proof, the complainant admitted the truth of matters in denial of the charges of fraud, so far as such matters are responsive to the bill, and are not disproved by the exhibits. The bill does not allege that the debts secured are fictitious. The deed of trust, in this case, is not fraudulent on its face. Sar-man v. Hoslcins, 56 Miss. 142.

Hon. J. W. C. Watson, Judge, did not preside in this case, but Hon. A. M. ClaytoN acted as judge pro hac vice. 1. Held: in all the various aspects in which the question was presented, in the following cases: Hill v. Calvin, 4 How. 231; Pritchard v. Myers, 11 S. & M. 169; Wiggins v. McGimpsey, 13 S. & M. 532; Simpson v. Bowdon, 23 Miss. 524; Holloway v. Armstrong, 30 Miss. 504; Corbin v. Cannon, 31 Miss. 570; Hanna v. Renfro, 32 Miss. 125 ; Pore v.…

<p>Appeal from the Chancery Court of Tippah County.</p> <p>Hon. A. B. Fly, Chancellor.</p> <p>Harrison P. Maxwell, who was in March, 1859, the owner of much valuable land, including the tract in controversy, and considered wealthy, was unable to pay a large judgment against him, and borrowed the money from Orlando Davis, to whom he gave his promissory note, which was renewed from time to time, adding the aecrued interest. Davis sued on the last note, given on Oct. 4, 1861, and recovered a judgment against Maxwell, on Sept. 8, 1866, for over four thousand dollars. Mattie J. Maxwell, the daughter of Harrison P. Maxwell, was married to Olin H. Lumpkin, and soon afterwards, in June, 1862, her father, by way of advancement, informed her that he gave her the land in controversy. She and her husband erected some cabins thereon, and located slaves there. At the same time, her father told her that he had made a memorandum of the gift, and would on the first opportunity have it drawn up in proper form. The memorandum, which was in the form of a deed of gift, signed and sealed by her father and mother, was locked up by the father in his desk, where it remained until August, 1870, when he delivered it to one of the solicitors for use in this suit.</p> <p>At the close of the civil Avar, Mr. Maxwell was insolvent, and Avas pressed by his creditors. On April 17, 1866, he executed to his daughter a deed of gift of the land in controversy, which was properly acknoAvledged, recorded and delivered. Seven days afterwards, he conveyed his entire estate, real and personal, to John A. Moorman, as trustee for his wife; stating as the consideration that he owed her over twenty thousand dollars for money, slaves, choses in action and other personal property, which she received after her marriage. Executions, under four other judgments, which Davis held against him, were then levied upon the land conveyed to his wife. On Dec. 7, 1868, Maxwell was, upon his own petition, adjudicated a bankrupt, and on Oct. 21, 1869, the register assigned his estate to Lafayette Rogan, who had been appointed assignee on the previous day. When Maxwell applied for his discharge, the creditors who had proved their claims, opposed it on the ground of the two conveyances, but the Bankruptcy Court held that, as they were made before the passage of the bankrupt act, they constituted no ground of objection, and on June 14, 1870, granted the discharge, but directed the assignee to file a bill in that court against the grantees in the deeds, to test their validity. The assignee took no further steps, and has not reported or been discharged. An execution, under the judgment of Sept. 8, 1866, was, on May 15, 1869, levied upon the land which Maxwell had conveyed to his daughter.</p> <p>Two bills in chancery were filed against Orlando Davis on July 5, 1869, — one by Mrs. Maxwell, to enjoin the sale of the lands conveyed to her, under the executions levied thereon, upon the allegation, among others, that the judgments had been paid; and the other, the original bill in the case at bar, by Mr. and Mrs. Lumpkin, to enjoin the sale of the land in controversy, under the judgment for four thousand dollars, and also to enjoin the four other judgments on the same allegations as those in the former bill. These bills were not sworn to, but as the acts of February, 1867 (Acts 1867, pp. 225, 425), were in force, the injunctions were granted by the Probate Judge as therein authorized. The latter bill alleged a verbal gift of the land in 1862, followed by the deed of 1866. In his answer and cross-bill thereto, Davis pleaded the Statute of Frauds, and, as to the allegation that the four other judgments were paid, referred to his answer to the former bill, in the case of Maxwell v. Davis pending in the same court, which specifically denied the payments; and on the ground of Maxwell’s insolvency, when he made the deed of gift, which was alleged to be part of a general scheme to defraud his creditors, the cross-bill prayed that such deed be declared void as against the lien of Davis’s judgment. Mrs. Lumpkin, in her answer to this cross-bill, filed Aug. 29,1870, set up her father’s bankruptcy in bar of the relief asked, and also produced and filed as an exhibit the “ memorandum,” under which she alleged that she had held title since its date, June 12, 1862, at which time her father was solvent. Her husband’s answer was the same. On Aug. 11,1875, Mrs. Lumpkin and her husband filed an amended bill, alleging that the memorandum was a deed duly delivered to her, and held for her by her father ; that owing to the confusion of the civil war it was not recorded, and was supposed by every one to be lost; that, under that idea, the second deed was executed, which, by relation back made the first deed valid; and that, after the original bill was filed, the first deed was found. The amended bill also set up the large amount of other property owned by Maxwell, and claimed that, as her deed was prior in date to her mother’s, Davis should exhaust the land conveyed to her mother before hers; and, exhibiting the entire record of the bankruptcy proceedings, it made Rogan, the assignee, a party defendant; and pleading the Statute of Limitations of two years against him, and alleging that the statute barred Davis also, prayed for a perpetual injunction against both. The assignee was summoned, but failed to appear, and a pro confesso was entered against him. Davis filed an answer and cross-bill, in which he denied the delivery of the memorandum, and the father’s holding it as agent; denied that the second deed related back, and that the bankruptcy proceedings affected his lien or cut off his right to levy execution. He alleged that all the land was insufficient to pay his five judgments; that four had been levied on that conveyed to the mother, who was now contesting the matter with him and other creditors in another suit; set up his five liens against Maxwell, his donee and his assignee in bankruptcy; and averred that the injunction, by preventing him from proceeding, stopped the running of the Statute of Limitations. The answer and cross-bill admitted the assignee’s right to draw the matter into the BankruptC}'- Court, but averred that, as the land was insufficient to pay Davis’s judgment liens, Rogan abandoned that course, and was precluded from now adopting it; but, making him a party, asked that the deed and memorandum be declared void, and the judgment liens enforced. An answer to this cross-bill was filed by Mr. and Mrs Lump-kin, and pro confesso was taken against the assignee, after due service of process. From a final decree on all the evidence, perpetuating the injunction and dismissing Davis’s cross-bills, he appealed.</p> <p>I. A judgment creditor may proceed in the State courts, after the bankruptcy of the judgment debtor, to enforce the lien of his judgment against the property of the bankrupt, fraudulently conveyed by deed of gift, by levying his execution and filing a bill in equity, in aid thereof, against the fraudulent donees, to set aside the conveyance.</p> <p>1. Bills of the character of tbe cross-bills of Davis in tbis case afford ancillary aid, to give efficacy to the legal remedy, and may be filed either before or after the execution sale. Vasser v. Henderson, 40 Miss. 519; Allen v. Montgomery, 48 Miss. 101 ; Partee v. Mathews, 53 Miss. 140 ; Fleming v. Gfrafton, 54 Miss. 79; Jones v. Green, 1 Wall. 330. This remedy should not be confounded with the ordinary creditor’s bill based on a judgment and return of nulla bona, like the cases of Famed v. Harris, 11 S. & M. 366, and Brown v. Bank of Mississippi, 31 Miss. 454. The appellant stands simply upon his liens, all older than Maxwell’s bankruptcy, and seeks the aid of equity to make his legal remedy effective; and his bill is supported, as to jurisdiction, by being grafted upon the original suit at law, as auxiliary thereto and part thereof. Hatch v. Dorr, 4 McLean, 112. The principle will be found illustrated and enforced in many cases in the Supreme Court of the United States. Dunlap v. Stetson, 4 Mason, 349; Dunn v. Clarice, 8 Peters, 1; Gwin v. Breedlove, 2 How. 29; Freeman v. Howe, 24 How. 450; Railroad Co. v. Chamberlain, 6 Wall. 748 ; Bank v. Turnbull, 16 Wall. 190.</p> <p>2. The proposition of the appellees, that, by virtue of the adjudication, the Bankruptcy Court acquired exclusive jurisdiction of all controversies relating to the bankrupt’s property, has been settled against them by this court. Russell v. Cheatham, 8 S. & M. 703; Talbert v. Melton, 9 S. & M. 9; Bush v. Cooper, 26 Miss. 599; Bruner v. Sherley, 27 Miss. 407 ; Allen v. Montgomery, ubi supra ; Reed v. Bullington, 49 Miss. 223 ; Winters v. Claitor, 54 Miss. 341. The same principle has been decided by the Supreme Court of the United States. Fyster v. Gaff, 91 U. S. 521; Burbank v. Bigelow, 92 U. S. 179; Claflin v. Houseman, 93 U. S. 130; McHenry v. La Société Franpaise, 95 U. S. 58; Yeatman v. Savings Institution, 95 U. S. 764. And it has been so held in the State courts. Me Canee v. Taylor, 10 Gratt. 580; Tichenor v. Allen, 13 Gratt. lo; Spilman v. Johnson, 27 Gratt. 33 ; Doremus v. Walker, 8 Ala. 194; Freeny v. Ware, 9 Ala. 370; Hugely v. Robinson, 19 Ala. 404 ; Crowe v. Reid, 57 Ala. 281; Sheffey v. Davis, 60 Ala. 548; Sorden v. Gatewood, 1 Ind. 107.</p> <p>3. It is urged, however, that the title of the assignee in bankruptcy is absolute in such a sense that no litigation can proceed in any court in relation to the property of a bankrupt, except in the assignee’s name, and especially where the prop-ertjr has been conveyed by the bankrupt in fraud of creditors. The distinction between property conveyed by the bankrupt in fraud of his creditors, and his other property, is based on the clause of the bankrupt law of 1867, not in that of 1841, the third section whereof vested in the assignee all the bankrupt’s property, but was silent as to that fraudulently conveyed. 5 Stats, at Large, 442, 443. Under that act, our courts held that the assignee could not maintain a bill to vacate such a conveyance made before the law was passed. Porter v. Buglass, 27 Miss. 379 ; Abbey v. Commercial Bank, 34 Miss. 571. Doubtless to meet that difficulty, the Bankrupt Act of 1867, § 14, after enumerating the other property which vests in the assignee, adds, “ and all the property conveyed by the bankrupt in fraud of his creditors.” The assignee’s title to such property is, under the act of 1867, the same as his title to the rest of the bankrupt’s estate. That title is not to the whole estate, such as heirs and executors take, but only to the estate in which the bankrupt has the beneficial, as well as the legal interest. James on Bank. 36; Ontario Bank v. Mumford, 2 Barb. Ch. 596. The assignee takes the property and rights of property of the bankrupt, subject to all such rights and equities of third persons as attached to them in the hands of the bankrupt. Ex parte Newhall, 2 Story, 360; Moore v. Jones, 23 Yt. 739 ; Clason v. Morris, 10 Johns. 524; Kip v. Bank of New York, 10 Johns. 63 ; Mitchell v. Winslow, 2 Story, 630; Winsor v. McLellan, 2 Story, 492; Palmer v. Thayer, 28 Conn. 237. The title of the bankrupt passes to his assignee, subject to his creditors’ liens. Doe v. Childress, 21Wall. 642 ; Bates v. Tappan, 99 Mass. 376 ; Bowman v. Harding, 56 Maine, 559 ; Sampson v. Burton, 4 B. R. 1; Leighton v. Kelsey, 57 Maine, 85; Perry v. Somerby, 57 Maine, 552; Stoddard v. Locke, 43 Vt. 574; Baggett v. Cook, 37 Conn. 341. The assignee is not a bona fide purchaser for a valuable consideration. The title comes into his hands in no more perfect condition than it left the bankrupt’s; he is a volunteer rather than a purchaser. Tallcott v. Dudley, 4 Scammon, 427. His title will not divest a legal or equitable lien, or an attachment lien. Deacon on Bank. (Eng.), 429, 646 ; Bump on Bank. 316, 326, 514, 603, 609, 628, 700, 706.