Volume 9 — Mississippi Reports

This cause was brought by writ of error from the Carroll circuit court. The facts of the case sufficiently appear in’ the arguments of counsel and the opinion of the court. This was an action on a promissory note for $2,146, drawn by Blasdale & Grubbs as principals, and defendant Gayden and others (as is shown by testimony) as securities.

This case comes, by writ of error, from the circuit court of Pontotoc County. The facts proved in the court below were, in substance, that David Storke, the appellants’ intestate, being the owner of one hundred and fifty acres of land adjoining the town of Colbert, on the Tombigbee river, conceived the intention of laying off his land into town lots, establishing a stock therein, and selling the stock to purchasers upon speculation.

<p>An action for money had and received, will lie against a mere intruder or trespasser, who has collected money which belonged to another.</p> <p>When profits have been received by injuries done to real property, the owner may waive the trespass', and bring his action for money had and received.</p> <p>The act of 1825, authorizing the city of Natchez to levy a tax or duty on steamboats and other vessels landing at that port, is ¡fot repugnant to the 10th section of the 1st article of the Federal Constitution. That act does not profess to divest the right of property in the banks of the river, and is not, therefore, in conflict with the constitution.</p> <p>The owner of the soil has the right to charge wharfage for the use of a portion of it.</p>

This case is brought by appeal, from the district chancery court at Carrollton—the Hon. Joseph W. Chalmers, vice chancellor. Held: or could have held, this property free from the claims of creditors, (“ all creditors,”) that they have forfeited all interest in it that is in any wise adverse to any creditor of Oliver Cross. 8. But we say this deed was not valid, and no property vested by it, even in Virginia.

This was an action of ejectment instituted in the circuit court of Adams county, by the defendant in error, for the recovery of a lot in the city of Natchez. Held: and is now esteemed sound law. 7 Bae. Works, 269. 20 Johns. R. 33. Martin & Yerger, 333. 1 Fonb. Eq. 161. The question under consideration, has been adjudicated by several States; and in every State, with one exception, it has been held that creditors were not affected by notice of an unrecorded deed.

On the 24th day of June, 1840, Moss filed his bill—stating that he, on the 29th February, 1836, bought of Davidson a plantation and negroés,… Held: that where a party has sold property, representing that he has title, and that representation has been relied on, or where he has concealed material circumstances, showing a want of title, or incumbrances, and a bill has been filed to rescind upon that ground, and the fraud has either been admitted or proven, that the court has…

<p>An affidavit made before a justice of the peace, for the purpose of procuring a writ of habeas corpus from a circuit judge, will be, if false in' a-material matter, sufficient to uphold a conviction for perjury.</p> <p>J. W. being in custody, made affidavit, for the purpose of obtaining, a writ of habeas corpus, “ that he was forced into a trial late Saturday night, without giving him an opportunity to produce witnesses,”—held, that this statement in the affidavit, thongh false, was wholly immaterial, and could not be made the foundation of a conviction for perjury.</p> <p>A person in custody, is entitled, upon affidavit that he is illegally so detained, of right, to the writ of habeas corpus, and whatever else he may swear by way of inducement, though it be false, is not perjury.</p>

Error from the circuit court of Carroll county. The case is fully stated in the opinion of the court, 1. The contract was void under the statute of frauds. The averments of the bill of discovery, if confessed, would not furnish such evidence of a “ contract or sale of land,” as would satisfy the exigency of the statute. It does not allege- that there was a memorandum, in writing embracing all the terms of the contract.

This case was brought by appeal from the circuit court of Warren county. Benjamin Porter had pbtained before E. R. Warren, a justice •of the peace, judgment against Charles Deterly, for several sums and executions upon those.judgments had been levied upon a negro girl as the property of the defendant in the judgments. An issue to try the right of property to the negro levied on, was made before the justice of the peace and decided in favor of the plaintiff in the executions.

Error from the Madison circuit court. This was an action of assumpsit for lumber sold and delivered. Several points were assigned for error and argued at length by counsel, but as the opinion of the court turns upon one of them alone, we shall only notice those portions of the record and arguments that refer to that point. The plea filed in the case was non assumpsit.

