Volume 7 — Mississippi Reports

<p>“Where the objection to written evidence was waived, and it was agreed to let it go to the jury for what it was worth, it was held, that the jury was authorized to give it what weight they thought proper.</p> <p>“Where a witness is a distributee of an estate, and the tendency of his evidence is to increase the fund for distribution, he is incompetent.</p> <p>Where the tendency of the evidence of the distributee would be in one case to pay a debt and receive nothing back, and in another to pay an equal debt and increase the fund for distribution, it was said that the latter circumstance showed such an interest as rendered him incompetent.</p> <p>If objection to the admissibility of testimony be taken at as early a stage of the trial as it can be made available, it will be sufficient.</p> <p>Where the interest of the witness came out on cross examination, it was held, that an instruction to the jury to disregard it, was a seasonable objection.</p> <p>leaving the possession of property with the vendor, is prima fade evidence of fraud, and throws upon the vendee, the onus probandi, to show the fairness of the transaction.</p>

IN ERROR from the circuit court of the county of Adams. Indictment at the May term of the circuit court against Isham, a slave, for the murder of Welford Hoggatt. In the progress of the trial, Richard R. Sessions, the master of Isham, was offered as a witness for the prisoner, but he was excluded by the court, on the ground of interest. The counsel for the prisoner excepted to the opinion.

<p>Where writs under the statute are directed to different counties, a return of ‘executed’ will apply only to those defendants resident in the county where the writs are executed, when it appears from the endorsement on the writs that the command to the sheriff was only to execute upon the defendants in his county.</p> <p>An acknowledgment of service of process, written on the process by the defendant, must be proved, or a judgment by default will be erroneous.</p>

<p>Where a note was given for a particular sum, and the makers of the note executed a bond of even date for the same amount as the note, conditioned for the payment of that amount, reciting that it was for a loan of money to be discharged by the delivery of cotton, the court held that it should have been left to the jury to say whether the bond was given for the debt secured by the note.</p> <p>Giving a bond for a simple contract debt is per se a discharge of the latter.</p> <p>It is not error to refuse an instruction which has no application to the evidence.</p>

<p>| A noto payable in specific articles may be declared on, as an ordinary promissory note, On judgment overruling a demurrer to a count on a note payable in cotton at a specified price, held that judgment by default in favor of the plaintiff was regular, although the declaration contained the money counts without a bill of particulars, to which the plea of non-assumpsit was filed, as to which there appeared no disposition upon the record.</p>

WRIT OF ERROR from the circuit court of Simpson county. Powell sued Gibson on a promissory note, which is in the following words, viz: “ $700. Brandon, January 19, 1838. “ On or before the first day of January next, I promise to pay Lewis C. Gibson, or bearer, seven hundred dollars, for value received. (Signed) C. K. Brown, Lewis C. Gibson.” The declaration contains two counts.

IN ERROR from the circuit court of the county of Madison. Held: that the action could not be sustained without the consent of the bank, and distinguished this case from that of the Bank of Chenango v. Hyde, 4 Cowen, 567, where the bank undertook to act as the agent of the holder of the note who had advanced money on it.

<p>Where there have been three trials, and another trial would not be likely to change the result, this court will not award a new trial, although the verdict appears to be against the weight of evidence.</p>

<p>In assigning a breach in suit on an administrator’s bond, it is not necessary, in order to establish a devastavit, to state the kind and quantity of goods and chattels which came to the hands of the administrator. It is enough to aver that goods and chattels sufficient to pay the debt came into his hands, and that he wasted and converted the same to his own use.</p> <p>When the value of the estate is stated in the breach, and it thus appears that sufficient assets came to the administratoi’s hands to pay the debt, a formal averment of sufficient estate is unnecessary.</p> <p>When a record of a judgment was offered in evidence on a proceeding to establish a devastavit against an administrator, and it appeared that by a clerical mistake it had been entered up against the administrator individually, the judgment being in the same court, the judge properly permitted the record to be amended and read to the jury.</p> <p>When, on a suit on an administration bond, the declaration averred that sufficient assets came to the hands of the administrator; that the administrator wasted the assets; and that the plaintiff had recovered judgment against the intestate for a certain amount, which was unsatisfied; on demurrer by the defendant, and demurrer overruled, it was held that a devastavit, and the amount of it, were admitted by the record, and that a writ of inquiry was unnecessary.</p>

IN ERROR from the circuit court of tho county of Madison. This was an action of assumpsit upon a promissory note. Held: some of whom were of the age of twenty-one; and that no notice was ever given to them of the application for the order of sale. The court refused to let this proof go to the jury, and the defendants excepted. The principal question is of great importance, involving not only this sale, but perhaps many others.

