Volume 8 — Mississippi Reports

<p>IN ERROR from the circuit court of the county of Chickasaw.</p> <p>This was an action of assumpsit on a promissory note made by the defendants in error to W. O. Cook & Co. for thirty-seven hundred and twenty-eight dollars, payable at the office of the Aber-. deen and Pontotoc Railroad and Banking Company, at Aberdeen, and by the payees indorsed to plaintiff in error. The defendants plead, as a set-off, the notes of said corporation, and proved a tender. The Hon. Stephen Adams, before whom the cause was tried, refused to instruct the jury that the notes of said company were not a good tender; but charged that, if they believed, from the note offered in evidence, that it was the intention of the parties, at the time of making the contract, that the notes of said company should be received in payment, they were a good tender. Verdict and judgment for defendants. An appeal was prayed to this court, which was dismissed for want of jurisdiction. A writ of error was subsequently sued out, to which the following plea in bar was filed :</p> <p>And now, at this term of the court, come the defendants in error and pray judgment of the said writ of error, and that the same may be dismissed; because they say that, after the rendition of the judgment in the said record and proceedings mentioned, the said plaintiff in error, in open court and on the same day said judgment was rendered, prayed and obtained from the said circuit court of Chickasaw county an appeal to the High Court of Errors and Appeals, as fully appears by the records of the said circuit court: and the said defendants in error further say, that the said appeal afterwards, to wit: at a term of the said High Court of Errors and Appeals, begun and held on the first Monday in January, 1842, by the judgment and consideration of said court, was dismissed, as appears by the records of the said High Court of Errors and Appeals: and this they are ready to verify; wherefore they pray judgment, &c.</p> <p>Gholson for the motion to dismiss.</p> <p>The first question presented in this case, for the consideration of the court, arises on the plea in bar of the writ of error.</p> <p>It appears from the record that the plaintiff prayed and obtained an appeal to this court. Having elected to take an appeal, can he abandon that and afterwards sue out a writ of error?</p> <p>The plea also shows that the appeal taken in this case was dismissed.by the judgment of this court. The statute, in such case, is imperative, and without any exception, that, where an appeal shall be dismissed, no writ of error can be sued out afterwards. The dismissal of the appeal is a bar to any other appeal or writ of error. H. & H. 537.</p>

<p>The commissioners of the sinking fund have a right to loan the same at interest, and to sue for and collect it. •</p> <p>The plaintiff may discontinue against ofte maker of a joint and several note, and proceed against the others to judgment.</p>

IN ERROR from the circuit court of the county of Warren. This was an action of assumpsit on a promissory note for twelve hundred dollars, dated 1st November, 1836, and payable twelve months after date. The defendant below, who is also the defendant in error, pleaded, 1.

IN ERROR from the circuit court of the county of Franklin. This was an action of assumpsit on a promissory note, brought by Patterson & Wiswall, as indorsers of a promissory note made by Wiley Wells, payable to Joseph George, or order, and by him indorsed.

At July term, 1842, of the Jefferson probate court, Andrew Montgomery, guardian of James Norris, Emily Norris and Patrick Norris, filed a petition, praying a citation against Eliza Beck to appear in court, and either accept or reject the provisions made in the will of Mary Norris, deceased; by which certain slaves are willed to her upon condition that she becomes hound to pay to said children the sum of four thousand dollars on their coming of age, &c., and also praying that…

IN ERROR from the circuit court of the county of Carroll. William B. Ross having obtained judgment against Marvel M. Garey and others, for the sum of six thousand two hundred and thirty-four dollars, together with interest and costs, on the 5th day of July, 1839, in the circuit court of Carroll county, sued out an execution on the 23rd day of July, 1839, which was levied on the 5th day of September, 1839, on twenty negro slaves.

IN ERROR from the circuit court of the county of Yallabusha. Morris, Howard & Ca. instituted a suit on a promissory note made by Hillery, Talbert, Wright, et al. James M, Howard, one of the plaintiffs, was also a partner in the firm which made the note sued on; but he was not joined in the action. The defendants pleaded in abatement that Howard, one of the plaintiffs, was also one of the makers of the note sued on.

IN ERROR from the circuit court of the county of Adams. This was an action of debt, on a tax collector’s bond made by Hi ram Hanchett, now deceased, but who, in his lifetime, was elected tax collector of Adams county, at the biennial election, in November, 1837, the offices of assessor and collector being held separately in that county, and plaintiffs in error, who were the sureties of Hanchett, and have survived him.

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

<p>It seems that the loss of a bill of exceptions taken in a .cause, is not a good ground for a re-heaving, after the elapse of the term-at which the judgment was rendered. .</p> <p>The probate court has power to set aside an administrator’s sale on'the ground of fraud.</p> <p>Where by the fraud and deceit of the administrator, the property of the estate did not bring more than,one-fifth of its appraised value at the sale, and the purchaser had paid out no money for the property, the court of probate set the sale aside.</p>

IN ERROR from the circuit court of the county of Lawrence. This was an action of assumpsit in the court below, and the bill of particulars set forth among other things, that the defendant or sheriff of Lawrence county, collected the sum of five hundred dollars for them on their execution against Pendleton and others, and for money had and received, &c. and the declaration charged the failure to pay, &c. On the trial of the cause before the jury, the plaintiffs introduced…

IN ERROR from the circuit court of the county of Yallabusha.

Tilleth Porter filed his petition in the probate court of the county of Franklin, to obtain a distributive share of the estate of Nancy Porter, deceased. The petition stated that Sutton Byrd, the administrator of Abednego Porter, who had been the administrator of Nancy Porter, had settled the account of said Abednego’s administration, and refused to pay a balance due of eight thousand five hundred dollars.

IN ERROR from the circuit court of the county of Lowndes. This was an action of debt commenced in the circuit court of Lowndes county, in the year 1831, by W. H. Cousins against Howard, upon a judgment rendered against Howard, as administrator of S. Alfriend, in the supreme court, suggesting a devastavit.

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

IN ERROR from the circuit court of. the county of Adams. This action was founded on a note for seven hundred and fifty dollars, made by A. Brown, and indorsed by N. Barlow and R. Stuart. Declaration in common form, general issue and judgment for plaintiff. The bill of exceptions stated, the court was requested to charge “ that the first day of February, 1837, is not to be included in the computation of the time the bill had to run,’? which was refused.

Warwick & Ray filed their petition against Richardson, under the act of 1840, to enforce a mechanic’s lien to a certain tract of land, and a gin house built thereon by them. The petitioner’s alleged that the house was built by them in pursuance of the terms of a contract made with Richardson, which was set out in the petition. Petition averred that the labor bestowed, and materials furnished, amounted to twelve hundred and eighty-two dollars.

The appellants filed their bill in the Superior Court of Chancery against the executor of the last will and testament of John Pickens, deceased, and the legatees mentioned in the will, in. which they allege that the testator was incompetent to make a will, and that the same was procured by fraud.