<p>The act repealing the law authorizing the valuation of property taken under execution, containing a provision that the repeal shall not extend to any judgments previously rendered, will not embrace such judgments in its operation.</p>

<p>A contract must be governed by the law of the place where it is to be performed. This court cannot judicially know the law of a foreign State : that must be proven as a fact to the court.</p> <p>A note executed in Vicksburg, Mississippi, and payable in New Orleans, Louisiana, with ten per cent, interest, in the absence of all proof of the legal interest of Louisiana, will not be considered usurious.</p>

Error from the circuit court of Carroll county. The suit in’ this case was founded upon the following promissory note: “ $674,63. Jackson, Miss.

The bill of sale made by Gallaway to Cook, and the note given by Cook for the purchase money, are set out verbatim in the brief of the… Held: that if one sell goods, stipulating that the vendee shall furnish a surety, or re-deliver the goods, and that the vendor would not consider the goods as sold until the conditions should be fulfilled, the property on the goods will be in the vendor, as against creditors of the vendee, whose demands accrued before the delivery of the…

<p>The vendor of land, who takes no security for the. purchase money, has a Hen upon the land sold; and this lien, unless waived by some act of the party, continues as long as the land remains in the hands of the original purchaser.</p> <p>The vendor’s equitable Hen passes with the land, into the hands of a subvendee, who purchases with notice of such lien.</p> <p>The vendor’s equitable lien extends to the purchase money for the land sold, in the hands of the sub-vendee, as well as to the land itself, and to the same extent ; the purchase money cannot, therefore, be reached, when it has been either paid over, or when the second purchaser has become bound to pay to third persons before notice.</p>

<p>The purchase of property, hy an administrator, at his own sale, is viodable; but whether absolutely void or not, query ?</p> <p>The case of J. & J. Cable, v. Martin Bell, 1 How. 558, cited and confirmed.</p> <p>A sale by an administrator, unless for the purpose of paying debts, or to enable him to make distribution, is absolutely void.</p> <p>A private sale by an administrator, who had intermarried with the widow of his intestate, of property belonging to the estate, passes only the right the husband acquired by marriage, and does not affect the right of distributees.</p> <p>In such case, the vendee of the administrator, with, notice, would be compelled to yield the property purchased to the right of the distributees. But if a purchaser without notice, query ?</p> <p>A court of chancery has jurisdiction in such case to enforce the right of the distributees—the court of probate not being able to grant adequate relief from the character of the parties.</p> <p>Sed aliter: If the administrator were the only party.</p> <p>If the purchase by an administrator, at his own sale, be valid, the statutory lien would still exist on the property in his hands, to secure the purchase money, and could be enforced by those in interest entitled to the money.</p> <p>Nor would payment to the administrator, by his vendee, in case of a sale made by him, after his own purchase, necessarily discharge that lien; payment to the estate was the only thing that could have discharged that mortgage.</p> <p>Where a demurrer and answer are both filed to a bill in chancery, the answer overrules the demurrer.</p> <p>A bill framed with a two-fold aspect, either to procure a specific delivery of property, or to enfore a supposed lien upon it, is not demurrable for duplicity.</p>

This case comes, by appeal, from -the superior court of chancery. William Clark, administrator, de bonis non, of all and singular, &c. of Edwin Perry and Bridges A. Williams, deceased, filed his bill in August, 1840, in the superior court of chancery of this State, in which he averred; in substance, as follows ; That Perry & Williams (his intestates,) were partners in planting, in Hinds county, in this State; that Perry died first, and Williams subsequently.

The defendant’s counsel can perceive no ground for equitable relief in this cause. The complainant’s claim of otfsets was fairly presented in his defence to the action on his note, as appears by record, and was there fully adjudicated. He does not charge that the defendant retains the slave in his possession. There is no proof that the defendant has ever refused, or even that he was ever required to deliver up the mortgage, or conditional bill of sale.

Joseph B. Crockett and William C. Harper brought an action of assumpsit against Milton D. Ypung, Stephen Berry, William A. Gatewood, Wade H. Hollan, and the Mississippi & Alabama Railroad Company, to the December term, 1839, of the circuit court of Scott county, on the following promissory note, viz: “ $2091 55.

Error from the Madison circuit court. The following is a copy of the receipt given by the attorney of record; which' was the only subject of controversy before the court: “ Received of S. H. Clark & Co. an assignment of an execution, returnable to April, Mad.

Error from the circuit court of Neshoba county. The facts of the case fully appear in the arguments of counsel and the opinion of the court. Any person whose interest is affected by a judgment may prosecute a writ of error. Flournoy v. Smith et al., 3 Howard’s Reports, 62.