IN ERROR from the circuit court of the county of Adams. Action of assumpsit on a promissory note for four thousand three hundred and thirty-one dollars-and eighty-six cents, dated 14th June, 1837, and due four months after date, credited with one thousand six hundred and forty dollars and seventy-two cents, October 5th, 1838.

This is an appeal from a decree rendered by the superior court of chancery.

<p>The maker of a promissory note against whom the holder has obtained judgment, is a competent witness, in a suit brought by an endorsee against an endorser, to prove payment.</p>

IN ERROR from the circuit court of the county of Adams. Held: that the defendants having once had sufficient indemnity, were liable as indorsers of the note, without notice, or demand of payment, although they had released the mortgage before maturity of the note, and therefore had no indemnity when the note matured.

IN ERROR from the circuit court of the comity of Adams. This suit was instituted by Augustus B. Saunders, auditor of public accounts of the State of Mississippi, John P. Walworth, president of the Planters’ Bank of the State of Mississippi, and Hemy D. Mandeville, cashier of the same, as Commissioners of the Sinking Fund of the State of Mississippi, against the defendants, on a promissory note in these words “$5,504.

<p>When, the plaintiff elects to demur to a plea which he might have treated as a nullity, a judgment without a disposition of the demurrer will be erroneous; and the error will not be aided by the statute of jeofails.</p>

<p>A dilatory plea shoiild be filed before the expiration of the time allowed for pleading by the rules.</p> <p>A defendant in attachment by replevying the property, acknowledges notice of the suit. A verdict as on issue, when no issue is joined, is erroneous.</p> <p>If the verdict sound in damages, when the action is debt, it will be reversed.</p>

The record in this case presents the following state of fact:— Anthony Glass died in November. 1834, leaving a duly executed will, of which it is necessary to notice only the following items:— First. A devise of all his real and personal estate to his widow for life. Second. Sundry specific legacies and bequests in remainder. Third. A general devise in remainder to appellees. Fourth.

<p>A security on an administration bond, who is a purchaser at the administrator’s sale, will not be relieved, in equity, from payment, on the ground of the insolvency of the administrator, when no misapplication of the assets is charged.</p>

IN ERROR from the circuit court of the county of Adams. The plaintiff in error was sued in this action as indorser of a promissory note made by Andrew Brown; and, verdict and judgment having been rendered against him in the court below, he has brought the case up by writ of error. The sufficiency of the notice to charge him as indorser, was the only question which was made in the case.

<p>It seems that nothing short of gross negligence, or fraud, on the part of the elder judgment creditor, will affect his lien, so as to let in junior judgments.</p> <p>Where there has been proper diligence, the money made under a levy of different judgments will be applied to their satisfaction according to their respective dates, although there may be older judgments not levied.</p>

IN ERROR from the circuit court of Madison county. This was an action of assumpsit upon a promissory note. Held: some of whom were of the age of twenty-one years, and that no notice was given to them of the application for the order of sale. The court refused to let this proof go to the jury, and the defendants excepted. It did not appear that the purchasers had received any deed, or had been let into possession of the land.

IN ERROR from the circuit court of the county of Adams. The lessor of the plaintiff claimed title under a Spanish warrant of survey, older in date, than the defendant’s full grant.

<p>An affidavit for an attachment against an absconding debtor, which alleges that the affiant has good grounds to believe, and does believe, that the defendant hath absconded, &c. is sufficiently certain. It is not necessary that the affidavit should adopt the precise language of the statute; it will be sufficient if the substantial requisites are complied with.</p> <p>When one of the members of a firm, acting for himself and as the agent of his partners, sues out an attachment against an absconding creditor, a bond signed by him. alone will be sufficient.</p>

<p>A former adjudication of title recognized.</p> <p>The vendee of land, in order to protect himself from an adverse title, as an innocent purchaser without notice, must have paid a valuable consideration for the property.</p>

<p>The judge of the circuit court, under the statute of this state, without the intervention of a jury, has power to render judgment against the sheriff and the sureties on his official bond, for failure to return an execution according to law.</p>

The defendant in error obtained judgment in the circuit court of the county of Rankin, against John Shields, W. H. Shelton and Samuel M. Puckett, as joint drawers of a promissory note for sixteen hundred and eighty-eight dollars. On this judgment an execution issued, and was levied upon the property of Shields, who executed a forthcoming bond, with J. J. H. Morris and Dan’l Fore as his sureties. Puckett and Shelton did not join in the bond.