</p> <p>4. Not only are the creditor’s liens preserved, but likewise his remedies. He may disregard the bankruptcy in pursuing them, so long as he does not seek a personal judgment against the bankrupt. Whenever the rights of the assignee are involved, he alone must protect them. He does this, like other suitors, by appropriate action in courts of competent jurisdiction, except that he has the Bankruptcy Court added to the list of courts in which he may sue or be sued. He could have sued in any court of competent jurisdiction, State or Federal, to set aside this fraudulent conveyance. Johnson v. Bishop, 1 Woolw. 324, 329. But wherefore should he sue ? The liens would exhaust the land, and, being interested only in the surplus, he did no more than his duty in not suing, even if he were directed by the Bankruptcy Court to sue. McHenry v. La Soeiété Frangaise, 95 U. S. 58 ; Bump on Bank. 506, 621. By failing to sue for two years, the as-signee is barred, as are all creditors claiming by, through, or under him. But the appellant, who claims adversely to the assignee, is not barred by virtue of the Bankrupt Act. His right comes from an enrolled judgment, which is a lien by virtue of the statute of Mississippi. He cannot prove his debt without waiving his lien. U. S. Rev. Stats. § 5075. The as-signee cannot defeat the lien by action or non-action. At most, he can draw the matter into the Bankruptcy Court, sell the property, pay the lien creditor, and retain the surplus for general creditors. Bump on Bank. 601. The assignee and general creditors having thus relinquished by non-action to a secured creditor the assignee’s interest in the property, the jurisdiction of the State courts to perfect or enforce the title thus acquired cannot be questioned. Second National Bank v. National State Bank, 10 Bush, 367; Bump on Bank. 621. This abandonment has likewise inured to the benefit of the fraudulent donees. Such is the effect of all Statutes of Limitations. The controversy between Davis and the donees in this case is thus left free of all question touching the bankruptcy.</p> <p>5. It is further insisted that the execution was the beginning of a new proceeding, which could not take place after bankruptcy. But, without surrendering the position that all subsequent proceedings were ancillary to the lien, the appellant insists that the execution and bill were proper after bankruptcy. In Borden v. Gatewood, 1 Ind. 107, the right of a lien creditor to take out and levy execution after bankruptcy was sustained. The bankruptcy of a defendant in execution does not destroy the judgment lien or prevent the issue of an alias execution for its enforcement. Sheffey v. Davis, 60 Ala. 548. In Pennsylvania, a judgment creditor, having a lien older than the bankruptcy, was allowed to take out and levy execution after bankruptcy, and to proceed on his lien, although the assignee was a party and resisting. Reeserv. Johnson, 76 Penn. St. 313. The rule appears to be universal. Mo Gance v. Taylor, 10 Gratt. 580; Tiche-nor v. Allen, 18 Gratt. 15; Breeny v. Ware, 9 Ala. 370; Rugely v. Robinson, 19 Ala. 404 ; Orowe v. Reid, 57 Ala. 281. In this State the decisions are to the same effect. Russel v. Gheatham, 8 S. & M. 703; Talbert v. Melton, 9 S. & M. 9; Reed v. Bullington, 49 Miss. 223. Executions have been issued in the enforcement of liens after bankruptcy, and sustained by this court. In Bush v. Gooper, 26 Miss. 599, a bill filed after bankruptcy to enforce the lien of a mortgage was sustained. In the cases of Bruner v. Sherley, 27 Miss. 407, Allen v. Montgomery, 48 Miss. 101, and Winters v. Glaitor, 54 Miss. 341, the creditors failed only for want of a lien, while the court in each case fully recognized the rights of lien creditors. The Supreme Court of the United States has sustained the right of the lien creditor to issue and levy his execution after bankruptcy commenced. Savage v. Best, 3 How. Ill; Seott v. Kelly, 22 Wall. 57. So of the right of a judgment creditor to file a bill after bankruptcy to enforce his lien, or to file a bill after bankruptcy to enforce a mortgage. Burbank v. Bigelow, 92 U. S. 179; McHenry v. La Société Brangaise, 95 U. S. 58. The same is true where no execution has ever issued, no levy been made, and the judgment creditor stands upon his lien alone. Mays v. Pritton, 20 Wall. 414.</p> <p>6. Analyzing the cases before cited from the Supreme Court of tbe United States, and also the following cases, counsel contended on a close inspection of them it would be seen, that where the lien exists before bankruptcy, any court, State or Federal, has jurisdiction to enforce it, without regard to the time, place or manner of the commencement of the proceedings, and without regard to the time of issuing executions, or making levies and sales. JEx parte Christy, 3 How. 292 ; Morton v. Boyd, 3 How. 426; Pech v. Jenness, 7 How. 612; Colby v. Ledden, 7 How. 626 ; Marshall v. Knox, 16 Wall. 551; Wilson v. City Bank, 17 Wall. 473; Longstreth v. PennocJc, 20 Wall. 575 ; Ciarle v. Iselin, 21 Wall. 360 ; B,ay v. Norseworthy, 23 Wall. 128; JEyster v. Caff, 91 U. S. 521.</p> <p>7. It is contended, that by the Revised Statutes of United States, § 711, the jurisdiction of the Bankruptcy Court is made exclusive over this controversy. But the Revised Statutes were passed Dec. 1, 1873, and by § 5597 thereof, all accrued rights and pending suits are saved from its operation: it does not oust the State court of a suit pending therein before its passage. Goodrich v. Wilson, 119 Mass. 429; Claflin v. Houseman, 93 U. S. 130; Kidder v. Horrobin, 72 N. Y. 159. But this is not a matter or proceeding in bankruptcy. Neither party claims through the bankruptcy proceedings, but both parties claim adversely to the assignee, who asserts no claim against either, and has abandoned all claim against both. Hanson v. Herrick, 100 Mass. 323; Stickney v. Wilt, 23 Wall. 150. In fact, § 711 makes no change in the law. The United States courts always had exclusive jurisdiction in bankruptcy proceedings proper, which never were or could be carried on in the State courts. Winters v. Claitor, 54 Miss. 341. Notwithstanding § 711, an action may be brought in a State court by an assignee to collect assets of the bankrupt, and to foreclose a mortgage. Wente v. Young, 17 B. R. 90; Burlingame v. Parce, 17 B. R. 246. Suits by the assignee against any person claiming adverse interest, are no part of the bankruptcy proceeding. They are only in aid of such a proceeding. Wis-wall v. Campbell, 93 U. S. 347.</p> <p>8. The two years’ Statute of Limitations is set up against the assignee by the appellees, who contend that because it bars him it bars the appellant also. The statute (Bankrupt Act, 1867, § 2) is a copy of the eighth section of the act of 1841. The precise question presented here has been decided adversely to the position of the appellees. Tichenor v. Allen, 18 Gratt. 15; Dewey v. Moyer, 72 N. Y. 70. But the plea is a personal plea of the assignee. The appellant and the appellees stand upon equal equities, and the controversy between them is not affected by the fact that the assignee is barred. Rawls v. American Ins. Co., 27 N. Y. 282; Hyde v. Van Valkenburg, 1 Daly (N. Y.), 416 ; Tichenor v. Allen, ubi supra. The same is true of bankruptcy, infancy, and usury, and all this class of defences. Dewey v. Moyer, ubi supra; Bowman v. Pope, 38 Miss. 94; Alsworth v. Cordtz, 31 Miss. 32. In Abbey v. Commercial Bank, 31 Miss. 434, this court refused to allow a fraudulent grantee to set up the Statute of Limitations, as between his grantor and a creditor who was seeking to set aside the fraudulent conveyance.</p> <p>II. The memorandum of June 12,1862, was never delivered. Neither a deed nor memorandum is a sufficient compliance with the Statute of Frauds, so long as it remains in the exclusive possession of the grantor. It was obviously not the intention of these parties that the grantor should hold this deed as agent: it was retained as a memorandum from which a deed was to be subsequently drawn. The law upon the subject of the delivery of deeds and writings has been, fully laid down by this court adversely to the position of the appellees in this case. As against creditors of the grantor, a constructive delivery must be clearly proved. Bledsoe v. Little, 4 How. 13 ; Kane v. Maclcin, 9 S. & M. 887 ; Wall v. Wall,, 30 Miss. 91; M' G-ehee v. White, 31 Miss. 41; Bullitt v. Taylor, 34 Miss. 708 ; Morris v. Henderson, 37 Miss. 492: Jiggitts v. Jiggitts, 40 Miss. 718; Kearny v. Jeffries, 48 Miss. 343 ; Jelks v. Barrett, 52 Miss. 315; Cocks v. Simmons, ante, 183. The same rules prevail in other States. Parker v. Parker, 1 Gray, 409 ; Hatch v. Haskins, 17 Maine, 391; Maynard v. Maynard, 10 Mass.456; Hawkes v. Pike, 105 Mass. 560; Cook v. Brown, 34 N. H. 460 ; Msher v. Hall, 41 N. Y. 416; Folly y. Vantuyl, 4 Halst. 158; Crawford y. Berthholf, 1 Saxt. 458.</p> <p>III. Both the deed of April 17, 1866, and the memorandum of 1862, even admitting the latter to be valid, are on their faces voluntary conveyances. Until a recent period, such conveyances were held to be void as to existing creditors. Young v. White, 25 Miss. 146; Bogard v. Gardley, 4 S. & M. 802; Catchings v. Manlove, 39 Miss. 655. In Wilson v. Kohlheim, 46 Miss. 346, this court laid down the new rule, that a man might give to his child a reasonable part of his property if he was not largely in debt at the time ; but it was held that, if he was insolvent, the gift could not stand whether made with fraudulent intent or not. It has since been held that the law presumes a voluntary conveyance to be void, and the donee must establish the facts which repel the presumption. Pennington v. Seal, 49 Miss. 518; Cook v. Oakley, 50 Miss. 628. This is in accordance with settled authority. Bichardson v. Bhodus, 14 Rich. 95 ; Van Cleef v. Fleet, 15 Johns. 147 ; Van Wyck v. Seward, 18 Wend. 375; Davis v. Herrick, 37 Maine, 397; Smith v. Beavis, 7 Ired. 341; Bump Fraud. Conv. 286, 294. These principles, applied to the facts, render the two deeds void.</p> <p>IV. The appellees claim in their amended bill that the deed of April 17, 1866, validates bj' relation the memorandum of June 12, 1862. The doctrine of relation is not favored by the courts. Chancellor Kent speaks of it as a dormant power of mysterious energy, too mischievous to be endured. 4 Kent Com. 339. It may be used to advance justice, but never when it would deprive a party of a legal right. Burr. Law Die., tit. Relation; Pearson v. Darrington, 21 Ala. 169. It is never to be adopted when third parties, who are not privies or parties thereto, will be prejudiced thereby. Montgomery v. Ives, 13 S. & M. 161; Heath v. Boss, 12 Johns. 140. As the deed of 1866 was void, it cannot validate any thing.</p> <p>V. The defence that Maxwell’s other lands are first liable is set up by the appellees in their amended bill. The answer of the appellant to the allegation is, that all Maxwell’s other lands are levied on by other executions, and for that reason, and also because all the lands together are not enough to pay his judgments, no case for marshalling assets is presented. It cannot be done without prejudice to the appellant,' who is restrained by Mrs. Maxwell. Drake v. Collins, 5 How. 258 ; Pallen v. Agricultural Bank, 1 Freem. Ch. 419 ; s. c. 8 S. & M. 357 ; Keaton v. Miller, 38 Miss. 630 ; Briggs v. Planters’ Bank, 1 Freem. Ch. 574; Hollins v. Thompson, 13 S. & M. 522; Oheese-brough v. Millard, 1 Johns. Ch. 409. Mrs. Maxwell is a necessary party to such a proceeding. Story Eq. PI. § 162. Her rights would be directly affected. As she was not made a party by the appellees in their bill, she could not be by the appellant in his cross-bill.</p> <p>VI. The defence that four of the judgments are paid is based on Code 1857, p. 547, art. 44 ; Code 1871, § 1024. In the original bill which was filed under statutes (Acts 1867, pp. 225, 425), and not sworn to, it is averred that these judgments are paid, and it is stated in argument that this averment is not denied, but the answer refers to another answer to a bill on file in the same court, where similar averments are made. This manner of answering was proper pleading, 'and allowable under the rules of the Chancery Courts in this State. Chancery Rules, 13, 14; 1 Freem. Ch. 18. If, under these rules, the answer was not satisfactory, the complainants should have excepted. 