Error from the Warren circuit court. The defendants in error sued the plaintiff in error, as indorser upon the following note: “ $750 00.

This case was tried in the Warren circuit court, upon the following state of facts.

In error from the circuit court of Yalobusha county. William T. Willis, and William E. Conley the plaintiffs in error, brought an action of debt on a writing obligatory, for $13,356,-j^., against Thomas B. Ives, William S. Wyatt, Anthony Hatch, John K. Mowbray, George A. Thompson, John G. Hadnot, John W. McLemore, and Thomas D. Barbour, to the September term, 1839, of the circuit court of Yalobusha county. The declaration was in the usual form.

This cause is brought by writ of error from the probate court of Rankin county. The opinion of the court presents all the facts of the case.

Writ of error from the Warren circuit court. The declaration in this case commences as follows, viz: “ State of Mississippi, Warren County, “ Circuit Court, November Term, in the year 1839. “ Caleb Impson who sues for the use of the President, Directors and Company of the Commercial and Railroad Bank of Yicksburg, by attorney, complains of Francis Barfield, Jesse Barfield and John Barfield, the defendants in custody, &c. of a plea of trespass on the case upon promise's; for…

Error from the circuit court of Tippah county. Held: that the costs of the attachment suit, might be recovered as part of the damages for wrongfully 'suing out the attachment. It is clear, that no judgment for costs could be rendered against the surety in the attachment suit; his liability is collateral, and on his bond alone.

In error from the circuit court of Warren. The facts are given at length in the arguments of counsel and the 'opinion of the court.

In error from the Lowndes circuit court. The opinion of the court states the facts. In this case, the first forthcoming bond was quashed after the return term. Another execution issued on the original judgment, and a second forthcoming bond given, upon which an execution issued; which last execution and bond were quashed upon the ground that the judgment quashing the first bond was void, &c. This last decision is the error assigned.

In error from the circuit court of Madison county. The action was debt, founded on two bills, single, for $6750 each, executed on the 28th day of December, A. D. 1836, by the defendants in the court below, William M. Gwin, William M. Winbourn, John H. Walker and Mitchell Calhoon, payable to the defendant in error, (-by the description of administrator of the estate of Z. W. Banfield, deceased,) the first, due twelve, and the second, twenty-four months aftér date.

In error from the Hinds circuit court. The opinion of Judge Clayton states at length all the facts of the case. Several errors were assigned; amounting in substance, however, to these two : First, that the original verdict rendered in the case was erroneous, in not specifying the separate value of the property levied on, and in not finding whether or no the claimant’s interposition was made for delay.

Error from the Carroll circuit court. This was an action of assumpsit for work and labor done. The facts of the case are sufficiently disclosed in the brief of Mr. Thompson, and in the opinion of the court.

Error from the circuit court of Attala county. The opinion of the court contains a sufficient statement of the case. In this case the court quashed a forthcoming bond as to thd principal alone, and not as to his surety. The surety after-wards. moved the court to quash the execution that issued against him on the forfeited forthcoming bond, which the court overruled.

This case comes by writ of error, from the circuit court of Yalobusha county. Simmons & Harper, brought two suits before John A. M. Tyler, a justice of the peace in Yalobusha county, against Joseph J. Wright, and on the 28th day of December, 1839, recovered judgments in both cases. Wright appealed to a jury and gave bond as the statute, requires, with John Tabb and Levi Davis as sureties therein.

Error from the circuit court of the county of Neshoba. The facts are fully stated in the opinion of the court.

The defendapt in error, brought an action of assumpsit against the plaintiff in error, in the circuit court of Madison county, on the… Held: this was no bill of exchange, and gave judgment for the defendant. “ ’ Dawkes v. Lord DeLoraine, 2 Bla. R. 782. 3 Wils. 207, S. C. A draft was in these words, “ 8th January, 1T68, seven weeks after date, pay to Mrs. Dawkes £32 ITs, out of W. Steward’s money, as soon as you shall have received it, for your humble servant, DeLoraine.