The appellants filed their petition in the probate court, to enforce payment of an account against the estate of Alexander McNiell. The petition stated that Alexander McNeill died in May, 1889, having first made his will, leaving his brother, Hector McNeill, his executor. That said Hector, as executor, continued to cultivate the crop then growing on the plantation of his testator.

IN ERROR from the circuit court of the county of Adams. Philip Sisloff, on the 1st of October, 1840, made an affidavit that McFadden and Sisloff had judgment against W. L. Cullen for nine hundred and fifty dollars and costs, and that Cullen had no visible property; and made a suggestion that Matthew Lasley was indebted to Cullen.

<p>APPEAL from the probate court of the county of Yazoo.</p>

IN ERROR from the circuit court of the county of Wilkinson. , This was an action, brought by Walker and wife, on a promissory note for one hundred and ten dollars and ten cents, made by Deloach to Mary Walker before coverture. Pleas of the general issue and payment were filed. The first plea of payment was general; the second stated that the note sued bn was made to Mrs. Walker after coverture, and that the same had been paid to Z. Walker before suit brought.

Hannibal Harris, Spearman Holland, Joseph Coe and Thomas R. Herron, filed their bill in the superior court of chancery, against Richard Bolton, David Hubbard, John Delafield, Joseph D. Beers, Knowles Taylor, Morris Ketchum, Benjamin Curtis, Charles Altrater and John Bolton, by which, in substance, 'they alleged that they made an agreement for the purchase of a tract of land in their bill mentioned, with Richard Bolton and David Hubbard, agents for the New York and…

IN ERROR from the circuit court of the-county of Itawamba. This was an action of debt, founded on a title bond given by the plaintiff in error to'secure title to forty acres of land, in the state of Alabama. The bond is dated the 21st of January, 1837.

This was an action of assumpsit on the following promissory note. “Natchez, 1st of February, 1837, twenty-four after date, I promise to pay without defalcation to W. J. Ferguson on order, twenty-two hundred and fifty-five dollars, for value received, negotiable and payable at the Agricultural Bank of - Mississippi, (signed,) J. L. Conner.” The defendants by their counsel objected to the reading of the note in evidence ; whereupon the counsel of the plaintiff offered to…

IN ERROR from the circuit co; Adams. This was an action of ejectment hei|s of John, Weast against Arthur Brown, the raíant in possession!' On the trial before the jury, the plaintiffs a¿$eed for the land in question, made by John J. W^Mn^ton afláothers to John Weast; and then introduced a witness whosetestimony is, in substance, as follows; That he knew the land in controversy and had known it for many years as the Fowler tract; that Fowler sold it to Whittington, the father…

<p>An affidavit for an attachment against an absconding debtor must state that the ordinary process of law cannot be served upon him.</p> <p>A judgment against a surety in a replevin bond, can only be had by action on the bond, or by proceeding by scire facias.</p> <p>The court for the correction of errors will not dismiss an attachment when there is no plea or motion to quash in the court below.</p>

Hurd and wife, and Caroline Buford, an infant daughter of Mrs. Hurd by her former husband, Samuel H. Buford, filed their petition in the probate court of Wilkinson county against Smith, the appellant, to surcharge and falsify his account of final settlement, as one of the executors of Buford.

IN ERROR from the circuit court of the county of Jasper. This was an action of assumpsit, brought by the plaintiff, as assignee of the Mississippi and Alabama Railroad Company, against the defendants, on a note for three thousand dollars, dated on the 3d day of May, 1838, and payable twelve months thereafter.

IN ERROR from the circuit court of the county of Lowndes. The Tombigby Railroad Company, in 1837, recovered judgment against the defendants in error for forty-two hundred and seven dollars and fifty-nine cents. The execution was levied on the 9th day of January, 1839, and a forthcoming bond taken and forfeited. It appeared that this judgment was subsequently, assigned to Robert Shotwell.

The appellee in this cause obtained judgment against the appellant upon a forfeited forthcoming bond, on the 4th of May, 1840, for about three thousand dollars, in the circuit court of Marshall county. Execution issued on the 25th of July, 1840, returnable to the November term, 1840, of said court. The defendant, Wm. Dye, departed this life in September, 1840.

IN ERROR from the circuit court of the county of Amite. This was an action brought by the plaintiff in error against the defendant, before a justice of the peace. Upon trial before a jury the plaintiff recovered a verdict for four dollars and ninety-five cents, and two hundred and eighty dollars costs of suit. The defendant afterwards removed the cause by certiorari into the circuit court.

IN ERROR from the circuit court of the county of Adams. This was an action of assumpsit in the circuit court of Adams county, by the Planters’ Bank v, Ellis’s Administrator, on a note of Francis Routh for three thousand and thirty dollars, endorsed by Thomas G. Ellis, per Frederick Stanton; dated 24th November, 1836, due thirteen months after date. Plea, the general issue, not verified by oath.

IN ERROR from the circuit court of the county of Warren. At October term, 1840, of the circuit court of Warren county, plaintiff in error moved the court for execution against the defendants, on a bond for rent due and in arrear by said Critchlow, with other defendants as sureties; which bond had been executed upon an attachment for rent being levied.

IN ERROR from the circuit court of the county of Adams. This was a motion in the court below for judgment against the obligors in a replevy bond.

IN ERROR from the circuit court of the county of Wilkinson. William S. Bush brought an action of assumpsit on a bill of exchange against William Stamps, who pleaded payment. On the first trial the jury could not agree. A second trial was had, and the plaintiff below obtained a verdict. A new trial was granted to the defendant, and the plaintiff recovered a second, verdict.

This case came up by appeal from the probate court of Adams county. The appellant became the administrator with the will annexed of Robert Moore, deceased, in 1831. tie managed a considerable estate, raised two crops, and afterwards sold the real estate. The appraised value of the estate was twenty-six thousand three hundred and fourteen dollars, but the amount actually received from all sources and administered was ninety-four thousand eight hundred and sixty-three dollars.

Action of assumpsit against Thomas G. Ellis, as indorser of two bills of exchange of Francis Routh, one drawn in Natchez on W. W. Swaim & Co. and accepted by them for five thousand dollars, dated November 26, 1836, and payable four months after-date; the other drawn on John L. Swaim, and accepted by him, dated January 16, 1837, and payable ninety days after date, for two thousand dollars. Plea, the general issue.

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

IN ERROR from the circuit court of the county of Amite. Assumpsit on parol award. Adams testified, that certain matters in dispute between plaintiff and defendant had been submitted to the arbitrament of himself and others. On cross examination the witness was asked what the matters. in controversy were; and also whether they were of such nature that defendant could have any interest in them; which questions were objected to, and ruled out by the court.