<p>It seems, that where a case has been dismissed for want of citation, it will not be reinstated at a subsequent term on a showing of diligence.</p>

<p>A sale of the lands belonging to the estate of a person deceased, under an order of the probate court, which does not show notice to the heirs of the estate, is void.</p> <p>Where lands are conveyed by trustees, with covenants of warranty, a failure of title may be set up in bar of a recovery of the purchase money, although there has been no previous eviction.</p>

<p>The defendant in a proceeding by certiorari must have notice, or the judgment will be erroneous.</p>

<p>A judgment in attachment against a non-resident will be erroneous if rendered before publication for six months.</p>

<p>A replication in these words: “replication in short by consent,” is cured by verdict,</p>

This was an action of replevin, commenced by Wheelock v. Cozzens, in the circuit court of Adams county.

IN ERROR from the circuit court of the county of Claiborne. This case comes up from the judgment of the circuit court of Claiborne county, on a motion made by Osgood & Co. that certain money collected by the sheriff, by the sale of the property of Parkinson & Sevier, be applied to an execution in favor of said Osgood & Co. against said Parkinson &• Sevier, in preference to other executions, one of which was in favor of the plaintiffs' in error.

IN ERROR. This is a writ of error to a judgment of the circuit court of Hinds county. Held: that in a bond conditioned to pay the costs, no judgment could be rendered against the sureties for the debt. 5 Yer. 296.

IN ERROR from the court of chancery. The bill stated, that on the 18th day of March, in the year 1835, Russell entered into a contract with Moffitt for the sale and purchase of lands described in the bill; Russell executed his promissory note for the purchase money.

<p>It is not necessary to answer a "bill charging fraud, where the facts stated do not amount to fraud; the bill may be demurred to generally.</p> <p>The representation of facts of a public and notorious character in relation to the situation and prospects of a town, by a vendor of lots, will not constitute a fraud iy >on purchasers.</p>

At the May term of the circuit court for the county of Warren, B. Hughes obtained judgment against Gibeon Gibson as the maker of a promissory note, and Ambrose Gibson as indorser, in the amount of $7,597.

On the first day of December, 1836, the appellant, William Parker, made three promissory notes, amounting in the aggregate to twenty six thousand seven hundred dollars, payable, one in two years for seven thousand five hundred dollars, and the remaining sum equally divided into two notes, which were payable three years after date, to the appellee, William N. Mercer.

<p>The statute of this state authorizing the parties to select a member of the bar to set its , civil cases, when the presiding judge has been interested in the cause, does not apply to criminal prosecutions.</p>

IN ERROR from the circuit court of the county of Adams. Trial before the Hon. G. G. Cage, at the June term, 1841. This was an action of indebitatus assumpsit, instituted by Abraham Fox, the defendant in error, against Alvarez Fisk, the plaintiff in error,, as the surviving partner of A. Fisk & Go. The declaration contained a count for goods, wares and merchandize, and the common money counts. There was also a bill of particulars, showing the cause of action.

<p>A verdict and judgment is erroneous when there is a good plea in bar not replied to.</p> <p>In this state an executor or administrator is not obliged to plead any thing but the general issue; but he may elect to plead specially.</p> <p>It seems that the plea of non assumpsit pleaded generally by an executor, will not authorize a verdict against him in his own right.</p> <p>It is said that the measure of damages in case of an eviction from personal estate by title paramount, is the value of property at the time of eviction.</p>

The appellant, at May term, 1840, of the circuit court of Claiborne county, recovered a judgment against the appellees as administrators on the estate of Amos Whiting, deceased, and sued out an execution thereon, returnable to November term, 1840, which it seems was levied on negroes, but no sale took place.