Error from the Madison circuit court. Brewster, Solomon & Co. shed the plaintiff in error, upon the following instrument of writing: “… Held: that on an application for a new trial, “ the only question is, whether, under all the circumstances of the case, the verdict be or be not according to the justice of the case; for though the judge may have made some little slip in his directions to the jury, yet if justice be done by the verdict, the court ought not to interfere and…

This cause is brought by appeal from the judgment of the circuit court of Madison county. The action was in assumpsit upon a special contract, and was brought by William P. Perkins, the defendant in this court, against Jesse Meek, administrator of the estate of Joseph Meek, deceased. The writ issued 3d June, 1839, returnable to November term, 1839. The declaration contained two counts.

This case is brought by writ of error from the decree of Joseph W. Chalmers, then vice chancellor of the northern chancery-district.

<p>Where a purchaser has examined an estate which has patent defects that could be discovered by ordinary vigilance, he can have no relief on account of such defects.</p> <p>T. sold a tract of land to H., and represented that it contained only fifty or sixty untillable acres; whereas, about three hundred acres were unfit for cultivation —but, prior to the sale, H. examined all the land more than once. Held, that H. was not entitled to rescind the contract on the'groundof misrepresentation; sed aüter, if fraud had been employed to conceal the defects.</p> <p>Where the facts lie equally open to both vendor and vendee, with equal opportu- > nities of examination, and the vendee undertakes to examine for himself without relying on the statements of the vendor, it is no evidence of fraud in such case, that the vendor knows facts not known to the vendee and conceals them.; from him.</p> <p>A vendor about to sell a tract of land, pointed out to the vendee the probable western boundary, which had no marks to designate it, but was an “ open line,” and its definite position was not certainly known; after the purchase, upon a survey of the line, it was found further east than was represented, cutting off twenty-five acres that the vendee thought he was buying, without, however, diminishing the number of acres he contracted for, or their quality. Held it was not such misrepresentation as would entitle the vendee to cancel the contract.</p> <p>It would, perhaps, be otherwise, if the deception were gross.</p> <p>A court of equity will not cancel a contract o.n the ground of misrepresentation, unless that misrepresentation be in reference to some material thing unknown to the purchaser, either from not having examined, or for want of opportunity to be informed, or from entire confidence-reposed in the vendor; in either of which cases, his remedy must be pursued in good time after the injury is discovered.</p> <p>> misrepresentation about a mere matter of .judgment, is no ground for relief,</p> <p>¡> concealment of material facts known to the vendor and unknown to the vendee, which are calculated to influence the action or operate to the prejudice of the vendee, is fraudulent.</p> <p>A vendee, in the course of conversation with his vendor about the land sold, among other things, charged the vendor with having concealed a deed of trust that was an incumbrance on the property, who did not either admit or deny the charge. Held, that the vendor’s mere silence was not sufficient evidence of fraudulent concealment, to justify a rescission of the contract.</p> <p>The taking a bond for title, implies either that the title is imperfect and time is required to perfect it, or else that the vendor retains the title for his own security.</p> <p>Where a bond for title is given, and it is clear the vendor never can make a title, a court of chancery will relieve the vendee from the payment of the purchase money.</p> <p>Possession of real estate, is notice to creditors and purchasers of all the equities of the person in possession.</p> <p>The certificate of a justice of the peace, that the grantor in a deed “ acknowledged the foregoing instrument to be his act and deed,” is equivalent to the certificate required by the statute, that the grantor “ acknowledged that he signed, sealed and delivered the foregoing deedand is a sufficient acknowledgment.</p> <p>A misrepresentation on the part of a vendor that is unaccompanied with injury to the vendee, is not sufficient ground to rescind the contract of sale; the deceit must work damage.</p> <p>When it is doubtful upon the evidence whether or no there has been undue concealment of material facts by the vendor from the vendee, the court will not therefore set aside the contract of the parties; this should only be done on clear proof.</p>

This cause is brought by writ of error from the circuit court of Yazoo county. The action was in ejectment; there were two demises laid in the declaration; the first from Alexander H. Morton, and the second from Hiram G. Runnels, Isaac Caldwell, and William Ward, administrators of the estate of Benjamin Johnson, deceased.

The three cases enumerated above, are brought by appeal from the circuit court of Warren county. The plaintiffs respectively sued out writs of attachment from • the office of a justice of the peace of Warren county, against the defendant, as the owner and captain of the steamboat Manchester.

<p>At any term of the probate court, after the report of the commissioners, appointed to audit the claims against an estate, previously declared insolvent, has been received and approved, it is too late to open it.</p>

This case is brought by writ of error from Claiborne county. The declaration is in assumpsit upon a draft drawn by John Tomlinson upon Pierson & Co., and indorsed by W. V. Collins.