1 Dan. Ch. Prac. 768. Having treated the answer as sufficient, they are now estopped. It is too late to make such a point after final decree.</p> <p>VII. On the prayer of the appellant’s cross-bill, all five of his judgment liens should have been enforced. The original bill prays for an injunction against the five judgments. Courts of equity have general jurisdiction to enforce liens. 1 Story Eq. Jur. § 506; 2 Story Eq. Jur. § 1216 b; Richardson v. Warwick, 7 How. 131; Jenkins v. Bodley, S. & M. Ch. 338. They will intervene in aid of the legal right, without issue and return of execution. Hilzheim v. Drame, 10- S. & M. 556; Berryman v. Sullivan, 13 S. & M. 65; Bowler v. McCartney, 27 Miss. 509; Snodgrass v. Andrews, 30 Miss. 472; Vasser v. Henderson, 40 Miss. 519, 520; Bleming v. Grafton, 54 Miss. 79.</p> <p>made an oral argument.</p> <p>argued the case orally and filed a brief.</p> <p>I. The right of Mrs. Lumpkin to have this judgment enjoined as to her land, until that subsequently conveyed to Mrs. Maxwell is exhausted, is clear. Assets will be marshalled in favor of volunteers. Keaton v. Miller, 38 Miss. 680. Mrs. Maxwell is not a necessary party in order for Mrs. Lumpkin to obtain this relief. Agricultural Bank v. Pallen, 8 S. & M. 357. As against the four judgments first rendered, the injunction should have been perpetuated, because, as is admitted in the pleadings, they have been paid or discharged. McAllister v. Clopton, 51 Miss. 257. The proof cannot help the pleading, even if not paid. Executions under them have been levied upon other land sufficient in value to satisfy them. Since Davis admits they are discharged, he can have no relief as to them under his cross-bill. The only judgment in controversy therefore is the one recovered in September, 1866. We will consider separately the reasons why the prayer of our bill should be granted, and that of Davis’s cross-bill denied.</p> <p>II. The relief asked for by our bill should be granted for the following reasons: —</p> <p>1. Maxwell was solvent on June 12, 1862, and had therefore the right as against his creditors, to give his daughter, Mrs. Lumpkin, the land in controversy. Wilson v. Kohlheim,, 46 Miss. 346. By the instrument of that date, executed by him and his wife, which is a deed duly signed and sealed, he made the gift, intending, as the proof shows, that the title should vest at the time. Mrs. Lumpkin accordingly took possession, but the grantor held the deed for the benefit of the grantee, in order to perfect it, if necessary. This constituted a valid delivery. Peters v. Jones, 35 Iowa, 512; Campbell v. Mayes, 38 Iowa, 9; Tollman v. Cooke, 39 Iowa, 402; Burk-holder v. Casad, 47 Ind. 418. As Mrs. Lumpkin produced the deed in court, it was necessarily delivered at some time, and such delivery related back to the date of its execution. Irvine v. Irvine, 9 Wall. 617 ; Ins. Co. v. Colt, 20 Wall. 560. But if not a deed, this was certainly a memorandum sufficient to take the case out of the Statute of Frauds, and was obligatory when Mrs. Lumpkin took possession. Magee v. Catching, 33 Miss. 672; Whitworth v. Harris, 40 Miss. 483 ; Byrne v. Cummings, 41 Miss. 192. The parties intended the title to pass. Mrs. Lumpkin could have recovered the paper by detinue or replevin. Her father’s sole object in retaining it was to make the deed in conformity with its stipulations.</p> <p>2. The appellees are, however, in possession of the land; and, although their title be weak, Davis cannot recover unless he shows a subsisting lien; and, if Mrs. Lumpkin’s title is void, the legal title to the land is in Maxwell’s assignee in bankruptcy. Allen v. Montgomery, 48 Miss. 101; Stewart v. Isidor, 1 B. R. 485; Gatlin v. Foster, 3 B. R. 540. Davis’s lien was imperfect when Maxwell was adjudicated a bankrupt: the bankrupt law preserves only liens in esse ; and the assignee’s title is superior to Davis’s lien. In re Hinds, 3 B. R. 351, 355; In re Fey, 3 B. R. 305; In re Bininger, 3 B. R. 481; Miller v. Sherry, 2 2 Wall. 237; Ashley v. Bobinson, 29 Ala. 112, 125; Fetter v. Oirode, 4 B. Mon. 482; Botts v. Patton, 10 B. Mon. 452; In re Sabin, 12 B. R. 142. When the bankrupt is discharged he is no longer personally liable, and the creditor cannot proceed against his fraudulent transferee. Hub-bell v. Flint, 15 Gray, 550; Graham v. Pierson, 6 Hill, 247; Grouch v. Gridley, 6 Hill, 250; Buckman v. Cowell, 1 N. Y. 505; Clark v. Bowling, 3 N. Y. 216; Comstock v. Grout, 17 Yt. 512; Harrington v. McNaughton, 20 Vt. 293. Where the creditors of a fraudulent transferee seize the property fraudulently transferred, the creditors of the fraudulent transferor cannot assert any claim against it to their detriment. Gibbs v. Chase, 10 Mass. 125. The case of Clark v. Bowling, ubi swpra, is indorsed by our own court in McDonald v. In-graham, 30 Miss. 389.</p> <p>3. But as the title was in Maxwell’s assignee in bankruptcy for the benefit of Maxwell’s general creditors, he was entitled to his day in court to show cause, if any he could, why execution should not be issued against the estate. The principle is universally recognized, and is applicable to heirs on judgments recovered against their ancestor, or to purchasers on judgments recovered against their grantors prior to the grant. When a new party is to be charged on execution, a scire facias must be issued. Smith v. Winston, 2 How. 601; Fejarnett v. Haynes, 23 Miss. 600; Hughes v. Wilkinson, 37 Miss. 482; Cocke v. Foote, 49, Miss. 181; Ex parte Foster, 2 Story, 131. Maxwell was civiliter mortuus, and if tbe execution was a continuance of the original suit, then by the express letter of the Bankrupt Act the bankrupt should have been replaced by his assignee before it could be proceeded with.</p> <p>4. The execution must be enjoined, because the court issuing it had no jurisdiction over the subject-matter or the estate of Maxwell at that time. The first section of the Bankrupt Act of 1867 provides that the Bankruptcy Court shall have jurisdiction to ascertain and liquidate liens on the bankrupt’s estate. If this jurisdiction is concurrent with that of the State court, yet the property was in the custody of the Bankruptcy Court. High on Receivers, § 50; Zeigler v. Shomo, 78 Penn. St. 357, 363; Davis v. Anderson, 6 N. B. R. 145; Phelps v. Selliclc, 8 B. R. 390. Being in the custody of the Bankruptcy Court, the Circuit Court of Tippah County had no right to issue the execution. Taylor v. Qarryl, 20 How. 583. The law is ably discussed, and this question directly decided in our favor, in the following cases and text-books: Stemmons v. Burford, 39 Texas, 352; Blum v. Bilis, 73 N. C. 293 ; Withers v. Stinson, 79 N. C. 341; The Skylark, 4 Biss. 388; In re Paine, 17 B. R. 37 ; Bump on Bank. (10th ed.) 211, 623; Herman on Executions, 40; Allen v. Montgomery, 48 Miss. 101; Jones v. Leach, 1 B. R. 595 ; MeDougald v. Raid, 5 Ala. 810 ; Brown v. Branch Bank, 20 Ala. 420; AIcoüy. Avery, 1 Barb. Ch. 347.</p> <p>III. Davis’s cross-bill should have been dismissed.</p> <p>1. Because, to obtain the relief asked, Davis must show that his judgment is a lien upon the land. Famed v. Harris, 11 S. & M. 366; Brown v. Bank of Mississippi, 31 Miss. 454; Partee v. Mathews, 53 Miss. 140. Davis has no lien if the deed to Mrs. Lumpkin is not fraudulent; and, if it is fraudulent, the title vested in the assignee, unincumbered by the possibility of Davis asserting any lien. The assignee acquires the title of a bona fide purchaser for valuable consideration without notice, for, in consideration of the assignment to him, Maxwell’s creditors released their debts. Soule v. Shotwell, 52 Miss. 236.</p> <p>2. Even, however, if Davis is entitled to the relief asked by his cross-bill, the Chancery Court has no jurisdiction to grant it after bankruptcy: the assignee alone can maintain a bill to set aside the bankrupt’s fraudulent conveyance. In re People’s Mail Steamship Co., 2 B. R. 552; In re Davis, 2 B. R. 391; Jones v. Leach, 1 B. R. 595; Pennington v. Sale, 1 B. R. 572; In re Snedaker, 3 B. R. 629; Stuart v. Sines, 6 B. R. 416 ; Mark-son v. Heaney, 4 B. R. 510 ; In re Wynne, 4 B. R. 23 ; Bump on Bank. §§ 324, 325, 326. The assignee may sue in the State courts, but he cannot be sued there. The property being in the custody of the Bankruptcy Court, the State court cannot invade its jurisdiction. The assignee cannot be dragged into the State court. Then, reviewing the decisions cited by opposing counsel, counsel contended that none of the cases contemplated the commencement after bankruptcy of a proceeding to enforce a lien.</p> <p>8. But, however it may have been under the original Bankrupt Act, the Revised Statutes of the United States, passed in 1873, by §§ 563, 711, 4972, confer exclusive jurisdiction on the United States Courts of all matters and proceedings in bankruptcy. McHenry v. La Société Prangaise, 95 U. S. 58; Sherwood v. Burns, 58 Ind. 502; Wente v. Young, 17 B. R. 90. Davis is not protected by U. S. Rev. Stats. § 5597. The repeal of a statute terminates all proceedings under it. Musgrove v. Vicksburg Railroad Co., 50 Miss. 677. To meet that rule, § 5597 was passed, and before Davis can bring himself within its benefit he must show the Federal statute which gave him the right to the remedy he was pursuing, and which was repealed by the Revised Statutes. Davis was, however, proceeding in a Mississippi court, and under Mississippi law.</p> <p>4. Davis was barred of all remedy. Before the assignee was made a party to this suit, his right to set aside the fraudulent conveyance was barred by the two years’ Statute of Limitations provided by the bankrupt law. U. S. Rev. Stats. § 5057. Davis cannot effect more by the assignee’s rights than the assignee could effect himself. Brown v. Groolsby, 34 Miss. 437 ; Lagow v. Neilson, 10 Ind. 183; Crofford v. Cothran, 2 Sneed, 492. Apart from the Statute of Limitations, the act making the jurisdiction of the Bankruptcy Court exclusive had taken effect before the assignee was made a party to the suit, and therefore the equitable exception, allowing the creditor to proceed for himself when the assignee refuses to proceed against the fraudulent conveyance, cannot help Davis. The fundamental principle of the bankrupt law is the equal distribution of the bankrupt’s assets among his creditors, which is impossible if either the bankrupt or any of his creditors can enforce their claims outside of the Bankruptcy Court. The State court has no jurisdiction of a bill filed by a mortgage or lien creditor of the bankrupt, unless the assignee is a party to such bill; and then equity will treat the assignee as complainant, for the purpose of effecting the ends of justice. Story Eq. PI. § 516 ; Preelander v. Holloman, 9 B. R. 331; Bank v. Cooper, 20 Wall. 171; Allen v. Montgomery, 48 Miss. 101; 1 Dan. Ch. Prac. 59, 60; Bump on Fraud. Conv. (4th ed.), 519, 520; Pratt v. Curtis, 6 B. R. 139; Edwards v. Coleman, 2 Bibb, 204; Bradshaw v. Klein, 1 B. R. 542; In re Metzger, 2 B. R. 355 ; Goodwin v. Sharkey, 3 B. R. 558 ; Thurmond v. Andrews, 13 B. R. 157 ; Alsábrooks v. Cates, 5 Heisk. 271; Winters v. Claitor, 54 Miss. 341; Lawrence v. Hand, 23 Miss. 103; Eoster v. Pugh, 12 S. & M. 416 ; Hoe v. Wilson, 9 Wall. 501; Bailroad Co. v. Orr, 18 Wall. 471; Manly v. Kidd, 33 Miss. 141; Gifford v. Helms, 98 U. S. 248; In re Salin, 9 B. R. 383.</p> <p>IY. Reviewing the evidence, the counsel also contended that the title of Mrs. Lumpkin to the land in controversy was bona fide; that the facts showed that Maxwell was solvent at the time of the execution both of the deed of 1862 and of that of 1867; that there was enough property besides the land in controversy to pay not only Davis but all Maxwell’s other creditors; that the deed of 1867, being made when the deed of 1862 was lost, related back so as to validate the former conveyance; that the gift of the land, which was but a small part of Maxwell’s estate, was good as an advancement from a solvent father to his daughter on the occasion of her marriage; and that upon the merits of the case, apart from the questions of jurisdiction and -of limitation, Mrs. Lumpkin was entitled to the land, as against both Davis and her father’s assignee.</p>