<p>APPEAL from the probate court of the county of Copiah.</p> <p>In April, 1842, the appellants filed their petition in the probate court of Copiah county, setting forth thtó they are legatees of William H. Killcrease, "who was the husband of the appellee, and died in July, 1838. That said William H., by his will, left all his estate to the appellee during her life, and at her death two-thirds thereof to appellants and one Thomas W. Shelby. That at the August term, 1838, of the probate court, the will was admitted to probate, and letters testamentary granted to appellee and Alexander R. Killcrease, one of appellants. That Mary J. Killcrease, the appellee, entered into bond in the penalty of thirty thousand dollars, with James Speed, Thos. Holliday, and Justin Shaw, as her securities; all of whom are charged to be insolvent. That after said grant of letters, appellee took into her exclusive possession all of said estate, both real and personal, and has ever since retained the same, giving to appellant, A. R. Killcrease; no control of any portion thereof. That at the time of the marriage of appellee with William H. Killcrease, she owned and was in possession of certain negro slaves, the title to which immediately on the marriage vested in William H., who took the same into his possession, and retained it until his death. That appellee received said negroes as distributee of her first husband, Thomas Shelby, upon an informal division of his estate, in which the other distributees concurred. That at the January term, 1839, of the probate court of Claiborne county, in which county Thomas Shelby resided, the appellee, with a view to defeat the claim of appellants to these negroes, filed her petition for allotment of dower in the estate of her first husband, the said Shelby, whereupon commissioners were duly appointed for that purpose, who allotted to her certain property, (described in petition, page 5, of record.) That appellee has refused to return an inventory of said negroes, which appellants insist are the property of the. estate of her second husband, William H. Killcrease, and claims the said negroes as her individual property.</p> <p>Appellants prayed for a citation against appellee, requiring her to give additional security, and to show cause why she shall not be required to return an inventory of said negroes as part of the estate of William H. Killcrease; and that appellee may be required to answer the petition on oath.</p> <p>Accompanying the petition was a transcript of the will of William H. Killcrease, an<i qd?#the various ordqrs of the probate court referred to in petition.</p> <p>An order was granted for a citation according to the prayer of the petition, returnable to the June term, 1842, of the probate court of Copiah, which was regularly served on appellee.</p> <p>At the June term of the court, the cause was continued, and at the July term, the appellants moved the court for a pro confesso against appellee, and offered to introduce testimony in support of the petition; all which was refused by the court. And on motion of the counsel of appellee, the petition was dismissed. From which decision of the court the appellants appealed.</p> <p>Upon what grounds the order of the court dismissing the petition was predicated, we are utterly unable to conceive. It was filed by legatees against an executrix, whose securities are charged to be insolvent, and who is also charged with having failed to return a correct inventory of the property of her testator to the probate court; and the prayer of the petition is, that additional security may be required of her, and that she be compelled to amend her inventory by inserting in it the property which she has left out.</p> <p>The prayer of the petition was certainly a legitimate one. It was made by parties having a deep interest in the estate, the legatees under the will of Killcrease. It was addressed to the tribunal which by the constitution is vested with full, if not exclusive jurisdiction over the subject matter. And it set up facts which, if sustained by proof, rendered the interference of the court a positive duty; and yet without either a written or oral denial of a single allegation in the petition by the executrix, who is thus charged with dereliction, the court in its wisdom not only refuse to allow the petitioners to introduce any testimony to sustain their petition, without condescending to assign a single reason for so novel and arbitrary a course, actually dismiss the petition upon motion of the counsel of the appellee.</p> <p>To cite authorities for the purpose of showing that the order of the probate court was illegal, and ought to be reversed, would be supererogatory, and by no means complimentary to the intelligence of this tribunal.</p> <p>The questions both of law and of fact which are presented by the petition, have not been noticed, on the supposition that if the view we have taken of the judgment of the probate court be sustained, they will form more legitimate subjects of examination and discussion before that forum.</p> <p>The bill of exceptions embodies the only points relied upon by the appellants, to reverse the decree of the probate court, in dismissing the petition. The first question, therefore, for the consideration of the court is, was the defendant compelled to answer the petition, or was it the duty of the court to render a judgment of pro confesso on the petition?</p> <p>By the 7th section, page 29, of the Revised Code, it is declared, that whenever either of the parties having a contest in the orphans’ court shall require, the said court may direct a plenary proceeding by bill or petition, to which there shall be an answer. It will be perceived that there was no order or direction of the court that such proceedings should be had. Then, if such an order was not necessary, the pro confesso could not be falcon until after an attachment had issued, according to the 7th section of the above recited act. No order having been made, it is presumed that the probate judge deemed it unnecessary.</p> <p>2. Was the petition such as to have rendered it the duty of the court to order it answered? An inventory had been returned by the executrix, and the slaves mentioned in the petition were not included in the inventory. But by the showing in the petition, there is a grave controversy respecting the title of those mentioned in the petition. The executrix' claims them as survivor of a former husband, and the probate court has no power to try titles. The question of title between the parties belongs to another and a different tribunal. There is no statute authorizing the settlement of such controversies by the probate court. A suit on the bond of the executrix is the only remedy. Toller’s Law of Executors, 252; Selectmen of Boston v. Boylston, 4 Mass. Rep. 321; Henshaw v, Blood et al., 1 Mass. Rep. 42.</p> <p>3. Did the court err in refusing to require additional security? Whether the security was or rvas not sufficient was a matter resting in the sound discretion of the probate court. New security is not to be given merely because a party interested in the case requires it. The court is to judge of the sufficiency or insufficiency of the security; and in the case before the court the judge believed the security abundantly sufficient and dismissed the petition. The appellate court has no means of judging of the sufficiency of the security, and it being a matter.within the discretion of the probate court, cannot constitute error. The act gives the right to any person interested in the distribution of the estate. .Revised Code, p. 46, sec. 64.</p> <p>By the will of William H. Killcrease, Mrs. Killcrease has the whole estate for life. Of what benefit, then, could a bond be- to the petitioners? She is not charged with wasting the estate. The petitioner’s right to the slaves mentioned in the petition could not be better secured by any bond that the judge of probate could take. Can the probate court require a bond to secure the execution of the will after the death of the executrix? Certainly not. What is the duty of the executrix? To pay the debts, funeral expenses and legacies. Suppose a third person had been the legatee, instead of the executrix, what would have been her duty under the will? The answer is plain: to have paid the debts and then to have delivered the property over to the legatee. This done, the will would have been executed, and the special condition of the bond fully performed. Is the rule a different one, because the executrix is legatee? It is thought not. If the property be removed beyond the limits of the state, the life estate is at an end by the statute.</p> <p>It is hard to perceive in what way the petitioners are interested in the distribution of the estate, at least until after tHe death of Mrs. Killcrease. After the death of Mrs. Killcrease, and not until then, the right of the petitioners, if any, commences. The petitioners had no right to require additional security. If the rights of the petitioners are endangered, their remedy, if any they have, is in another tribunal. But they do not pretend that the executrix is wasting the estate or using it in a manner calculated to destroy the remainder, if there is a remainder after the life ■estate, in those slaves mentioned in the petition.</p>

IN ERROR from the circuit court of the county of Adams. A. Lonbat sued out an attachment, returnable into the circuit court of Adams county, against William Depew and Kelsey Hazen, in which the plaintiffs in error, Mobley & Co., were summoned as garnishees.

IN ERROR from the circuit court of the county of Adams. This was an action of assumpsit, a memorandum or note for five hundred and seventy-three dollars, payable in the current notes of either of the banks of Natchez, or of the Union Bank, dated October 2, 1839, due 1st January, 1841. Declaration in common form.