This case is brought by writ of error, from the Madison circuit court. The abstract of Mr. Smedes sufficiently states the case. The declaration in assumpsit, is filed under the law of 1837, authorizing joint suits. The writ, directed to the sheriff of Madison, is returned, “ not found.” The writ to Hinds, is executed upon the defendant, A. G. McNutt. The writ to Warren, is not returned at all. A. G. McNutt plead non assumpsit.

This cause is brought here by writ of error to the Rankin circuit court. Charles S. Woolfolk, suing for the Commercial Bank of Natchez, sued James Ray and William O. Short upon a note made by them, for the sum of eight hundred and forty dollars, payable to Charles S. Woolfolk, executor of William R. Wool-folk, deceased. The action was in assumpsit.

<p>It is no answer to the petition of a widow for dower, in her deceased husband’s, real estate, that she has disposed of his whole personal estate of greater value than the dower in the realty, she was seeking to obtain.</p> <p>A sale of the personal estate by a widow, or the removal by her of the slaves, cannot affect the rights, either of the administrator or of the creditors.</p> <p>The probate court has full jurisdiction in regard to the allotment of dower.</p> <p>It is sufficient to entitle a widow to dower, that her husband was seized during coverture, and that she has never conveyed away, or aliened her right.</p> <p>The probate court has no jurisdiction to enter into an inquiry, whether a widow applying for dower, in the realty, has tortiously appropriated property of her husband, and on that account is not entitled to dower.</p>

<p>A party pleading a set-off, must prove that he held and owned it at the time he received notice of the assignment of the claim against which he seeks to use it.</p>

<p>Where a body purporting to be corporate, institutes a suit, and the defendants plead non 'assumpsit, verified by an aifidavit, denying the corporate character of the plaintiff, the burden of proving its corporate existence, devolves upon the plaintiff.</p> <p>By statute in this State, the plaintiff need not prove the “ description of character” set forth in the declaration, unless it is denied by plea, attested by oath ; the plea of non assumpsit, so attested, is not changed in character, but merely removes the exemption of the statute.</p> <p>Where a demurrer to a plea is overruled, leave to amend and file replication should be granted.</p> <p>The power of granting permission to amend pleadings is in the discretion of the court below exclusively, and however that permission may be exercised, it cannot be controlled by a superior tribunal.</p>

In error from the Holmes circuit court. John M. Brown and Morgan L. Fitch suing for the use of Churchill Southmayd & Co., had on the 24th day of April, 1838, in the circuit court of Holmes county, obtained a judgment against Samuel Swisher for one thousand and forty-two dollars and eight cents; upon this judgment an execution had issued and been returned “nulla bona and on the sixth day of January, 1841, the agent of the plaintiff made an affidavit that the defendant in the…

At the March term, 1842, of the probate court of Yazoo county, Asahel W. Washburn, and Leonora his wife, filed their petition, setting forth that, in the year 1831, John Martin died intestate, in that county, possessed of a large amount of personal property, consisting of negroes principally.

<p>It is error to permit a sheriff to amend his return after the return term, without notice to the adverse party.</p> <p>The following words are a sufficient return of service in an action of ejectment) viz: “ executed-the within declaration and notice upon the within named A. B. '& C. D. April 25th, 1843.”</p> <p>The common law rule requiring an affidavit oí the service of the declaration and notice in ejectment, is altered by our statute; the affidavit is not necessary in this State.</p> <p>In an act of ejectment, it is error to enter a judgment by default, against the tenants who neglect to appear and make themselves defendants; it should be rendered against the casual ejector.</p>

This canse comes into this court by writ of error to the Madison circuit court. We shall only notice such parts of the record as are material to the proper understanding of the opinion of the court.

This cause is brought by writ of error fromjhe Adams cuit court.