Hon. W. Cothran, Judge. The plaintiffs in error are the obligors in a bond, which they executed in suing out an attachment against J. R. Bew, on an affidavit that he had fraudulently disposed of his property. Goods were seized and sold by the sheriff as perishable.

Hon. Thomas Y. Behky, Chancellor. The appellant filed this bill against the appellee, her husband, for a divorce upon the ground of habitual, cruel and inhuman treatment, and further alleging that she was devoted to her two little children with that love and affection that only a mother can know and feel, that she was able and willing, and desirous above all else in the world to maintain, support, provide for and cherish them, that her husband, who drove her away by…

Error. to the Circuit Court of Wayne County. Hon. J. S. Hamm, Judge. On the trial of this indictment for murder, the counsel for the defendant asked the court to charge that “ if, after carefully considering all the evidence, the jury find the defendant guilty as charged, beyond all reasonable doubt, they may, in their discretion, declare in their verdict that the penalty or punishment shall be imprisonment for life in the penitentiary.

Ebbob to the Circuit Court of Warren County. Hon. Upton M. YouNG, Judge. The defendant in error brought this action of trover for the conversion of three barrels of brandy and three of whiskey against the plaintiff in error, who pleaded not guilty.

Hon. George Wood, Chancellor. Having allowed the legal title to stand in his son’s name upon the record until credit was extended upon the faith thereof, the father is now estopped to assert his secret equity against the mortgagee, who occupies the position of a purchaser in good faith. Dickson v. Green, 24 Miss. 612 ; Nixon v. Coreo, 28 Miss. 414; Perkins v. Swank, 43 Miss. 349. The occupancy of the father was not notice of title to the mortgagee.

Hon. Thos. Y. Berry, Chancellor. Pierre Becker & Son were by the complainant, Isaac Smith, made defendants by an amendment to his bill upon the allegation that they had some equity in the land, to which his was superior.

Hon. L. Haughton, Chancellor. 1. As children of Daniel Willis, living at his death, the appellants are entitled, under the will, as remainder-men, to his half of the proceeds of the residuum; and, if Lafayette Willis dies without children or descendants, they, as representatives of Daniel Willis, the surviving contingent remainder-man, will be entitled to two thirds of Lafayette Willis’s share.

<p>Ereob, to the Circuit Court of Clay County.</p> <p>Hon. James M. ArNOld, Judge.</p> <p>The declaration in this case alleges that the note sued on was indorsed in Mobile, Alabama, but there was evidence that the indorsement was made in this State. The following charge was asked by the defendant and refused: “ If the jury believe from the evidence that J. H. Greer lived at Shu-qualak, in Mississippi, and indorsed the note in controversy there, then the contract of Greer is governed by the laws of Mississippi, and not of Alabama, and the jury will find for the defendant.”</p> <p>argued the case orally, and filed a brief.</p> <p>1. Although the note is a negotiable instrument, it is competent to show that Greer indorsed for accommodation, and is, therefore, a mere surety; Sardy v. Pilcher, ante, 18; Meggett v. Bavm, ante, 22; 1 Parsons on Notes and Bills, 233, notes; 2 Daniel on Neg. Inst. § 1338, notes. The plaintiffs are not bona fide holders. The original firm knew of Greer’s relation to the paper, and the surviving partners, having notice, carried it into the new firm. 2 Parsons on Notes and Bills, 27. As the note was not taken for a debt, but for amounts to be advanced not exceeding its face, it was incumbent on the plaintiffs to show what debts were embraced in the security and the amount due thereon. Maitland v. Citizens’ Banh, 40 Md. 540; Stoddard v. Kimball, 4 Cush. 604; Williams v. Cheney, 8 Gray, 215; Boche v. Ladd, 1 Allen, 436; Mayo v. Moore, 28 Ill. 428; Grillam v. Kuber, 4 G. Greene, 155; Tarbell v. Surtevant, 26 Yt. 513 ; Grant v. Kidwell, 30 Mo. 455; Williams v. Smith, 2 Hill, 301.</p> <p>2. The firm with which Greer contracted was dissolved by the death of a partner (Story Part. §§ 343, 347), before much was advanced and the advances by that firm have been paid. A guaranty for advances to be made or credits to be given from time to time by a firm to a third person will not be extended beyond the actual import of its terms, and the guarantor will not be liable for advances made or credit given after any change in the firm, such as the retirement or death of an old partner or the admission of a new one. Story Part. §§ 245, 249; Collyer Part. 443; 2 Parsons on Contracts, 19, 20, notes. The doctrine applies to more formal instruments, such as bonds. In equity, the contract has the same extent and limitation as at law. Strange v. Lee, 3 East, 484; Pemberton v. Oahes, 4 Russ. 154; Penoyer v. Watson, 16 Johns. 100; Robbins v. Bingham, 4 Johns. 476; Weston v. Barton, 4 Taunt. 673; Walsh v. Bailie, 10 Johns. 180; Barns v. •Barrow, 61 N. Y. 39. If it could be shown, that the change in the firm was beneficial to the surety, he would still not be bound. Bethune v. Dozier, 10 Ga. 235 ; Atlanta Bank v. Douglass, 51 Ga. 205. The surety’s contract is stricti juris, he relies on the original members of the firm, and as to advances by a new firm may well say non in hcec foedera veni. The recklessness of the new firm is shown by the large advances to Hibbler after the maturity of the note. Owing to the fact that Greer’s indorsement was special to Bush, Yates & Co., the note was not negotiable, and the rule in favor of a bona fide holder does not apply. 2 Parsons on Notes and Bills, 27. The cases of Pease v. Hirst, 10 B. & C. 122, and Barclay v. Lucas, 1 T. R. 291, are the only authorities cited by opposing counsel that tend to sustain his position. The former was decided in Lord Tenterden’s absence and Parke, J. took no part. Both are opposed to all the other cases; and, if they can be sustained at all, it must be on the ground that the guaranty was to a banking institution, or that the extrinsic evidence showed that the guaranty was continuing in its nature, neither of which is true in the case at bar. The text-books cited by opposing counsel are, so far as applicable to this case, based on these two decisions.</p> <p>8. The advances by the new firm, however, have been so far paid that nothing is due on the note. Greer is entitled to have the first payments applied in satisfaction of the note. The balance is simply an amount due by Hibbler on his individual account. The law favors the surety, especially if his suretyship is not for a pre-existing debt. If the principal owes another debt, a payment will, in the absence of an application by the parties, be placed to the credit of the secured debt. 2 Parsons on Contracts, 683, notes. The cotton, covered by the trust deed, was received and sold by Bush, Yates & Co., and the proceeds applied to the open account. The application should have been to the mortgage debt. Hibbler’s failure to notify them that the cotton was embraced in the trust deed cannot affect Greer. The new firm should have prevented Hibbler from misapplying property which he had conveyed in trust for Greer’s protection. A creditor who takes collateral security is bound to hold it impartially and justly for the benefit of the surety. Payne v. Commercial Bank, 6 S. & M. 24; Meyer v. Blahemore, 54 Miss. 570. To the extent of the value of the cotton, the mortgage debt is satisfied. Ogden v. Samson, 56 Miss. 743; Webster v. Singley, 53 Ala. 208; 1 Hill on Mortgages, 278, 279. The surety’s liability becomes fixed only when the collateral security is exhausted. JDussol v. Bruguiere, 50 Cal. 456 ; Wharton v. Duncan, 83 Penn. St. 40; Kirkpatrick v. Sowk, 80 Ill. 122. Doubt as to liability is solved in favor of the surety. Stull v. Sanee, 62 Ill. 52. A guarantor 'is discharged by the surrender of any security held by the creditor. 2 Daniel on Neg. Inst. § 1789, note; Fell on Guaranties & Suretyship, 215-217; Story on Prom. Notes, § 485. Dealing with the principal which may vary or enlarge the liability discharges the surety. Mayhew v. Boyd, 5 Md. 102. The creditor cannot receive from the debtor, in satisfaction of one debt, property on which there is a lien to secure another, so as to defeat the right of a surety for the latter debt to have the same applied to the discharge of his liability. McMullen v. Hinkle, 89 Miss. 142. Greer, and not Hibbler, was the person to be consulted, for he was the party interested, and him the creditors were bound to protect. Clopton v. Spratt, 52 Miss. 251. Hibbler had parted with the title to the cotton for Greer’s benefit.</p> <p>4. The variance was taken advantage of by the defendant before the verdict, by the instruction which was asked and refused. It is difficult to define the ground of the refusal. Emboldened by this ruling, the plaintiffs refused to amend as they could have done. If any part of the contract proved is different from that laid in the declaration, the variance is fatal. Brake v. Surget, 86 Miss. 458; Phipps v. Ingraham, 41 Miss. 256. How are parties to be compelled to allege the case they intend to prove ? The general issue denied every thing. The case of Carter v. Preston, 51 Miss. 423, is decisive of this point.</p> <p>1. The statute (Code 1871, §§ 622, 623) does not obviate the necessity for amendment in cases of variance, but provides that, where the opposing party is not misled, it may be made without costs. The defendant took advantage of the defect by his instruction. The difference is material, for the contract is governed by the law of the place where the indorsement is made. Musson v. Lake, 4 How. 262; Aymar v. Sheldon, 12 Wend. 489; Hendricks v. Franklin, 4 Johns. 119; Hicks v. Brown, 12 Johns. 142; Powers v. Lynch, 3 Mass. 77. If the jury had found a special verdict, that the indorsement was made at Shuqualak, Mississippi, and if that was a defence they found for the defendant, otherwise for the plaintiff, the judgment would have been necessarily for the defendant. The instruction was right and the verdict clearly wrong.</p> <p>2. The accommodation indorser occupies the place of a guarantor, and may show that in an action at law. Hardy v. Pilcher, ante, 18; Meggett v. Baum, ante, 22. Advances made after the firm was changed are not chargeable against the guarantor. Bobbins v. Bingham, 4 Johns. 476; Walsh v. Bailie, 10 Johns. 180; Penoyer v. Watson, 16 Johns. 100; Lawrence v. Me Calmont, 2 How. 426, 453; Boyce v. Edwards, 4 Peters, 111, 119; Myers v. Edge, T T. R. 254; Boston lee Oo. v. Potter, 123 Mass. 28; Bellairs v. Ebs-worth, 3 Camp. 53; Bussell v. Perkins, 1 Mason, 368; Weston v. Barton, 4 Taunt. 673, 682; Bodenham v. Par-chas, 2 B. & Aid. 39; Kipling v. Turner, 5 B. & Aid. 261; Wright y. Bussell, 3 Wils. 530; Barclay v. Lucas, 3 Dougl. 321; Barker v. Parker, 1 T. R. 287; Dry v. Davy, 2 Per. & Dav. 249; Place v. Belegal, 4 Bing. (N. C.) 426 ; Dance y. Girdler, 4 B. & P. 34; Cremer v. Higginson, 1 Mason, 323; Strange y. Lee, 3 East, 484; Pemberton v. Oakes, 4 Russ. 154, 167; Chapman y. Bechinton, 3 Q. B. 703; Simson y. Cooke, 1 Bing. 452; Stephens v. Benning, 1 Kay & J. 168; s. c. 6 De G. M. & G. 223; Tasker v. Shepherd, 6 H. & N. 575; Stewart v. Bogers, 19 Md. 98; 2 Parson on Contracts, 19, 20, 21; 3 Add. on Contracts, § 1121; Story Part. §§ 245-250.</p> <p>3. Greer’s indorsement was not a continuing guaranty for any balance which Hibbler might owe to the amount of the note, but was exhausted when that sum was advanced. Cremer v. Higginson, 1 Mason, 323 ; White y. Beed, 15 Conn. 457; Fellows y. Prentiss, 3 Denio, 512; Whitney v. Groot, 24 Wend. 82; Bogers v. Warner, 8 Johns. 119. After that sum was advanced, the first payments would go to its credit. 2 Parsons on Contracts, 21, 23, 633, notes. The advances after the maturity of the note are not chargeable on Greer in any view; and the amount actually advanced by the new firm under the guaranty has been overpaid, for Greer was not liable for Hibbler’s individual account.</p> <p>4. The amount advanced on the guaranty should be credited with the proceeds of the mortgaged cotton. Whitney v. Groot, 24 Wend. 82; Hicks v. Bingham, 11 Mass. 300; Winter v. Garrard, 7 Ga. 183; Toll v. Hiller, 11 Paige, 228 ; Bogers v. Bogers, 1 Halst. Ch. 32; Edwards on Bills and Notes, 563; 1 Hilliard on Mortgages, 505, 506, notes. It may have been Greer’s duty to see that this cotton was shipped to the creditors, but he was not bound to go to Mobile to see that they made the proper credit. Clopton v. Spratt, 52 Miss. 251. A case of grosser negligence than that of these creditors cannot be conceived. With the cotton in their hands mortgaged to secure the debt, they deliberately misapplied the proceeds, and now seek to hold Greer on the ground of want of knowledge. It was their business to know. Whenever a payment is made by delivery of the property conveyed in a mortgage, the law applies it to the mortgage debt, although the debtor may owe others to the same creditor. Windsor v. Kennedy, 52 Miss. 164. If the property of the debtor comes into the creditor’s hands, and he has the means of paying the debt, the surety is discharged fro tanto. Fell on Guaranties & Surety-ship, 216, 217 ; Everly v. Mice, 20 Penn. St. 297 ; New Kamp-shire Savings Bank v. Golcord, 15 N. H. 119; Baker v. Briggs, 8 Pick. 122; Kayes v. Ward, 4 Johns. Ch. 128; Praed v. Gar-diner, 2 Cox, 86; Commomuealth v. Vanderslice, 8 Serg. & R. 457; Lichtenthaler v. Thompson, 18 Serg. & R. 157 ; Hunt v. Bridgham, 2 Pick. 581; Law v. East India Co., 4 Ves. Jr. 824; Payne v. Commercial Bank, 6 S. & M. 24; Philips v. Astling, 2 Taunt. 206; Sneed v. White, 3 J. J. Marsh. 525; Story on Prom. Notes, § 485; 3 Add. on Contracts, § 1140; 2 Parson on Contracts, 110, and note (i); Noland v. Clark, 10 B. Mon. 239.</p> <p>made an oral argument.</p> <p>1. The objection of variance must be made by motion to exclude the evidence. After verdict, it comes too late. Stier v. Surget, 10 S. & M. 154; Grigsby v. Ford, 3 How. 184. The defect cannot be taken advantage of by instructions. Besides, the only question raised by the charge asked in this case was as to the law of the contract. The plaintiff in error could not make the point in that vague and clandestine manner. If the variance was material, the plaintiffs had the right to amend. Code 1871, § 623. The defendant was not misled, and hence the variance was immaterial. 1 Greenl. Evid. §§ 63, 275, notes; Stephen on PL 107, 108. As the law of the place of payment governs as to the holder’s rights, the charge stated what is not law, and for that reason was properly refused. Ellis v. Commercial Bank, 7 How. 294; Kicks v. Brown, 12 Johns. 142; Bank of United States v. Bonnally, 8 Peters, 361; Cooper v. Waldegrave, 2 Beav. 282; Lewis v. Owen, 4 B. & Aid. 654.</p> <p>2. The advances by the new firm are secured by the indorsement, which was executed by Greer to make the note negotiable paper. Its negotiation according to the intent of the parties infused life into it, and precluded the defence of want of consideration. Meggett v. Baum, ante, 22. As the note and indorsement were designed as a continuing security, the indorser is liable notwithstanding the change in the firm. Pease v. Hirst, 10 B. & C. 122; Barclay v. Lucas, 1 T. R. 291; Smith’s Merc. Law, 99; Collyer Part. 631. The authorities cited by opposing counsel in support of the general rule that a guarantor is discharged by a change in the partnership in case of unassignable contracts, do not apply, because this is a promissory note payable and indorsed to order, and both the contract and extraneous evidence show the intent of the parties that the surety’s liability should follow the instrument into whatever hands it came.</p> <p>3. Hibbler’s fraud, in selling the defendants in error the mortgaged cotton, cannot exonerate Greer. If a principal releases himself by fraud, his surety remains liable. Grordon v. M' Qarty, 3 Wharton, 410 ; Brandt on Suretyship and Guaranty, § 216. It is the surety’s duty, not the creditor’s, to watch the principal, and see that he performs his contract. Harris v. Newell, 42 Wis. 687; Wright v. Simpson, 6 Ves. 714; Gilbert v. Marsh, 19 N. Y. 519; Frye v. Barker, 4 Pick. 382 ,• Hunt v. Bridgham, 2 Pick. 581; Fulton v. Matthews, 15 Johns. 433; Bellows v. Lovell, 5 Pick. 307; 2 Am. Lead. Cas. (5th ed.) 415; Page v. Webster, 15 Maine, 249; Davis v. Huggins, 3 N. H. 231; Mahurin v. Pearson, 8 N. H. 539; Hogaboom v. Herrick, 4 Vt. 131; Dennis v. Rider, 2 McLean, 451; Qarr v. Howard, 8 Blackf. 190; Taylor v. Beck, 13 Ill. 376; Pickett v. Land, 2 Bailey (S. C.), 608; Hubbard v. Davis, 1 Aiken (Vt.), 296; Montpelier Bank v. Dixon, 4 Vt. 587; Baker v. Marshall, 16 Vt. 522; Hickock v. Farmers’ Bank, 35 Vt.'476; Page v. Webster, 15 Maine, 249; Bull v. Allen, 19 Conn. 101; Pintará v. Davis, 1 Zabr. 632; Pintará v. Davis, Spencer (N. J.), 205; Sasscer v. Young, 6 Gill & J. 243 ; Oroughton v. Duval, 3 Call, 60; Jenkins v. Clarkson, 7 Hamm. (Ohio), 72; Cohea v. Commissioners of the Sinking Fund, 7 S. & M. 437; Johnson v. Planters' Bank, 4 S. & M. 165. The surety may be exonerated from liability, to the extent to which he is prejudiced by the positive act of the creditor in parting with legal or equitable securities, which the latter might have held for the benefit and protection of the surety, but mere passive indulgence or delay, as, for instance, his neglect to possess himself of goods mortgaged to him by the principal debtor as additional security for the ultimate payment of the debt, will not have that effect. Freaner v. Tingling, 37 Md. 491; Black River Bank v. Page, 44 N. Y. 453; Crane v. Stickles, 15 Yt. 252; Johnson v. Planters’ Bank, 4 S. & M. 165; Theobald on Prin. & Sur. 80; Caruthers v. Dean, 11 S. & M. 178; Pickens v. Finney, 12 S. & M. 468 ; Cohea v. Commissioners of the Sinking Fund, 7 S. & M. 437; Payne v. Commercial Bank, 6 S. & M. 24. Loss of another security by mere passiveness, in the absence of a request to act, has never been held to discharge the surety. Philbrooks v. McFwen, 29 Ind, 347 ; United States v. Kirkpatrick, 9 Wheat. 720 ; 2 Am. Lead. Cas. 391, 397, 401, 410, 447. The trust deed was made for the creditor’s protection, not Greer’s; and the title did not pass from Hibbler until breach of the condition, prior to which the cotton was sold and paid for. Code 1871, § 2295. No negligence is imputable to the creditors, who could not have even distinguished this cotton from the other bales shipped by Hibbler. Freaner v. Tingling, 37 Md. 491. Hibbler was not the creditor’s agent. Farmers’ Bank v. Lucas, 26 Ohio St. 385; Casoni v. Jerome, 58 N. Y. 315. His fraud could not discharge his surety, unless the creditors participated therein. Wayne v. Commercial Bank, 52 Penn. St. 343; Griffith v. Reynolds,' A. Gratt. 46; Western New Tork Ins. Co. v. Clinton, 66 N. Y. 326. It is no defence for the surety against these bona fide holders of the note, that the principal without notice to them has misapplied the cotton. Stoddard v. Kimball, 4 Cush. 604; Brandt on Suretyship and Guaranty, §§ 353, 354, 365.</p> <p>4. Excluding the advances made after maturity of the note will not affect the result. The debits largely exceed the amount secured by the indorsement, and the contract and course of dealing between the parties show that the security was to cover the balance which should finally be due, at the maturity of the note. Hibbler had no credit with the firm apart from that due to Greer’s name. His individual account is a mere fancy of opposing counsel. If the advances under the indorsement, not paid, are credited with the cotton embraced in the mortgage, it will reduce the amount of the recovery, but the answer to the objections as to Hibbler’s personal debt, and the credits after maturity, is that enough is proved to have been advanced on the faith of the indorsement to leave a large balance due.</p> <p>argued the case orally.</p>