This was an action of assumpsit. It appeared that S. A. Cartwright, the appellant, about the year 1834, leased his house and lot in Natchez to one Nowan, by indenture under seal, in which Nowan, among other things, covenanted to leave the premises in as good repair as he received them.

<p>After verdict it is too late to object to the form of action.</p> <p>It seems that an action for money had and received, is not the proper remedy against an attorney for collecting depreciated bank notes. Case would be the more appropriate form of action.</p> <p>Where a variety of testimony is submitted to the jury, and no instruction asked of the court, or question of law raised, a new trial will not be granted, unless the preponderance of evidence against the verdict is very great.</p>

IN ERROR from the circuit court of the county of Adams. George W. Kellogg, in his life-time, brought suit against M. B. Street, as indorser of a promissory note for sixteen hundred dollars. Held: &c. to be conclusive evidence of the protest of such note. How. & Hutch, sec. 33, p. 609, but not that he gave notice.

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

IN ERROR from the circuit court of the county of Hinds. This was an action of assumpsit by Bernard McKiernan and Sherod Anderson against R. A. Patrick and others, as the makers and indorsers of a promissory note. On the affidavit of Patrick, the plaintiff’s attorney was put under rule requiring him to show his authority for using the name of Anderson as a co-plaintiff in the suit.

IN ERROR from the circuit court of the county of Noxubee. This writ of error was prosecuted from a judgment of the circuit court quashing an attachment. The attachment was taken out by the agent of the plaintiff below, who is also plaintiff in error.

IN ERROR from the circuit court of the county of Marshall. Action of debt on a writing obligatory; made by Ralph. Graves, C. Kyle, and J. S. Curtis, for five thousand two hundred and sixty-six dollars and seventy cents, dated 8th January, 1838, payable at eight months to the Northern Bank of Mississippi.

IN ERROR from the circuit court of the county of Holmes. This was an action of assumpsit upon a bill of exchange, purporting to have been drawn by the defendants and others. The defendant Yardeman put in a plea under oath denying its execution. It was in proof that he could neither read nor write.

ERROR from the circuit court of the county of Claiborne. This was an action of assumpsit for money paid and for money had and received, brought by the plaintiffs in error against the defendants, under the following circumstances: The defendants had drawn a bill of exchange on Bogart & Hoopes, of New Orleans, for twenty-two hundred and fifteen dollars and forty-six cents, due 13th April, 1836, which, by indorsement, became the property of the Branch of the Planters’ Bank at…

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

The appellee, Campbell, obtained a supersedeas to stay proceedings under an execution on a judgment obtained by appellant, on the ground that the execution had been satisfied, but that the money made by the levy had been improperly applied to the satisfaction of an execution in favor of the Planters’ Bank.

IN ERROR from the circuit court of the county of Adams. This action of assumpsit is founded on a bill of exchange for seventeen thousand five hundred dollars, drawn by James I-I. Claiborne on Thomas Kershaw, in favor of O. Haring. It was made payable at the Commercial Bank of Natchez.

IN ERROR from the circuit court of the county of Lowndes. This was a motion in the court below for the application of money made on execution by the sheriff, who returned the same into court, and asked for its judgment, as to which of' the claimants was entitled to the money. On the 9th day of October, A. D. 1838, Bibb, for the use of Holderness, obtained judgment against Wm.

<p>IN ERROR from the probate court of the county of Ponola.</p>

IN ERROR from the circuit court of the county of Claiborne. entered two motions in the court below to quash, vacate, and set aside the return of satisfaction upon the executions in said cases, for the following reasons: 1. Because the return was untrue in fact. 2.

This action of assumpsit was brought on a promissory note given by S. & M. C. Folkes, J. B. and S. S. Fox, and Samuel Lum, to the president, directors and company of the Commercial and Rail Road Bank of Yicksburgh, for eight thousand dollars, payable twenty-four months after date, with interest at eight per cent, after twelve months.

<p>Whatever Is annexed to the freehold becomes a part of it.</p> <p>When the owner of the soil gives his consent to the erection of a building, the same may be removed.</p> <p>If 'one erect buildings upon the land of another, without any contract,' he cannot remove them.</p>

IN ERROR from the probate court of the county of Yazoo. Held: that the choses in action accruing to the wife during coverture, although not reduced to possession by the husband, belong to him absolutely, and in the event of his being survived bjrfpi^WpmS^xecutor or administrator, the court remarkingJnatJ^aocfrmlXqthe contrary, laid down by Lord Hardwicke i& Crcrforth v. BradJw, 2 Ves. 676, is…

In December, 1841, Elizabeth Markham filed her petition in the probate court of the county of Yazoo, claiming dower in certain town lots and… Held: contrary to the express words and legal import of words used in title deeds. This would be a most dangerous rule of evidence, and would unsettle and place in doubt most of the titles by which men hold their estates. ' In this case I may venture to say there was no articles of co-partnership entered into between the partners.

IN ERROR from the county of Warren. The defendants in error instituted a special action on the case against the plaintiffs in error, to recover damages for a failure to use due diligence in having a… Held: that it is not necessary for the holder of a note to sue the indorsers before suing a bank for negligence in not taking the proper steps to charge them.

IN ERROR from the circuit court of the county of Hinds. Franklin H. Jennings was summoned as a garnishee by Summers & Watt upon an execution which they had issued upon a judgment recovered against John. H. Jones.

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

IN ERROR from the circuit court of the county of Hinds. ■ This was an action of assumpsit brought by Francis in his life time against the defendant upon a promissory note. At the December term, 1839, of the circuit court of Hinds county, the defendant filed a petition for a discovery, to which an answer was filed on the 24th of March, 1841. At the June term, 1841, of the court, the cause was tried, and a verdict rendered in favor of the plaintiff.

IN ERROR from the circuit court of the comity of Madison. Held: that “when the defendant comes in on the return of the attachment to appear, he is in the same situation he would have been in, if taken on a capias ad respondendum, and cannot appear without bail.” And this decision of Chase, judge of the general court in the state of Maryland, agreeing with and sustaining the English authorities…

IN ERROR from the circuit court of the county of Yazoo. The Commercial Bank of Manchester, on the 2nd of January, 1839, discounted a note for the defendants for three thousand dollars, payable twelve months after date, and paid the amount less eight per cent, which was reserved for the interest.

<p>IN ERROR from the circuit court of the county of Lawrence.</p> <p>Action of assumpsit for goods, wares and merchandise.</p> <p>On the trial below, the plaintiff offered as a witness, Warren Slater, who stated that he was .the son of the defendant, and had purchased a part of the goods from his father, about which this suit was instituted; that, if the plaintiff recovered, witness thought he would have to pay for them. The court decided that the witness was incompetent. The plaintiff then offered to release the witness, which the court refused. Verdict for defendant.</p>

<p>IN ERROR from the circuit court of the county of Tippah.</p> <p>Cited, 2 Starkie on Ev. 361; 1 Story Eq. 352; 3 J. Ch. Rep. 281; 5 Peters Con. R. 419; 2 Story’s Eq. 360; H. & H. Dig. 654; 4 Phil. Ev. 384; 2 Kent. Com. 538.</p> <p>Cited, 3 Yerger, 502; 4 lb. 841; 8 Yerger, 417; Meigs, 581.</p>

The counsel for the appellees moved to strike the case from the docket, and assigned the following reasons: 1. Because the court has no power or jurisdiction to render any judgment in the case, it being an appeal from a supposed district chancery court at Holly Springs, and there being no such court known to the constitution and laws of the state of Mississippi. 2.