Briggs, Lacoste & Co. filed their bill in chancery against W. J. Hill, charging, that on the 15th of November, 1836, one J. A. Brooks sold and conveyed to Hill a tract of land in Yazoo county, and took Hill’s promissory note for the purchase money without any other security than the vendor’s lien on the land sold; that Brooks indorsed the note, and the same was also indorsed by one P. Buford, and in the due and regular course of trade, the note fell into the hands of Briggs,…

<p>Where a bank note was signed by the president and cashier, but their agency did not appear in the body of the note, nor otherwise, than by the contractions for president and cashier at the bottom of the note, in a suit against the president and cashier individually, the exclusion of the note from the jury in the absence of any proof showing the agency, was held to be erroneous.</p>

IN ERROR from the circuit court of the county of Pontotoc. This action was founded on a promissory note made by defendants, Brooks, L. B. Strange, S. M. Mitchell, Edward Bird, George Stone and Silas N. Brooks, payable to David Stone, Brooks alone being sued, who pleaded in abatement in substance as follows, to wit: that David Stone had no interest in the case, and that Penn was jointly liable for the payment of said sum of money; that the makers of said note were partners,…

IN ERROR from the circuit court of the county of Adams. This was an action of assumpsit by John Jameson against Franklin and Routh, for seven hundred dollars, for work and labor done for them as co-partners. Service was not perfected upon Routh. Franklin appeared and plead the general issue.

IN ERROR from the circuit court of the county of Pike. This case came up on exceptions taken on a right of trial of property in four different suits. The record showed a joint bond given by Bingaman and his securities to the present defendant in error, and Gasquet, Parish & Co., Wm. Bates, Silas McCatching, John Sappington, J. & A. Bear-den, James E. Cunningham, James B. Quin, Peter Quin, in the penal sum of 500 dollars.

<p>When the suit is commenced jointly under the statute of 1837, against the makers and indorsers of a promissory note, a defendant who has not given a forthcoming bond, may have his writ of error, although his co-defendants may have previously given and forfeited a bond.</p> <p>The certificate of the notary public of demand and protest of a promissory note, is not evidence under the act of 1833, unless the same is verified by oath.</p>

IN ERROR from the circuit court of the county of Adams. John S. Coulson sued the Planters’ Bank, before a justice of the peace of Adams county, on a post note of the bank for the sum of fifty dollars, bearing an interest of six per cent, from its date until due, which was twelve months from date. The magistrate rendered judgment for the plaintiff for fifty dollars principal, and three dollars interest. An appeal was taken to the circuit court of Adams county.

<p>The judge of the circuit court, in all offences except capital crimes, may take bail after conviction, to secure the appearance of the prisoner to abide the sentence of the court.</p> <p>The power to take bail in certain cases after conviction, existed at common law.</p>

This was á proceeding by habeas corpus by a testamentary guardian to recover, possession of his infant wards. A. S. J. Alston died in the state of Tennessee, in 1834, having by his will appointed his brother, James J. Alston, guardian of his children.

<p>Notarial records, when verified on oath, are made evidence, by statute, in certain cases.</p> <p>Where the third day of grace falls on Sunday, payment of the note should be demanded on the Saturday previous, and notice sent on the next business day, which is Monday.</p> <p>In this state, promissory notes are entitled to three days of grace.</p> <p>Where a note was payable at a bank which had regular banking hours, and the notarial record stated that on such a day, without naming the hour, demand was made, it was held that the presumption would be that the demand was made in banking hours, in the absence of any showing to the contrary.</p> <p>It seems that the notarial certificate of demand and protest of a note need not state that the certificate was made and certified on oath at the time the protest took place.</p> <p>Where there is no contrariety of testimony, it will not be irregular for the court to instruct the jury that the evidence of demand and protest adduced is sufficient to charge the indorsers.</p>

Samuel Stamps filed his bill in chancery, against C. L. McGehee, Morgan L. Fitch, and James R. Enloe.

<p>IN ERROR from the circuit court of the county of Yazoo.</p>

IN ERROR from the circuit court of the county of Madison. Jeremiah Walker brought his action of, assumpsit against John H. Walker and others. In the declaration, the damages were laid at fourteen thousand dollars; in the writ at thirteen thousand dollars. The defendant pleaded the variance in abatement, to which the .plaintiff demurred, and before any decision on the demurrer, obtained leave to amend, by making the damages in the declaration and the writ correspond.

<p>An execution issued on the original judgment, after a forthcoming bond has been taken, is a nullity.</p>

<p>The circuit courts may make rules for pleading and the trial of causes.</p> <p>A cause cannot be tried at a special term of a circuit court unless it was properly triable at the preceding regular terjn. > . •</p>

<p>Where two defendants wore sued jointly, and the writ was returned executed as to one of them, and non est inventus as to the other, a judgment generally against the defendants was held to be erroneous.</p>

IN ERROR from the circuit court of the county of Jefferson. Action of assumpsit on a promissory note for five thousand two hundred and fourteen dollars. The defendant pleaded the general issue and two special pleas, that the consideration of the note was slaves introduced into this state as merchandize. There was issue on the first plea, and a demurrer to the two special pleas, of which the record did not show any formal disposition.