Errok to tbe Circuit Court of Warren County. Hon. ÜRTON M. YoUNG, Judge. Keplevin at common law, as under our statute, is purely a local action and. depends on the situs of the property. If the sheriff returns the writ “ no property found,” although it is served on the defendant, the suit can proceed no further. The statute does not provide for any of the consequent writs of the common law.

Hon. James M. Arnold, Judge. The plaintiff in error sued out an attachment before a justice of the peace in Noxubee County against Thomas Mulhern, his debtor, under Code 1871, § 1420, and Thomas Henry, a resident of the county, was summoned as garnishee. Mulhern was not found, but was published for as a non-resident, and on the return day, his counsel appeared with an affidavit, alleging that he was a householder and resident of Madison County, and moved to dismiss the suit.

Hon. L. Brame, Chancellor. The sale of an equity in land is not within the Statute of Frauds. In several cases this court has sustained verbal sales of such interests. Russell v. Watt, 41 Miss. 602; McLain v. Thompson, 52 Miss. 418. If a note, secured by lien, is assignable by delivery, why is not a bond for title ? To hold that the statute applies to all interests in land would seriously embarrass the business of the country.

<p>1. AGRICULTURAL Lien Law. Implied contract.</p> <p>Under the agricultural lien law (Acts 1876, p. 109) a writ of seizure will lie against a tenant, although there is no express contract to pay rent; for the word “ agreed ” in the statute embraces an agreement implied by the conduct of the parties.</p> <p>2. Landlord and Tenant. Holding over. Liability for rent.</p> <p>If a man who has been a .tenant for years, continues after the expiration of his lease to occupy the demised premises without a new contract, he is liable as a tenant from year to year at the same rate that he paid.</p> <p>3. Same. Defence of adverse title. Estoppel.</p> <p>Such a tenant cannot, when sued for the rent, set up an adverse title in his wife, to defeat the landlord’s claim.</p>

Hon. S. S. Calhoon, Judge. The defendant held the money in a fiduciary capacity, within the meaning of the U. S. Rev. Stats. §. 5117. If the bankrupt receives money as agent, to be applied in a particular way, or for a specific purpose, for the use of the principal, his discharge does not relieve him from liability. In re Kimball, 6 Blatch. 292; In re Seymour, 1 Ben. 348 ; In re Kimball, 2 Ben. 554; JDuguid v. Edwards, 50 Barb. 288; Treadwell v. Holloway, 46 Cal. 547.

This is a motion to docket the ease for hearing at the present term of court, on the following state of facts: At the term at which the decree was rendered, the appeal was prayed by a written petition to the court which made an order granting it on the appellant’s giving bond. An order was made of record by the court approving the bond, when presented, and perfecting the appeal, and upon the same day the appellee’s counsel acknowledged notice thereof.

Hon. UutoN M. YouNG, Judge. A solvent corporation can for valuable consideration cancel the subscription of one of its subscribers to its capital stock. At common law, sucb a transaction would not be fraudulent as to the company’s creditors. It is not forbidden by law, and is within the purposes for which the corporation was chartered. Code 1871, § 2413, does not admit of the construction for which opposing counsel contends.