<p>IN ERROR from the circuit court of the county of Yazoo.</p> <p>On the 18th day of January, 1840, a Ji. fa. issued on a forfeited forthcoming bond, for the sum of ten thousand two hundred and sixty-six dollars and thirty-five cents, against Hubbard S. Wilkinson, Philip Burrus, James R. Burrus, William M. Yandell and James Morton, returnable to the following May term of the court.</p> <p>Upon said execution the sheriff indorsed the following returns:</p> <p>■ “Received, January 24th, 1840. Levied this execution, March the 23, 1840, oil the following negroes, to wit. (Here followed the names of twenty slaves.)</p> <p>Signed, P. Buford, Sheriff,</p> <p>By Jas. Biles, D. S.”'</p> <p>On said execution was the further return:</p> <p>“Received of James Morton, six hundred and fifty-five dollars in Louisiana and Commercial Bank of Manchester money. Also, ten thousand, six hundred and eighty dollars and fifty-seven cents in Union money, in satisfaction of this case, May 7, 1840.</p> <p>Signed, “ P, Buford, Sheriff,</p> <p>By Jas. Biles, D. S.”</p> <p>The plaintiff in the execution moved to set aside.the last return, or so much thereof as related to the Union money, on the ground that the Union money was not a good satisfaction, and that the same had been paid contrary to the instructions to the sheriff; of which instructions it was alleged Morton, who paid the same, had notice.</p> <p>Before any proof was admitted on the hearing of the motion, the defendant in the execution demanded a jury, which was refused by the judge, and his opinion excepted to.</p> <p>The plaintiffs proved by Harrison, a witness, that on the 29th of March, 1840, he, by his attorneys, gave to the sheriff, by his counsel, the following instructions, as to the kind of money to be received in payment of executions then in the hands of the sheriff:</p> <p>“Parham Buford, Esq. Sheriff of Yazoo.</p> <p>We are directed to instruct you, that hereafter you must take no more notes of the Union Bank of the state of Mississippi, in the payment or satisfaction of any execution wherein the Commercial Bank of Manchester, or M. B. Hamer & Co. or Jeremiah Walker are plaintiffs, and in, which we are marked as the attorneys.</p> <p>P. S. Planters’, Agricultural and Commercial Bank of Manchester we will take. ’ B. & H.”</p> <p>March 29th, 1840.”</p> <p>Same witness stated that he informed the sheriff “that it must be collected as the instructions read by him;” that he told Morton that the sheriff was instructed not to take Union money, but did hot know whether the information was given to Morton by him before or after Morton had sold his negroes to get the money to pay this debt. The same witness proved that Union money was at a discount; that it was the understanding between the sheriff and Morton that the negroes should be sold for Agricultural money; but that some two months before court Buford told Morton that he would receive Union money; that a few' days before the sheriff received the Union money, Morton deposited nine thousand dollars in the sheriff’s office for safe keeping, the sheriff refusing to receive the same.</p> <p>The deputy sheriff stated that he levied the execution on the negroes sufficient to satisfy the judgment; that the property was advertised and brought to the court house by Morton on the first Monday of April, the day of sale, and delivered into the possession of the sheriff; that it was not sold for want of time, and again returned to the possession of Morton; that the Union money was received by him in pursuance of the instructions'of the sheriff, Buford; that he apprised Morton of the instructions not to receive the money, one or two days before it was received; that on the 6th of April, 1S40, most of the sales were for Union money.</p> <p>The attorney for the plaintiff stated, that some three or four weeks before the return day of the execution, he informed Morton of the instructions not to receive Union money; and stated further that there had been a postponement of the sale by the sheriff two or three times. On the same day, which was the 6th of April, 1840, Morton declared to witness that the property would have to be sold by the sheriff, and he desired the sale to take place, and the witness urged the sheriff to sell, and not to take Union money. The sheriff promised to sell, and not to take Union money; but on the evening of the same day informed the witness that Morton wished him to take Union money, and that his sureties said he ought to do so.</p> <p>The defendant in the execution proved by Cage, a witness, that on the first Monday of April, 1840, Morton brought the property to the place of sale, and repeatedly requested the sheriff to sell; that Morton made an arrangement to dispose of the negroes in Vicksburg, and took them there to deliver, and receive the money by the consent and directions of the sheriff; that the sheriff after-wards refused at first to take the money from Morton, on the ground that after Morton left to deliver the negroes in Vicksburg he had received notice not to take Union money; but upon consultation with his sureties the sheriff came to the conclusion that he ought to treat the sale as one made on the day Morton left with the negroes, and receive the Union money, as he had agreed to do, as so much money paid on the said sale day, which was April 7th, 1840.</p> <p>It was also in proof, by other witnesses, that up to the said day in April, the sheriff was in the habit of receiving Union money in the discharge of executions, both on sale and otherwise.</p> <p>The judgment was afterwards superceded, and a credit of six hundred and twenty-seven dollars allowed.</p> <p>1. Bank paper is regarded as currency, and is a good legal tender unless specially objected to. 1 Pet. Cond. Rep. 120 ; Ohio Coud. Rep. 85; 9 J. R. 120; 1 Burr. 452. If bank notes are paid in good faith to the officer, there can be no dortbt that they will be a good satisfaction of the execution. 1 J. J. Marsh. 503; 6 H. & Jno. R. 47. It has been held that the officer, even on notice by the plaintiff in execution, is not bound to demand specie, but may in the exercise of a sound discretion, receive bank notes. 4 Cowen, 422; ex parte Board, 2 Cowen, 190.</p> <p>2. It would be unreasonable to make the defendant responsible for the instructions to the sheriff, unless a knowledge of them could be brought home to him, in a case where he was free to act in relation to them. In this case it is by no means clear that Morton had notice of the instructions to the sheriff before his property was sold under the directions of the sheriff. Certain conversations are related by one of the attorneys who was a witness, which he thinks were had beforé the sale; but the circumstances go to show that it must have been afterwards. _ This is made clear by the testimony Of Cage, who says that' the sheriff at one time refused to receive the Union money, on the ground that after the sale, and while Morton was gone to deliver the negroes he had received notice not to take Union money.</p> <p>3. It was in proof that the levy was made on sufficient personal property before the instructions were given to the sheriff. This was a satisfaction of the judgment and execution. 7 Cowen, 17; Jackson v. Bowen, 4 lb.; ex parte Lawrence, 417; 4 Mass. 403; 12 J. R. 207; 7 lb. 428.</p> <p>After the levy, the defendant had no longer any control over the property. He was the mere bailee of the sheriff He had no discretion as to what kind of money the sheriff should sell the property for. He could act only as the agent of the sheriff and under his directions. He had neither in fact nor in contemplation of law any control over the sale or the execution of the process. It is sufficiently apparent that the sheriff considered the sale of the negroes as an official sale. Morton is in a very different attitude from that of a defendant .paying paper money to an officer without levy or sale. Suppose that the sheriff, contrary to the instructions of the plaintiff in the execution, had cried the property on the sale day for Union money, would it not have been a satisfaction' of the judgment? It could have made no difference whether the defendant concurred in such a sale or not, for the reason that he had no discretion or authority, and could not therefore be a party to the sheriff’s acts. It does not appear that the property was cried in Benton before it was sent to Vicksburg for delivery, yet it does sufficiently appear that the property was sold in Benton in pursuance of a levy and advertisement by the sheriff, and that the sale was by his consent and directions, in satisfaction of this judgment.</p> <p>4. Money is the subject of a levy, and may be taken on execution. 1 Cranch, 117; 1 Cond. Rep. 261; 12 J. R. 220. If these bank notes were not properly received as a payment, inasmuch as the 'money was received by virtue of the execution, it is in contemplation of law a levy. It changed the right of property, and was therefore such a levy as satisfied the execution to the amount of the specie value of the bank notes. They may be said to be perishable articles, and should therefore have been sold by the sheriff. The rule is well established, that a levy on perishable articles will satisfy a judgment, although the officer permit them to perish, or waste them.</p> <p>If, then, the sheriff levied on the Union money, which was worth eighty cents on the dollar, and instead of selling it, permitted it to depreciate until it became worthless, still it must be held a satisfaction of the judgment.</p> <p>The defendant in the motion demanded a jury trial, which should have been granted. It was a case in which there was a complicated state of facts, which was proper only.for the determination of a jury. The question of notice to Morton not to pay Union money was one concerning which there was conflicting testimony, which was proper for the consideration of a jury, and upon which the case will, in all probability be adjudicated. Morton surely had a right to demand that this should be weighed by a jury of his country. 