<p>The report of the commissioners of an insolvent’s estate for the allowance and settlement of claims, must" be excepted to at the term of the probate court to which it is returned.</p>

The appellants filed their bill in the superior court of chancery, which discloses these facts: In the year 1836 the defendant, Gray, contracted to sell to the other defendant, Roberts, a lot of land in Vicksburg. For the purchase money, Roberts executed two promissory notes, for the sum of three thousand two hundred and fifty dollars each, payable, to Thomas H. Goodall, who indorsed them. Gray made no title, but gave a bond to make title on the payment of the purchase money.

IN ERROR from the circuit court of the county of Yazoo. Trial before the Hon. M. L. Fitch, at the November Term, 1840. This was a motion in the court below to appropriate money to the satisfaction of elder judgments, which had been made on execution sale under a judgment younger in date. The motion was sustained, and writ of error taken to this court.

<p>A judgment recovered in one county is a lien on the property of the defendant in any county in the state.</p> <p>Where the junior judgment creditor levies and sells first, he will be entitled to the proceeds of his levy, and the purchaser will take the property subject to prior liens.</p>

<p>A defendant cannot move to quash a forthcoming bond for irregularities, after the return term.</p> <p>Where an execution, emanating from a judgment on a forthcoming bond, has been levied on sufficient property of the principal, the security cannot move to quash the bond and execution.</p>

IN ERROR from the circuit court of the county of Hinds. On the 6th of June, 1839, judgment was rendered in Hinds circuit court in favor of Hiram B. Sutton, against John H. Mallory and Hall, for $2,857, execution on which to the succeeding term was returned “nulla bona” and was not renewed until the 9th January, 1841; no further steps having been taken for a period of fourteen months.

IN ERROR from the circuit court of the county Hinds. Held: that it should not have, been given in evidence in support of the declaration; it is in evidence a departure from the pleading. . 1 Saund. oil PI. and Ev. 489, 492; Salk. 28, 282; 6 Mod. 309.

IN ERROR from the circuit court of the county of Yazoo. Trial at the May term, 1841, before Hon. M. L. Fitch. Held: or was seized oij the legal title to the disputed premises. This, therefore, was the title which the plaintiff in that judgment had a right by law to have sold; this was the interest of Yance which the marshal levied on and sold, and this, of course, was the title or interest purchased by appellee.

The appellees filed their bill in the superior court of chancery, to stay the sale of property under a deed of trust. It appeared that they borrowed three thousand dollars for six months, at an exorbitant interest, and executed notes, indorsed, one for the principal and another for the interest.

<p>In proceedings on attachment in nature of distress for rent in anear, when the defendant in attachment replevies the property, it is not necessary for the plaintiff in attachment to file a declaration.</p>

<p>A writ of error will not lie from the High Court of Errors and Appeals to a magistrate’s court, on a proceeding of forcible entry and detainer. The remedy is by appeal to the Circuit Court.</p>

<p>On bill of exceptions taken to a judgment of tbe circuit court, on motion to quash a forthcoming bond and execution thereon, the bond and execution will not be considered a part of the record, although they appear in the transcript, unless they are recited in the bill of exceptions.</p> <p>The grounds of a motion to quash a forthcoming bond, should be set out in the motion.</p>

Frederick Halfacre brought an action of debt in the circuit court of Marshall county, to the November term, 1841, for the use of H. B. Howell, against John P. Smith, on defendant’s promissory note… Held: and Frederick W. Huling elected, and commissioned and qualified, claiming however to hold under the election in 1836. In June 1840 he resigns the office of judge under the election of 1837, and the governor issues a writ of election to fill the vacancy thus occasioned.

IN ERROR from the circuit court of the county of Hinds. This is an action which was instituted against the plaintiff in error as the indorser of a promissory note. Held: that notice left at the post office at Woodville for. the indorser, who lived in the vicinity, was sufficient; and in that case the court will perceive that the Kentucky case was cited in the brief of Mri Henderson, and it is virtually overruled by the court. Walker’s Rep. 527 to 530.

IN ERROR from the circuit court of the county of Rankin. Trial before Hon. B. Harris. Held: and the property held under and acquired by it. A repeal' of the charter does not touch a particle of that property, or any contracts or rights previously entered into under the charter. It resumes only the privilege.