<p>1. Agricultural Lien Law. No personal judgment.</p> <p>In a proceeding by writ of seizure under the agricultural lien law, (Acts 1876, p. 109) no personal judgment can be rendered for the debt. Eartsell v. Myers, ante, 135, cited.</p> <p>2. Same. Claimant's bond. Duty of officer.</p> <p>The officer who seizes products under such proceeding before a justice of the peace must hold them subject to the result of the suit, and cannot surrender them to a claimant on a forthcoming bond.</p> <p>3. Same. Bond unauthorized by statute. Common-law action thereon.</p> <p>If such bond is taken, no summary judgment can be rendered thereon in the lien suit, but it may be sued on as a common-law obligation.</p> <p>4. Same. Judgment. Officer’s liability.</p> <p>The proper judgment for the plaintiff, in the lien suit, under such circumstances, is condemnation and sale of the products, leaving him at liberty to proceed against the officer for failure of duty or to sue on the bond.</p>

Eeboe to tbe Circuit Court of Noxubee County. Hon. James M. Arnold, Judge.

Hon. W. CothraN, Judge. The court erred in refusing leave to file the statement and in rendering judgment for want thereof. As the'case had long been at issue on the affidavit for the writ of seizure, which set out the claim in full, no further statement was necessary. The only object in requiring a statement is to apprise the defendant of the nature of the claim, and when he took issue upon the affidavit, concluding to the country, he waived further notice.

Hon. B. F. Trimble, Judge. The plaintiffs in error, under their firm name of Meyer, Weis & Co., brought this action of replevin against the defendant in error and .Jacob Ostroffsky. Twenty bales of cotton, seized by the sheriff, were retained by Casey, who claimed them.

Hon. T. B. Graham, Chancellor. The proceedings of the board of supervisors in the establishment of roads, ferries, and bridges, are judicial in their nature, and stand until reversed. Yalobusha County v. Carbry, 3 S. & M. 529 ; Carroll v. Board of Police, 28 Miss. 38. Suing out the injunction is a waiver of all errors. Code 1871, § 1047 ; Bustamente v. Bescher, 43 Miss. 172. The defendant in error has no franchise by prescription.

Hon. W. G. Phelps, Chancellor. 1. The answers, which are sworn to, contradict the theory and allegations of the unsworn bill. The ground for relief stated in the bill is fraud, and it was incumbent on the complainant to prove that charge before the defendants were required to offer any evidence. Fulton v. Woodman, 54 Miss. 158.

Hon. Upton M. Young, Chancellor. A creditor cannot by assignments cut up his claim and multiply obligations against his debtor, not contemplated by his original contract, without his consent. Mandeville v. Welch, 5 Wheat. 277; Gibson v. Qooke, 20 Pick. 15 ; Drake on Attachment, § 611, and note 1; Burnett v. Crandell, 68 Mo. 410 ; Getchell v. Maney, 69 Maine, 442.

<p>Criminal Procedure. Special judge.</p> <p>The statutory provision (Code 1871, § 536) for the selection by lot of a special judge from among the members of the bar, when the circuit judge is disqualified, is inapplicable to criminal cases.</p>

Hon. J. A. Green, Judge. Tbe defendants in error, after the transcript was filed in this court, moved to affirm the judgment of the court below, on the ground that there was no valid bill of exceptions in the record. made an oral argument, and cited Vicksburg Railroad Co. v. Ragsdale, 51 Miss. 447, and Rankin Savings Bank v. Johnson, 56 Miss. 125. argued orally, and in writing, that the bill of exceptions, which is a record, shows on its face that it was signed in term-time,…

Hon. J. A. Green, Judge. The payment of the bill of exchange by the drawee was a complete discharge of the indorsers, whose contract was only to pay if the drawee did not; and the loss must fall on the drawee, unless the money can be collected from the .forger. Oahey v. Wilcox, 3 How. 330; Lapiece v. Hughes, 24 Miss. 69; Baskerville v. Harris, 41 Miss. 635.

Hon. W. CothrAN, Judge. The transfer of the trial of this case from the justice who issued the summons to the other was proper under Code 1871, § 1340. The only object of the statute is to secure a disinterested judge. The waiver, by the agreement of the parties, cannot be repudiated. McLeod v. Harper, 43 Miss. 42. Had the objection been made in the justice’s court, the defect could have been remedied. No man can be judge in bis own case.

Hon. E. G. Peyton, Chancellor. The judgment-creditor of the vendor can subject the unpaid purchase-money in the vendee’s hands. Money v. Dorsey, 7 S. & M. 15. A purchaser at the execution sale takes the vendor’s interest in the land, subject to prior equities. Bell v. Flaherty, 45 Miss. 694. His rights relate back through the sheriff’s. deed to the judgment, and he obtains the judgment-creditor’s rights.

Hon. R. W. WilliamsoN, Chancellor. Independently of the statute (Acts 1873, p. 41), a court of equity may charge the purchase-money on land, where it is shown to have been used in discharging liabilities of the estate, whether the sale was made in pursuance of the decree of a court of competent jurisdiction or not. The right accrues whenever the sale is made under process of law. Whether the process is a nullity or not, the principle is the same.

Hon. J. A. GrebN, Judge. P. P. Strait, who in 1870 owned the lot in controversy, executed on Aug. 27 of that year, a deed of trust thereon, to secure his note payable to Foster & Gardner on Dec. 1 following. The trust-deed was not recorded. A deed conveying the lot from Strait to M. T. Burton was executed Feb. 14, 1872, and recorded on the 24th of the same month, and three days afterwards M. T. Burton conveyed to B. McManus, who took possession.

Hon. Upton M. Young, Judge. The instruction that the jury should find for the defendant, if they believed all the evidence, was erroneous. Whitney v. Qoolc, 53 Miss. 551; Qooley v. O'Connor, 12 Wall. 391; Dralcely v. Gregg, 8 Wall. 242; Hickman v. Jones, 9 Wall. 197 ; G-reenleaf v. Birth, 9 Peters, 292; Railroad Co. v. Stout, 17 Wall. 657; Railroad Co. v. Fim Steinburg, 17 Mich. 99; Conely v. McDonald, 8 Cent. Law Jour. 229.

<p>Error to the Circuit Court of Warren County.</p> <p>Hon. Upton M. Young, Judge, did not sit in this case, but</p> <p>Hon. A. G. Maters presided by interchange.</p> <p>argued the case, oralty and in writing.</p> <p>The record fails to show that the indictment, under which the accused was tried, was returned into court by the grand jury according to the formula prescribed by law. The prosecution was begun, and the indictment purports to have been found in 1873. The statute of 1878 has no application. The question was raised in the court below. It must be distinctly shown by the record that the indictment was found and returned into court. Laura v. State, 26 Miss. 174. No presumption can be indulged. JenJcins y. State, 30 Miss. 408; Hague y. State, 34 Miss. 616; Pond y. State, 47 Miss. 39. The effect of Code 1871, § 2794, is only to postpone the entry until after the defendant appears. Oachute y. State, 50 Miss. 165. In Gornwell y. State, 53 Miss. 385, the members of the court differ as to the construction, but the majority adhere to the former decision. Under either construction of the statute, however, this indictment should be quashed. Neither an entry on the’ minutes nor an indorsement on the indictment has ever been made showing an indictment against the plaintiff in error. The record cannot be aided by reference to the indictment or by the clerk’s recitals in the transcript; and without these there is absolutely nothing to identify the indictment or show how it got into court. The entry of a criminal case on the docket, in 1875, or the word “ filed,” marked on this indictment, throws no light upon the subject. Without inference and intendment, the indictment cannot be sustained.</p> <p>argued orally and filed a brief.</p> <p>A citizen can be charged with crime and put upon trial only by the action of a grand jury. The formal requisites of such action are prescribed by law, and must appear by the record, which is the only admissible proof of such facts. The presentation by the grand jury of the indictment in open court is a fundamental element of what the law requires. The indictment itself is no evidence of such action. It is a judicial act, as necessary as the entry of a verdict, and must appear from the minutes. Its object is not alone to identify the indictment, but the minutes should show that the particular defendant by name was presented in open court as an indicted party. It is the policy of the law thus to surround the action of the grand jury with formality. This requirement has for ages been enforced with unbending rigor, as a preliminary prescribed for the protection of the citizen. In order to indicate the estimation in which the rule has been held, and the purpose for which it was instituted, reference is made to the following decisions: Gardner v. People, 3 Scamm. 83 ; Rainey v. People, 3 Gilman, 71; Ghappel y. State, 8 Yerger, 166 ; Wrochlege y. State, 1 Iowa, 167.</p> <p>filed a brief and made an oral argument.</p> <p>The record complies with the law, which only requires it to show that the indictment was returned by a lawful grand jury. It was unnecessary for the minutes to contain the defendant’s name. Enough appears to identify the indictment returned by the grand jury with that on which he was tried. He was not in custody when the indictment was found, and it would have been improper to enter his name until he was apprehended. Nothing appearing to the contrary, the presumption is that the term at which his name first appears was the one immediately succeeding his arrest.</p>

Hon. T. B. Graham, Chancellor. 1. The defendants in error are barred by the Statute of Limitations, Code 1857, p. 403, art. 31; Code 1871, § 2175. Ten years have elapsed since the beneficiaries became of age. Continuing express trusts form the only class excepted from the operation of the statute. Murdock v. Hughes, 7 S. & M. 219; Edwards v. Ingraham, 31 Miss. 272. This is not a trust of that character.

' Appeal AND ceoss-appeal from the Chancery Court of Warren County. Hon. UPTON M. YOUNG, Chancellor. 1. The court erred in charging Klein with the acceptance, for the following reasons. (1) As executor he was not chargeable with the collection of that claim, and was under no duty in respect to it. Every grant of administration is confined to the State in which it is made, and confers no power to collect assets in other States. Riley v. Moseley, 44 Miss. 87.

Hon. R. W. Williamson, Chancellor. Under Code 1871, § 1265, the decree was not conclusive until one year after the appellant became of age, so that this bill was filed within the year required by Code 1871, § 1270. The latter section is however repealed, and Code 1871, § 2160, is now alone operative. The bill was therefore in time after the decree became final. Story Eq. PI. § 408. Is there error apparent on the face of the record ?

<p>Error to the Circuit Court of Itawamba County.</p> <p>Hon. J. A. GreeN, Judge.</p> <p>The irregularity on the constable’s part in taking the replevy bond affects neither the action nor the attachment proceeding. Acts 1878, p. 193. The most that could be done was to set aside the return. Lawrence v. Fealherston, 10 S. & M. 345. Appearance and a plea to the merits gave jurisdiction, and the court should have proceeded to award a personal judgment, regardless of the disposition of the property made by the officer. Jones v. Hunter, 4 How. 342; Henderson v. Hamer, 5 How. 525; Miller v. Facing, 8 S. & M. 421; Harris v. Gwin, 10 S. & M. 563; Lester v. Watkins, 41 Miss. 647; Bishop v. Fennerty, 46 Miss. 570; Holman v. Fisher, 49 Miss. 472; Frwin v. Heath, 50 Miss. 795 ; Lewenthall v. Mississippi Mills, 55 Miss. 101; Code 1871, § 1476.</p>

Hon. Sam Powel, Judge. From a judgment in favor of the defendant in ejectment, the plaintiff brings np the case, and assigns for error the exclusion from the evidence of the auditor’s certificate. The certificate by the auditor as to the contents of the list of lands on file in his office, which was the proper repository thereof, is full and in compliance with the law. Fore v. Williams, 35 Miss. 583; Wray v. Doe, 10 S. & M. 452.

Error, to the Circuit Court of Lee County. Hon. J. A. Greek, Judge. The motion of the plaintiff in error to quash the indictment against him upon the ground that it failed to aver that the liquor was sold in less quantities than one gallon was overruled, and he was tried and convicted. A druggist’s right to sell liquor is based on Code 1871, §§ 2456, 2463, which is not repealed by the act of April 17, 1873 (Acts 1873, p. 102), or the act of March 5, 1878 (Acts 1878, p. 16).

Hon. Upton M. Young, Judge. The omission to offer the land for sale, under the circumstances of this case, cannot affect the appellant’s right to charge it under Code 1871, § 1718. The land was sold to Cogburn by the State, and the claim for taxes and damages results from Hunt’s non-payment. Coglurn v. Runt, 56 Miss. 718. The absence of a sale to the State cannot affect the question. This court, in its former opinion, decided that the conveyance to the State was a nullity.