3 Story’s Const. 645.</p> <p>1. By our constitution the “right of trial by jury áhall remain inviolate.” This preserves the right only in such cases when the right was given or allowed by the common law. In cases where the right did not exist at common law, or when it was a discretionary power of the judge to award it or not upon feigned issues, motions, &c., the constitutional provision does not apply. Lewis v. Garret, 5 Howard, 453. At common law, motion to quash executions and returns by the officers of the court, without the intervention of a jury, necessarily resulted from the fact that the court had power to control, its own process and the acts of its officers, and to see that its process was executed and not abused; hence the court always had power to see if its executions were executed in conformity with the law, and if the sheriff abused the process, and made returns which was false or insufficient, or where he stepped beyond his power, the courts upon motion examined into the facts and corrected the abuse.</p> <p>Many of the authorities cited below, (and vide, 2 J. J. Marshall, 71,) to show that the sheriff has no authority to receive any thing but money on an execution, were motions made to quash his return of satisfaction, &c., and which were invariably decided by the court, without the intervention of a jury. The court may, if it thinks proper, in cases of disputed facts, award a jury, but this is a power which may or may not be exercised in its discretion.</p> <p>2. If there had been no instructions to the sheriff, not to take Union money, the law did not authorize him to do it. His authority was to collect the money, to receive money, or to levy on property and sell it for money. If he does not levy and sell for money, he can only receive from the defendant money, or at least bank notes, which represent money and are equivalent to it, as forming and constituting the currency of the county ; but depreciated paper, or a return on an execution showing that bank notes of any description were received, without also showing they were equivalent to money would not do, and will be quashed. It has been repeatedly held, that neither an attorney at law, or a sheriff by virtue of their authority as attorney and sheriff, have no right to receive bank notes, particularly where they are depreciated. Their authority is merely to collect the money, and if they receive any thing else, it is an excess of authority, not binding on the party. Tide as to sheriff’s authority, 9 John. Rep. 262; 6 Cowen, 465; 1 Cowen, 499; 4 Cowen, 553; Lytle v. Etherby, 10 Yerger; Tutt v. Fulgham, 5 Howard, 621; 2 Stewart & Porter, 109; 3 lb. 385.</p> <p>As to attorney’s authority, that he can receive nothing but money. Gullet v. Lewis, 3 Stewart, 23; Wickliffe v. Davis, 2 J. J. Marshall, 71. The point has been so ruled by this court, expressly in Tutt v. Fulgham, 5 Howard, 621. In this case the sheriff’s return showed he had received in Union Bank bills. So it does in our case. The return in the case at bar is, that he received it in “ Union money,” the meaning of which is, “ notes of the Union Bank,” which in fact as the evidence shows, was received. It is true the counsel who argued the case of Tutt v. Fulgham, admitted if the sheriff returned the execution, “satisfied generally” and received Union notes, that it would be a satisfaction of the judgment, and the sheriff could alone be proceeded against. In this, however, he was clearly mistaken, as many of the above authorities prove. It is not the sheriff’s return that satisfies the execution, it is his receipt of the money. The return satisfied is prima facie evidence of the fact, and as long as it is on the execution, perhaps another could not issue. But if the return is false, if he received horses, cows or property in satisfaction, he would exceed his authority, and his false return of satisfaction, when proved, will be set aside.</p> <p>It would indeed be strange if the law said to him, you shall receive nothing but money on the execution, if you do, the plaintiff is not bound, because he did not authorize you, and it was a gross violation of duty in you to receive any thing but money, but nevertheless, although you have thus violated your duty in receiving property instead of money, go on, commit another breach of duty, make a false return that you received the money, and-this additional breach of duty renders your first illegal act valid, or, in other words, the sheriff has violated his duty once, and if he will only violate it once more, by returning a falsehood, both violations of duty are cured.</p> <p>It is true, that, when he has returned the “writ satisfied,” the plaintiff may proceed against him. So he may, if he returns he has received it in horses or dogs; for it is an insufficient return. It is well settled that, notwithstanding there is a remedy against the sheriff for breach of duty, yet if, in fact, he has exceeded his authority, the payment is not satisfied, and the plaintiff may elect to have another execution, or proceed against the sheriff, as in cases of escape, &c. Taylor v. Thompson, 5 Pet. 358, 369, 370; 6 Cowen, 265.</p> <p>3. But it is said the sheriff levied on property sufficient to satisfy the execution, and that this levy is a satisfaction. It is true, as a general rule, a levy on personal property is prim.a facie a satisfaction; and when the books speak of a levy sufficient to satisfy the judgment being a satisfaction of the judgment, they do not mean that the mere levy is ipso facto, and of itself, conclusive evidence of satisfaction. The levy, until disposed of, prevents the plaintiff from proceeding on his execution, and, so long as the goods are in the hands of the sheriff, it is so far a satisfaction, that there can be no other proceeding. If the sheriff wastes the goods, or destroys them, or sells them, the levy then is a satisfaction.But that the mere fact of a levy, unaccompanied by sale or wasting of the property, is of itself a satisfaction, is not the law. The general property, notwithstanding the levy, is still in the defendant; the sheriff only has a special property. If the goods are destroyed by lightning, or other inevitable accident, the judgment is not satisfied, because the goods were still the debtor’s; the sheriff only had a special property for the purpose of selling to satisfy, which he was prevented from doing by the accidental destruction of the goods. So if the goods are restored to the defendant, upon a supersedeas or injunction obtained by him; when these are discharged the sheriff may proceed to sell, and re-levy on other goods if they are not produced So if they are re-delivered on a forthcoming bond, which is quashed; another execution can issue on the original judgment, because the levy did not satisfy the judgment, as they were restored to him. If he had forfeited the bond, then, by statute, the levy and forfeiture, if the bond is good, is a satisfaction. The meaning, therefore, of the decisions that a levy on personal property is a satisfaction, is simply that, prima facie and unexplained, it is so. The following authorities show clearly that such is the law. 19 Wend. 80; Morrow v. Hart, 1 Marsh. 292; Duncan v. Harris, 17 Serg. & Rawle, 436; 8 Cow. 194.</p> <p>That a mere levy, without sale does not, ipso facto, operate as a satisfaction, is cjear, from the fact that, if there are two judgments for the same debt, a levy without sale on one does not prevent an execution on the other. 3 How., McNutt v. Wilcox and Fearn, and authorities there cited.</p> <p>In this case, after the levy, the negroes were re-delivered by the sheriff to the defendant, at his request, to sell at private sale to pay the judgment. That we have a remedy against the sheriff for this breach of duty, is clear; but that we may elect to proceed under the judgment, which, by the act, is not satisfied, if we choose, is equally clear. Taylor v. Thompson, 5 Pet. 358, 369, 370; 6 Cowen, 265.</p> <p>Courts of the most respectable standing in the Union have repeatedly held that a sheriff’s return of an execution satisfied in promissory notes or bank paper, without the consent of the parties, is null and void. Wicldiffe v. Davis, 2 J. J. Marshall’s Rep. 71; 1 Cow. Rep. 46, 499; 9 John’s Rep. 263; 4 Cow. Rep. 553; 2 Dunlap’s Prac. 832; 6 Cow. Rep. 465; 10 Merger’s Rep. 393; 13 Mass. Rep. 319; 4 How. Rep. 404; 7 Leigh’s Rep. 277; 5 How. Rep. 246; Ibid, 621.</p> <p>No consent was given by Walker that bank notes should be received. On the contrary, Judge Battaile, one of Walker’s attornies, repeatedly, in the most pointed and 'emphatic manner, protested against their reception by the sheriff.</p> <p>It may perhaps be insisted that the sheriff is the plaintiff’s agent, and upon that ground he concluded that his reception of the bank notes is in law the reception of the plaintiff. But we respectfully urge that the sheriff is not the plaintiff’s agent; he is the mere minister of the law. 2 Dev. Rep. 137; 11 Serg. & R. Rep. 134. And is not clothed, by virtue of his office, with the power of acting as plaintiff’s agent.</p> <p>Conceding, however, for the argument, that the sheriff stands in the attitude of plaintiff’s agent, the conclusion sought to be arrived at is a clear non sequiltir.</p> <p>If an agent at all, he is but a special agent. The execution in his hands is his letter of attorney. If he acts beyond the scope of his powers, upon familiar principles his acts are void.</p> <p>What, then, is he required to do? Simply to collect so many dollars and cents. Is any thing, save gold and silver, known to the law as dollars? Clearly not. Should he then receive any thing but gold and silver, the act would transcend his powers, and would consequently be void.</p>