<p>A writ of error to a probate coprt, is demandable as a writ of right, out of this court; or it may be obtained ibom the clerk of the probate court by virtue of the act of May 13th, 1837.</p> <p>When a case is dismissed by this court for want of jurisdiction, no judgment for costs can be given; the party who brings the case into court, would be liable to the officers, in another form, for their fees and costs.</p>

<p>An appeal from the decree of the superior court of chancery.</p> <p>Zecharie & Kerr exhibited their bill before the chancellor, against William H. Bowers; all being non-residents of the State. The complainants averred that on the fourth of March, A. D. 1841, they had recovered a judgment against the defendant in the commercial court of New Orleans, in the State of Louisiania, for thirty-four hundred and thirteen dollars and thirty-two cents, besides interest and cost of suit. A copy of the record of judgment was made an exhibit to the bill. They averred that the defendant owned several tracts of land which they specifically described, in this State, and they prayed that the lands might be sold to discharge their debt, and for other relief.</p> <p>An order of publication was granted, and proof of publication filed, andyiro confesso taken, at the January term, 1842.</p> <p>On the 28th of February, A. D. 1842, the cause was submitted for final hearing, when the chancellor decreed that the pro confesso be set aside and the bill dismissed.</p> <p>From which decree this appeal was prosecuted.</p> <p>In this cause a bill was filed by complainants, who are citizens of Louisiana, against the defendant, who is a citizen of Virginia, to enforce the payment of a judgment rendered in the commercial court of New Orleans.</p> <p>Although the judgment thus 'rendered does not possess the force and efficacy of a judgment rendered in this State, so as to make it a subsisting lien upon defendant’s property; yet it is a judicial ascertainment of complainant’s rights, which this court should make available, in an attempt to collect the sum for which it was rendered.</p> <p>There is no remedy at law by which complainants’ right may be enforced. To sue Bowers and obtain judgment against him in Virginia, would place them in no better condition than they now occupy. For a judgment in Louisiana, has the same force in this State, as would a judgment in Virginia. He cannot be sued in a court of law in this State in the ordinary form, because no process can be executed upon him. Nor does the attachment law afford any remedy, all the parties being nonresidents. H. & H. Dig. 550, § 16. -</p> <p>Complainants therefore have no legal remedy for an unquestioned right. Thus circumstanced they appeal to a court of equity for a remedy commensurate with their rights.</p> <p>When the principles by which the ordinary courts are guided give a right, but the powers of those courts are insufficient to give a complaint its remedy, equity will take jurisdiction and give relief. /</p> <p>Thus we find it laid down that equity has jurisdiction in cases of rights recognized and protected by the municipal jurisprudence, when a plain, adequate, and complete remedy cannot be had in the courts of common law. Story’s Com. on Eq. Jur. 32. Cooper’s Eq. PL 120. Mit. Eq. PL 112. 10 Johns. Rep. 587—95. 17 Johns. Rep. 384. Much more should equity take jurisdiction and grant relief where no remedy can be had in. the courts of common law.</p> <p>The supreme court of Virginia, in a case not altogether unlike this, dismissed the complainant’s bill; but upon the ground that the defendant had no property in that State. 4 Hen. <fc Munf. Rep. 413-14. The inevitable .deduction from the opinion of the court is, that had the defendant owned property within the State, the bill would have been sustained, and the relief prayed for granted. In this case the defendant does own property in this State,, and the bill should therefore be sustained, and the relief asked for given.</p> <p>Chancellor Walworth, in a case where the facts were almost identical with those in the case at bar, held that equity had jurisdiction. 3 Paige’s Rep. 207-8.</p> <p>It is therefore respectfully insisted that the chancellor’s decree, dismissing the bill of complainants is erroneous, and should be reversed.</p>

A motion was made in this court to dismiss this appeal from the decision of the probate court of Madison county, for want of the appeal bond required by the statute. The statute authorizing appeals from the probate court, requires, in all cases, a bond with security, approved by the court. See How. & Hutch, p. 473, § 20. This is necessary in order to give this court jurisdiction. See 3 How. 75, Porter v. Ch'isham, and cases recently decided.

This cause is brought by writ of error into this court from the circuit court of Kemper county. Giles F. Rives recovered judgment in the circuit court of Kemper county against John McWootan and others, for eleven hundred and thirteen dollars seventy-seven cents; upon which a writ of fieri facias issued and was levied upon three negroes.

<p>Where the service of a writ is not personal, the terms of the statute must be exactly complied with.</p> <p>Therefore the following return held insufficient, to wit: “ Executed by leaving a copy at her residence, the said Eskridge not being at home, nor any white person over the age of sixteen years, being at the said residence.”</p>

<p>By the statute of this State, (How & Hutch. 559, § 39,) a judgment creditor may garnishee the judgment debtor of his debtor.</p> <p>It is no objection to the writ of garnishment, that the judgment debtor may be subjected to two executions for the same cause : he has his remedy.</p>

This cause comes into this court by writ of error to the Yazoo cirbuit court. The defendant in error sued the plaintiff in error in an action of trover for slaves.