Eekoe to the Circuit Court of Wilkinson County. Hon. J. B. CheismaN, Judge. The plaintiff in error was convicted of murder on circumstantial evidence, and sentenced to be banged. Notwithstanding his objection, several jurors were rejected by the court because they stated that they would not convict a man to be hanged on circumstantial evidence, but if satisfied of guilt would send him to the penitentiary for life.

Hon. J. W. C. WatsON, Judge. George W. Tipler, who lives at Tiplersville, fifteen miles from a station on the Memphis and Charleston Railroad, was on the fourth of July, 1879, at Wolf’s Spring, seven miles from the station, with a pistol partially concealed on his person.

Hon. Sam Powel, Judge. Parol evidence is admissible to show the real consideration of a bill single, whether any is expressed in the writing or not. Lee v. Dozier, 40 Miss. 477 ; Blackwell v. Reid, 41 Miss. 102; Marshall v. Hamilton, 41 Miss. 229. It has never been seriously denied that the consideration of a writing can be inquired into when the instrument itself does not express its consideration. 1 Dan. Neg. Inst. § 163.

Hon. Sam Powel, Judge. The demurrer of the defendant in error was sustained to the declaration of the plaintiff in error, which was in debt on a bond for attachment, sued out by Miller & Justi against the latter, with the former as surety.

Hon. W. Gr. Phelps, Chancellor. The original bill was filed Dec. 16, 1868, to foreclose a mortgage executed by Emma S. Cooper and her former husband to secure his notes, one for three thousand dollars, due Oct. 25, 1866, and the other for a larger sum, given, as was alleged, for plantation and family supplies, wearing apparel, furniture, and buildings on her land.

Hon. Sam Powel, Judge. 1. It was decided by the circuit judge that, in order to bold a married woman liable for a partnership debt, it is necessaiy that she be actually a partner, or, in other words, she is not liable if she is only a nominal or ostensible partner. This construction of our statute is erroneous, inconsistent with justice, and opposed to the adjudications of some of the most learned tribunals in the land.

Hon. UptoN M. YouNG-, Chancellor. 1. Upon the face of the answer, the allegation of notice in the bill must be taken as confessed. Mead v. Bay, 54 Miss. 58. There is no denial of the facts stated in the bill, which tend to show knowledge. All the attempted denials are general and evasive, are literal as laid in the bill, and are negatives pregnant. While in form they negative the statements of the bill, they imply an affirmation thereof.

Hon. E. G. PeytoN, Chancellor. On March 2, 1864, G. W. Summers died in Hinds County, Mississippi, the owner of an estate real and personal, including the land in controversy. He devised his property to his heirs and his widow, Maria J. Summers, the realty to be divided among them according to the statute, and appointed his son, Charles H. Summers, and one Charles Hill, his executors.

Hon. J. W. C. WatsoN, Judge. The plaintiffs in error sued the defendants in error on a bond executed by the latter in a proceeding instituted by one of them to enjoin a sale under a deed of trust made by A. L. Hill to secure a debt due the former.

Hon. J. W. 0. Watson, Judge. This action brought March T, 1876, against J. R. McCall, guardian of F. B. Potts a lunatic, for five hundred dollars, alleged to have been paid Jan. 1,1874, in satisfaction of a note for that amount, was amended April 23,1877, by filing against “ F. B. Potts, a lunatic, whose guardian is J. R. McCall,” a declaration containing six counts, each for five hundred dollars, and the last for merchandise sold Potts while sane.

Hon. J. W. C. Watsok, Judge. This action on the bond of the administratrix of Robert Story, for the use of Eliza Furdick’s heirs by her first marriage, was to recover the amount of a judgment against the administratrix in favor of Eliza Furdick and her present husband, for the use of herself and those heirs. The defendants pleaded accord and satisfaction.

Hon. W. Gr. Phelps, Chancellor, having been of counsel, W. A. Percy acted as Chancellor pro hae vice. 1. The promise to pay the antenuptial debt is valid.

Hon. Upton M. Young, Chancellor. After the fire, the appellant had the right to remove the wall from his lot, the easement of the appellees therein having ceased. The easements which the owners of adjoining lots have in the party wall upon which their buildings rest last only so long as the buildings which were erected upon the wall under the agreement continue to exist, and remain fit for the use for which they were originally erected.

Hon. J. S. Hamm, Judge. None but resident licensed pilots are within the statute. The indictment is defective in failing to state that Bloom was a pilot at the port on the Gulf coast, and that the vessel had visited or departed from an infected port. Acts 1877, p. 64, §§ 3, 6, 12. In defining the offence, the indictment must pursue the precise and technical language employed in the statute.

Hon. J. S. Hamm, Judge. It was proper for the defendant’s attorney to make affidavit to the plea of non est factum. Code 1871, § 687. The bill of discovery was the only means of obtaining evidence essential to the defence. On sustaining a demurrer to a replication, the judgment is final. Ross v. Sims, 27 Miss. 859 ; Memphis Railroad Co. v. Orr, 52 Miss. 541. The pleas to the original declaration were applicable to the amended one.

Hon. J. W. C. Watson, Judge. The assignment is valid, and as it preceded the attachment the claimants are entitled to be first paid. Swisher v. Fitch, 1 S. & M. 541; Farmers’ Bank v. Douglass, 11 S. & M. 469; Sur get v. Boyd, ante, 485. The plaintiffs in error are in no manner bound by the verdict, to which they were not parties. The accepted order was an assignment pro tanto.

<p>Error to the Circuit Court of Lauderdale County.</p> <p>Hon. J. S. Hamm, Judge, having been of counsel, J. C. Roberts acted as judge, pro hae vice.</p> <p>The plaintiff in error filed against the Planters’ Insurance Company and two other insurance companies a declaration containing the four following counts: Q^that the defendants, intending to injure and oppres^JJie plaintiff and have him imprisoned, did wjjj^aut ^gbable cause, on Feb. 12, 1876, procure to be issued by á C“b?ncellor and Conservator of the Peace, a warrant for'-fe/apprahensioii upon a charge of the capital crime of arson in- procuring a hotel to be burned, that he was wrongfully and unjustly arrested and placed in the common jail of the county, where he remained without bail until discharged upon a writ of habeas corpus sued out before a Circuit Judge, and that the defendants well knowing the charge to be false, wholly abandoned it and have not further prosecuted; (2) the same as the first, except that it alleged that the plaintiff lay in the common jail two days, and suffered greatly in body and mind, that he expended a large sum in procuring his discharge and proving his innocence, and that he was prevented from following his lawful business for two years, and injured in his credit and circumstances; (3) that the defendants on May 19, 1876, falsely, maliciously and without probable cause, indicted and caused to be indicted the plaintiff, in the Circuit Court of Lauder-dale County, for the crime of arson in setting fire to and burning the hotel in the night-time, and that the defendants, without any probable cause, prosecuted and caused to be prosecuted the indictment against him in said court, but that he has been fully acquitted of the accusation and discharged therefrom as will fully appear by the records of the court, that he expended money in defence, and has been driven from business, ostracised in society, and otherwise injured; (4) the same as the third, except it charges that the defendants, without probable cause, indicted and procured to be indicted the plaintiff for the crime of arson in burning the hotel with intent to injure the insurance companies which had insurance thereon. The damages are laid in this count, as in the others, at $20,000. The defendants’ demurrer, which was sustained, stated as grounds, the misjoinder of two causes of action,— malicious prosecution, and false imprisonment; and that the defendants, being artificial persons, could not make an affidavit, sue out a warrant, or act maliciously.</p> <p>1. There is no misjoinder of separate and distinct causes of action, but a joinder of several counts in one form of action, to-wit: An action of trespass on the case for malicious prosecution. Neither count is for false imprisonment. The allegation in the first and second counts, that the plaintiff was imprisoned in the county jail, is stated only as a fact by way of aggravation of damages. It is true that there are four counts in the declaration, each setting up a separate cause of action, but this practice is as old as the common law itself. Indeed, good pleading requires it. When the plaintiff has two causes of action, which maybe joined in one action, he ought to bring one action only; and if he commences two actions, he may be compelled to consolidate them, and to pay the costs of the application. 11 Chitty PI. 199, 200, notes; Ingraham v. Hall, 11 Serg. & R. 78. The counts are for the separate and distinct torts committed by the defendants against the plaintiff, all of the same nature, all of the same form of action, all admitting of the same plea and the same judgment, and coming strictly within the rule.</p> <p>2. An action for malicious prosecution will lie against a corporation. Coke and Blackstone .say that a corporation being ideal and intangible cannot maintain nor be made defendant to an action for personal injuries, “ for it can neither beat nor be beaten in its body politic.” It cannot “ be committed to prison, for no man can apprehend or arrest it.” It cannot be outlawed. “Neither is it capable of suffering a traitor’s or felon’s punishment, for it is not liable to corporal penalties, nor to attainder, forfeiture or corruption of blood. It cannot be executor or administrator, or perform any personal duties; for it cannot take the oath of office.” For the same reason, we may add, it cannot be President of the United States. “Neither,” says Blackstone, “can a corporation be excommunicated; for it has no soul.” 1 Black. Com. 477. That idea of a borporation is followed in the two cases chiefly relied on for the defendant in error: Owsley „v. Montgomery Railroad (7c., 37 Ala. 560; and Grillett v. Missouri Valley Railroad Go., 55 Mo. 315. The error in the counsels’ position is in assuming, like some of the authorities which they cite, that evil intention in the corporation must be shown to maintain the action. This is not true. Johnstone v. Sutton, 1 T. R. 510; 2 Greenl. Evid. § 453; Commonwealth y. Snelling, 15 • Pick. 321; Vanee y. Erie Railway Co., 3 Yroom, 334. Other cases cited by them hold that the company is not liable, because the prosecution is ultra vires. If that were true, every one would become incorporated, and plead ultra vires to suits for their torts. The venerable absurdity on which those views are based has, however, been superseded by an enlightened modern doctrine. A corporation is liable for an injury done by one of its servants, in the same manner, and to the same extent only, as a natural person would be liable under like circumstances. Angelí and Ames on Corp. §§ 386, 387. It may be sued and is liable in damages for breaches of its contracts or covenants and for its torts, 1 Field on Corp. 350. It is liable for the torts of its agents while acting within the general scope of their authority. Philadelphia Railroad Oo. v. Derby, 14 How. 468 ; Noyes v. Rutland Railroad Go., 27 Yt. 110; Alabama Railroad Oo. v. Kidd, 29 Ala. 221; Yarborough v. Bank of Fngland, 16 East, 6 ; Bloodgood v. Mohawk Kudson Railroad Go., 18 Wend. 9; Dater v. Troy Turnpike Oo., 2 Hill, 629; Bale v. Union Mutual Fire Ins. Go., 32 N. H. 295; Redf. on Railways, 513; Lowell v. Boston Lowell Railroad Go., 23 Pick. 24. The reason of the rule is very clearly stated in Cooley on Torts, 122. The principle has been recognized in this State, as well as by the Supreme Court of the United States, and in England. New Orleans Railroad Oo. v. Bailey, 40 Miss. 395; Philadelphia Railroad Oo. v. Quigley, 21 How. 202; Whitfield v. South Pastern Railway, 96 Eng. Com. Law, 115. The application to a case like the one at bar is made in Garter v. Bowe Machine Oo., 7 Law Reporter, 621; Vance v. Brie Railway Oo., 3 Vroom, 334; Biggins v. Watervliet Turnpike Oo., 46 N. Y. 23 ; Maynard v. Fireman’s Ins. Go., 34 Cal. 48; Goodspeed v. Fast Baddam Bank, 22 Conn. 530.</p> <p>1. There is a misjoinder of counts in the declaration. The first is for false imprisonment, — imprisonment in which malice is not charged as an ingredient in the offence at all. The action is trespass on the case; but an action of trespass is the proper remedy for a false imprisonment. Stanton v. Seymour, 5 McLean, 267; 2 Selwyn N. P. 915; Orowell v. Gleason, 1 Fairf. 325 ; 2 Chitty PI. 847, 857. The third count is for malicious prosecution, in which the form of action is trespass on the case. 2 Selwyn N. P. 1061, et seq.; 2 Chitty PL 596, 600. Malice is the leading constituent in the offence, and must be averred in the declaration. 2 Chitty PI. 600 ; 2 Selwyn N. P. 1062. This malice may be express or implied, but to sustain any action of the bind there must be (1) Malice of the defendant express or implied ; (2) Want of probable cause; and (3) Injury sustained by tbe plaintiff by reason of the malicious prosecution. 2 Selwyn N. P. 1065, et seq. The declaration must, therefore, allege that the prosecution was malicious and without probable cause, and these facts must be shown on the trial, to warrant a recovery. Wiggin v. Coffin, 8 Story, 1; Cook v. Walker, 30 Ga. 519; Jacks v. Stimpson, 13 Ill. 701; Cummings v. Parks, 2 Ind. 148 ; Olive v. Daugherty, 2 G. Greene, 393 ; Malone v. Murphy, 2 Kansas, 250 ; McLean v. Cumberland Bank, 24 Maine, 566; Stone y. Crocker, 24 Pick. 81; Greenwade v. Mills, 31 Miss. 464; Moore v. Sauborin, 42 Mo. 490 ; Besson y. Southard, 10 N. Y. 236; McNeese v. Herring, 8 Texas, 151; Campbell y. Threlkeld, 2 Dana, 425; Turner v. Walker, 3 Gill. & J. 377; Pangburn y. Bull, 1 Wend. 345; M Cormick v. Sisson, 7 Co wen, 715 ; O’Driscoll y. M'Birney, 2 Nott & McCord. 54; Stone y. Stevens, 12 Conn. 219; Young v. Gregorio, 3 Call, 386; Persons y. Hight, 4 Ga. 474; Hunter v. Wilkinson, 44 Miss. 721; Welch v. Jamison, 1 How. 160 ; Ragsdale y. Bowles, 16 Ala. 62. The case of Greenwade v. Mills, 31 Miss. 464, determines that malice is the gist of this action.</p> <p>2. A corporation cannot be sued for a malicious criminal prosecution. It is incapable of malice in criminal prosecutions. Owsley v. Montgomery Railroad Co., 37 Ala. 560; Gillett y. Missouri Valley Railroad Co., 55 Mo. 315. In the latter ease the court clearly illustrate the difference between those cases in which an action would lie against the corporation for the malice of its agents, and when not. They review all the cases in favor of the right to maintain the action; explain Goodspeed v. Bast Haddam Bank, 22 Conn. 530, as being founded on a statute of the State, and the prosecution a civil suit by attachment, and conclude that the action brought in that case came within the powers of the corporation to sue for injuries to its property, and if that power was abused and perverted to malicious purposes, it was properly held that the corporation should be held liable for whatever damages might result. As thus explained the case of Goodspeed v. Bast Haddam Bank, ubi supra, is not in point. In Vane v. Erie Railway Co., 8 "Vroom, 334, it does not appear whether the prosecution complained of was criminal or civil, and in Childs v. Bank of Missouri, 17 Mo. 213, the court denied the liability.</p>