<p>IN ERROR from the circuit court of the county of Adams.</p> <p>This was an action of assumpsit on defendant’s indorsement' of a note made by E. Bell for twenty-seven hundred dollars. Pleadings in common form.</p> <p>On the trial plaintiff read the note sued on, and the deposition of Cook, which proved demand, non-payment and protest of the note, and that notice thereof to defendant was lodged in the post-office at Natchez, where the note was payable, addressed to the. defendant at Natchez. It was admitted that the post office in Natchez was the nearest to the defendant’s residence, and the one at which he usually received his letters and papers, and that he resided without the limits of the city.</p> <p>The court instructed the jury that jf they believed the defendant resided nearer the post office at Natchez than to any other, and that the notice was not intended to go by mail, then the notice would not be sufficient unless given to him in person, or left' at, his residence or usual place of business; which instruction is assigned for error.</p> <p>Notices to indorsers may be sent by the post, where they are to be sent “through the post office to the post office nearest the party entitled’to notice.” Ireland v. Kip, 11 John. Rep. 232 ; Shed v. Brett, 1 Pickering, 411; Hussy v. Freeman, 10 Mass. 87. That-is, they may be so sent when they are to be transmitted or conveyed from one post office to another by the mail. The general rule is, that where the parties reside in the “same place,” the notice must be personal, or something tantamount; and where the parties do not reside in the same, the notice may be sent by mail. Now this “same place” is not a locality designated by the limits of a town or city; but it is rather a vicinage or neighborhood. It may be in and around a town where a post office is located, or it may be around a post-office located in a rural district. Barker v. Hall, 1 Martin & Yerg. 183.</p> <p>The term, town, or city, does not convey the meaning of the rule as to the place, in cases of this kind. The word “town,” is used in some parts of the country to designate a locality circumscribed by city limits; in other parts it describes a tract of country in which there may be neither a city, town proper, or even a village; or such “town” may include one or more towns proper or a city, and even both. Thus the “town” of New Haven, Ct. embraces a tract several miles square, within which is the city of that name, and also the villages of Barnesville and Fair Haven. The same kind of towns are found in New York.</p> <p>There may be two “places” in the same town; and where a notice is sent by mail to a town in which there are two post-offices, it must be sent to the office nearest the indorser; for that is his “place” to receive it. Cuyler v. Nellis, 4 Wend. 398.</p> <p>So, where there are two post-offices in the same town, the holder residing near the one office may transmit a notice by mail to an indorser residing near the other; for the holder resides at the place where the notice should be mailed, and the indorser resides at the place where it is to be delivered. Ranson v. Ranson. 2 Hill’s N. Y. Rep.</p> <p>A notice transmitted by mail to the post-office, near which the indorser resides, is sufficient, because the indorser resides at the place, although not within the town. So where the indorser resides near the town where the holder lives, they both reside at the same place.</p> <p>Where notice is sent by a messenger, to an indorser residing at a different place, it must be left with the indorser, or at his house or place of business. In such a case, the messenger may not deposit the notice in the post office of the place where the indorser resides; because notice by a messenger is in the nature of personal notice. Now suppose the defendant, in this case had sought to notify as an indorser the postmaster at Natchez, could he so contrive to give the notice, that, under the rule for notice where the parties reside at different places, it should be a notice by the post? Or suppose the postmaster has notified the defendant as an indorser by delivering a notice to him from the post-offices, would it be notice by the post, or a personal notice?</p> <p>It is an universal rule, that a notice to an indorser, sent “by the post,” must be deposited in the post-office in time to “go out” by a particular mail; now when should the notice to this defendant have been deposited in the office, and by what • mail was it to “go out?”</p> <p>It is said that the holder is only bound to exercise due diligence, and that a deposit in the post-office was, under the circumstances of this case, a compliance with the rule; but it has to some extent become a settled rule of law that a party must give notice in a particular manner, or he will not be permitted to show due diligence. Thus it is well settled, that where the holder and indorser reside in the same place, proof of a notice deposited in the post-office does not show due diligence, although the indorser regularly receives his letters there; because the holder is to be the active party, he is to give the notice, and in such a case to bring it home to the indorser; the latter is not bound to go after it. On this ground the decision in Bank of Columbia v. Lawrence, 1 Peters’ Rep. is erroneous. The reason for that decision is, that it would be inconvenient to the holder to serve personal notice on an indorser residing three miles distant, and it was accordingly imposed as a duty on the indorser to go the same distance and get the notice. In that case, as in this, there was no proof that notice was received in due time.</p> <p>The conclusion is, that where notice is sent by mail, it must be deposited in one post-office to be forwarded by the post and delivered to the indorser at another office; that, where holder and indorser reside at the same place, the notice may not be there deposited in the post-office; and that this defendant was as much entitled to personal notice as if he had resided within the limits of the city of Natchez.</p> <p>Other authorities applicable to this case are cited in the opinion delivered by this court in the case of Patrick v. Beazley, 6 How. 609.</p> <p>Counsel for plaintiff insist on the “presumption” that the defendant did receive this notice; but “notice is of the essence of the contract, and ought not to rest on presumption or inference.” Patterson Bank v. Butler, 7 Hal. 258; Smedes v. Bank of Utica, 20 Johns. Rep. 372; Chitty on Bills, ed. of 1836, p. 511, 643.</p> <p>Suppose this presumption to be correct, where was the proof, direct or circumstantial, that this notice was received in due time?</p> <p>Again: it is urged that the authority of Stamps v. Brown, Walker’s Rep. overruled in Patrick v. Beasley, should be confirmed, because it had become a rule of action in this state.</p> <p>The same argument will sustain the decision in Patrick v. Beazley. On this point there can be but this question: what is the law, and in which of these two cases was the true rule declared? If the case of Stamps v. Brown passed without deliberation, it was properly reviewed; if the decision was founded on a mistake of law, or a misapprehension of the case there quoted and relied on, it was the duty of this court to correct it. Williams v. Germaine, 7 Barn. & Ores. 408, Lord Tenterden. Lord Eldon felt bound to understand the principle of a case before he confirmed it. Aldrich v. Cooper, 8 Tesey, 388. Lord Ellenborough overruled a case “as having been decided against principle.” Purcell v. McNamara, 9 East, 161.</p> <p>Kent considers that hasty and crude decisions ought to be examined without fear and revised without reluctance. 1 Com. 477. There can be no doubt of the power of courts to review and correct former decisions; the three thousand cases overruled, denied, doubted, or limited in their application, collected by Mr. Greenleaf, show that this power has been not rarely exercised.</p>