This cause is brought to this court by appeal from the chancery side of the Holmes circuit court. The amount in controversy was under five hundred dollars ; and the circuit court had, therefore, concurrent jurisdiction with the superior court of chancery. The brief of Mr. Brooke exhibits a correct abstract of the pleadings.

<p>An administrator is entitled to commissions upon the amount of sales of real estate, made by him under an order of the probate court; the allowance should be made to extend to the whole estate administered.</p>

<p>S. as surviving partner of the firm of S. & S. obtained a judgment against C. upon which no execution was issued within a year and a day ; a scire facias to revive, was afterwards issued, and no further step taken for nearly two years, when F. as administrator of the deceased partner, without suggesting the plaintiff’s death, caused himself to be admitted as plaintiff, took a judgment by default on the scire facias, and had an execution issued in his name—held, that F. was a mere intruder, and the judgment in his favor clearly erroneous.</p>

In error, to the Copiah circuit court. On the 24th day of May, A. D. 1841, a writ of fieri facias was issued from the circuit court of Copiah county, directed to the sheriff of the county, Thomas Holliday, against William C. Hieklin, and Joseph G. Anderson, in favor of Samuel J. Morehead, use of Timothy T. Cooper, and came into the hands of the sheriff on the 1st day of June, A. D. 1841, and was, on the 18th day of September, 1841, levied oil one sulkey and harness, the…

This cause is brought by appeal from the circuit court of Holmes county. Francis Durrett and Shadrach Barnes, traders in partnership under the style of Durrett & Barnes, sued Samuel Sprawles, John M. Brown, Obadiah Fatheree, and Hiram Davidson, in an action of assumpsit upon a promissory note, to the October term, 1837-, of the circuit court for Holmes county.

<p>If, to an action on a penal bond with a condition, to recover damages for a breach of the condition, the defendants plead general performance, and the plea'be replied to and issue joined—the burden of proof is on the plaintiff, and to entitle him.to recover, he must prove the breach of the condition as alledged in his declaration.</p> <p>But if the defendants plead a special performance the rule is otherwise.</p>

In error from the Holmes circuit court. The Commercial Bank, of Manchester, sued the defendants in an action of assumpsit, upon a promissory… Held: that the whole was evidence for the prisoner, but that the jury might disbelieve any part.” 4 Carr. & Payne, 221, cited in the case above referred to. Now in the case at bar, the admission of the plaintiffs below was the reception of forty bales of cotton, which, at the same time is stated, was sold in Liverpool for so much.

This cause was tried in the Warren circuit court. The Commercial and Railroad Bank, suing for the use of William W. Frazier, Thomas E. Robins and William S. Bodley, trustees thereof, sued George F. A. Atherton upon a promissory note made by him for forty thousand dollars, payable to the bank. Atherton plead non assumpsit, payment, and set-off.

<p>The holder of a protested note, need not put the notice of protest in the post office, on the same day the note is protested, but he must on the next day in time for a mail of that day, unless it leaves atan unreasonably early hour. .</p> <p>When the mail leaves a post office at sunrise, on the day succeeding the protest of the note, the notice need not be deposited in time to go out by that mail.</p>

<p>The execution of an appeal bondby the appellant is a condition precedent to the jurisdiction of the appellate court.</p> <p>An appeal bond executed by a third person, is not the bond of the appellant and not sufficient to sustain an appeal.</p> <p>Sed aliter, with reference to writs of error, there is no condition annexed to their emanation.</p>

In error from the circuit court of Adams county. The brief of Messrs. Montgomery and Boyd states the substance of the record. This was an action of debt on a bill single for $1200. The declaration was in the common form. No plea was filed, but the case was submitted to a jury and a verdict found for the plaintiff below.

This cause is brought into this court by writ of error to the Harrison circuit'court. The defendant in error sued out of the above named circuit court a writ of attachment; it is deemed unnecessary to notice any other parts of the record except the affidavit and bond given as a foundation for the writ of attachment, as the court based its decision upon a defect in them apparent upon their face.

This cause come into this court by writ- of error to the Hinds circuit court.