Hon. J. B. Chrisman, Judge. An attachment was, at suit of the plaintiff in error, levied on two bales of cotton as the property of T. J. Everett, the defendant in the writ.

Ekrok to the Circuit Court of Grenada County. Hon. Sam Powel, Judge. After the mother of the defendants in error died seised of the lot in controversy, her husband, their father, leased it to the plaintiff in error, and after the death of their father, before the expiration of the term, the defendants in error brought this unlawful detainer proceeding in 1879 to oust the tenant. In the Circuit Court, on appeal, they obtained a judgment for possession.

Hon. Ralph North, Judge, did not sit in this case, but Hon. J. B. Chrisman, presided by interchange. Money paid under a mistake of fact can be recovered back, although no fraud was practised by the other party. Esp.

Eebob to the Chancery Court of Lafayette County. Hon. A. B. Ely, Chancellor. The property was Mrs. Kenneday’s separate estate, paid for with her means, although the deed was taken to her husband, who therefore held as trustee for her. Butterfield v. Stanton, 44 Miss. 15. The defendants had notice of Mrs. Kenneday’s claim, and by fraud and duress her husband and their attorney induced her to join in his deed to the defendants.

Hon. A. B. Fly, Chancellor. The appellees, legatees under Ransom Turner’s will, filed this bill in the Chancery Court in which it was probated against the appellants, the vendees of William H. Turner, and his widow, who is the sole devisee under his will and adminis-tratrix of his estate with the will annexed, to charge the land of Ransom Turner with the payment of the complainants’ legacies, and sell it.

Hon. A. B. Fly, Chancellor. The appellee, regularly appointed guardian of certain minors in 1871, filed a petition on Dec. 24,1877, under which such proceedings were had, that, on April 1, 1878, in accordance with its prayer, land was sold under a decree of court, by the guardian, who had given the statutory bond for the application of the proceeds.

Hon. W. CothraN, Judge. argued the case orally and filed a brief. Under the indictment the accused could be convicted of nothing more than an assault. It charged a felonious assault, but not a felonious ravishment. “ Feloniously did ravish ” are technical words and are indispensable in every indictment for rape. No other words can supply their place. They are used in all the precedents, as well as the words “feloniously did assault.” 1 Arch. Cr. PI. & Pr. 999; Wharton Prec.

Hon. L. Haughton, Chancellor. The revivor was under the original bill, the demurrer was to the bill as amended, and while the revivor could not have been made on the latter, the executor’s administrator against whom the former was revived is entitled to the benefit of its defects. The revivor should have been against the successor in the administration, not against the executor’s personal representative.

Hon. S. S. CalhooN, Judge. filed a brief, and each argued the case orally. 1. The summons for Morrison in the contested election case was issued legally as to time, and, if not, this would not take from the justice jurisdiction, but simply present a question of limitation. Acts 1878, p. 178. The only limitation is in the time of filing the petition, which must be “within twenty days after the election.” That was done in this case.

Ebbob to the Circuit Court of Chickasaw County. Hon. J. A. Gbeen, Judge. A demurrer of the town of Okolona was sustained to a declaration by the plaintiff in error in debt upon certain coupons detached from bonds, issued by the town in pursuance of “ An Act to aid in the construction of the Grenada, Houston and Eastern Kailroad,” approved Feb. 10,1860 (Acts 1859-60, p. 412), and an amendatory act of March 25, 1871. (Acts 1871, p. 180).

E Bit OB to the Circuit Court of Tunica County. Hon. Sam Powel, Judge. To bring a case within the exception in the Statute of Limitations, there must be mutual accounts and reciprocal demands. Coster y. Murray, 5 Johns. Ch. 522; Spring v. Gray, 6 Peters, 151; Inglis y. FLaigh, 8 M. & W. 769; Blair v. Brew, 6 N. H. 235; Ingram y. Sherard, 17 Serg. & R. 347.

<p>1. Office. Eligibility. Defalcation.</p> <p>. The State Constitution, art. 4, § 16, which disqualifies for office persons liable for public money unaccounted for, applies to private citizens as well as to public officers.</p> <p>2. Same. Sheriff. New election.</p> <p>If, at an election for sheriff, the candidate who receives the greatest number of votes, is ineligible, the incumbent should hold until the board of supervisors orders an election and his successor is qualified.</p>

Hon. E. G. Peyton, Chancellor. The appellant gave his promissory note, secured by mortgage, to one Smith, by whose indorsement it subsequently passed to the appellee, who was then and is now a married woman, and to whom the appellant indorsed upon the note a new promise. The defence of the Statute of Limitations to the foreclosure bill was disallowed upon the ground of the appellee’s coverture.

Hon. L. Brame, Chancellor, did not preside in this case, but George A. EyaNS acted as Chancellor pro hac vice. The appellee’s judgment against the married woman is Yoid, and the sale thereunder would cast a cloud on the appellant’s title.

Hon. J. B. ChrismAN, Judge. The indictment, which is double, should have been quashed. Each of the defendants was entitled to four peremptory challenges. Code 1871, § 2761: Proffatt on Jury Trials, § 164; 2 Hale P. C. 267, 268; 1 Chitty Crim. Law, 536 ; United States v. Marchant, 12 Wheat. 480 ; 3 Wharton’s Crim. Law (6th ed.), § 3195; State v. Earle, 24 La. Ann. 38.

UptoN M. YouNG, Judge of the Eleventh District of Mississippi, dismissing a writ of habeas corpus, and remanding the relator to the custody of the contractor. Under the statute (Acts 1878, p. 164), the contractor for Hinds County has no right to take the convict out of Warren County, where he was tried.

Hon. S. S. Calhooe, Judge. The plaintiffs in error sued the defendant in error for damages sustained by tbe purchase by the latter of cotton, upon which in right of the testator the former had a lien for rent under the agricultural lien law, and the circuit judge to whom the case was submitted decided for the defendant. This case differs from Wooten v. Grwin, 56 Miss. 422, in the fact that here the purchase was with notice. Cooper v. Baker, 54 Miss. 687.

MotioN to dismiss a writ of error to the Circuit Court of Tate County for want of jurisdiction. The justice of the peace, before whom an action of trover for sixty-nine dollars damages for the conversion of a bale of cotton was brought, rendered judgment for sixty-four dollars against the defendants, N. W. Ward and others, who appealed to the Circuit Court, where a judgment for thirty-eight dollars damages and twenty dollars costs was rendered against them.

ERROR, to the Circuit Court of Lincoln County. Hon. J. B. ChrismAN, Judge, did not sit in this case, but Hon. S. S. CalhooN presided by interchange. The property was obtained by lawful means for a lawful purpose. The trustee did only his dut}', and the creditor had a right to purchase the trust deed and to garnish the fund. The purpose was to subject exempt property to a debt for which it was not liable.

Hon. W. CothraN, Judge. In this action of trespass on the ease for damages sustained by fraud and deceit practised by the appellant in refusing to execute a parol sale of land to the appellee, the former pleaded not guilty.

Hon. Ralph North, Judge, did not sit in this case, but Hon. J. B. ChrismaN presided by interchange. After property had been seized under an attachment against J. J. Smokey, sued out by the defendants in error, tbe plaintiff in error made the claimant’s oath and bond under Code 1871, §§ 858, 859, 860.

Hon. A. B. Fly, Chancellor. On the trial of the exceptions filed by the appellants to the appellee’s final account as executor of William Gordon’s will, the executor was examined in his own behalf touching certain items representing debts due to him from Gordon in the lifetime of the latter, and also as to the other items of the account, and several creditors of Gordon, whose claims had not been registered, but had been paid by the executor, were examined as to the propriety…

Hon. B. F. Trimble, Judge. each argued orally and in writing. As the witnesses saw the homicide, the prosecutor was bound to call them. Rex v. iSimmonds, 1 Car. & P. 84; Regina v. Holden, 8 Car. & P. 606 ; Roscoe Crim. Evid. 136; Regina v. Chapman, 8 Car. & P. 658; Regina v. Sir oner, 1 Car. & K. 650. American courts of high repute bold the same doer trine. Maher v. People, 10 Mich. 212; Hurd v. People, 25 Mich. 405.

Hon. L. HaughtoN, Chancellor. The respondent appealed from a decree overruling his motion to dissolve an injunction upon bill, answer and evidence. The result of the former controversy between these parties is an adjudication of the matter here involved ; but if it was res integra, Trice’s right is clear under Code 1871, § 1985.

Hon. J. B. MORGAN, Chancellor. The appellees, grandchildren of Robert Williams filed a bill in chancery, by their next friend, E. P. Williams, to establish a deed of gift of real estate in their favor, which was resisted by the appellants, the maker’s children, upon the ground that the instrument was never delivered.

Hon. J. W. C. WatsoN, Judge. At the general election, on the first Tuesday in November, 1879, the plaintiff in error received a certificate of election to the office of sheriff of Yalobusha County, and during the same month was commissioned. The defendant in error, the opposing candidate, filed a petition, under the act of March 5, 1878 (Acts 1878, p. 173), to contest the election, before J. S. Reasons, a justice of the peace.

Whits of error to tbe Circuit Court of Hinds County. Hon. S. S. CalhooN, Judge. These suits, upon the same bond, one for State and the other for county taxes, were conducted in the lower court and submitted in the Supreme Court together. 1. Former decisions of this court erroneously hold that Code 1857, p. 71, art. 5, requiring a tax collector’s bond, is repealed by Code 1871, § 8.