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

<p>The plaintiff in execution may proceed, by motion, against the sheriff alone, for failing to pay over money collected.</p> <p>If the attorney’s fees have been paid, his direction to the sheriff not to pay over money collected, cannot prevail against the demand of the plaintiff.</p> <p>The attorney has no other right than that of an agent.</p>

IN ERROR from the circuit court of the county of La Fayette. This was a motion, in the court below, by Jones against Butler, sheriff of La Fayette county, for the amount collected by him on execution in his favor against Dickens & Martin, being the sum of one hundred and seventy-three dollars and sixty-five cents.

IN ERROR from the circuit court of the county of Madison. Held: and while it was being held, both parties had a day in court, at which they could be heard, and not after. It will not be insisted, it is presumed, on the other side, that a judgment rendered at one term can be set aside at another. If, however, it should, the court is referred to the Assignees of Med-ford v. Dorsey, 2 Wash.

IN ERROR from the circuit court of the county of Adams. Stanton & Bingaman, executors of B. Harman, filed a petition to supersede an execution prosecuted by Jones on a judgment on a forthcoming bond.' The original judgment was obtained by Jones in that court at the May term, 1840, for nine thousand six hundred and fifty-three dollars, and costs.

IN ERROR from the circuit court of the county of Adams. This was an action of assumpsit, by defendants in error, in the circuit court of Adams county, against Wood, Penticost & Co. Alonzo Wattles and Noah Barlow, on the note of Wood, Penticost & Co. indorsed by Wattles & Bennett and Noah Barlow, for six thousand nine hundred and seventy dollars, dated August 1, 1837, payable three months after date.

This was an issue to try the validity of the last will and testament of Samuel Brown, deceased. The jury found a special verdict, in which, amongst other matters, they found that the same devises both real and personal estate, and that the same is attested by hut two subscribing witnesses.

IN ERROR from the circuit court of the county of Adams. This was an action of assumpsit by Tiernan, Cuddy & Co. against the Commercial Bank, in the circuit court of Adams county, to recover from the bank the amount, with interest and damages, of a bill of exchange of W. R. Stone on M. D. Patton, for four thousand four hundred and seventeen dollars and thirty-five cents, accepted and dated May 6, 1836, at sixty days, on the ground that the bill had been sent to the Commercial…

<p>An agreement to convey a slave upon a certain contingency, does not rest such ah interest as will enable the party with whom the contract is made to maintain detinue against a bona fide purchaser without notice.</p> <p>An attachment creates a lien, which will be notice to subsequent purchasers.</p>

<p>IN ERROR from the circuit court of the county of Yallabusha.</p> <p>cited 1 Chit. PI. 486; Bull. N. P. 181; Cowper, 56; 6 Rand. 519; 19 Com. Law Rep. 241; 14 ibid. 63; Collyer, 626; 6 Term Rep. 488, 493.</p>

<p>In an action on the case for enticing away and harboring a slave, when one witness described the slave, the court held, that it was competent to ask another witness if he had seen a slave on the defendant’s plantation answering to the description. Identity may be proved either by positive or circumstantial testimony.</p>

<p>The widow cannot renounce her rights, under a will, given in lieu of dower, and insist upon dower, after the expiration of six months from the time of the probate of the will.</p>

IN ERROR from the circuit court of the county of Adams. This was a proceeding, by petition, in'the circuit court, to enforce a mechanic’s lien, where the contract had not been reduced to writing.

<p>By the statute of this state, when the action is misconceived, it can only be taken advantage of by demurrer.</p> <p>The wrong admission of a record in evidence cannot be assigned for error, unless it appears in a bill of exceptions.</p> <p>It must appear from the record that the jury consisted of twelve men.</p> <p>There should be a replication to a plea of ml tiel record.</p>

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

<p>Where the judgment is fora greater sum than the damages claimed by the declaration, the defendant in error may cure the defect by releasing the excess in the appellate court.</p> <p>The circuit court has jurisdiction of suits under fifty dollars, brought into it by certiorari from a magistrate’s court.</p>